How To Challenge a Government Taking That Impacts Your Business

The Fifth Amendment to the U.S. Constitution and Article X, Section 6 of the Florida Constitution allow the government to take private property for public use, but only if full compensation is paid. In Florida, this protection is particularly strong.

However, the government’s power is not unlimited. Businesses affected by a taking may have meaningful opportunities to challenge either the legality of the taking or the amount of compensation offered.

Before evaluating those options, it is important to understand what qualifies as a “taking” under Florida law.

What Counts as a Taking in Florida

Not every government action that negatively affects property value qualifies as a taking. However, a taking may exist when the impact is substantial and legally recognized.

Florida law recognizes two primary categories:

• Eminent domain
  
• Inverse condemnation
  

Takings may also be classified as physical or regulatory, and as fast or slow in their implementation.

Eminent Domain

Eminent domain is the government’s authority to take private property for public use, provided it follows required procedures and pays full compensation.

Florida’s standard is notably stronger than the federal “just compensation” standard. Under Florida law, property owners may recover more than fair market value. Businesses may be entitled to:

• The value of the property taken
  
• Severance damages
  
• Business damages
  
• Attorneys’ fees and litigation costs
  

This distinction is critical for business owners. Often, the most significant harm is not the dirt value of the property but the loss of access, parking, visibility, or operational efficiency.

Inverse Condemnation

Inverse condemnation occurs when the government effectively takes property rights without formally initiating eminent domain proceedings or paying compensation.

This may arise when:

• Government action significantly interferes with property use
  
• Access is materially impaired
  
• Regulations eliminate viable economic use
  

In these cases, the property owner must initiate legal action to obtain compensation.

Order of Taking and Quick Take Procedure

In Florida condemnations, the government often seeks an early court order known as an order of taking. Through the quick take procedure, the government may deposit a good faith estimate of value into the court registry and take possession of the property before final compensation is determined.

Compensation disputes are then litigated after possession has occurred, increasing the importance of early strategy.

Physical and Regulatory Takings

A physical taking occurs when the government physically occupies or invades property, such as installing infrastructure or repeatedly interfering with use.

A regulatory taking occurs when a law or ordinance does not physically affect the property but effectively eliminates all or substantially all economically viable use.

For example, if a business acquires property for commercial development and a later regulation prohibits all commercial use, a regulatory taking may exist.

Common Projects Behind Takings

Most takings arise from public works projects, including:

• Road expansions
  
• Transportation infrastructure
  
• Utilities and power lines
  
• Airports
  
• Stormwater systems
  
• Bridges and public facilities
  

While federal law allows economic redevelopment takings under Kelo v. City of New London, Florida has enacted constitutional amendments and statutes that significantly restrict the use of eminent domain for redevelopment or blight elimination.

Florida law is generally more protective of property owners than federal law.

Ways To Challenge a Government Taking in Florida

Even if a taking is likely to proceed, businesses can challenge critical aspects of the case.

There are two primary avenues:

• Challenging the government’s legal right to take
  
• Challenging the amount of compensation
  

Challenging the Legal Right To Take Property

The government must demonstrate:

• A valid public purpose
  
• Reasonable necessity for the project
  
• Compliance with required procedures
  

In practice, courts give the government broad discretion. A taking will typically be invalidated only if there is:

• Fraud
  
• Bad faith
  
• Gross abuse of discretion
  

As a result, most successful challenges focus on procedural deficiencies or compensation disputes rather than blocking the project entirely.

Challenging the Amount of Compensation

Valuation is rarely precise. This creates room for dispute.

Florida’s “full compensation” requirement may include:

• Fair market value of the property taken
  
• Severance damages for diminished value of the remaining property
  
• Business damages if eligibility requirements are met
  
• Reasonable attorneys’ fees and expert costs
  

Consider a restaurant that loses a significant portion of its parking lot due to a road widening project. The government must pay for:

• The value of the land taken
  
• The reduced value of the remaining property
  
• Potential lost profits
  
• Relocation or operational adjustments
  
• Increased costs tied to diminished access
  

Disputes frequently arise over how these damages are calculated.

If the property owner obtains a higher compensation award than initially offered, Florida law requires the government to pay reasonable attorneys’ fees and expert costs.

How an Eminent Domain Hearing Works

A business may file objections to the taking, triggering a right-to-take hearing. The court evaluates whether the government satisfied constitutional and statutory requirements.

If the challenge is to compensation, the property owner may request a jury trial to determine the appropriate amount of full compensation.

Importantly, eminent domain authority may be delegated to private entities, such as utility companies, which may negotiate or litigate on the government’s behalf.

What Evidence Strengthens Your Case

Successful challenges rely heavily on documentation and expert testimony. Common evidence includes:

• Financial statements and tax returns
  
• Supplier and customer contracts
  
• Relocation or construction estimates
  
• Marketing and sales data
  
• Real estate and business appraisals
  

Expert witnesses are often required to quantify:

• Diminution in property value
  
• Business value reduction
  
• Loss of goodwill
  
• Future income projections
  

While the government must prove the value of the property taken, the property owner bears the burden of proving severance and business damages.

Early preparation significantly improves outcomes.

Protecting Your Business When the Government Takes Property

A government taking can fundamentally alter a business’s operations, profitability, and long-term viability. Florida law provides meaningful protections, but those protections must be actively asserted.If your business has received notice of a potential taking or is facing an order of taking, do not rely solely on the government’s valuation. Contact us today to evaluate your rights, protect your compensation, and ensure your business receives the full recovery allowed under Florida law.