It is through crisis and crucible that individuals or institutions often find a new resourcefulness. It seems they continue with the old ways and means of doing things until it is evident that they can no longer go any further without change to reach the goals they set for themselves. It is only then that the realization sets in that the backdrop of prior accomplishments was something that may have been taken for granted.
Consider, for a moment, the acquisition of right-of-way for transportation projects throughout the United States. Did it occur to anyone in the practice of eminent domain that the once steady stream of projects, matching the infrastructure demands of a continually growing population, would simply dry up? Yet, for many of us practicing in our respective state jurisdictions, that is what happened for a period of at least two years or more.
The downturn in the economy challenged the old ways and means of doing things. Like a tsunami making its landfall in late 2008, the downturn resulted in changes that were not all together perceptible until the flood waters began to recede. In 2009 and 2010, it seemed that both public and private sectors were occupied with completing work on projects that was already funded. In 2011 and 2012, however, the effects of almost a complete shut-down of federal dollars became far more apparent. While 2013 may have evidenced some degree of economic recovery and steady increase in new transportation projects, the flood waters of economic downturn are still receding. Federal funding, in particular, is still being rerouted from transportation projects to other programs intended to stimulate economic recovery. Because of this, transportation agencies at the state level continue to rethink their program and funding interests.
Beyond the early hype associated with “shovel ready” projects, the challenge of securing public dollars for right-of-way projects is requiring government to be more resourceful. Transportation agencies are pursuing alternatives to traditional funding mechanisms. With implementation of new funding mechanisms, the old ways and means of project development and right-of-way acquisition may no longer proceed in a manner to which many of us in eminent domain law practice are accustomed. It is an evolving trend, a shift in paradigms.
As an example, in Florida, this apparent trend was heralded as far back as in August, 2011, when the Secretary of the Florida Department of Transportation, Ananth Prasad, introduced “Florida’s Transportation Vision Plan for the 21st Century.” With the recognition that federal dollars would be scarce and a diminishing state gas tax would not being able to sustain needed infrastructure improvement, toll managed lanes (“MLs”) have been designated as one of Florida’s new funding mechanisms. The change associated with new funding mechanisms is as real as the new terminology which has recently been added to our transportation lexicon in Florida:
“SUNPASS” “ALL-ELECTRONIC-TOLLING” “TOLL-BY-PLATE” and “OPEN TOLLING.”
Along with these new tolls, the Florida Department of Transportation has also been looking to attract the private sector in “Public Private Partnerships” (“P3’s”) with far greater zeal for new or expanded transportation facilities. With or without private sector partners, managed toll lanes on Florida’s interstate highways has become the first choice for financing all new capacity projects in Florida.
As transportation agencies change their funding mechanisms, the old ways and means used to accomplish project development and acquisition of right-of-way are undergoing change. Because of this, eminent domain cases on the immediate horizon may not meet the expected pattern of project development and right-of-way acquisition. While the principle of stare decisis provides weight to legal precedence, the predicate facts of former case decisions are not the same as what trial courts are being confronted with today in regards to these new methods or techniques. In essence, new wine may not pour so easily into old wineskins. Because of the political culture associated with economic recovery, the premium on government expediency and cost-savings will be at an all-time high. Yet, it is at this same time that the constitutional protections afforded to the civil right of private property ownership need to endure and be safeguarded from unconstitutional compromise.
Constitutional Concerns with Design/Build and Advanced Acquisitions
In providing some legal commentary particularly as to the practical constitutional concerns that are arising alongside the more frequent occurrence of design-build and advanced acquisition projects in Florida. While relying on citation to Florida cases that address the degree of certainty with which government proceeds in quick-taking cases concerning the use of the property taken, or lack thereof, the evolving trend or paradigm shift occurring in Florida likely parallels what is happening in other state jurisdictions.
I. Design-Bid-Build Process
Over the past several decades, most of the transportation projects undertaken by the Florida Department of Transportation have proceeded in accordance with a two-bid process for procurement of contracts. Contracts for the design and construction of the road were awarded separately in a routine sequence known as the “Design-Bid-Build Process.” See, §337.11(3), Fla. Stat. Under this sequence, the bids for construction could not be advertised until all necessary rights-of-way and easements were vested in the state. See, §337.11(3)(c), Fla. Stat. This explains why there is pressure on the condemnor to timely acquire all of the parcels needed for a project under quick takings.
Under the traditional two-bid process, the first bid was between design engineers to design the project. After definite construction plans was done and approved, the right-of-way needed to build the project was then acquired. If the acquisition was by exercise of the power of eminent domain, due process of law allowed judicial review of the public purpose of the project and of the reasonable necessity for taking a particular property to construct it. Only then was there a second bid between construction contractors for the contract to build the project. A diagram of the sequence in the two-bid approach is as follows: (bid -> design -> acquire property -> bid construction -> build project).
Characteristic of this two-bid process, little time elapsed between Project Design and Engineering (“PD&E”), Right-of-Way Acquisition, and Construction. While construction plans were not necessarily 100% complete at the order of taking stage of the proceedings, construction plans were almost always 100% complete at the valuation stage of the proceedings. In most cases, the Florida Department of Transportation’s project construction was underway or completed by the time of the jury trial. Although there were exceptions, most cases fit into this routine sequence or typical pattern.
II. A Change in the Factual Predicate
Although experienced eminent domain practitioners in Florida are generally familiar with Florida law applicable to defenses against the taking and the admissibility of evidence concerning the use of the property taken at trial when estimating severance damages, the paradigm will shift as the factual predicate upon which prior caselaw is founded is now undergoing significant change.
This leads to some interesting questions:
As funding for transportation projects has become “catch as catch can” government agencies such as the Florida Department of Transportation have been inclined to seek funding in whatever form available. More and more, in Florida, we are seeing separate funding for PD&E, Right-of-Way Acquisition, and Construction. The gaps in time between these different project phases is increasing. The Florida Department of Transportation is no longer in a rush or hurry to build a road; instead, the Department is looking for money to construct it and often receives it in such a manner as to stop and start the overall progress of a given project.
These are questions not just for those eminent domain practitioners in Florida, but in every state jurisdiction as the paradigms in project development and right-of-way acquisition are shifting.
A. Design/Build Process
Although the Florida Department of Transportation has been authorized to use the “Design/Build Process” on buildings, major bridges, limited access facilities, and rail corridor projects for some time, the number of Design/Build projects is on the rise. §337.11(7), Fla. Stat. The Department’s authorization to use of Design/Build has been expanded to all project types if these projects are included as part of an innovative practices package which has an annual contracting monetary cap of $120 million. §337.025, Fla. Stat. In addition to the Florida Department of Transportation, under Florida law, local governments are also authorized to use Design/Build. §287.055(2) and (9), Fla. Stat.
The Design/Build contract is granted on a competitive bidding process for the design as well as the construction in one contract. See, attached FDOT Design/Build Procurement and Administration, Section 1 & 2, pp. 1-8, effective December 5, 2011. The winning bid is judged on a rating system including the quality and cost effectiveness of the completed design submitted by each bidder. Potential private concessionaires will not invest the large expense of designing the project, completing construction plans, and estimating the time and cost of construction in order to bid competitively for a Design/Build project unless they are assured of having the necessary property to carry out the contract they propose. The whole elaborate one-bid process would be disrupted, if the needed property were not available as it was bid. Consequently, the innovative one-bid Design/Build contract procurement process changes the sequence of property acquisition to occur before design. A diagram of the one-bid process is as follows: (acquire property -> bid design and construction -> build project).
Instead of the Department procuring professional services through an “Invitation to Bid” under a traditional PD&E, Design/Build favors procuring professional services through a “Request for Proposal.” §287.055, Fla. Stat. In such manner, cost-saving design and selection of the method of construction are incentivized by making it subject to competition. Again, and to provide emphasis, the statutory requirement for an “Invitation to Bid” under the traditional “Design-Bid-Build” procurement process is that no advertisement of bids may be published until all necessary rights-of-way and easements for construction of a project have already been acquired. In sharp contrast, the statutory requirement for an “Request for Proposal” under Design/Build is that no construction activities may begin on any portion of a project until all necessary rights-of-way and easements for construction of a project have already been acquired. Compare, §337.11(3)(c), Fla. Stat., with §337.11(7)(a), Fla. Stat.
Under Design/Build, the design of the roadway remains far more open-ended throughout right-of-way acquisition including eminent domain proceedings. The length of time between right-of-way acquisition and project development components of design and construction may be staggered. Given this, the timelines between project development and right-of-way acquisition do not necessarily align. The result, therefore, is that the plans and specifications for the project not only being incomplete at the order of taking, but also during the later valuation stage of the eminent domain proceedings.
Thus so, the level of uncertainty associated with the use of the property taken will be far more extensive at both the time of taking and valuation than has been the case under the routine sequence or typical pattern to which most eminent domain practitioners in Florida are accustomed.
On balance, condemnor and condemnee can expect increased uncertainty with respect to the following:
Such uncertainty not only increases the likely variance between condemnor and condemnee in their respective estimates of full compensation, but it may also result in creating conflict between private property interests among owners of the property to be acquired, such as between landlord and tenant. Complications may also result if there are no plans or specifications for the use of the property taken at the time the Department commences presuit negotiations required of §73.015, Fla. Stat.
B. Advanced Acquisition
The Florida Department of Transportation, counties, and municipalities in Florida are also authorized to use advanced acquisition to further a “transportation corridor” pursuant to §337.273, Fla. Stat. See also, §120.01(1)(b), Fla. Stat. and §166.401(2), Fla. Stat. Further authorization is provided in relation to the “Toll Facilities Revolving Trust Fund” pursuant to §338.251, Fla. Stat.
The origin of advanced acquisition was initially directed to the protection of private property rights. Under the Federal Highway Administration, the term “advanced acquisition” was directed to hardship situations where an aggrieved owner petitions for an acquisition to escape condemnation blight.
The intent of the Florida Legislature in regards to advanced acquisition expressed in §337.273, Fla. Stat., is clearly more expansive than originally conceived by the Federal Highway Administration. The Legislative intent is not to enable governmental agencies to land bank, freeze or arrest development. Further, the Legislative intent is not to provide a financing alternative to bridge the lack of funding for road construction. Rather, the Legislative intent is to encourage the development of effective transportation systems which both alleviate traffic congestion and coordinate with land use planning in such manner so as to assist future growth. See, §337.273, Fla. Stat.
When consistent with the Legislative intent expressed in §337.273, Fla. Stat., advanced acquisition is authorized to proceed without the immediate availability of construction funds or applicable permits to show public purpose or necessity. See, §337.273(4) and (5), Fla. Stat. Public purpose need only be shown through use of typical design, construction plans or profiles, or one or more of the following: anticipated trends in such areas as demographic and other growth patterns, land use and development patterns, traffic projections, expected utility needs, or future anticipated mass-transit requirements. Id.
Under present economic circumstances, a question arises as to whether a governmental agency is utilizing advance acquisition to assist planning for future growth or is seeking alternative funding because government only has enough money for right-of-way acquisition, but not for construction. While proceeding in such manner may bridge the immediate lack of public financing, it may result in significant damages to private owners whose properties are acquired long before a project is constructed.
In an urbanized setting or area in transition from rural to urban uses, advanced acquisition of right-of-way may impede future growth or even arrest development in much the same fashion as the former §337.241, Fla. Stat., (map of reservation) addressed in Joint Ventures, Inc. v. DOT, 563 So. 2d 622 (Fla. 1990) and Tampa Hillsborough County Expressway Authority v. AGWS Corporation, 640 So. 2d 54 (Fla. 1994). The difference, however, is that there is no question in advanced acquisition that private property is being taken; it is not a question of condemnation blight or inverse condemnation, but rather a question as to the extent of economic damages due to delay. The occurrence of an advanced acquisition when construction funds are not available within the near foreseeable future may suspend the private owner’s use of the remainder in tangible ways unlike instances where, in a rural setting, the future road precedes future growth.
III. Applicable Law – Defense Against the Taking
As may be true in other jurisdictions, Florida law concerning the required proof of public purpose and necessity at the order of taking stage of the proceeding is fairly well-established. So, too, Florida has case precedent that sets forth the applicable valuation standards to be considered when the condemnor’s plans are not certain. However, the law of past cases which applied to the traditional methods of right-of-way acquisition does not necessarily address the facts associated with the new methods of right-of-way acquisition. In reviewing the condemnor’s authority to take, courts need to be advised that the game has changed.
Condemnors are quick to argue that the law in most jurisdictions is that a condemning authority need not have completed plans or specifications as proof of necessity at a hearing on order of taking. In Florida, the case most often cited for such precedent is Central & Southern Florida Flood Control Dist. v. Wye River Farms, Inc., 297 So. 2d 323 (Fla. 4th DCA 1974). These cases also typically provide that the condemnor may update or amend the plans or specifications during the eminent domain proceedings, if desiring to bind itself to a use of the property taken. See, also, Belvedere Dev. Corp. v. Div. of Admin., State Dep’t of Transp., 479 So. 2d 649 (Fla. 1985).
In addition to addressing the extent to which the condemnor is required to present plans or specifications upon application for quick taking, cases like Wye River Farms, Inc., also establish the valuation standards which apply in the event that the condemnor is not willing to bind itself or make certain the use of the property taken. For example, in Florida, property owners may assume “the worst case scenario” in regards to the use of the property taken and the resulting severance damages to the remainder when establishing the measure of full compensation. See, Central & Southern Florida Flood Control Dist. v. Wye River Farms, Inc., 297 So. 2d 323 (Fla. 4th DCA 1974); Belvedere Dev. Corp. v. Div. of Admin., State Dep’t of Transp., 479 So. 2d 649 (Fla. 1985). Consistent with the foregoing, Florida law holds that mere promises or mention with regard to the government’s benevolence are inadmissible. Id. In summary, if not willing to bind itself, the condemnor may not offer evidence that the worst case will not happen. Id.
It should be noted that Florida precedent also holds to these same principles when confronting vagueness, ambiguity, or uncertainty with respect to how the condemnor defines easement rights to be acquired. Trailer Ranch, Inc. v. Pompano Beach, 500 So. 2d 503 (Fla. 1986); Alachua County v. Wagner, 581 So. 2d 948 (Fla. 1st DCA 1991); Brevard County v. A. Duda & Sons, Inc., 742 So. 2d 476 (Fla. 5th DCA 1999); Cordones v. Brevard County, 781 So. 2d 519 (Fla. 4th DCA 2001). Uncertainty, therefore, may be associated with plans and specifications that are not fully complete or an easement that is not expressly defined in detail.
Given that property owners enjoy a level of protection against uncertainty by virtue of the valuation standards applied when the condemnor will not bind itself, condemnor’s counsel typically argue that that an owner’s challenge to reasonable necessity upon a quick taking is not a proper ground from which to defeat a taking. Rather, the condemnor’s counsel usually urge the Court that the matter is properly addressed during the later valuation stage of the eminent domain proceedings. What is missing from this synthesis, however, is the extent to which the level of uncertainty has risen between the traditional Design-Bid-Build Process and the new methods of right-of-way acquisition under Design/Build or Advanced Acquisition.
Under these new methods, the level of uncertainty may, in fact, be tremendous and nothing close to what was occurring under the facts of past precedent cases. In certain instances, the paradigm has clearly shifted. Essentially, the backdrop behind the stage is not the same as it once was under former caselaw. In considering defenses for the property owner under this evolving trend, the condemnee’s legal counsel needs to return to constitutional foundations. While there are differences, it is remarkable how the law of respective jurisdictions mirror each other in regards to the question of reasonable necessity.
The following observations have proven helpful in defending against takings involving the Design/Build Process:
♦ Ultimately, necessity for the exercise of the eminent domain power is a judicial question for the courts. See, Lakeland v. Bunch, 293 So. 2d 66 (Fla. 1974). A hearing on order of taking is not simply ministerial wherein the court rubber stamps what the condemning authority is doing with regard to its acquisition of right-of-way. See, Valleybrook Developers, Inc. v. Gulf Power Co., 272 So. 2d 167 (Fla. 1st DCA 1973).
♦ In Florida, careful distinction needs to be made between cases which address the condemnor’s (a) selection of route from cases concerning (b) the legal quantity or quality of estate taken or (c) issues of design. The cases which address the condemnor’s selection of route typically find that, once the condemnor meets its initial burden of proof with regard to public purpose and necessity, the burden shifts to the property owner to show bad faith, illegality, or abuse of discretion. In rare instances, abuse of discretion may be shown when the condemning authority fails to consider any of five enumerated criteria in Florida caselaw. See, Hillsborough County v. Sapp, 280 So. 2d 443 (Fla. 1973); Fla. Power Corp. v. Gulf Ridge Council, 385 So. 2d 1155 (Fla. 2d DCA 1980); Pasco County v. Franzel, 569 So. 2d 877 (Fla. 2d DCA 1990); Rawls v. Leon County, 974 So. 2d 543 (Fla. 1st DCA 2008). These cases emphasize that the condemnor need only put on some evidence of public purpose and necessity to show meet its initial burden, that it is only a reasonable necessity that need be shown, not absolute. However, when considering the uncertainty which accompanies Design/Build or Advanced Acquisition, the facts associated with the condemnor’s selection of route are not similar to the facts surrounding the condemnor’s use of these new methods of project development or right-of-way acquisition. These cases are distinguishable.
♦ By contrast, the cases that address the legal quantity or quality of estate taken or issues of design have facts that are similar to what is happening when the condemnor is using one of these new ways and means of right-of-way acquisition like Design/Build or Advanced Acquisition. Florida law allows an owner to assert that the quantity and quality of estate taken is not sufficient to serve the particular public use asserted by the condemning authority for the property acquired. Canal Authority v. Miller, 243 So. 2d 131 (Fla. 1970). In Miller, the question of whether the condemnor was justified in taking a fee simple interest was framed as a question of whether the condemning authority met its initial burden of proof as to reasonable necessity. The condemnor may not take a greater (or lessor), estate than what is reasonably necessary to serve the public use asserted. With regard to Design/Build or Advanced Acquisition takings, it may be that the particular public use is not sufficiently defined so as to allow the judicial branch to review reasonable necessity in regards to determining whether too great or too little of a legal estate is being acquired.
♦ As well, cases that address issues of design relating to public infrastructure are also subject to judicial review under the defense that the quantity or quality of estate is not sufficient or reasonably necessary. Knappen v. Division of Administration, State Dep’t of Transp., 352 So. 2d 885 (Fla. 2d DCA 1977); Klatt v. Florida Power & Light Co., 414 So. 2d 213 (Fla. 4th DCA 1982). In these cases, the Court addresses the specific design concerns where it was evident that the condemning authority lacked competent evidence of reasonable necessity. In Knappen, for instance, other phases of a project required less right-of-way width than what was sought to be acquired from the particular property owner. In Klatt, as another example, an electric power company sought to take an extra 20 feet of right-of-way on the presumption that the county may widen the adjacent roadway at some undetermined time in the future. Again, without competent evidence as to the particular use of the property taken, these takings were denied.
♦ Another important tact in challenging the authority to take, with regard to Design/Build in particular, is that the practical implication of having both design and construction subject to competitive bid following the condemnor’s advertising its request for proposals, is that third parties ultimately are left to decide the design of the roadway or the method of construction to be utilized. Thus, reasonable necessity is ultimately in the hands of a private third party and not the government. Much to the contrary, Florida law holds that the determination as to the necessity for the taking, particularly as to the quantity and quality of estate, is a power that cannot be delegated to a third party. Chalmers v. Florida Department of Transportation, 245 So. 2d 285 (Fla. 4th DCA 1971). In a practical sense, the sequence of the Design/Build Process may hold the owner hostage following a quick-taking because the design of the project will not be determined until the competitive bid process is concluded. Instead of having trouble with the government, the property owner may have significantly more trouble with the private third parties who bid on the project. In these instances, when it comes to the lack of specificity in the construction plans, no one has an answer until the Design/Build contract is awarded which may be years after the quick-taking.
♦ It is essential that condemnee’s legal counsel identify for the Court the key elements which disadvantage the property owner. If not successful in outright defeating the taking, the Court may be persuaded to take equitable action in regards to extended possession or the amount of the initial deposit. Practical difficulties caused by the uncertainties associated with Design/Build or Advanced Acquisition should be considered. Often, the condemnor does not need physical possession of the property until the commencement of construction. The simple corollary is that the property owner need not surrender possession until the commencement of construction. As well, it is frequently the case that any cost to cure assumed by the condemnor to mitigate damages does not assume “the worst case scenario.” This may be easily shown when exposing that an appraiser’s assumption concerning the use of the property taken is not actually something that the condemnor will bind itself to. Testimony wherein the condemnor’s experts are not able to commit to design features of the project or method of construction is persuasive to the Court on these various points.
By way of final commentary and overview, when property is to be acquired before the project is designed, as with Design/Build, the quantity as well as the quality of the property sought to be taken are necessarily a matter of conjecture based on right-of-way maps and/or incomplete construction plans drawn to provide a choice of design and construction methods. By doing so, the bidders may then be made liable for their own decisions relating to design and construction methods. Thus, in so far as the bidders are concerned, too little property might stifle creativity and frustrate the desire to pass liability on to the private concessionaires. It also follows that acquiring too much property is less of a worry because §337.25, Fla. Stat., allows any excess to be disposed of by sale to third parties in the real estate market.
There is a dilemma when acquisition occurs before design, as is the case with Design/Build, because “conceivable necessity” based on conjecture is not the same as “reasonable necessity” based on fact in eminent domain proceedings.
“Conceivable necessity” invites a variety of challenges to the exercise of the sovereign’s power of eminent domain in the Design/Build contract procurement practice depending on the pleadings and facts of the particular case.
As they should, government officials have zeal to accomplish their public infrastructure project. No public administrator wants to be thought responsible for delaying or unraveling years of long preparations and procedures of the project at the time of acquisition of the right-of-way to reconsider a particular situation on one property. The public/private partnerships which finance, design, build, and operate new toll facilities are immense multi-national, multi-billion dollar enterprises. The urgency, momentum, enormity, and importance of the project interpose expediency against administrative reconsideration in individual cases and burden judicial review as well.
At an earlier time, the Florida Supreme Court dealt with the same burden when “limited access” highways were started in Florida in the late 1950’s. The concurring opinion of Justice Terrell in an often cited Florida case, Jacksonville Expressway Authority v Dupree.108 So.2nd 289 (Fla. 1959), focused on the paramount reason for judicial review in this kind of situation stating:
The fact that the sovereign is now engaged in great public enterprises necessitating the acquisition of large amounts of private property at greatly increasing costs is no reason to depart from the firmly established principle that under our system the rights of the individual are matters of the greatest concern for the courts. The powerful government can usually take care of itself; when the court ceases to protect the individual within, of course, constitutional and statutory limitations – such individual rights will be rapidly swallowed up and disappear in the maw of the sovereign. If these immense acquisitions of lands point to anything, it is to the continuing necessity of the courts of seeing to it that, in the process of improving the general welfare, individual rights are not completely destroyed.”
IV. Applicable Law – Valuation
As has been already mentioned, in Florida, property owners may assume “the worst case scenario” in regards to the use of the property taken and the resulting severance damages to the remainder when establishing the measure of full compensation. See, Central & Southern Florida Flood Control Dist. v. Wye River Farms, Inc., 297 So. 2d 323 (Fla. 4th DCA 1974); Belvedere Dev. Corp. v. Div. of Admin., State Dep’t of Transp., 479 So. 2d 649 (Fla. 1985); Trailer Ranch, Inc. v. Pompano Beach, 500 So. 2d 503 (Fla. 1986); Alachua County v. Wagner, 581 So. 2d 948 (Fla. 1st DCA 1991); Brevard County v. A. Duda & Sons, Inc., 742 So. 2d 476 (Fla. 5th DCA 1999); Cordones v. Brevard County, 781 So. 2d 519 (Fla. 4th DCA 2001).
Under Design/Build, it may be that the condemnor’s plans and specifications may still be uncertain even during the trial. Where under traditional methods of project development or right-of-way acquisition, it was more often the case that, by the time of the valuation trial, the condemnor’s plans were complete or the condemnor would seek the admission of evidence from a representative of the condemnor with the authority to bind. Under the new paradigm, the condemnor is reluctant to bind itself to the particulars associated with design or methods of construction because Design/Build is intended to have design/build firms responding to its Request for Proposal compete on this very basis. Thus, in preparation for a valuation trial, it is incumbent on condemnee’s legal cousel more than ever to confirm what the condemnor will, or will not, bind itself to. Appraisers on both sides, then, should be held to the standard of assuming “the worst case scenario.” Condemnee’s legal counsel should be sure to request a jury instruction on this issue if evidence is taken to support this valuation standard.
In the setting afforded by Advanced Acquisition, particularly for entirely new road infrastructure upon which the development of adjacent lands is dependent, delay in the construction of the road forestalls use or development of the remainder property. Cases that afford compensation for such loss often distinguish such instance from “condemnation blight.” See, State of Louisiana Department of Transportation and Development v. Brookhollow of Alexandria, 578 So. 2d 558 (La. App. 3 Cir. 1991). In the instance of “condemnation blight,” the owner’s claim is typically that delay in acquisition following the announcement of a public project results in damage. In the instance of Advanced Acquisition, however, the distinguishing fact is that the condemnor proceeds to take the property sought for acquisition, but then delays in the construction of the public project. Importantly, delay damages are seen in such cases as part of the severances damages to the remainder. See, State ex rel. Miller v. Filler, 168 Ariz. 167, 812 P.2d 620 (Ariz. 1991).
State jurisdictions that hold for damages under these circumstances compensable generally allow expert appraisal testimony concerning the appropriate amount of discount to the underlying land value. See, State of Louisiana Department of Transportation and Development v. Brookhollow of Alexandria, 578 So. 2d 558, at 562 -563 (La. App. 3 Cir. 1991). The discount is tied to the length of time delay suspends the use or development of property subsequent to the date of taking up until a project is constructed. Id. Other jurisdictions, while not finding such damages to be compensable as consequential or special damages, have found such damages to be compensable when framed as a reason for the difference in value between before and after conditions. See, Erdle & Stenger, Inc. v. State, 347 N.Y.S. 2d 221 (N.Y. App. Div. 1973), affirmed, 34 N.Y.2d 733, 313 N.E. 2d 789.
Thus, not only in regards to the authority to take are eminent domain practitioners challenged to consider constitutional protections afforded to the civil right of private ownership, but also in regards to the measure of just or full compensation.
The point of this blog article is to signal the changing circumstances and to herald to both condemnor and condemnee legal counsel alike that the paradigm is shifting. The sequence of project development and right-of-way acquisition which served as the customary predicate to established legal principles may not be the same.
The thrust of Design/Build is to delegate the determination of the legal quality and quantity of estate necessary to accomplish the taking to the Design/Build firms that respond to the RFP by virtue of the fact that these firms are competing not only of being the lowest bid with regard to construction, but also design.
The aftermath of Advanced Acquisition leaves no question as to a taking, but introduces the possibility of economic damages for delay. The type, kind, and extent of uncertainties will generate cases of first impression for Florida courts and other state jurisdictions to resolve in the field of eminent domain.
When even the methods of construction are left wide-open for definition subsequent to the taking, and when construction of project infrastructure is beyond the foreseeable future, both the determination of the legal quality and quantity of estate at the order of taking hearing and the evidence presented during a valuation trial on the property taken will present greater challenges to both condemnor and condemnee legal counsel in regards to due process and the constitutional measurement of full compensation.
As a new resourcefulness is required of governmental transportation agencies in funding transportation projects, so will a new resourcefulness be required by those whose law practice touches upon the taking of private property for public right-of-way acquisition. Along with a recognition that the old ways and means of project development and right-of-way acquisition are changing, condemnor and condemnee lawyers alike must be prepared to apply a new resourcefulness to a changing factual predicate.
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