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531d Street Jenkins Mediation April 4, 2017 ,Page 12 Easement (TCE) on the south side of the right-of-way parcel for access during the construction process. An aerial photograph of the two parcels is attached to this memorandum. Following the completion of the Project, it was discovered that the area used for a TCE was permanently covered with fill material in order to support the road. The area permanently covered with fill measures 2.86 acres. In hindsight, the County should have sought to acquire fee simple interest or at least a Permanent Slope Easement when purchasing the needed right-of-way rather than a Temporary Construction Easement. After discovering that the TCE was of a permanent nature, Jenkins filed a lawsuit in inverse condemnation alleging that Indian River County had taken this portion of the property without compensation by placing fill material on the Jenkins' property. That suit is pending in the Circuit Court and the County is represented by its outside eminent domain attorney, Bill Doney, Esq. while the Jenkins are represented by Robert J. Gorman of Ft. Pierce. William and Carlyne are both deceased and the property is undergoing probate with Brian Jenkins and Patricia Mack acting as co - personal representatives. Both parties conducted depositions of the expert witnesses in the case and past County employees involved in the Project. After reviewing surveys and as -built plans, the parties agreed that the property had been taken by the County without compensating the Jenkins. Removal of the fill from the property taken would not be possible as the fill is necessary to support the east bound 53rd Street roadway. Since the parties agreed that the property had been taken, the issues left to resolve are the value of the property, attorney's fees, expert witness costs, interest and the type of interest the County would need in the property, that is, whether a slope easement would suffice or if a fee simple interest would be needed. The Jenkins' appraiser valued the property taken at $466,800. The County's appraiser valued a fee taking at $250,000 with a slope easement at $125,000. In preparation for mediation and if necessary, trial, the County hired the firm of Morgan and Eklund to survey the submerged lands. When compared to previous surveys, the latest survey showed that the fill placed to support 53rd Street had started to slough off covering more of the Jenkins' property and would likely continue to do so in the future. Due to this development, staff decided to proceed with a fee simple taking and forego the slope easement. III. RISK ASSESSMENT An inverse condemnation case is different than a normal eminent domain case. Interest begins to run on the judgment from the day of take. For the purpose of determining interest the parties used the day of the opening of the road, December 11, 2011, as the day of take. Once a monetary figure is established by a jury or by settlement, the interest is calculated. Attorney's fees in an inverse condemnation case can be measured on an hourly basis or the statutory method based on benefit gained for the client. In the Jenkins' case, the parties agreed on an attorney's fee based on the statutory method of benefit obtained for the client: 33% of the first $250,000 benefit gained; and 25% of the benefit obtained in excess of $250,000. In the case at hand, the Jenkins' attorney could have charged an hourly rate until the time a taking was established by the court and then used the benefit amount thereafter. Determining the reasonable hourly rate and number of hours worked on the case would require hiring an additional expert with the County footing the bill. If this matter would have proceeded in the court system, an order of take hearing would have been held to determine if property was indeed taken, how much property was taken and the date it was taken. Since the parties basically agreed on these three points, settling at mediation saved the P197