Florida Statutes
Fla. Stat. § 338.04 (2025)
Acquisition of property and property rights for limited access facility and service roads.
✓ 2025 Florida Statutes — current through the 2025 Regular Session
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338.04 Acquisition of property and property rights for limited access facility and service roads.—
(1) Authorities may acquire private or public property and property rights for limited access facilities and service roads in the same manner as they are authorized to acquire property or property rights for highways, roads, and streets within their respective jurisdictions.
(2) In acquiring property or property rights for any limited access facility or service road, the authorities may acquire an entire lot, block, or tract of land if the interests of the public will be best served by the authorities’ doing so, even though the entire lot, block, or tract is not immediately needed for the right-of-way proper.
Notes of Decisions
Cited in 13
cases, 1959–1989 · leading case: Div. of Admin. v. Ness Trailer Park, Inc., 489 So. 2d 1172 (Fla. 4th DCA 1986).
Div. of Admin. v. Ness Trailer Park, Inc., 489 So. 2d 1172 (Fla. 4th DCA 1986). “The Capital Plaza court stated as its holding "that landowners have no compensable interest in traffic flow and that, in order to receive severance damages, any complained-of impairment must result directly from the taking.”
Palm Beach Cnty. v. Tessler, 538 So. 2d 846 (Fla. 1989). “Palm Beach County argues that Anhoco and Stubbs are not authority for recovery in the instant case because both of those decisions involved takings under section 338.04, Florida Statutes (1973), which mandated that property owners be reimbursed for loss of access incurred in the…”
Anhoco Corp. v. Dade Cnty., 144 So. 2d 793 (Fla. 1962). “, a part of the limited access facilities statute, requires a condemning authority to acquire the fee simple title to a right-of-way when it seeks to obtain land upon which it contemplates constructing a limited access road.”
State Dep't of Transp. v. Stubbs, 285 So. 2d 1 (Fla. 1973). “, Section 338.04, F.S.A., provides for the taking of "private or public property and property rights for limited access facilities and service roads, including rights of access.”
State Ex Rel. Ervin v. Jacksonville Expressway Auth., 139 So. 2d 135 (Fla. 1962). “In construing Section 338.04, Florida Statutes, F.S.A., a part of the Limited Access Facilities Act, we have held that when the State Road Department desires to construct a limited access highway upon the surface of the land, it must acquire the fee simple title to the land.”
Div. of Admin. v. Capital Plaza, 397 So. 2d 682 (Fla. 1981). “The instant case is distinguishable from Stubbs because the road involved here is not a limited access facility governed by section 338.04. Instead, the instant case concerns alleged damages resulting from a change in the flow of traffic, not a deprivation of access.”
Florida State Tpk. Auth. v. Anhoco Corp., 116 So. 2d 8 (Fla. 1959). “" In this respect the majority seems to conclude that Section 338.04, F.S.A. requires the authorities to condemn and acquire the fee of the roadway in order to establish a limited access facility and in such proceedings to pay the land owner the damages which may be occasioned…”
Salfi v. Div. of Admin., State, Dep't of Transp., 312 So. 2d 781 (Fla. 4th DCA 1975). “We need not decide that point as there is an alternate source, Fla. Stat. § 338.04 (1973), which empowers the acquisition of property for limited access facilities.”
Capital Plaza, Inc. v. Div. of Admin., Etc., 381 So. 2d 1090 (Fla. 1st DCA 1979). “Furthermore, in both Stubbs and Anhoco the court emphasized that the takings were for "limited access facilities" under Section 338.04, Florida Statutes. In the Stubbs' opinion the court said: "In Florida, F.”
State Road Dep't v. Lewis, 156 So. 2d 862 (Fla. 1st DCA 1963). “Lewis further contends that the overpass is a limited access facility and as such the Road Department is required under Section 338.04, F.S., F.S.A., to condemn the consequential rights of access, air, view and light.”
Palm Beach Cnty. v. Tessler, 518 So. 2d 970 (Fla. 4th DCA 1988). “Stubbs held that section 338.04, Florida Statutes (1971) mandates jury consideration of severance damages where there is a direct physical taking of property for a limited access facility.”
State Dep't of Transp. v. ABS, Inc., 336 So. 2d 1278 (Fla. 2d DCA 1976). “Section 338.04, F.S.1971, first enacted in 1955, provides that the highway authorities of the state may acquire private or public property or property rights, “including rights■ of access,” for the construction of limited access facilities and service roads.”
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