Florida Eminent Domain Blog | Gregory W. Stoner

Land use is a crucial element in eminent domain laws. As a property owner, you have many options about what you can do with your land, but the government can restrict your land usage. This is a recognized part of government's role, to try to balance your private right to control your property with the public good and expectation of safety from various harms such as noise pollution, chemical pollution, or eye sores in their neighborhood.

However, sometimes the government may pass regulations that essentially result in an invasion, limitation, or even destruction of your property that may be considered an eminent domain taking. When this occurs, you may be able to get compensation for damage to your property value.

Regulatory Taking

Regulatory taking is when the government passes laws that greatly restrict your land use to the point that the property value is dramatically reduced. There are many potential regulations (such as zoning changes) that can reduce the value of your property, but these are not necessarily considered regulatory takings. Nor is it considered a regulatory taking if the new law is basically an explicit statement of an already extant law or interpretation of law, it must be a new law.

So, when does a new law exceed the limits of taking? When does it go too far and require compensation? In general, authorities in Florida (every state is different) consider the law as going too far when it results in:

• Physical incursion on property
• Destruction of property
• Preventing any reasonable use of property
• Placing an inordinate burden on property use

If this occurs, you may be able to get compensation with an inverse condemnation lawsuit, or seek compensation using the provisions of the Bert J. Harris Private Property Rights Protection Act, which has a lower standard of proof in many cases.

The Penn Central Test

The Penn Central test is a commonly used test for regulatory taking that arises from New York City's historic preservation regulations, which the owners of railroad stations claimed limited their ability to develop the stations for economic benefits. The Penn Central test has three basic elements:

• How much economic impact does the regulation have on the owner?
• How much does the regulation interfere with investment-backed expectations?
• Is the government action an actual invasion of the property, or is it more like a balancing of public and private benefits and costs?

Essentially, if the government's regulations cost you significant amounts of value, value that has been backed by actual investment (ex: you've hired planners to develop the property for a usage that is now against the regulation), and constitutes an actual incursion on your property or its uses, then it may be considered a regulatory taking.

If you think your property has been adversely affected by a new law, you should talk to an eminent domain attorney about the change and whether it constitutes eminent domain.

To learn more about eminent domain laws in Florida, please visit the website of the Florida Property Rights Law Firm today.