;;,

5/7/25, 6:12 PM BoardDocs® Plus

CITY OF
TALLAHASSEE

Agenda Item Details

Meeting May 14, 2025 - City Commission Meeting

Category 12. POLICY FORMATION AND DIRECTION

Subject 12.02 Update on Canopy Circle K Property -- Amy M. Toman, City Attorney

Type Action , Discussion

Fiscal Impact No

Recommended Option 1. Direct staff to discontinue its efforts to acquire by eminent domain
Action property owned by Circle K Stores, Inc., in the Canopy development.

For more information, please contact: Amy M. Toman, City Attorney (850) 891-8554

Statement of Issue
Circle K Stores, Inc., owns and is seeking to develop private property in the Canopy development. In April, the City
Commission directed staff to take the initial steps necessary to acquire the Circle K property by eminent domain. The
Commission's direction was predicated on an inaccurate estimate of the cost of the very first step in the process and,
due to that ihaccuracy, staff is bringing this item back for further direction.

Recommended Action
Option 1. Direct staff to discontinue its efforts to acquire by eminent domain property owned by Circle K Stores,
Inc., in the Canopy development.

Fiscal Impact
None
Supplemental Material/Issue Analysis
History/Facts & Issues
At its April 16, 2025 regularly scheduled meeting, the City Commission directed staff to initiate the steps necessary
to acquire by eminent domain property owned by Circle K Stores, Inc., in the Canopy development. During the
meeting, the Commission was advised that the first step in the process - obtaining two appraisals of the subject
property - would likely result in an expenditure in "the low thousands" of dollars.

After the meeting, staff asked two vendors to provide estimates of the cost to conduct an appraisal of the Circle K
property. Both vendors estimated that the cost of appraising the property would be at least $30,000 and both indicated
that additional costs (e.g., land planning experts) would be necessary for a complete evaluation, since the land is
already permitted. The estimates are attached as Attachments 1 and 2. It appears that the total cost for the two
required appraisals would in fact be upwards of$75,000. Because the Commission's decision was based on
somewhat inaccurate information provided at the April meeting, staff is bringing this item back for further
consideration.

At the April meeting, the Commission also asked that an estimate of all the costs that would potentially be expended
in connection with this proceeding be brought back to the Commission for consideration. The law firm of Nabors,
Giblin & Nickerson (NGN) represents the City in eminent domain matters. Based on its extensive experience in the
area, NGN has provided an analysis of the likely costs of proceeding with eminent domain in this matter. See
Attachment 3.

https://go.boarddocs.com/fla/talgov/Board .nsf/goto?open&id=DBKRAJ6CC26B# 1/2

5/7/25, 6:12 PM BoardDocs® Plus

At the April meeting, staff advised that it had analyzed the property in question against current operational needs and
determined that there was no public purpose and necessity for the property. The City Attorney, noting that public
necessity is the principal foundation of the valid exercise of eminent domain, advised that under these circumstances
an action for eminent domain would not likely be successful.

After the meeting, the City Attorney sought guidance from NGN regarding public purpose and public necessity in the
context of eminent domain proceedings. NGN has provided an analysis of the issue, noting that it is essential that a
determination of public purpose be clearly identified and supported by competent, substantial evidence in any
resolution to authorize eminent domain. NGN also suggests that proceeding in the absence of an articulated and
supported public purpose and necessity could result in sanctions. NGN 's letter is attached as Attachment 4.

On April 30, the City Attorney received correspondence from Erin Tilton, counsel for Circle K. The letter states,
"Absent valid public necessity, exercising the power of eminent domain is an abuse of the City's power and a
violation of Circle K 's constitutional rights." The letter warns that Circle K will defend itself to the fullest extent of
the law and that the City and City Commissioners may be subject to sanctions and personal liability. See Attachment
5.

Based on the foregoing, it is recommended that the Commission direct staff to discontinue efforts to acquire the
Circle K property by eminent domain.

Department(s) Review
City Manager's Office

Options
1. Direct staff to discontinue efforts to acquire by eminent domain property owned by Circle K Stores, Inc. , in the
Canopy development.
2. Direct staff to continue efforts to acquire by eminent domain property owned by Circle K Stores, Inc., in the
Canopy development.

Attachments/References
1. Appraisal Estimate of Diskin Property Research
2. Appraisal Estimate of Deal Consulting
3. NGN's Analysis of Costs of Eminent Domain Proceeding
4. NGN's April 30, 2025 Letter
5. Steams Weaver April 30, 2025 Letter

Att. 1 - Diskin Property Research Appraisal Estimate.pdf (766 KB)

Att. 2 - Deal Consulting Appraisal Estimate.pdf (1,007 KB)

Att. 3 - NGN Analysis of Costs .pdf (787 KB) Att . 4 - NGN Lett er.pdf (1,401 KB)

Att. 5 - Stearns Weaver Letter.pdf (681 KB)

https://go.boarddocs .com/fla/talgov/Board .nsf/goto?open&id=DBKRAJ6CC26B# 212

 Attachment 1
PHONE: (850) 891-8711 Page 1 of 2
PROPERTY MANAGEMENT
FAX: (850) 891-0805
DIVISION ~ CITY OF

APPRAISAL ASSIGNMENT •~ ~~~~!'??~.~

APPRAISAL COMPANY: =D=is=k:..:..;in:....:.P....:cr-=-oc..pe=rt..:..y'-'R:....:.e=s=e=a:..:..;rc=h.,___ _ _ _ _ _ _ _ _ _ _ _ _ __

APPRAISER CONTACT NAME: =Ba=r-=-ry"-'D=i=sk:..:.:.i:....:.,n,--=-P--=-h=D'1-'-. :. :.M.: . A.:. :. .I_ _ _ _ _ _ _ _ _ _ _ __

EMAIL ADDRESS: [email protected]

TELEPHONE NUMBER: ..={8-=-5=0)--=8=9-=-3--=2....:...;40=-=0'-------------------

CITY OF TALLAHASSEE AGENT NAME: '--=='-'--=;..:_;:c.=:....:c...=..:....:...:-=..::=-----------

Robert B. Culverhouse

EMAIL ADDRESS: [email protected]

TELEPHONE NUMBER: _(8'""""5___

0)_8""'"9-'-1--=-8'"""0-=-68"--------------------

PROJECT NAME: Circle K - Canopy Subdivision

PROJECT LOCATION: 2791 WELAUNEE BLVD

--="-..a...;..""""-'-=-'-=.:..;..==-':;;;..=.'-=-----------------

PROJECT/ FUND NUMBER: TBD ...

APPRAISAL REQUESTED: D Non-Eminent Domain D Form Report

Appraisal Report D Other
[8] Eminent Domain Appraisal Report
[8] Whole Property Acquisition
D Before & After (Land Only)
D Before & After (w/ Improvements)

Please Check One: [8] Original D Modification D Update D Review

DETAILED DESCRIPTION FOR SERVICES REQUESTED (Scope of Work): Please provide an
appraisal fee quote and turnaround time ... Market value in fee simple ownership. The property to be
appraised consists of a 1.93-acre vacant property located in the Canopy PUD in Tallahassee. Please
consider the current zoning, adjacent roadway classifications, and any existing permitting as-is. The
property is identified as 2791 Welaunee Boulevard and Leon County Parcel ID No. 11153700A0010 in the
ownership of Circle K Stores, Inc. The appraisal will be used for decision purposes associated with an
offer of acquisition under the threat of condemnation. (Map is attached)

PROJECT BUDGET FOR SERVICE REQUESTED:

AGREED PRICE: L....:::$============~

Robert B. Culverhouse (850) 891-8068
Contact Person (Type/Print) Phone Number

CRITICAL DUE DATE: ASAP

Authorized By (Type/Print) Date

Revised on October 12, 2006

Revised on December 20, 2006/January 15, 2007
A ugust 19. 2014
 Attachment 1
Page 2 of 2
PHONE: (850) 891-8711
PROPERTY MANAGEMENT
FAX: (850) 891-0805
DIVISION ~ CITYOF

APPRAISAL ASSIGNMENT •t:, ~~~~;'\??~,~

TO BE COMPLETED BY APPRAISER:

Base Price: $31,000

Professional Fees: 100 x $310/hr $31,000
Clerical Fees: - -hrs x $- -/hr $
Other: - - $
TOTAL $31,000

Date Request Received: 4/18/2025 Accepted: □ YES □ NO

Appraiser Signature: __ ~~ _ Date: 4/21/2025

FEE BREAKDOWN BY PARCEL:

The proposed fee is a not-to-exceed figure. If we are able to accomplish the task with fewer hours, the
fee will be adjusted accordingly.

The proposed fee is exclusive of predicate experts, including land planners and engineers.

Revised on October 12. 2006

Revised on December 20, 2006/January 15, 2007
August 19. 20 14
 Attachment 2
PHONE: (850) 891-8711 Page 1 of 7
PROPERTY MANAGEMENT
FAX: (850) 891-0805
DIVISION ~ CITYOF

APPRAISAL ASSIGNMENT •C, ~~1'.11"??~.~

APPRAISAL COMPANY: _D_ea_l_C~o_n___
s___
ul____
tin____g....,,......P - - - A " - - - - - - - - - - - - - - - - - - -

APPRAISER CONTACT NAME: =

Shannon Ross Deal
..;...a.;;;;;.;..;.;;.;.;:;.a..a...:....:==--=='-----------------

EMAIL ADDRESS: [email protected]

TELEPHONE NUMBER: .....

(8"""'5__
0)"""54:;;....:....;.4...;;;-2=5=-24-'---_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

CITY OF TALLAHASSEE AGENT NAME: ----------

Robert ..........B.""""""""~~~;;.:;;..;:;-----------
Culverhouse

EMAIL ADDRESS: [email protected]

TELEPHONE NUMBER: . . _(8___

5___
0)......8____9____
1___-8___
0--68"-------------------

PROJECT NAME: Circle K - Canopy Subdivision

PROJECT LOCATION: 2791 WELAUNEE BLVD

----------.........cc...=..~----------------
PROJECT/ FUND NUMBER: TBD ...
---------------------
APPRAISAL REQUESTED: D Non-Eminent Domain D Form Report
Appraisal Report D Other

~ Eminent Domain Appraisal Report

~ Whole Property Acquisition
D Before & After (Land Only)
D Before & After (w/ Improvements)

Please Check One: ~ Original D Modification D Update D Review

DETAILED DESCRIPTION FOR SERVICES REQUESTED (Scope of Work): Please provide an
appraisal fee quote and turnaround time ... Market value in fee simple ownership. The property to be
appraised consists of a 1.93-acre vacant property located in the Canopy PUD in Tallahassee. Please
consider the current zoning, adjacent roadway classifications, and any existing permitting as-is. The
property is identified as 2791 Welaunee Boulevard and Leon County Parcel ID No. 11153700A0010 in the
ownership of Circle K Stores, Inc. The appraisal will be used for decision purposes associated with an
offer of acquisition under the threat of condemnation. (Map is attached)

PROJECT BUDGET FOR SERVICE REQUESTED:

AGREED PRICE: $ DNE $30,000

Robert B. Culverhouse (850) 891-8068

Contact Person (Type/Print) Phone Number

CRITICAL DUE DATE: ASAP

Authorized By (Type/Print) Date

Revised on October 12, 2006

Rev ised on December 20, 2006/January 15, 2007
August 19, 2014
 Attachment 2
Page 2 of 7
PHONE: (850) 891-8711
FAX: (850) 891-0805
PROPERTY MANAGEMENT
d A T T- - - CITY OF
DIVISION
APPRAISAL ASSIGNMENT •t:, ·~½H:"??~.~
TO BE COMPLETED BY APPRAISER:

Base Price : $Do Not Exceed $30,000

Professional Fees: hrs x $200/hr $
Clerical Fees: _ _ hrs x $_ _./hr $
Other: Eng. $6,200
TOTAL $36,200 (See below)

Date Request Received : Accepted : 0 YES ONO

Appraiser Signature: ~ Date: _4/29/2025 _ _ _ _ _ __

FEE BREAKDOWN BY PARCEL:

I will estimate the market value of the property with consideration of the expenditures toward
development as of the date of value, as estimated by Travis Howell, PE. Mr. Howell's bid of $6,200,
which is in addition to my do not exceed bid of $30,000, is attached. My time will be invoiced at
my contract rate of $200 per hour.

Revised on 0<:1obcr 12 , 2006

Revised on December 20. 2006/January 1.5, 2007
August 19, 2014
 Attachment 2
Page 3 of 7

Alday-How-ell Civil Engineering

Site and Subdivision Design
Environmental Permitting
ENGINEERING, INC. Land Use Planning

Land Planning for the Circle K at Canopy Subdivision

(2791 Welaunee Blvd)
Alday-Howell Engineering, Inc.
Agreement for Professional Engineering Services
April 28, 2025
Alday-Howell Engineering, Inc., hereinafter called "AHE", and Deal Consulting, hereinafter called
"client", agree as follows:

I. Project Description

The subject project/parcel is located in Leon County, Florida and is associated with Welaunee Boulevard.
The parcel has Leon County Parcel ID # l 1153700A0010. AHE will be responsible for assisting the
consultant appraiser with land planning services.

IL Scope of services and estimated fees include:

A. Coordination with the consultant appraiser, design personnel, Right of Way personnel,
etc.
B. Field review.
C. Miscellaneous research of the development file at the City/County.
D. Prepare an estimate of the cost of planning, permitting and designing the development
project proposed on site.
E. Prepare summary report of findings.

The above-mentioned services provided by AHE will be performed for a fee not to exceed $6,200. AHE
will proceed with the work upon receipt of the fully executed agreement. Services not described above
and not described on the individual fee estimate that are to be performed by AHE will be additional and
billed at our hourly rates if the limiting amount is exceeded. AHE will not proceed with additional
services without prior authorization from the client. Additional services will be based on time spent
billed at the following rates:

Principal Engineer $250/hr

Contractor (sub) $150/hr
Professional Engineer $160/hr
Civil Engineer $100/hr
Engineer Technician $65/hr
Clerical $45/hr

Ill. Items not included.

A. Items that are not included in the proposal may include, but are not limited to the
following:

Mailing Address Marianna Office Crestview Office

Post Office Box 494 3017 Highway 71 North 4100 S. Ferdon Blvd, Ste B2
Marianna, FL 32447 Marianna, FL 32446 Crestview, FL 32536
info@aldayhowell .com crestview@ aldayhowell .com
Ph: (850) 526-2040 Ph: (850) 634-6084
Fax: (850) 526-4740
 Attachment 2
Page 4 of 7

1. Geotechnical, SHn'eying, landscape architecture, architecture, biological, and

archeological services except as specified above.
2. Meetings with homeowner's associations and adjacent property owners.
3. Request for services by the client that are not specifically described in the above
services.
4. Request from governmental agencies which requires services not described in the
Scope of Services.
5. Services associated with the permitting, design, and coordination of off-site
utility extensions except as specifically described in the above task.
6. Services associated with FEMA Floodplain mapping and permitting.
7. Services during construction.
8. Services required due to changes in codes and regulations that occur after the
date of this proposal.
9. Service required for an off-site tum lane design and permitting that may arise as a
condition of traffic approval.
I0. Services associated with retaining wall design and permitting.
11 . FDEP and/or COE dredge and fill permitting except as indicated in the Scope of
Services.
12. Sewage treatment plants and sewage pumping stations.
13 . Consumptive Use/Well permitting with NWFWMD.
14. As-built survey.
15. Permitting fees. (Client will be responsible for paying all permit fees directly
to the permit authority at the time of submittal.)

IV. Reimbw:sables.

A
rr. Reimbursable eost not ineluded in the lurnp sum fee or hourly rate may indude, but are
not limited to the follo\1ling out of poeket expenses whieh shall be eharged at aetual eost:

1. Delivery eost.
2. Loeal travel not to exeeed 42 eents per mile.
3. Perrnit fees.
4. Printing, plotting, and reproduetion eosts.
5. Material and supplies eost unique to the prajeet.

V. Terms and Conditions.

A. Our invoice will be submitted when the Owner has approved the report and sends notice
to invoice. The invoice should be paid promptly after payment is received from the
Owner by client.

B. The proposed report is contingent upon government approval. AHE cannot guarantee
any approvals by the federal, state, or local agencies and is not responsible for their
actions or consequences that may arise as a part of the project's review by government
agencies.

C. Either party may tem1inate this agreement by providing seven days written notice. The
client shall pay AHE for work completed up to the date of termination. If a dispute arises
out of or relates to this contract, or the breach thereof, and if said dispute cannot be
settled through direct discussion between the parties, then the parties agree to first

2
 Attachment 2
Page 5 of 7

endeavor to settle the dispute in an amicable manner by mediation before having recourse
to arbitration or a judicial forum.

D. In recognition of the relative risks and benefits of the Project to both the Client and the
Consultant, the risks have been allocated such that the Client agrees, to the fullest extent
permitted by law, to limit the liability of the Consultant and Consultant's officers,
directors, partners, employees, shareholders, owners and subconsultants for any and all
claims, losses, costs, damages of any nature whatsoever or claims expenses from any
cause or causes, including attorneys' fees and costs and expert witness fees and costs, so
that the total aggregate liability of the Consultant and Consultant's officers, directors,
partners, employees, shareholders, owners and subconsultants shall not exceed $_ _,
or the Consultant's total fee for services rendered on this Project, whichever is greater. It
is intended that this limitation apply to any and all liability or cause of action however
alleged or arising, unless otherwise prohibited by law.

E. The Client shall, to the fullest extent permitted by law, indemnify and hold harmless
AHE, it's officers, directors, employees, agents and subconsultants from and against all
damage, liability and cost, including reasonable attorney's fees and defense costs, arising
out of or in any way connected with the performance of the services under this
agreement, excepting only those damages, liabilities or costs attributed to the sole
negligence or willful misconduct of AHE.

F. Unless otherwise stated, AHE will have access to the site for activities necessary for the
performance of the services. AHE will take reasonable precautions to minimize damage
due to these activities, but has not included in the fee the cost of restoration of any
resulting damage and will not be responsible for such costs.

G. All opinions and conclusions of AHE, whether written or oral, and any plans,
specifications or other documents and services provided by AHE are for the sole use and
benefit of the client and are not to be provided to any other person or entity without the
prior written consent of AHE. Nothing contained in this agreement shall create a
contractual relationship with or a cause of action in favor of any third party against either
AHE or Client. All documents produced by AHE under this agreement are instruments
of AHE's professional service and shall remain the property of AHE and may not be used
by the Client for any other purpose without the prior written consent of AHE.

H. AHE agrees to attempt to maintain professional liability coverage in the amount of

$1 ,000,000 per claim and $1 ,000,000 in the annual aggregate for the period of design and
construction of the Project and for a period of three years following substantial
completion, if such coverage is reasonably available at commercially affordable
premiums. For the purposes of this Agreement, reasonably available shall mean that the
Consultant can secure at least three premium quotes for comparable coverage by
admitted,ill A.M. Best Co.ill A-rated carriers. Commercially affordable shall mean the
rate per $1000 of fees is no more than a multiple of three times the rate being paid for
comparable coverage in place when this agreement was executed.

I. AHE represents and warrants that it and its agents, staff and consultants employed by it
are protected by worker's compensation insurance and that AHE has such coverage under
public liability and property damage insurance policies which AHE deems to be adequate
and in line with other professional service firms currently practicing under similar
conditions. Certificates for such policies of insurance shall be provided to client upon

3
 Attachment 2
Page 6 of 7

request in wntmg. Additional insurance, if requested in wntmg by client prior to

commencement of services, will be obtained by AHE, if procurable, and charged to the
client.

J. This proposal shall be considered null and void if not signed by client and received by
AHE within 30 days from the date of this letter.

We would appreciate the opportunity to provide these professional engineering services and are thankful
for the opportunity to submit this proposal. Upon receiving the signed agreement, AHE will proceed with
the project as proposed.

In witness whereof, this agreement is accepted on the date last written below, subject to the terms and
conditions stated and the provisions set forth herein.

Client: Consultant:

For:_~D~e=a~lC~o=n=su=l=ti=n=g~,P~.A=·~--- Alday-Howell Engineering, Inc.

Address: - - -P.O.
- -Box
- -609
----- Address: Post Office Box 494

Chipley, FL 32428 Marianna, FL 32447

Signed: _ _ _ _ _ _ _ _ _ __ Signed:_ _ _ _ _ _ _ _ _ _ __

Typed Name: Shannon Deal, M.A.I. Typed Name: Travis Howell

Title:_ _ _ _~O~w~n=e=r_ _ _ _ _ __ Title: Principal

Date:_ _ _ _ _ _ _ _ _ _ _ __ Date:_ _ _ _ _ _ _ _ _ _ _ __

4
 Attachment 2
Page 7 of 7

FEE ESTIMATE
FOR
Circle K Canopy Subdivision
AHE # 25-Pending
April 28, 2025
2791 Welaunee Blvd TSH
I TASK I
PRINCIPAL I P.E. I C.E. I I
Eng. Tech. CLERICAL! TOTAL I
Follow up field review 4 400.00
Coordination with appraiser, Department
Design Personnel, etc. 1 100.00
Analyze turning movements in the
before 0.00
Analyze turning movements in the after
0.00
Updating base map with improvements
0.00
Updating cross sections/drwy profiles 0.00
Updatinq cure drawing 0.00
Prepare summary report 4 400.00
Misc. research 1 16 1,850.00
Estimating permit fees 1 8 1,050.00
Estimating engineering cost 1 8 1,050.00
Updating schedule of items in the TCE 0.00
Updating schedule of items in the PE 0.00
Updating quantities/cost to cure 0.00
Misc meetings 1 1 350.00
Iouality control and supervision 4 1,000.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
.;,
.. ·.•. t .:, ;'
8 0 42 0 0
HOURLY RATE $250 $160 $100 $65 $45
$2,000 $0 $4,200 $0 $0 $6,200.00
SUBTOTAL $6,200.00

Survey
Contractor

TOTAL $6.200.00
 Attachment 3
Page 1 of 2

City of Tallahassee
Circle K

Estimates of Costs

Through Mediation Through Trial Total

Post Order of
Taking
NGN Attorney's $70,000.00 Additional $200,000.00
Fees $130,000.00
City Expert Fees $40,000.00 Additional $75,000.00
$35,000.00
Opposing Side's $56,000.00 Additional $100,000.00
Expert Fees $44,000.00
(Appraiser,
Engineer... )
Total $375,000.00

Property Owners Attorney's Fees

Additionally, Attorneys' Fee for Defense Counsel, which would be owed by the City, is set
statutorily on the following scale for the benefit received (s. 73.092, Fla. Stat):

• 33% of any benefit up to $250,000.00; plus

• 35% of any portion of the benefit between $250,000 and $1 million; plus
• 20% of any portion of the benefit exceeding $1 million.

The benefit is defined as the difference between the initial offer and the amount achieved
monetarily by Defendant in any settlement or judgement. Generally, at a minimum the
Defense Counsel is going to aim to achieve $100,000.00 minimum in attorneys' fees in this
scenario, if not much greater.

In addition, the property was acquired by Circle K. Stores, Inc. for $1,800,000.00 in 2024
since that time they have gone through the permitting process and been issued a building
permit and land development permit in October 2024. It appears they are also beginning
construction and for those reasons any appraisal value will very likely be significantly higher
than the 2024 purchase price as the fair market value will consider the land development
approvals that have been obtained.

Since no written offer for the property has been made, it is difficult to estimate the extent of
attorney's fees that will also be required from the City.

1
 Attachment 3
Page 2 of 2

Interlocutory Appeal

As the determination by the Court as to the granting of an Order of Taking is appealable as

an interlocutory appeal, the potential cost of that appeal should be considered. We would
estimate that the cost of that appeal would be between $35 ,000 and $50,000.

Estimate of Time - Interlocutory Appeal

Best case scenario:

Offer on the property and resolution of necessity (30 days before filing case), file petition and
set an Order of Taking hearing (minimum of 60 days after filing case). Already at 90 days.

Initial brief due 30 days after transmittal of the record (which is due 50 days following filing
of Notice of Appeal), then answer brief due 30 days after the filing of the initial brief, then
reply brief due fifteen days after that. At that point the court would set it for oral arguments
which generally is set between 90-150 days after all of the briefs have been filed. The time
following oral argument until a decision is issues can vary widely but could be up to an
additional 180 days. We are familiar with an interlocutory appeal involving an eminent
domain matter instituted by FOOT. That appeal took 255 days for completion.

Total (best case): 345 days from the offer to the rendering of a decision back on appeal. It is
highly likely that if construction is already started it would be completed in advance of any
conclusion of the eminent domain proceedings. For that reason the cost of raising the
building, restoring the property to a park like state, including environmental cost for
remediatingthe land should also be considered.

2
 Attachment 4
Page 1 of 2 TAMPA
2502 Rocky Point Drive

TALLAHASSEE
1500 Mahan Drive Nabors& Suite 1060
Tampa, Florida 33607
(813) 281-2222 Tel
Suite 200
Tallahassee, Florida 32308
(850) 224-4070 Tel
Giblin (813) 281-0129 Fax

PLANTATION
(850) 224-4073 Fax

Reply to Tallahassee
NickersonP.A.
,!.. T T O R I•! E Y 5 4 T .l, ,.,,
8201 Peters Road
Suite 1000
Plantation, Florida 33324
(954) 315-0268 Tel

April 30, 2025

Via Electronic Mail

Amy M. Toman, City Attorney

City of Tallahassee
City Attorney's Office
300 South Adams Street, Box A-5
Tallahassee, Florida 32301
[email protected]

Re: Public Purpose in the Eminent Domain Proceedings

Dear Ms. Toman:

Following up on our discussions, I wanted to address some of the concerns that may arise
during the eminent domain process.

One of the primary concepts governing the use of eminent domain is the requirement of
establishing a public purpose for the taking of private prope1iy. Over time, the extent of showing
required to justify the taking of private prope1iy by a government entity has evolved. Currently,
not only must a governmental entity show that the taking of private property by a government
entity serves a public purpose but also that there is a public necessity. Comis somewhat treat these
concepts interchangeably but there are distinctive aspects to each term.

As you are aware, the initiation of an eminent domain proceeding requires the adoption of
a resolution authorizing the use of eminent domain to acquire the private property needed.
However, in addition to authorizing the use of eminent domain, the resolution must specifically
identify the public purpose that will be served by the acquisition of the identified private property.
Merely identifying a suggested public purpose does not necessarily satisfy this standard. Rather,
it is essential that the determination of the public purpose be clearly identified in the resolution
and that this determination be supported by competent substantial evidence.

Once a complaint for eminent domain is filed, the governmental entity seeking the exercise
of eminent domain has the initial burden of proof establishing a public purpose from the acquisition
of the identified private prope1iy. After an initial showing of a public purpose/public necessity by
the governmental entity to be served by the acquisition, the property owner then has the burden of
presenting evidence that the necessary public purpose/public necessity is not present. However,
the ultimate burden of proof as to this requirement is on the governmental entity.
 Attachment 4
Page 2 of 2

Amy M. Toman, City Attorney

April 30, 2025
Page 2

When there is a dispute as to the existence of a public purpose/public necessity from the
acquisition of private property, the evidentiary support that is available becomes crucial. Where
there is a lack of evidence supporting the existence of a public purpose/public necessity ce1tain
sanctions are a possibility. Particularly, under section 57.105 , Florida Statutes which provides that
where a party asserts a claim or defense ( 1) that was not supported by the material facts or (2) not
supp01ted by the application of the then existing law that sanctions are available. These sanctions
are to be paid in equal parts by both the party making the claim or defense and the attorney for that
party. This is paiticularly true where there is an indication that there was no legitimate public
purpose and that the designated purpose was a sham or arbitrary. Additionally, for the attorney,
the filing of frivolous pleadings can subject them to action by the Florida Bar.

As a result, it is my view that where appropriate, a formal analysis be prepared prior to

instituting any eminent domain proceeding documenting the public purpose/public necessity
served by the taking.

Should you have any other questiom(j;1e se contact me.

\ Sincerely,

GTS:lll
 Attachment 5
Page 1 of2
STEARNS WEAVER MILLER
WEISSLER ALHADEFF & SITTERSON, P.A.

April 30, 2025

VIA E-MAIL
Amy Toman, Esq.
City Attorney
[email protected]

RE: Circle K- Welaunee Boulevard and Dempsey Mayo

Initiation of Eminent Domain Proceedings

Dear Ms. Toman:

Steams Weaver Miller represents Circle K Stores Inc. ("Circle K") regarding its property
located at the intersection ofWelaunee Boulevard and Dempsey Mayo Road (the "Property").

As you are aware, at its meeting on April 16th, the City Commission directed your office
to prepare a resolution for its consideration initiating eminent domain proceedings to involuntarily
take the Property. This direction was made against the advice of counsel and with full recognition
that the City Manager, in coordination with City staff and all City Departments, found no public
necessity to support the exercise of eminent domain. You appropriately advised the Commission
that, "public necessity is the principal foundation for the valid exercise of eminent domain."
Absent valid public necessity, exercising the power of eminent domain is an abuse of the City's
power and a violation of Circle K's constitutional rights ..1

Circle K invested in the Property based on the Tallahassee-Leon County Comprehensive

Plan 2030, the City of Tallahassee Land Development Code, and the approved Canopy Planned
Unit Development - including the implementing regulations for Canopy's Town Center District
that were unanimously adopted by this exact same City Commission in 2020. These
Comprehensive Plan policies and implementing regulations expressly allow a gas station to be
developed at this location. Circle K has advanced significant resources, including engineering and
legal costs, to apply for and obtain the necessary permits and approvals to develop its Property in
full compliance with all applicable regulatory requirements.

The U.S. and Florida Constitutions protect landowners and their rights to acquire, use, and
dispose of property for lawful purposes. These constitutions further protect Circle K against the
City's arbitrary, capricious, or unjust discriminatory actions impacting its rights to acquire, use,
and dispose of the Property. The Commission's decision to weaponize the power of eminent

1
A petition in eminent domain must set forth "the public use or purpose for which the property is to be acquired, and
that the property is necessary for that public use or purpose." § 73.021, Fla. Stat. Based on their thorough research,
analysis, and recommendation, both the City Attorney and the City Manager concluded there is no public necessity to
support eminent domain. Accordingly, any eminent domain petition against the Property would be vulnerable to
additional sanctions. See § 57.105, Fla. Stat. ("[T]he court shall award a reasonable attorney's fee, including
prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's
attorney on any claim or defense . .. that the losing party or the losing party's attorney knew ... (a) was not supported
by the material facts necessary to establish the claim or defense; or (b) would not be supported by the application of
then-existing law to those material facts.") .

MIAMI • TAMPA • FORT LAUDERDALE • TALLAHASSEE • CORAL GABLES

 Attachment 5
Page 2of2
April 30, 2025
Page2

domain exposes the City to liability for millions of dollars in damages, and also exposes the
individual Commissioners themselves to personal liability under 42 U.S.C. § 1983. 2 Moreover,
the City's abuse of eminent domain sets a dangerous, anti-democratic precedent that will have a
chilling effect on private investment and local economic development for years to come.

Circle K remains committed to lawfully developing the Property and operating its business.
It is our sincere hope that the City Commission will reconsider its current path and decline to move
forward with eminent domain proceedings. Otherwise, Circle K will be forced to defend its
constitutionally protected property rights to the fullest extent of the law.

If you have any questions or would like to discuss Circle K's position on this matter further,
please do not hesitate to contact us.

Cordially,

Erin J. Tilton

On behalf of Circle K Stores Inc.

2
42 U.S.C. § 1983 imposes liability for conduct that subjects a complainant to "a deprivation of a right secured by the
Constitution and laws." Rizzo v. Goode, 423 U.S. 362, 370-371 (1976). An individual may be liable for such a
constitutional deprivation where he or she is "personally involved" in the conduct resulting in the deprivation via "(I)
direct participation; (2) failure to remedy the wrong after learning about it; (3) creation of a policy or custom under
which unconstitutional practices occur; or (4) gross negligence in managing subordinates who caused the violation."
Bensch v. Metropolitan Dade County, 798 F. Supp. 678, 680 (S.D. Fla. 1992) (citing Williams v. Smith, 781 F. 2d 319,
323 (2d Cir. 1986)).

STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON . P.A.