Will FDOT’s Taking Leave Your Business Out of Code? Cost to Cure Before You Accept the Offer

When FDOT takes a strip of your property for a road project, the offer on your desk may not say whether the rest of your site still meets local code. The cost to cure that gap is a question the offer may not answer. Here is how cure costs work in a Florida partial taking, and what to check before you accept.

What Does Cost to Cure Mean in a Florida Partial Taking?

Cost to cure is the estimated cost of repairing the damage a taking does to your remaining property, such as rebuilding lost parking. In Florida, it is evidence of how much the taking reduced the remainder’s market value. It is not a separate payment on top of that value.

The Florida Supreme Court said so in Florida Department of Transportation v. Armadillo Partners, Inc., 849 So. 2d 279 (Fla. 2003). Damages to the remainder come from section 73.071(3)(b), and our guide to severance damages in Florida covers the basics.

Did FDOT’s offer arrive with plans that cut into your parking or setbacks? Talk with a Jimerson Birr eminent domain attorney before you respond.

Can a Partial Taking Leave Your Business Out of Code?

Yes, it can. Local codes commonly set minimums for parking, setbacks, and landscaping, and drainage rules may also apply, so a strip taken from the front of your lot can push the remaining site below one of them. Whether that happens depends on your site, your code, and the taking plans.

Picture a medical office building with its parking rows beside a road FDOT is widening. If the new right-of-way line moves into those rows, the remaining lot may hold fewer spaces than the code requires for the building’s square footage. The owner may then face a variance request, a site plan amendment, or a smaller building before the property works as it did before. Our post on parking and access in a taking explains why this matters to tenants and rents.

Local rules may treat a shortfall caused by a government taking differently. That answer comes from your local land use and zoning code, not from the offer letter.

A Florida Supreme Court cost to cure case involved a Broward County shopping center. The center had 140 parking spaces before FDOT took strips along two roads, and FDOT’s cure plan would have brought it back up to 97. The owner offered a competing plan that cut back the building, and the Court held that FDOT’s appraiser’s cure-based opinion was properly admitted.

Does Florida Law Make FDOT Pay the Cost to Cure?

Not as a separate line item. Cost to cure is evidence of what the taking did to the remainder’s value, and in a case that reaches trial, the jury decides damages to the remainder. Neither side has an absolute duty to build the cure, according to Armadillo.

That cuts both ways. In System Components Corp. v. Florida Department of Transportation, 14 So. 3d 967 (Fla. 2009), the Court explained that cost to cure is not an independent measure of damages. It is a way damages may be reduced. An appraiser who assumes an inexpensive cure can lower the number in your offer.

Two points help owners. First, System Components explains that cost to cure is limited to the parent tract, so a cure that depends on a neighbor’s land does not count. Second, severance damages are constitutionally required, while business damages exist only by statute and carry their own conditions.

If you own the land and an established business on the adjoining land you hold, section 73.071(3)(b) can also allow business damages on a partial taking for a right-of-way when the taking may damage or destroy the business. The business must have more than five years’ standing for takings on or after January 1, 2005, and you must plead the claim in your written defenses. The business claim has its own clock: under section 73.015(2)(c), you have 180 days from receiving the notice (or from its undeliverable return, or a later date you both agree to) to submit a good faith written offer, and a late claim must be struck unless you show good faith justification.

What Should You Ask Before You Accept the Offer?

Request the appraisal behind the offer, then ask what it assumed about your remaining site. The notice must say the condemning authority will provide the appraisal within 15 business days of your request, along with right-of-way maps and construction plans to the extent they have been prepared.

Then work through these questions:

• Does the written offer address damages to the remainder, as section 73.015(1)(b) calls for on a partial taking?
• Does the appraisal assume a cure? Who designed it, and what does it cost?
• Can that cure be built on your own land, using the plans as drawn, under your local code?
• Would you need a variance, a site plan amendment, or another approval, and how long would that take?
• What does the settlement release? A signed settlement can resolve claims for damages to the remainder, and a cure you must fund later may become your cost.

Under section 73.015(4), an owner who settles before suit can seek attorney’s fees and costs as sections 73.091 and 73.092 provide, and the amount depends on the offers and the facts. Our post on common mistakes business owners make in eminent domain explains why owners should test the first number, and our negotiation strategies post covers what comes next. For a corridor example, see partial takings along the Palmetto Expressway.

Jimerson Birr attorneys such as Charles Jimerson, who serves as statewide eminent domain counsel for commercial clients such as retailers and restaurants, work with appraisers, engineers, and land planners on these questions. If you are weighing the offer as a developer or commercial owner, the firm’s real estate development and construction attorneys page shows the wider team. For the process as a whole, read how eminent domain works for Florida commercial property owners.

What Should You Check Before You Respond?

Five facts decide how cost to cure affects your offer:

1. The date you received the notice. You have at least 30 days to respond, and the period runs from receipt, or from the date the notice is returned undeliverable.
2. Your local code. What it requires for parking, setbacks, landscaping, and drainage, compared with what the right-of-way maps leave you.
3. Your ownership. Whether you own both the land and the business, and how long the business has operated.
4. The proposed cure. Whether it needs land you do not own or an approval you do not have.
5. Your leases and loan documents. Any parking ratios, tenant rights, or lender approvals that apply to site changes.

These facts decide the outcome, and an attorney needs to review them against the plans and your local code before you accept anything.

Not sure the remaining site still meets code? Request a free consultation with Jimerson Birr and bring the offer, the plans, and your site plan.

How Can Jimerson Birr Help With an FDOT Taking and Cost to Cure?

If FDOT’s taking could leave your business out of code, the cost to cure belongs in the negotiation before you accept the offer. Jimerson Birr’s Florida eminent domain attorneys represent property and business owners at every stage of condemnation and work with appraisers, engineers, and land planners. Call (904) 389-0050 or request a free consultation. Your response period of at least 30 days runs from receipt of the notice, and waiting leaves less time to test the offer.