Limited Access Tollway Frontage Road System (Real Estate and Business Damages)

In 2017, FDOT was acquiring right-of-way for the portion of the Wekiva Parkway which would replace the existing SR 46 corridor between Apopka and I-4 through Seminole County.  The existing two-lanes of SR 46 were to be substituted with an elevated, multi-lane limited-access tollway with one-way frontage roads running east and west on either side of the tollway. 

Because the character of the road was undergoing dramatic change, so was the character of the real property which abutted the road.  One of the properties substantially impacted by FDOT’s project was a commercial nursery.  For many years, local government had restricted the land use of properties abutting SR 46 to restrict all but residential uses and limited commercial agricultural uses.  Nonetheless, the available real estate for commercial agricultural uses, those which would benefit from being located on a collector road, was becoming more scarce between Seminole and Lake Counties. 

FDOT’s project required a “partial taking” of 1 acre, m.o.l., from the nursery property of about 7.5 acres, m.o.l.; more particularly, the area of taking included the main drive aisle and parking located at the front of the property along SR 46.  So too, because the portion of the property permanent or fee simple taking also include part of the main sales building, FDOT sought a temporary easement as well to demolish the entire building structure. 

In presuit negotiations with FDOT, the property owners received good counsel.  When private property is taken for public use, the government is required to pay for both the real property it takes and any severance damages to the remainder property.  This is part of what is known as the constitutional guarantee of “full compensation.” 

Additionally, in cases where government requires a “partial taking,” owners may also be entitled to business damages, not by virtue of the constitutional guarantee of “full compensation,” but because of “statutory grace.”  Business damages, for instance, are not available when government requires a “whole taking;” other limitations apply as well.  One limitation is that, even when government requires a “partial taking,” the statute requires that a business have continuous operations on the portion of the property being acquired for a period of at least five years prior to the taking.

The good counsel the owners received was to not negotiate a settlement with FDOT until they could show that they had operated their business within the area of property being taken for the requisite five year period.  Only having recently purchased the property, the owners needed to, if at all possible, wait for FDOT to acquire the property and not expedite any voluntary negotiations before sufficient time had passed.  Because the owners heeded such advice, and because FDOT’s acquisition process extended out over a long period of time, the owners did, in fact, meet the five-year requirement and were able to be compensated not only for their real estate, but also for their business.

Florida law requires the government to make an initial written offer on real estate prior to filing any eminent domain lawsuit.  Florida law also requires the business owner to make an initial written offer on business damages.  FDOT’s initial offer, without any business damages, was in the amount of $1,153,700.  The owners made a counteroffer, combined real estate and business, in the amount of $5,333,076.  This assumed, however, that the business would continue to operate after the taking and during construction of the project.  Subsequently, FDOT countered with a business damage offer of $2,636,842, assuming a complete wipe-out of the business, but only $115,556 if the business were to continue to operate after the taking and during the project’s construction.  This was in addition to the amount FDOT offered on the real estate of $1,153,700.  After FDOT filed its lawsuit, the parties continued to negotiate.  Finally, prior to any jury trial, the parties agreed to entry of a stipulated final judgment in the amount of $4,000,000.The case could not have been resolved any sooner than when FDOT filed its lawsuit.  The property owners were required to have much patience and to not “jump the gun” on negotiating a favorable outcome regarding both their real estate and business.  Likewise, because eminent domain has a complexity to it, different scenarios needed to be considered by both parties to negotiate settlement terms acceptable to both the property owner and FDOT.