Tuesday, December 07, 2004

Foreseeable flooding can be tried as demages in a taking of other parts of propery

FDOT takes a parcel for a stormwater pipe.
Landowner claims that based on the engineering, factility will cause flood damage to the remainder.
FDOT - can't bring those damages as part of the taking! Landowner must wait and file inverse condemnation damage claim later, when (if) flooding occurs.
Trial Court - we'll buy FDOT argument.
5th DCA - who are you kidding? Damages to the remainder are cognizable in taking of part. Here's the opinion.

Seems like a basic point to me, but creates some interesting potential res judicata/law of the case problems, regardless of how this is litigated. Issue (for FDOT) is that landowner gets multiple bites: at the condemnation, where LO can try to prove damages from foreseeable future flooding, then (if this doesn't work), later if flooding actually occurs.

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