By Mark A.Tobin and Patrick T. DiPietro - Brigham Moore LLP
Due to current budgetary constraints, governments are more challenged than ever in funding projects. This presents opportunities for government and landowners to explore creative paths to “win-win” solutions for their communities. Sometimes these alternatives yield more real life benefits, for all concerned, than can be achieved through traditional condemnation proceedings. So,if facing a potential acquisition for a public improvement, pause, think freely, and open your mind to creative solutions.
While not exhaustive, the following list briefly describes alternatives to traditional land acquisition. Of course, careful consultation with legal and tax professionals is essential to finding a good fit:
Land Swap
The condemning authority may own excess property valuable to an owner, particularly if it is adjacent to the remainder. Assemblage may enhance utility and restore value of an otherwise damaged remainder.
Transferrable Development Rights (TDRs)
The local code may provide for a transfer of development rights to the remainder or another property, increasing utility and thereby mitigating negative effects of the taking on the remainder’s value.
Modify Quality and/or Quantity of Estate
Even if traditional acquisition is necessary, non-monetary compensation can mean more to an owner of remaining property in the long run. For example, limiting the taking to an easement, instead of a fee acquisition, can preserve property attributes important to future development, such as setback, floor to area ratio, and open space.
Access Modifications or Enhancements
Similarly, access accommodations can be far more valuable than a one-time monetary payment. Project modifications that would be outside normal legal remedies in litigation, such as median cuts, deceleration lanes or favorable signalization can enhance ingress and egress so vital to businesses and safe residential developments.
Drainage Agreements
With excess capacity, a party may take on the other’s drainage. If the owner were to modify its private facilities to increase capacity, it could obviate damages resulting from a taking for a separate public pond on the site. A condemnor with capacity to receive the private owner’s drainage can increase the remainder’s utility and value by freeing areas previously dedicated to drainage.
Variances
Particularly if the condemning agency also has zoning jurisdiction over the acquisition site, variances to address hardships arising from a partial taking can reduce damages. It may be advisable to secure the actual variance before making any final agreement to compensation due.
Concessions Regarding Construction
An agreement on the manner and timing of construction may minimize impacts. Condemnors typically agree to provide notice so owners and tenants may be prepared. Further, agreements can be secured for effective signage during and after construction.
If the specter of public acquisition is likely to increase vacancy, protective leases by which the public agency substitutes itself as a tenant prior to acquisition can help preserve vital cash flow in advance of actual change of possession or construction.
Utilize Safe Harbor for Exploration
The Florida Legislature created a pre-suit mediation procedure in 73.015(3), Florida Statutes. This procedure facilitates creative exploration, since it is confidential by law and is without prejudice to either party in any court proceedings. If informed negotiations would require investment in engineering, architectural, appraisal or other studies, landowners should be careful to secure the government’s agreement in advance to pay those costs.
As always, understanding the needs of your counterpart enhances negotiation. In today’s climate, it is also vital to understand the constraints that may make agencies more receptive than ever before to creative, budget-friendly solutions. Thinking outside the box can help seize opportunities for both private landowners and the public.
By Mark A. Tobin and Patrick T. DiPietro
Brigham Moore LLP
525 Ponce de Leon Boulevard, Suite 625
Coral Gables, FL 33134-6051
305-858-2400
www.brighammoore.com
South Florida Legal Guide Midyear 2010