FLORIDA EMINENT DOMAIN LAW
“Public Purpose” and “Just Compensation” Requirements
By Jennifer B. Springfield and Alexander Boswell-Ebersole
In Florida, governmental entities may take privately-owned real property for a “public purpose,” provided the owner receives “full compensation.” Under the Florida Constitution, the public purpose and full compensation requirements generally result in greater protection for private landowners than under federal law, and the precise meanings of these two terms have been fleshed out by the State Legislature and Florida courts. While this article’s focus is on intentional eminent domain situations, many of the same principles apply to inverse condemnation proceedings.
What is a public purpose/use? Under the U.S. Constitution and federal law, “public use” has been interpreted broadly to include projects ranging from the more traditional eminent domain purposes, such as transportation or military defense, to projects that provide a “public benefit” or fulfill an “economic development” purpose, such as clearing an area of blight or slum. Florida courts often use the two terms interchangeably and also interpreted public purpose/use rather broadly until a 2005 U.S. Supreme Court case prompted new legislation and an amendment to the Florida Constitution.
Determining whether a particular use amounts a public use or is for a public purpose is typically a legal question to be determined by the court on a case-by-case basis. Public use has been defined by the Florida Supreme Court as follows:
A use to be public must be fixed and definite. It must be one in which the public, as such, has an interest, and the terms and manner of its enjoyment must be within the control of the State, independent of the rights of the private owner of the property appropriated to the use. The use of property cannot be said to be public if it can be gainsaid, denied, or withdrawn by the owner. The public interest must dominate the private gain.
In accordance with this, condemned property must be available to the public, though not all members of the public must directly enjoy the benefits of it. Moreover, property taken by eminent domain may result in private gain, so long as the taking is clearly and predominantly for a public purpose and the private gain is merely incidental. In practice, this principle has often proven difficult to apply.
Florida’s eminent domain law changed significantly in response to a 2005 U.S. Supreme Court case, Kelo v. City of New London. The Kelo Court ruled that the City of New London’s use of its eminent domain authority to take property and give it to a private developer in the name of economic redevelopment was an appropriate public use. The Florida Legislature reacted by adopting legislation in 2006 intended to protect against such a scenario. This legislation strengthened the public purpose restriction by forbidding the transfer of condemned property to a private party within 10 years of the property’s condemnation. The new legislation also specifically prohibits the use of eminent domain to either abate or eliminate a public nuisance, or to prevent or eliminate slum or blight conditions. In addition, the Legislature proposed an amendment to the state’s constitution that similarly prohibited the transfer of condemned property to private parties. The amendment, which was soundly passed by the Florida voters, only allows exceptions to be made via a three-fifths majority vote of both legislative houses.
What is full compensation? The purpose of the constitutional guarantee of full compensation is, as far as possible and practicable, to make a property owner, who is deprived of his or her property, whole. Although full compensation normally equates to the fair market value of the property at the time of the taking, this is not the exclusive standard used, and the method used to determine compensation depends on the particular circumstances of each case. When fair market value is used to determine full compensation, all factors that would reasonably be contemplated in negotiations between a willing seller and buyer should be considered. Moreover, the value of the property should be based on the highest and best use to which the property is being put or reasonably may be put. Moving costs, appraisal costs, expert witness fees, attorney’s fees, severance damages, and other reasonable costs should all be considered as part of the valuation of full compensation.Furthermore, the property owner is entitled to interest from the date of the taking until the condemning authority pays the compensation.