July 23, 2019 - Regular Meeting Agenda Item #66

Subject Proposed Eminent Domain Settlement; FDOT v. Andrade Trust, Case No. 2018 CA 401; Parcel 103 Briefings Briefing Provided Upon Request Contact and/or Presenter Information Pamela J. D’Agostino, Assistant County Attorney, Ext. 3750 Action Requested

Action item 1: Consider and accept or reject the Florida Department of Transportation's (FDOT's) proposed settlement in the referenced eminent domain proceeding.

Action item 2: If accepted, (a) adopt Resolution R-19-072, (b) authorize the Chairperson to execute the Release of Conservation Easement, and (c) authorize the County Attorney or his designee to execute and deliver to the FDOT and to the court the proposed Stipulated Final Judgment and all other associated paperwork. Action item 3: If rejected, authorize the County Attorney or his designee to inform the FDOT of the rejection.

Enabling/Regulating Authority Article X, Section 6 of the Florida Constitution, Chapters 73, 74 and 127, Florida Statutes, and Section 704.06(4), Florida Statutes. Background Discussion The State of Florida Department of Transportation (FDOT) will soon be undertaking a project to improve the interchange at I-75 and U.S. 301. The proposed improvements include reconfiguring the existing interchange as well as enhancing the following three intersections along U.S. 301: 51st Avenue East, 60th Avenue East, and 19th Street. To complete the project, FDOT needed to acquire additional right-of-way, including the property currently occupied by a former restaurant known as Johnny Leverock’s Seafood House, which is located in the southwest quadrant of the interchange of I-75 and U.S. 301, at 5317 19th Street East, Ellenton, Florida 34222. FDOT has labeled this property as Parcel 103. The FDOT was unable to successfully negotiate to purchase Parcel 103 from the owner and therefore had to file an eminent domain action to acquire the property. The County was served with the Petition on February 12, 2018. Because Parcel 103 is encumbered in part by a recorded conservation easement in favor of the County, the County is a party to the eminent domain case. Attached is a copy of the conservation easement, which was granted as a part of the original site plan approval for the restaurant. The purpose of the conservation easement was to protect a required 30-foot wetland buffer associated with the mangrove fringe along the shoreline of the Manatee River. In 2005, the Board released a portion of this conservation easement to correct an error in the legal description of the original easement. Today, the easement encumbers approximately 0.35 acres of land. The County has no improvements within the area of the

Manatee County Government Administrative CenterHonorable Patricia M. Glass Chambers, First Floor

9:00 a.m. - July 23, 2019

conservation easement which falls within Parcel 103, and the area is not otherwise needed for County purposes. In the course of defending the eminent domain litigation, the CAO consulted with staff from Property Management, Building and Development Services, and Public Works, all of whom had no objection to the FDOT’s taking of Parcel 103. For that reason, the County did not oppose the taking and the Court entered an Order of Taking on April 12, 2018. On April 26, 2018, the FDOT deposited the sum of money ($1,900,000) and all right, title or interest to Parcel 103 vested in the FDOT. Section 704.06(11), Florida Statutes, explains that the Court, in an eminent domain case, shall consider both the public benefit provided by a conservation easement and a public transportation corridor and its related appurtenances in determining the compensation to be paid for the taking. To properly defend this matter, in September of 2018, the CAO hired an appraiser to perform expert appraisal services for the County. As is customary for appraisers representing defendants in eminent domain matters, the appraiser agreed 1) that the FDOT—not the County—shall be responsible for expert appraisal services and 2) to accept whatever amount the Court awards or is negotiated by the County on the appraiser’s behalf at the conclusion of the case. The appraiser was specifically tasked with determining the value of the conservation easement. After spending some time reviewing the issues and gathering comparable sales research, our appraiser was able to provide a valuation range for the easement and advised that in order to arrive at a formal opinion of valuation, a significant amount of time (which would result in a substantial appraisal fee) would need to be expended and the County would need to obtain and provide additional documents and records relative to the parent tract. Because the County’s claim is one of apportionment, and apportionment is determined only after full compensation is determined, the CAO instructed the appraiser to cease all appraisal work until further notice. On February 22, 2019, the former owners accepted the FDOT’s offer in full settlement of all claims for compensation relative to the taking of Parcel 103. In accordance with that settlement, the FDOT and the owners entered into a joint motion for entry of a Stipulated Final Judgment, which the Court ordered on March 12, 2019. Pursuant to that Stipulated Final Judgment the FDOT agreed to pay the former owners $5,000,000 to resolve all claims related to real estate, business damages, and severance damages, and $728,000 for attorney fees and costs and expert fees and costs. The Stipulated Final Judgment specified that the award was not subject to apportionment. After learning of the above-referenced Stipulated Final Judgment, in an effort to avoid further litigation, the CAO contacted the FDOT and attempted to negotiate with the FDOT to resolve the County’s apportionment claim. On May 23, 2019, the FDOT requested that the County waive its apportionment claim for compensation relative to the value of this conservation easement and execute and furnish the FDOT with a Release of Conservation Easement in exchange for the FDOT paying any expert fees the County has incurred (totaling $5,612.50 for our appraiser). Release of a conservation easement can only occur consistent with Section 704.06, Florida Statutes, which explains that conservation easements may be released by the holder of the easement to the holder of the fee. Today, the FDOT is the holder of the fee simple title to Parcel 103; therefore, the County can lawfully proceed with releasing the easement as requested by the FDOT. If this proposed settlement is accepted, all litigation relative to this eminent domain case will be concluded and resolved and the County will incur no additional expense relative to this matter. If the proposed settlement is rejected, the CAO will proceed to defend this eminent domain case and seek recovery from the FDOT for the County’s apportionment claim. The FDOT will ultimately be responsible for paying the reasonable fees and costs of the County’s expert witness as well as the County’s reasonable attorney’s fees and costs to litigate the County’s apportionment claim. County Attorney Review Other (Requires explanation in field below)

Manatee County Government Administrative CenterHonorable Patricia M. Glass Chambers, First Floor

9:00 a.m. - July 23, 2019

Explanation of Other This is a County Attorney item. Reviewing Attorney D'Agostino Instructions to Board Records

If the Board accepts the proposed settlement, please see that the Chairperson or Vice Chair execute the resolution and the release and deliver a copy of the signed resolution and the original signed release to Pamela D’Agostino, Assistant County Attorney, and e-mail a copy of this agenda item to pamela.dagostino@mymanatee.org and alicia.stull@mymanatee.org.

Cost and Funds Source Account Number and Name N/A Amount and Frequency of Recurring Costs N/A Attachment: Conservation Easement.pdf Attachment: Resolution R-19-072.pdf Attachment: Release of Conservation Easement.pdf Attachment: Proposed Stipulated Final Judgment with Joint Motion.pdf

Manatee County Government Administrative CenterHonorable Patricia M. Glass Chambers, First Floor

9:00 a.m. - July 23, 2019

Manatee County GIS Map

This map was developed by the Manatee County Geographic Information Systems division. It is provided for general reference, is subject to change,and is not warranted for any particular use or purpose. Errors from non-coincidence of features from different sources may be present.Printed on 8/13/2019, 11:51:56 AM