Limited Access Tollway’s Stormwater Pond – Whole Taking

In 2017, the Central Florida Expressway Authority (“CFX”) was acquiring right-of-way for the last segment of the western half of the beltway encircling Orlando, SR 429 Tollway, also known as the Wekiva Parkway. As part of a new interchange at Kelly Park Road, CFX sought a “whole take” of property upon which were situated both the owners’ home and orchid nursery greenhouses. 

Under Florida law, in the instance of a “whole taking” the government is only obligated to pay for real estate and is not required to pay for any statutory business damages. Nevertheless, it was the land underneath that had a tremendous worth on account of the anticipated increase in value resulting from the prevailing market forces which included, in no small measure, a new interchange at Kelly Park Road.  

In fact, as part of the environmental benefits associated with the Wekiva Parkway, only one interchange is planned for the 21-mile stretch of the new tollway.  While CFX’s appraiser selected “comparable sales” that were nearby, none were within close proximity of a new interchange.  

In contrast, the owners’ appraiser selected “comparable sales” that, albeit more remote, were similarly situated properties with close proximity to other interchanges along either the SR 429 Tollway or SR 417 Tollway which form the beltway around Orlando.  

Ultimately, if a landowner and the government cannot agree on a settlement, Florida law allows for the determination of “full compensation” to be made by a jury. Because the owner was not able to resolve the dispute over fair market value with CFX, the owner proceeded to a jury trial. CFX’s initial offer was $643,500.  The jury’s verdict was $2,250,000 and was within 10% of the amount the owner’s appraiser estimated for the real estate.