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Inverse Condemnation Statute of Limitations

Published: April 11th, 2008

By: Mark R. Leavitt Laura Minton Young

In the wake of the elimination of the Citrus Canker Eradication Program, Dean Mead’s Agribusiness Team provided our clients with critical information for initiating an inverse condemnation claim against the State in the event the compensation received was either inadequate or non- existent for the state mandated removal of citrus trees prior to the elimination of the eradication program. Below is a reminder for those clients who are considering instituting such a claim, including specific statute of limitation considerations and reasons for filing an inverse condemnation claim against the State.

The Florida Constitution prohibits the taking of private property for a public use without the payment of full compensation. When citrus trees are destroyed by the Department of Agriculture or other governmental entity, the trees are being removed to help protect the rest of the State’s citrus industry; therefore, the removal of the trees is the taking of private property for a public purpose. Many grove owners and nurseries were paid, or expect to be paid, for the taking of their trees pursuant to the now-discontinued eradication program. For those who have not been paid, it is essential to monitor various deadlines related to the right to make a claim for the lost trees.

When the government (or a quasi-government agency or utility company) needs land for a road, park, public building, power line easement, etc., that entity either negotiates to buy the required land or files an eminent domain lawsuit. If a governmental action takes private property and the government does not initiate an eminent domain complaint, the property owner can start the eminent domain process by bringing an inverse condemnation action. Several procedural issues and time factors may impact an inverse condemnation action. While there is great debate among eminent domain attorneys regarding whether the statute of limitations for inverse condemnation matters is constitutional, the safer approach to such matters is to assume that one must file an inverse condemnation action within four (4) years of the taking. The same holds true for trees that were removed under the Citrus Canker Eradication Program.

The next questions are: What is the date of the taking and when does the four (4) year statute of limitations begin to run? While a strong argument can be made that the clock does not begin to toll until the trees are actually removed, or from when the owner was made aware that he will not receive government funds through an eradication program, there are others who will suggest the date of taking is the date the owner received an Immediate Final Order. In an abundance of caution, any inverse condemnation claim should be filed at least six (6) months before the expiration of the four year statute of limitations as measured from the earliest of the above referenced events. This will provide a margin of error to modify the lawsuit if the State successfully files an initial motion to dismiss. Claimants need to make sure that they do not lose their opportunity to file an inverse condemnation action against the State and should create a tickler file to remind them six (6) months before the earliest possible statute of limitations date.

It is worthwhile to note that two Florida Courts, one in Palm Beach County and one in Broward County, recently ruled that the destruction of healthy residential citrus trees as required by the Citrus Canker Eradication Program to prophylactically protect the citrus industry was a constitutional taking of private property. In December 2007, the Palm Beach County Circuit Court ruled that the State must pay “full and just” compensation to more than 40,000 homeowners for the loss of 66,468 trees that showed no signs of citrus canker, and in February, the Broward County Circuit Court similarly ruled on behalf of 70,000 homeowners who lost a total of 133,720 healthy citrus trees. Both cases are set for trial to determine what constitutes “full and just” compensation for the homeowners. While the Citrus Canker Eradication Program was in effect, the State offered a $100.00 Wal-Mart voucher for the first residential tree taken and $55.00 for each subsequent tree. Both courts have ruled that the compensation provided was inadequate to fully and justly compensate the homeowner for the taking of their healthy trees. The same principal of law should apply to agricultural trees. The result of such rulings is to require that the State pay full and fair compensation for all destroyed healthy trees. There is a viable argument that “full and just” compensation constitutes the return of the fair market value of the healthy trees, which may exceed the statutory amounts previously paid by the State.

The expiration of the statute of limitations for filing an inverse condemnation claim may be imminent for some of our clients. We wanted to send this reminder to you in the event you believe you have not been adequately compensated for the taking of your trees. If this is the case, please contact Michael Minton at (772) 464-7700 in Dean Mead’s Fort Pierce office or Mark Leavitt at (407) 841-1200 in Dean Mead’s Orlando office to discuss the matter further.