Firm Prevails in Eminent Domain Appeal on Behalf of Landowner

Bresky_Eminent Domain

City of Sunny Isles Beach v. Cavalry Corp., Case No. 3D15-1420, 42 Fla. L. Weekly D 232 (Fla. 3d DCA Jan. 25, 2017).

The Law Offices of Robin Bresky, through Of Counsel attorneys Joanne Rose Telischi and Michele K. Feinzig, along with co-counsel Gerald B. Cope, Jr., and trial counsel J. Wiley Hicks, recently won an appeal in the Third DCA on behalf of a landowner in a hotly-contested eminent domain case. The appeal concerned complex evidentiary issues in the trial of a case that arose from a municipality’s taking of a portion of the client’s land on the Intracoastal Waterway in 2012.

The City of Sunny Isles Beach took 0.18 acres (approximately 7,900 square feet) of the landowner’s vacant, undeveloped land (a submerged portion of a finger canal), in order to build a bridge for use as an emergency evacuation route. The landowner requested full compensation pursuant to the Florida Constitution when answering the City’s petition to condemn the property in eminent domain.

After a one-week jury trial, during which the jury viewed the property, heard the testimony of sixteen witnesses including several experts, and considered numerous trial exhibits, a verdict was reached that the City owed the landowner $855,000 (the exact amount the landowner requested) as fair and just compensation for the taking, including the reduction in value to the remaining parcel resulting from lack of access to the Intracoastal Waterway.

The City filed a motion for new trial, claiming evidentiary error, and that is when attorneys Feinzig and Telischi stepped in to provide litigation support. With their assistance, the landowner’s trial counsel, Mr. Hicks, was successful in obtaining an order denying the motion for new trial.

Then the City filed an appeal again claiming evidentiary error at trial. The trial court’s decision was affirmed by the Third District Court of Appeal. Its Opinion addressed the City’s contention that the trial court abused its discretion by admitting into evidence conceptual site plans to establish the highest and best use of the property as a private docking facility. The Third District rejected the City’s argument that under established Florida Supreme Court case law, the landowner’s appraisal evidence, including conceptual site plans, should have been excluded as speculative.

The Third District held that the landowner did not impermissibly seek compensation based on what could or might be done to make the land more valuable and then solicit evidence on what it might be worth, but rather, utilized the “development approach” to valuation, adducing evidence based on the actual value of the property at the time of the taking if sold for development as a private docking facility, its highest and best use. The Third District held this approach was proper, even though the landowner had no plans to sell the property or utilize it for that use at the time of the taking.

The City chose not to seek rehearing in the Third District or review in the Florida Supreme Court. Thus, the Third District’s Opinion is final and the Mandate issued on February 10, 2017. The Firm is proud to have been part of the team that achieved this result for the client in a very complex case.