Eminent Domain Law in Florida: An Overview
By Jennifer B. Springfield and Alexander Boswell-Ebersole
As an “inherent attribute of sovereignty,” the government is empowered to “take” privately owned land. Such authority, known as “eminent domain” or “condemnation,” is restricted in several ways by both the United States and Florida constitutions. The government may take private property by either initiating eminent domain proceedings so as to intentionally take the property or by regulating in a way that deprives a landowner of the use of his or her property.
Takings can take the form of either a partial taking (e.g., a strip of land), a temporary taking (e.g., associated with the completion of a project on another property), an easement or right of way (e.g., for the use of part of a property for power lines), or a complete taking. Regulatory takings generally lead to “inverse condemnation” actions, in which a private landowner initiates an action based on a claim that government regulation has in effect resulted in a taking.
With a long tradition of private property rights in both Florida and the rest of the United States, the need for governments to use eminent domain power to address public needs often gives rise to impassioned disapproval from landowners and citizens. The use of this power can also result in significant financial and other personal consequences to those who are directly impacted. Nevertheless, whether representing private landowners or a condemning authority exercising the power of eminent domain, attorneys often find themselves in the midst of balancing between the public need for the use of certain property and the interests of private ownership.
The main restrictions in the U.S. Constitution on the government’s exercise of eminent domain authority are that the government may only take property for “public use” and that it must give “just compensation” for the property taken. The Florida Constitution spells-out similar requirements, except that Florida’s Constitution employs the terms “public purpose” and “full compensation.” Not surprisingly, a significant body of case law exists interpreting these terms.
The constitutional eminent domain restrictions are found in the Fifth Amendment to the U.S. Constitution, which has been interpreted to apply to state and local governments through the Fourteenth Amendment. Article X, § 6 of Florida’s Constitution contains the constitutional provisions specific to eminent domain in Florida, including the provision that “[n]o private property shall be taken except for a public purpose and with full compensation therefor . . . .” By requiring “full compensation,” the Florida Constitution gives more protection to landowners than the Federal Constitution’s “just compensation” requirement because it requires the landowner to be made whole by such compensation, including the costs incurred before a taking occurs. This requirement also gives rise to attorney’s fees and costs, which are generally not provided under federal law. The distinction between the U.S. Constitution’s “public use” and the Florida Constitution’s “public purpose” is not as clear.
A relatively recent amendment to Article X, § 6 further restricts the government’s exercise of eminent domain in Florida. Florida citizens voted to approve an amendment in 2006 in response to a 2005 U.S. Supreme Court case. Kelo v. City of New London centered on the “public purpose” requirement and involved a group of homeowners that challenged the City’s use of eminent domain in an economically depressed area. The City wanted to demolish a group of homes in order to give the land to a private developer in the name of economic development. The Court found in favor of the City, thus paving the way for local governments to use eminent domain for the fairly broad purpose of economic development. The Kelo decision triggered a public outcry among property rights’ advocates across the nation and caused many states to change their eminent domain laws. In Florida, the amendment included a provision prohibiting government from transferring property taken by eminent domain to natural persons or private entities, unless approved by a three-fifths majority of the Legislature.
Although the term “government” as used when discussing inherent eminent domain power generally refers to federal, state and local governments, such governmental entities can delegate the power to other entities such as transportation departments, public utilities and even, in limited circumstances, to private corporations. In Florida, several statutes grant eminent domain power to such entities ranging from the Department of Correction, Department of Transportation, and drainage and watershed improvement districts. Any entity exercising such delegated authority must abide by the same legal restrictions imposed upon federal, state and local governments.
Follow-up articles will provide more detailed discussions of some specific aspects of eminent domain law, including the proper purposes for which the eminent domain power can be used, the general procedures associated with eminent domain, and Florida’s rather robust provisions for attorney’s fees and costs associated with such proceedings.
Note: An inverse condemnation action originates from a “taking,” but it is a different process and will not be addressed in this series of articles.