1997 FLORIDA STATUTES 336.02
RESPONSIBILITY FOR COUNTY ROAD SYSTEM; APPROVAL OF MAPS OF RESERVATIONCopyright 2006 All Rights Reserved
It is the responsibility of each judge who hears a case involving TIITF reservations to ascertain why and upon what authority a property owner has constructed improvements upon land claimed to contain a road easement or reservation. The judge in the Kortum case totally ignored righteousness and Florida Statute 336.02 in his ruling. The attorneys for Mr. Kortum were unskilled in dealing with the issues of the TIITF reservations. The fee they would obtain from the small offer made to Mr. Kortum was also very small so they were not all that eager to see justice prevail for their client. So, the client did not have attorneys representing him who cared a lot whether or not he won. They went through the legal hoops of imenient domain so they could turn to their client and so "we tried but we lost." There is no excuse for this kind of legal representation. And there is no excuse for a judge to rule against a property owner because he feels he has a duty to save tax dollars for a condemning authority. Every judge has a greater duty to make sure no citizen is deprived of his liberty or property even if his attorneys are ding-a-lings. Poor representation of a property owner should not automatically cause a default in justice to a condemning authority who have deep pockets where they can outspend the property owners attorneys who are held to paltry fees for expert testimony. I believe property owners facing TIITF issues are at a disadvantage in every court room in Florida. This injustice MUST STOP!
Statute 336.02 (2006)
(1)(a) The commissioners are invested with the general superintendence and control of the county roads and structures within their respective counties, and they may establish new roads, change and discontinue old roads, and keep the roads in good repair in the manner herein provided. They are responsible for establishing the width and grade of such roads and structures in their respective counties.
(b) Commissioners may approve maps of reservation for any transportation facility or transportation corridor within the county's jurisdiction. Any such maps must delineate the limits of the transportation corridor or of the proposed rights-of-way for the eventual widening of an existing or proposed transportation facility. Before approving or disapproving such map, the governing body of the county shall advertise and hold a public hearing and shall notify all property owners of record within the limits of the transportation corridor or rights-of-way of the transportation facility shown on the proposed map, as recorded in the property appraiser's office, and all local governmental entities in which the transportation corridor or transportation facility is located, by mail at least 20 days prior to the date set for the hearing. If the map is approved by the governing body of the county, the circuit court clerk or county clerk, as appropriate, of the affected county shall forthwith record the map in accordance with chapter 177 in the public land records of the county. Minor amendments to such maps may be made by the county after recordation, which amendments are not subject to the notice and public hearing provisions of this section, except that property owners directly affected by changes in a minor amendment and all local governmental entities in which a minor amendment occurs must be notified by mail. Minor amendments are defined as those changes which affect less than 5 percent of the total area within the map.
(2) Upon recording, such map shall establish a building setback line from the centerline of any transportation facility and an area of proposed right-of-way and shall cite the ordinance which defines building restrictions for such maps.
(3) Prior to filing any map pursuant to this section, a county shall have adopted an ordinance defining the types of restrictions on nonresidential and residential construction within the proposed rights-of-way and building setback lines. In no case, however, shall said ordinance restrict the renovation of an existing residential structure when the cost of the renovation does not exceed 20 percent of the appraised value of the structure.
(4) Upon petition by any property owner of record within the limits of the map, alleging that such property regulation is unreasonable or arbitrary and that its effect is to deny a substantial portion of the beneficial use of such property, the county shall hold a hearing. When such a hearing results in a finding in favor of the petitioning property owner, the county shall have 180 days from the date of such order to acquire such property, to amend the map, to withdraw the map, or to file appropriate proceedings. Either party may seek appellate review.
(5) Upon the failure by the county to acquire such property or to initiate acquisition proceedings, the appropriate local governmental entity may issue any permit in accordance with its established procedures.
History.--s. 42, ch. 29965, 1955; s. 1, ch. 57-776; s. 61, ch. 84-309; s. 2, ch. 86-47; s. 13, ch. 88-168.
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What the judge in the Kortum case ignored was everything underlined above!
The building departments in issuing permits to construct homes, garages, sheds, other buildings, septic systems, wells, or other improvements cannot just take the word of some government official that a reservation or easement for road right-of-way exists. If there is an objection by a COUNTY condemning authority that a property owner has illegally constructed an improvement that is considered an encroachment, they MUST BACK IT UP by complying with F.S. 336.02 and provide the proof of public meetings before maps were filed. They must provide proof of an existing ordinance restricting types of construction. They must determine if an improvement existed prior to such public hearings, maps, and ordinances and if so, state that renovations were permitted if they did not exceed 20 percent of the appraised value of the structure. Was this complied with in the Kortum case? Absolutely not.
Paragraph (5) tells the whole story here:
(5) Upon the failure by the county to acquire such property or to initiate acquisition proceedings, the appropriate local governmental entity may issue any permit in accordance with its established procedures.
If the County condemning authority fails to acquire such property or initiate acquisition proceedings, building departments may issue any permit in accordance with its established procedures. This means building permits can be issued for homes, garages, sheds, other buildings, septic systems, wells, or other improvements and they are NOT ENCROACHMENTS upon a claimed easement or right-of-way.
Mr. Kortum was cheated by the very government system that was to protect his property rights.
I have not researched the Statutes to see if the above has a parallel application to the State or to Cities and other municipalities.
In the Kortum case he was robbed by thugs in the government of Hillsborough County Real Estate Department and a judge held the gun!