Podcast - How Florida Eminent Domain Affects Real Estate Lawyers and Developers

Alessandria San Roman: Welcome back to "Real Estate Law Unlocked," a podcast from Holland & Knight, where we explore the legal issues shaping the real estate industry. I'm Alessandra San Roman, a real estate attorney in our Miami office. My practice focuses on land use, zoning and environmental law, and I spent a lot of my time representing developers and property owners before local governments and state agencies in South Florida, securing land use and zoning approvals, environmental permits and the like. Today, I'm joined by my colleague Ben Robinson, who is a partner in our Orlando office, to talk about a topic that touches virtually every major infrastructure and development project in Florida, and that's eminent domain. Ben is a Florida Bar board-certified construction lawyer with an active eminent domain practice representing landowners, developers and business owners throughout the state. He also serves on the Florida Bar's Eminent Domain Committee. So between the two of us, we cover a lot of the regulatory, environmental and property rights landscape that our clients navigate every day. Ben, thanks for joining me today.

Benjamin Robinson: Thanks for having me, Alessandria. This is a topic I kind of deal with frequently and regularly and there's a lot going on right now in Florida that real estate lawyers and developers should be paying attention to.

Alessandria San Roman: Great, now before we jump in, I want to give the listeners a quick sense of why this matters. Florida is one of the fastest growing states in the country. From population growth, infrastructure expansion, renewable energy projects, transit corridors; all of that means that government agencies and utilities are actively acquiring property. And that means that eminent domain is front and center for a lot of our clients. Now I want to turn it over to really the basics for listeners who may not be as familiar with eminent domain. What makes Florida's eminent domain framework distinctive compared to other states, Ben?

Benjamin Robinson: Great question. Florida's one of the more property owner friendly states. It favors the property owners. And when it comes to eminent domain, a few things stand out. First, Florida's constitution, Article 10, Section 6, provides robust protections. Property owners are entitled to full compensation, which Florida courts have interpreted to mean not just the fair market value of the property taken, but also severance damages to any remainder property, and importantly, reasonable attorney's fees and costs. The attorney's fee provision in Florida is a significant differentiator. In many states, property owners bear their own legal costs, which can discourage them from challenging low-ball offers. In Florida, the condemning authority pays the owner's reasonable attorney fees. Which really levels the playing field considerably. Second, there's a process in Florida that allows a quick take of property under chapter 74 of the Florida statutes, which allows the condemning authority to take possession of the property relatively early in the process by depositing that condemning authorities good faith estimate of value into the court's registry. The owner then can withdraw those funds without prejudice to contesting the amount the property owner believes that property is worth, but in the quick take process, possession transfers quickly. That's something property owners and developers need to understand, the timeline in certain circumstances can move very fast.

Alessandria San Roman: And these are all really interesting points that you're bringing up, Ben. Who are the typical condemning authorities our listeners would encounter in Florida?

Benjamin Robinson: There are a lot of condemning authorities and they kind of run the gamut. You have the typical large players like the Florida Department of Transportation (FDOT) which is one of the most active condemning authorities in the state, particularly with highway widening and interchange projects. Then you have county and municipal governments, water management districts, mosquito districts even, school boards and utilities. And this includes private utilities that have been delegated with the power of eminent domain. More recently, we're also seeing activity from entities involved in transit and rail projects, as well as renewable energy and broadband infrastructure.

Alessandria San Roman: Interesting. Now, let's shift a little into what's new in the eminent domain space. Have there been any recent legislative changes or court decisions that our listeners should know about?

Benjamin Robinson: Yeah, there are a few developments that are worth highlighting. On the legislative side, one area that continues to evolve is the intersection of eminent domain and private property rights in the context of what I would refer to as regulatory takings lite. The Florida legislature has been active in recent years in reinforcing private property rights. There's the Burt Harris Act. This is the Private Property Rights Protection Act under section 70.001 of the Florida statutes, which continues to generate litigation. It's not a traditional eminent domain statute, it provides a cause of action for property owners whose land has been, quote, "inordinately burdened by government regulation." We're seeing more claims under the Burt Harris Act, as local governments impose new environmental and land use restrictions, particularly in coastal areas. On the case law side, there have been several noteworthy decisions and Florida courts continue to grapple with valuation methodology, specifically what constitutes highest and best use of the property for purposes of determining fair market value. This is always a battleground in condemnation cases, and recent decisions have reinforced that the property must be valued based on its most profitable legally permissible use, even when the owner isn't actively pursuing that particular use at the time of the taking. And then another area generating case law is the concept of business damages. Under section 73.071 of the Florida statutes, business owners who are operating on condemned property, are entitled to compensation for damages to their business. That can include lost profits, relocation costs and so on. The scope and proof requirements for business damages claims are really intensely litigated.

Alessandria San Roman: And these are all really interesting and very timely points that you bring up, Ben. Particularly the business damages issue. Can you give our listeners a practical example of how that plays out?

Benjamin Robinson: Sure. Think about a strip mall owner or a retail center that fronts a major highway. When FDOT comes in and takes a portion of the frontage for a road widening project, the landowner will get compensated for the land taken and any reduction in value to the remaining parcel. But the tenant, say a restaurant or a gas station, could lose visibility, access [and] parking. And that can devastate the business. Florida law allows that business owner to make a separate claim for those losses, but the burden of proof can be substantial. It's significant. You need solid financial documentation and credible expert testimony. It's an area where preparation and good counsel really matters.

Alessandria San Roman: Now turning over to what's on the horizon, what are some emerging issues in Florida eminent domain that you think real estate lawyers and developers should really be watching?

Benjamin Robinson: I'd highlight several. The first is just mere infrastructure expansion, and that infrastructure expansion tied to population growth. Florida added 365,000 new residents last year alone, at least 365,000. And I'm a mere lawyer, but by my math, that's more than 1,000 additional residents every single day. So that means more roads, more utilities, more schools, more water, and more sewer infrastructure. FDOT's work program to support this is enormous and local governments are embarking on major capital improvement projects. On the developer side, that means two things, opportunities because public infrastructure really can enhance the value of nearby buildings, but it also includes risk because your project or your client's property could be in the path of FDOT's planned corridor or an expressway authority's corridor.

The second issue that I would highlight is the growing use of eminent domain in connection with renewable energy and utility scale solar projects. Florida has seen a substantial increase in solar development and some of those projects require easements or fee acquisitions of property that implicate that eminent domain authority. There's a question of whether and when a private utility can exercise eminent domain for a solar facility. And that's one that's going to be tested in the courts.

Third, and this is something many and I find particularly interesting, is the impact of rising sea levels and climate adaptation on eminent-domain practice in Florida. As coastal communities here invest in resilience infrastructure like seawalls, stormwater systems, managed retreat, the question of who's going to pay for that and whether those projects constituted taking is becoming more apparent and more pressing. So we're starting to see cases where property owners argue that government mandated retreat or restrictions on rebuilding after a consequential storm amount to a compensable taking.

Alessandria San Roman: Now that climate angle is truly fascinating and it connects directly to work I do every day. In my environmental and zoning practice in Miami, I'm already seeing how, for example, sea level rise projections and coastal resilience requirements are shaping the entitlements process. Florida's Sea Level Impact Projection Study requirement, which took effect in 2022, now requires certain state-funded projects to include a sea level impact projection study. And you're seeing local governments in South Florida are layering on additional coastal development standards. We're talking setbacks, elevation requirements [and] sore motor management that directly affect what developers can build and where they can build it. So I can see firsthand how these environmental and land use restrictions can create that tension with property rights. And I can also see how they could increasingly intersect with eminent domain. Are you seeing that play out in your eminent domain practice yet or is it more theoretical at this point?

Benjamin Robinson: I'd say it's moving from the theoretical to the practical, and what you just described is a perfect illustration of why. Several South Florida municipalities have begun planning for managed retreat in certain low-lying areas, and the legal framework for how that process works, whether through voluntary buyouts or potentially through the exercise of eminent domain, is still sort of under development. And as you mentioned, when you combine the state-level, sea-level impact study requirements with local coastal development restrictions, you can see how a property owner or developer might find their rights so constrained that it starts to look like a regulatory taking, or how a municipality might decide it needs to go out and acquire coastal properties for resilience infrastructure. That's an area where real estate lawyers need to be thinking ahead, because the intersection of environmental regulation, property rights and the government's acquisition authorities is going to be very consequential in the next decade in Florida.

Alessandria San Roman: And I would add that for practitioners who work in the zoning and environmental space, this is an area where we need to be collaborating closely with eminent domain council. When I'm advising a developer on a coastal project, for example, and we're navigating environmental permits, wellfield protection areas or flood zone restrictions, it's important to understand whether there is also a resilience infrastructure plan that could trigger a future taking. The earlier you identify those overlapping issues, the better position the client will be. And that's a great segue into another emerging area I wanted to ask you about, Ben: Spaceports. Florida's space industry we all know is booming and I imagine that has eminent domain implications as well.

Benjamin Robinson: Yeah, it really does. And this is one area where it may surprise some of our listeners. Of course, everyone knows Florida is the epicenter of the commercial space industry. It's not the only place, but it is certainly at the core of commercial space in the United States. Cape Canaveral, the Kennedy Space Center on the space coast have been the heart of American space launch operations for decades. But what's changed dramatically recently is the scale and the pace of commercial activity. I think I saw a statistic that SpaceX alone had conducted over 90 launches from Florida in 2024. And the cadence is certainly continuing to accelerate. Blue Origin, United Launch Alliance and other commercial operators are expanding their footprints as well. Space Florida, which is the state's Aerospace Economic Development Agency, operates out of the Cape Canaveral Spaceport and the Cecil Spaceport near Jacksonville, and their active efforts to develop or expand additional launch and landing facilities all around the state. All that growth requires land for launch pads, processing facilities, safety buffer zones, access roads, and supporting infrastructure. And when government agencies and entities with eminent domain power need to acquire that land, condemnation comes into play. The safety buffer zones alone can be huge, sometimes requiring the acquisition of thousands of acres surrounding a launch site. Just to protect the public during launch and landing operations. And property owners in Brevard County and other parts of the Space Coast are already seeing this. As the industry expands to other parts of the state, you and I can expect to see more acquisition activity.

I think what makes spaceport-related eminent domain particularly interesting from a valuation standpoint is that the affected properties in these areas are experiencing rapid development pressure precisely because of the space industry boom. So you're going to see situations where the condemning authority may be seeking to acquire land or impose restrictions on property that is rapidly appreciating in value because the very industry driving that acquisition is needing the land for further development. That creates sort of interesting and complex highest and best use arguments that experience council can leverage on behalf of property owners. And I should mention, Holland & Knight here has a dedicated space satellite technology team that is deeply embedded in this industry. One colleague that comes to mind, Katie Inman, who's based in Tallahassee, is a key member of that team, and she advises aerospace and space technology clients on a range of regulatory, transactional and governmental affairs matters. So when spaceport-related eminent domain issues arise, we have the ability to bring together not only eminent domain council and land use counsel like yourself, but also a variety of attorneys who understand the total regulatory landscape of the commercial space industry. And that's one of the examples of how a multidisciplinary team from a firm like Holland & Knight can really add value to the process.

Alessandria San Roman: And that's an interesting area and really a great example of why it helps to have that depth of bench. Are there any other emerging issues that you would flag?

Benjamin Robinson: Yeah. There are a couple more worth mentioning briefly. One is the growing intersection of eminent domain and broadband infrastructure expansion. I think we're frequently seeing directional drillers on major arteries and even in our neighborhoods. There's a push to bring high speed internet to underserved and rural communities in Florida, and that's been accelerated by federal funding programs, like the Broadband Equity Access and Deployment Program, and that's generating new easement acquisitions and in some cases condemnation activities for fiber optic corridors and related facilities. One other area to watch is the use of eminent domain in connection with water supply and water infrastructure projects. Particularly here in Central Florida, as well as South Florida. In South Florida, the ongoing everglades, restorations projects, regional water supply planning and the need for expanded stormwater and reclaimed water systems are all driving land acquisition by water management districts and local utilities. The projects themselves can have significant acreage and raise unique valuation issues, especially when the land being acquired has agricultural or environmental value. The fourth issue I would flag is the increasing frequency of disputes over necessity. Under Florida law, the condemning authority has to demonstrate that the taking is necessary for a valid public purpose, not just a public benefit. Historically, courts have given agencies broad deference on the question of necessity, but we're seeing more aggressive challenges, particularly where there are takings that appear to benefit a private party or where the scope of the acquisition seems excessive in relation to that stated public purpose. There's a U.S. Supreme Court case that's relatively famous among eminent domain lawyers and even most real estate counsel, Kelo Vs. the City of New London. That's a roughly 20-year-old case. And the response in Florida was additional constitutional and statutory protections, which significantly restrict the use of eminent domain for private economic development.

Alessandria San Roman: Well, Kelo just took me all the way back to my first year of law school property so thank you for that, Ben. But let's bring it down to some practical advice. If a real estate lawyer or a developer gets a call from a client who has just received a notice of intent to acquire their property, what should they be doing?

Benjamin Robinson: Well, this will come as no surprise, but firstly, I would say, don't ignore the notice. Don't bury your head in the sand. Pay attention to it and approach it with skepticism. Don't assume that the government's offer is fair. The initial offer is based on the condemning authority's appraisal. And in my experience, those appraisals are frequently undervaluing the property. So engage a qualified eminent domain attorney early. Because the clock starts running on several important deadlines. Second, I would work with your attorney to get your own appraisal. An independent valuation by an experienced appraiser in condemnation work is essential, not just your run-of-the-mill appraiser. The appraiser should evaluate the highest and best use of that property, severance damages and any business damages that may be at play. Third, don't overlook the pre-suit negotiation process. Even when the government's offer is not fair on its face, there are times where that condemning authority wants to negotiate before filing suit and can be persuaded that the initial offer was low and there are reasons why the full compensation is substantially higher. The pre-suit phase is an opportunity to kind of resolve the dispute without the cost and uncertainty of litigation. But it's also a phase where having counsel involved in the mediation, pre-suite mediation or negotiation process, can be critical because there are a lot of facts revealed during those negotiations and that can have some downstream consequences. The other thing I'd mention is if you're a developer and you're aware of a planned infrastructure project in the vicinity of your development or project, get out ahead of it. Understand the project's timeline, the likely right-of-way needs, or other utility or infrastructure facility needs, and how those affect your plans, your site access, your entitlements. Proactively engage with the condemning authority through council. And that can sometimes result in design modifications that reduce or eliminate the need for taking all together.

Alessandria San Roman: That's great practical advice. And I would just add from the land use perspective that if you are in the pre-development phase and pursuing zoning or site plan approvals, it is worth coordinating with eminent domain council early so your entitlements strategy accounts for any potential right of way impacts.

Benjamin Robinson: Yes, totally. You make a great point. The land use in eminent domain issues often intersect and coordinating the approach between those disciplines will save a client significant time and possibly a lot of money.

Alessandria San Roman: Well, Ben we have covered a lot of ground today. The fundamentals of Florida's eminent domain framework, recent legislative and case law developments and some really compelling emerging issues around infrastructure growth, renewable energy and climate adaptation. Ben, any final thoughts for our listeners?

Benjamin Robinson: Yeah, in terms of takeaways, I would emphasize, again, don't try to navigate an eminent domain matter on your own or accept the first offer from a position of fear or intimidation. These cases involve complex valuation issues, tight statutory deadlines and the condemning authorities are sophisticated and have teams of lawyers and experts on their side. And so, bringing experienced counsel who can match that, attorneys who coordinate appraisers of their own, engineers, environmental consultants, planners, business valuation experts and other real estate professionals like yourself and other attorneys can really add value and those folks know how to deal with the government effectively or the condemning authority. And there's a related point that I really want to emphasize or drive home here, and that's under Florida law - as opposed to many other states - under Florida Law, the condemning authority is required to pay the property owner's reasonable attorney's fees and costs. So the financial barrier that might otherwise be in place and discourage a property owner from retaining experienced counsel is largely removed. It shouldn't be a deterrent. There's no reason to go to it alone, and the law entitles you to not just representation, but sophisticated representation at the condemning authority's expense. So you can avoid struggling with the cost benefit analysis of engaging firm even like Holland & Knight and its team of experts.

Alessandria San Roman: And that is such an important point, Ben. And I would add that at Holland & Knight, we have extensive experience, a broad bench of folks to bring a truly coordinated approach. Ben and his team handle the eminent domain litigation and valuation strategy. And when there are any environmental zoning or coastal regulatory dimensions, as we discussed today, our team in South Florida can step in on those issues as well. That kind of multidisciplinary capability under one roof is a real advantage for property owners and developers who are facing a taking.

Benjamin Robinson: Right. And I would just add that this is a fairly dynamic area of law as well, with the combination of population growth, infrastructure spending, and the environmental challenges you mentioned. It means there's going to be a flurry of eminent domain activity in the years ahead. The busiest eminent-domain times are not behind us, but rather ahead. So if your client receives a letter from a condemning authority, pick up the phone and call Alessandria early. The sooner we're involved, I think the better the outcome.

Alessandria San Roman: Well said. And thanks again for joining me, Ben. And to our listeners, thank you for tuning in to "Real Estate Law Unlocked." If you have any questions about eminent domain or any real estate legal issues, you can reach Ben in our Orlando office, as well as myself in our Miami office. We would love to hear from you. Until next time.