Pre-Filing COPY Flashcards
Is ED in rem or in personam? XXX???XXXX
Damages belong to owner @ time of taking.
Do not pass to subsequent grantee except by provision in the deed or assignment.
The power of eminent domain is exercised against the land and is an in rem proceeding,
not in personam. Miccosukee Tribe of Indians of Florida v. Dept. of Environmental
Protection ex rel. Board of Trustees of Internal Improvement Trust Fund, 78 So.3d 31
(Fla. 2d DCA 2012).
See also,
The Florida Constitution does not provide for an in rem action in
eminent domain proceedings. It grants to the owner of real property the
right to a jury determination of damages, all questions of judicial expertise
notwithstanding. The constitution grants to the individual owner the right
that compensation determined by a jury shall be paid or secured to him
before the property may be taken. Thus, the Florida Constitution provides
for the compensation of persons
What is provided in 5th Amend. of the U.S. constitution?
E.D. PRE-SUIT ----------- $5 = just comp. ----------- Feds prohibited to take: (a) Pub Use, (b) w/o DP, (c) w/o Just comp.
What is provided in 14th Amend. of the U.S. constitution?
E.D. PRE-SUIT ----------- State can't take w/o (a) DP, (b) Equal Prot. ----------- How remember which is which? 5th - started out applying to Fed. 14th - later added application to States (LGs). ----------- <5th, 14th ~ Art 1, Sec. 9> Art 10, Sec 6 - 106 is fullest # - full comp
What is provided in Art 10, Sec 6 of the FL constitution?
E.D. PRE-SUIT ----------- 106 ~ ED's highest (fullest) #'d const reference = FULL $COMP$ ---------- Entitled "Eminent Domain" ----------- Can't take: 1. w/o Pub purp., 2. w/o Full comp, 3. To convey to private O unless 3/5 maj legis. ----------- Can take for: Easements to drain 1 Os prop onto or thru another's
What does FL’s Constitution provide at Art I, Sec 9?
E.D. PRE-SUIT ----------- "I" am Due "9" lives. ----------- Due Process. Can't take life, liberty or prop. w/o DP.
Which public Agency takes priority if one seeks to ED property of the other?
E.D. PRE-SUIT ----------- Depends. ----------- 3 Doctrines: (A) Prior Agency if no express grant. (B) Compatible if doesn't materially impair or alter existing. (C) New Agency if express grant or nec implied.
Distinguish Public Purp v. Pub Necessity.
there is a Purposeful Quality in Nature
i have a Necessity to Select Quantity
———–
Purp: Quality & Nature of the project.
Nec: Quantity & Selection of the property.
What 10 items must you state in ED complaint?
Hint1: Nature of the project is not one of them.
Hint2: Plural (10 things).
When you’re complaining of E[ating] D[isorder], DEMAND Good food truck (Mobile) PANINIS
(1) Demand prop condemned, title vest in LG
(2) GF negotiation»_space;
(3) Mobile home on prop.
(4) Public purp.
(5) Authority
(6) public Necessity - SCALE
(7) Interest to obtain
(8) Names, residences + legal disabs of interest Os
(9) ID property
(10) Survey performed, in GF will construct over property.
Must project be available to everyone?
E.D. ----------- No. Just can’t be made avail to only particular users. In common to public, regardless how few.
What if private benefits?
Incidental private benefit okay. Public benefit must dominate.
Can the result of ED give control of use away from the public?
No. Manner of enjoyment or use in public control.
Ex. After ED, LG intended to lease the property contracting its management to private = FAIL
What 5 things are weighed to make Necessity?
E.D. PRE-SUIT ----------- It's a NECESSITY to WEIGH on a SCALE. ----------- LG must show it properly WEIGHED these 5 factors in order to establish necessity SCALE 1. Safety considerations. 2. Cost 3. Avail of alternate routes 4. Long range planning 5. Environmental Factors
Public necessity rule, re: amt taken.
Take no more than is necessary for H, S + W (health, safety + welfare).
Who decides public necessity?
E.D. PRE-SUIT ----------- Judge, not jury. ----------- How remember? lawsuit always Necessitates a Judge, not a jury
How does burden shift?
E.D. PRE-SUIT ----------- LG proves it has pub purp + nec. O proves it has DIBs. --- abuse of Discretion, Illegality, Bad faith
When put O (not BO) on notice?
NOBO
- Notice O.
- w/ or aft O’s Notice: Offer O
- w/ or aft. O’s Offer: Notice BO.
Who gets put on notice?
E.D. PRE-SUIT ----------- O + BO (incl bus lessee.) ---------- NOTE: Fee O also gets Offer.
If O has multiple properties/businesses, how notice?
1 notice suffices for all.
Is LG’s notice to O insufficient if O sells during ED?
No, suffices.
No new notice required to new O after orig notice.
What if notice returned undeliverable?
A-OK.
Returned as undeliverable = compliance.
For O (as opposed to BO), what are ALL 7 ITEMS O’s Notice must include?
Notice O has a rt to Offer his CAFA & I.D. Parts to Stay Natural. [*he’s not a businessman so gets an offer [BO settles].
———–
(1) Offer (can include, or do separately)
(2) Costs (73.091)
(3) atty’s Fees (73.092)
(4) get App, maps + plans (if prepped - can file Slow w/o app) in 15 days upon request
(5) PID
(6) Part or all.
(7) Nature of project on THE PROP. [not adjacent, as in BO]
———–
Alternate: Noticing E.D. reveals Owner’s 15 PORN Parts.
What 4 addtl docs can Def request?
If prepared,
1. Appraisal report (Slow doesn’t require app to file).
2. ROW maps or other docs showing taking.
3. Const plans w/ plan detail.
4. If requested, any additional plan sheets.
What are construction plans w/ plan detail?
Improvements to be made on prop, profiles, cross sections, driveway connections, drainage & pavement marking
How soon must LG provide additional documents to Owner, if requested?
Within 15 days.
How soon can file suit?
31 days aft O’s NOTICE delivered or undeliverable.
———–
Ʃ: O has 30 days from NOTICE to respond to OFFER.
~weird~
For O (as opposed to BO), what are just the 2 rights that have to be summarized or attached to O’s Notice?
E.D. PRE-NOTICE - O ----------- [Notice O has a rt to Offer his] CAF[a & I.D. Parts to Stay Natural.] ----------- (1) Costs (73.091) (2) Atty's Fees (73.092) ----------- Noticing E.D. reveals Owner's 15 PORN Parts.
What’s the order of offers/notices?
NOBO
- Notice O.
- w/ or aft O’s Notice: Offer O
- w/ or aft. O’s Offer: Notice BO.
E.D. PRE-NOTICE - BO ----------- CONTRAST ----------- For BO (as opposed to O), what are just the 3 RIGHTS that must be summarized or attached to BO's Notice?
E.D. PRE-NOTICE - BO ----------- Notice Bus O has a Right to Settle his CASA [& I.D. Part to stay Natural]. ----------- (1) Costs (73.091) (2) AF (73.092) (3) Severance/bus dmgs/comp/jury (73.071)
E.D. PRE-NOTICE - BO ----------- CONTRAST ----------- For BO (as opposed to O) what are ALL 8 ITEMS BO's Notice must include?
1) Settling & submitting its claim.
2) Costs (73.091)
3) AF (73.092)
4) Severance/comp/jury (73.071)
5) get App, maps + plans if prepped (can file Slow w/o appraisal) in 15 days upon request.
(6) pI.D.
(7) Part or all.
(8) Nature of project on ADJACENT PROP [not the prop, as in Fee O].
———–
Alternate: Notice the Business you PAID the SCAN = Settled
Summarize the constitutional limitations imposed on the Govt’s superior rt to take property.
E.D.
1) 5th Am., Fed. (a) Pub Use, (b) DP, (c) Just comp.
2) 14th Am., State (a) DP, (b) Equal Prot.
3) Art I, S 9. Take L, L or Prop w/o DP
4) Art. 10, S. 6. (a) PPurp , (b) Full, (c) to private unless 3/5 maj legis.
Which of the 4 pertinent constitutional provisions provide for due process?
E.D.
1) 5th Am., Fed. (a) Pub Use, (b) DP, (c) Just comp.
2) 14th Am., State (a) DP, (b) Equal Prot.
3) Art I, S 9. Take L, L or Prop w/o DP
Which of the 4 pertinent constitutional provisions do not speak of DP?
E.D. ----------- Art. 10, Sec. 6. requires: (a) Public Purp, (b) Full, (c) Can't convey to private unless 3/5 maj legis
Which of the 4 pertinent constitutional provisions speak of compensation?
5th A - Just
10. 6 - Full
Which of the 4 pertinent constitutional provisions speak of public?
5th A - Use
10. 6 - Purp
Who has E.D power?
E.D. ---------- 166 municipalities 127 counties 191 fire control districts
