SAMUEL HUBSCHMAN; CONNIE HUBSCHMAN; GARRETT F.X. BEYRENT; TERYL BEYRENT; HARRISON HUBSCHMAN; ALBERT HUBSCHMAN; AND CONNIE HUBSCHMAN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SIDNEY HUBSCHMAN, APPELLANTS,
v.
THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS THE GOVERNING BODY OF COLLIER COUNTY AND AS EX-OFFICIO THE GOVERNING BOARD OF THE COLLIER COUNTY WATER-SEWER DISTRICT, APPELLEE
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In a condemnation proceeding, the Board of County Commissioners took property from the Hubschmans, awarding them $70,000 as full compensation. The Hubschmans appealed, claiming their losses were worth $300,000. The District Court of Appeal reversed and remanded because the trial court erroneously instructed the jury that aesthetic losses were not compensable severance damages.
The trial court erred in instructing the jury that aesthetic losses are not compensable severance damages. Severance damages encompass all diminution in value to land remaining after a taking, including aesthetic loss caused by the use of the condemned land.
[1] Severance damages in eminent domain proceedings include all diminution in the value of the remaining land attributable to the use of the taken land.
[2] Aesthetic loss to remaining property can be a compensable element of severance damages in an eminent domain action.
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Join FLexlaw to unlock all legal intelligence“Recoverable damages to the remainder include all diminution in value of the remaining land which can be attributed to the use of or activity upon the land which has been taken.”
Establishes the broad scope of compensable severance damages in condemnation proceedings
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Join FLexlaw to unlock all legal intelligenceThe Board of County Commissioners exercised its power of eminent domain to take 1.2 acres of property belonging to the Hubschmans. The appellants owne…
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HALL, Judge.
The instant appeal arises out of a condemnation proceeding in which the appel-lee, The Board of County Commissioners of Collier County, through its power of eminent domain, took property belonging to the appellants, Samuel Hubschman, Connie Hubschman, Garrett F.X. Beyrent, Teryl Beyrent, Harrison Hubschman, and Connie Hubschman, as personal representative of the estate of Sidney Hubschman. Though the appellants were awarded $70,000 as full compensation for the taking, they claim their losses are more accurately valued at $300,000. The appellants therefore contend they were prejudiced as a result of various errors which occurred at trial. In that regard, they raise three issues for review. Since, however, we find merit in their contention that the trial court erred in its instructions to the jury on severance damages, we do not reach the other issues raised by the appellants.
The appellants contend that, with regard to severance damages, the trial court improperly instructed the jury that “mere noise, fumes, and aesthetic loss are not compensable under Florida law unless the owner is substantially ousted and deprived of all beneficial use of its remaining land.” We agree that the instruction is erroneous.
Recoverable damages to the remainder include all diminution in value of the remaining land which can be attributed to the use of or activity upon the land which has been taken. Lee County v. Exchange Nat. Bank of Tampa, 417 So. 2d 268 (Fla. 2d DCA 1982). Though the instant record discloses no evidence of damage to the appellants’ remaining property because of potential noise and fumes, there is evidence of aesthetic loss to the property due to the anticipated placement of large effluent tanks thereon.
Since severance damages encompass all diminution in value to land remaining after a taking, including aesthetic loss, and it is uncontroverted that the entire damage to the appellants’ remaining 7.8 acres will be caused by the county’s use of the 1.2 acres taken, the trial court erred in its instruction to the jury advising them that any loss due to aesthetics was not compensable.
We therefore reverse and remand for a new trial.
CAMPBELL, A.C.J., and ALTENBERND, J., concur.
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Armadillo P'rs, Inc. v. State of Fla. Dep't of Transp., 780 So. 2d 234 (Fla. 4th DCA 2001)…a itself. His focus was strictly on the valuation as affected by the loss of parking which reduced rent. Even if its only value was aesthetic, such value can be included in severance damages. See Hubschman v. Bd. of County Comm’rs of Collier County, 610 So. 2d 691, 692 (Fla. 2d DCA 1992). Further, he did not even consider the value of the permanent improvements lost as a result of the conversion of the Arbor Area, such as the sprinkler system, the decorative brick wall, and the landscaping on the site. Becaus…
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