|Manatee County Government Administrative Center Commission Chambers, First Floor 9:00 a.m. - February 12, 2013|
Agenda Item #15
Eminent Domain: 51st Avenue East at 15th Street East Intersection Improvement Project, Parcel 103 - Approval of Settlement
Contact and/or Presenter Information
Rodney C. Wade, Assistant County Attorney / Sandi Murphy, Ext. 3750
FORM OF MOTION: Approval of settlement for Parcel 103 with landowner, Sunstone Properties & Real Estate, LLC, a Florida limited liability company, and business owner, Sun Stone, Inc., a Florida corporation, d/b/a Federal Discount Beverage III, the total settlement of $178,615 in the eminent domain case of Manatee County v. Sunstone Properties & Real Estate, LLC, etc., et al., Case No. 2012-CA-4871, Parcel 103.
This settlement includes full payment for the acquisition of the property and settlement of the tenant’s business damage claim: $83,000 (less the County’s previous deposit amount of $68,150), subject to apportionment proceedings in accordance with Section 73.101, Florida Statutes, if any; all attorney’s fees and costs for monetary and non-monetary benefits: $40,000; and all expert witness fees and costs: $55,615.
Article X, Section 6A of the Florida Constitution requires the payment of “full compensation” for the taking of private property for a public purpose. Sections 73.091 and 73.092, Florida Statutes, also require the condemning authority to pay the owner’s reasonable and necessary expert witness fees and costs and statutory attorney’s fees to the owner’s counsel based on a percentage of the benefit obtained or on an hourly basis when not otherwise provided for by statute.
Business damages are authorized under Section 73.071(3)(b), Florida Statutes, when there is a taking and less than the entire property is being taken for right-of-way purposes and a business established more than five (5) years is located upon the property and is subjected to damages as a result of the taking.
Chapter 74, Florida Statutes, provides for possession and title in advance of entry of the final judgment. Manatee County previously acquired Parcel 103, in Fee Simple, from the landowner, Sunstone Properties & Real Estate, LLC, as part of the 51st Avenue East at 15th Street East Intersection Improvement Project by Stipulated Order of Taking dated September 27, 2012.
The parent tract is improved with structures that are leased to and occupied by business tenant, Sun Stone, Inc., d/b/a Federal Discount Beverage III, and is located on the northeast corner of 51st Avenue East and 15th Street East with a physical address of 5027 15th Street East, Bradenton, Manatee County, Florida. The area acquired is described as follows:
Parcel 103 is a Fee Simple acquisition of 989 sq. ft. (0.02 acres) of the parent tract, a strip take on the south side of the property and includes a corner clip on the southwest corner. The improvements contained within the area to be acquired consist of asphalt pavement and sod.
Pursuant to the Stipulated Order of Taking, the County deposited the required amount of $68,150 into the Registry of the Court on October 15, 2012, which is the date Manatee County acquired ownership of the property. The amount of the deposit was based upon the Order of Taking Appraisal prepared by Manatee County’s real estate appraiser L. Burl Wilson, Jr., MAI. The funds remain on deposit with the Registry of the Court at this time.
As of the date of deposit, October 15, 2012, the County’s appraiser valued the property at $42,350, and the landowner’s appraiser concluded to a value of $139,700. As a result of court-ordered Mediation on December 7, 2012, the landowner agreed to settle as full compensation for the acquisition of the property in the amount of $83,000 (less the previous Stipulated Order of Taking Deposit paid in to the Registry of the Court in the amount of $68,150) for Parcel 103. This settlement amount is exclusive of attorney’s fees and attorney litigation costs.
Pursuant to Section 73.015(2)(c), Florida Statutes, the business tenant, Sun Stone, Inc., d/b/a Federal Discount Beverage III, presented Manatee County with a business damage claim for $1,121,940 as a result of a loss of parking spaces, site compression, lost 51st Avenue East driveway, lost site circulation, loss of overall site utility, and lost expansion potential due to the County’s acquisition of Parcel 103. Manatee County made no offer to settle the business damage claim based upon analysis of our consultant CPA. However, the business tenant reduced its claim to $0.00 as a result of negotiations and the County’s willingness to reestablish a 34-foot driveway connection to 51st Avenue East. Therefore, as a part of the settlement, Manatee County will implement a cure on the property that includes reestablishment of the subject property’s 51st Avenue driveway connection and the maintenance of access from 51st Avenue.
The attorney for the business tenant, Sun Stone, Inc., d/b/a Federal Discount Beverage III, requested $337,000 for attorney’s fees as to non-monetary benefits for obtaining the restored driveway which would eliminate the business damages and restore functionality to Parcel 103. The owner claimed that 90 percent of traffic to its business would be reduced as a result of the closure of the 51st Avenue East driveway.
Pursuant to Section 73.092, Florida Statutes, this settlement contemplates the payment of additional funds for attorney’s fees and attorney litigation costs, inclusive of both monetary and non-monetary benefits, as follows: $40,000 in full settlement of all attorney’s fees and attorney litigation costs to the landowner’s and business owner’s attorney in connection with the acquisition of Parcel 103.
In an eminent domain action, the County is required to pay the landowner’s reasonable and necessary fees and costs pursuant to Section 73.091, Florida Statutes. The County received and reviewed detailed invoices from the landowner’s experts and negotiated the following settlement of all remaining fees and costs:
CALHOUN, COLLISTER & PARHAM, INC., fo
LANDON, MOREE & ASSOCIATES, INC., fo
MORGENSTERN PHIFER & MESSINA, P.A., for accounting fees in connection with business damage consultant services: Requested Fee: $25,015; Settlement: $20,500
This settlement takes into account the relative strengths and weaknesses in the case and the estimated costs associated with further litigation as well as the value of the property acquired.
Based on the foregoing, it is recommended that the Board approve the proposed settlement and authorize the County Attorney or Assistant County Attorney to execute the attached Stipulated Final Judgment and other necessary forms.
It is requested that a check be issued made payable to The Trust Account of Dorman & Gutman, P.L., for the sum of $110,465 representing $14,850 (the difference between the final settlement $83,000 less the previous Stipulated Order of Taking Deposit $68,150 for the acquisition of the property from the landowner) as well as $40,000 for all attorney’s fees and attorney litigation costs in accordance with Section 73.092, Florida Statutes, and $55,615 for all expert fees and costs in accordance with Section 73.091, Florida Statutes, and mailed to Jack N. Gutman, Esq., Dorman & Gutman, P.L., 305 South Brevard Avenue, Suite 100, Tampa, Florida 33606-2360, for proper disbursement.
Ron Schulhofer, Director, Public Works Department
Sia Mollanazar, P.E., Deputy Director, Engineering Services
Jeff Streitmatter, Manager, Project Management Division
Vincent Canna, Senior Engineering Specialist, Project Management Division
Charlie H. Bishop, PMP, Director, Property Management Department
Joaquin Servia, Manager, Property Acquisition Division
Barbara Carter, SR/WA, Real Property Supervisor, Property Acquisition Division
County Attorney Review
Other (Requires explanation in field below)
Explanation of Other
This is a County Attorney item.
Instructions to Board Records
Forward one (1) approved copy of this Agenda Memo to Assistant County Attorney, Rodney C. Wade (firstname.lastname@example.org).
Cost and Funds Source Account Number and Name
$110,465.00 / 307-6029960/561000-0003 - Gas Taxes
Amount and Frequency of Recurring Costs