Eminent domain and government takings can be confusing and costly to the private property owner. The definitions below relate to relevant topics associated with eminent domain.
What is eminent domain?
Eminent domain is the accepted practice of a government or government entity taking or “condemning” private property for a public purpose or use. “Government takings” or condemnations are legal as established by both Florida law and the U.S. Constitution, on the condition that the government only takes what is necessary for a public purpose and that it pays full compensation for the property and the diminution in value of any associated or remaining properties. The state of Florida, as well as its cities and counties, have the power to take property for public purposes such as new roadways, widening existing roadways, construction of schools, police stations and other government facilities.
What is inverse condemnation?
Inverse condemnation is a legal action filed by a property owner against an entity with the power of eminent domain for an indirect taking of a property right. Damages may include loss of access or “access impairment”; closure of a business based on alleged nuisance; denial of development, drilling or other rights or permits; flooding; enactment of “maps of reservation” that prohibited the owner’s use of its property; and condemnation blight. After a judge declares a taking which then damages use of non-taken property or the property owner’s essential element of those rights, an “inverse condemnation” action against the taking entity seeks to recover the value of the indirectly affected property.
Flooding as pertaining to eminent domain relates to water projects; regulation of the levels of lakes, rivers, canals or other sources; or related project flooding or drainage that may adversely impact all or part of the owner’s property. While these may be related to control or protection of aquifer, water storage or other needs, or even the drainage of water that may result in loss or restricted of use of waterway or waterfront facilities, such as lakes, rivers or canals; and docks, piers or boathouses, the property owner is entitled to full compensation for the value of flooded property.
As it pertains to development, exaction occurs when a local zoning authority requires a property owner to give or surrender to the community something of value – another parcel of land or a mitigation fee, for example – in order to obtain development approval. Some authorities consider this an acceptable appropriation. U.S. Supreme Court Justice Antonin Scalia once called it, “an out-and-out plan of extortion.”