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When Florida condemning authorities take real property through eminent domain, the headlines tend to focus on the land itself, including square footage acquired and the dollar value of the dirt. For business owners, that framing misses the point. What often matters more than the taken strip is what gets carved away from the operation that remains: the curb cut the delivery trucks use, the front row of parking, the pole sign drivers can see from the interstate, the loading dock tucked against the side yard.
Florida law recognizes that a partial taking can damage what is left behind, sometimes catastrophically. But protecting those interests requires a working knowledge of what Florida eminent domain statutes and case law actually compensate, and how to document the damage before the condemning authority writes its first check. This post walks through how access, parking, and other business-critical features are treated in a Florida taking, and what owners and tenants can do to preserve the value of the remainder. For a broader primer on current Florida practice, see our earlier post on Florida’s new eminent domain rules and what business owners need to know.
The Framework: Partial Takings and the “Remainder”
Many business takings in Florida are partial takings. When the Florida Department of Transportation (or other condemning authority) only takes a portion of a piece of property, the business keeps the rest of its property, known as the “remainder,” and is expected to keep operating. Adjacent projects can also impose temporary construction easements (TCEs) that disrupt operations during construction, even where the permanent taking is modest; those temporary impacts are separately compensable and need to be valued on their own terms.
Under Article X, Section 6 of the Florida Constitution and Chapter 73 of the Florida Statutes, the owner is entitled to “full compensation” for the taking. That phrase is broader than the federal “just compensation” standard, and Florida courts have consistently read it to include not only the value of the land taken but also severance damages, meaning the reduction in value to the remainder caused by the taking. When governmental action effectively takes property, for example by substantially diminishing access to it, without a formal condemnation, a property owner may have an inverse condemnation claim or, in certain regulatory contexts, a claim under the Bert J. Harris, Jr., Private Property Rights Protection Act.
For a business, severance damages are where access, parking, and other operational features live.
Loss of Access: When a Driveway Becomes a Constitutional Question
Access is a compensable property right in Florida. A commercial property owner whose access is substantially diminished by the taking itself, for example where a driveway is eliminated and no other suitable access remains, may be able to recover for the resulting loss in the value of the remainder.
Two Florida Supreme Court decisions frame the analysis. In Division of Administration v. Capital Plaza, Inc., 397 So. 2d 682 (Fla. 1981), the Court held that “Severance damages are not available for a change in traffic flow,” and that damage to the remainder must be caused by the taking itself, not by a median built within existing right-of-way. In Palm Beach County v. Tessler, 538 So. 2d 846 (Fla. 1989), an inverse condemnation case, the Court recognized compensation when governmental action causes a substantial loss of access even without a physical taking, and found that a county wall cutting off direct access to the owners’ shop substantially diminished their access. The Court also held that “the loss of the most convenient access is not compensable where other suitable access continues to exist.” Access disputes frequently overlap with easements and rights of way, which is why the analysis often starts at the title and survey before it reaches the condemnation file.
Fact patterns that can support an access claim, depending on what the taking itself removes:
A gas station whose only full-movement driveway is eliminated by the taking, leaving no practical way for fuel trucks to enter and exit. An auto dealership whose frontage curb cuts are relocated so that inventory deliveries must now route through a residential street. A drive-through business whose queue no longer fits because the right-of-way line moved inward. These fact patterns arise for businesses in the hospitality and transportation and logistics industries, where site geometry and access are core to the business model.
In each scenario, the physical taking may be modest. The operational damage is not. Florida law allows the owner to seek compensation for the resulting loss in the remainder’s market value when the taking causes it.
Not every inconvenience qualifies. Circuity of travel, meaning having to drive a longer route to reach the property, is generally not compensable where other suitable access remains. Changes in traffic patterns, including a new median that eliminates a left turn, and loss of cross-traffic are treated as changes in traffic flow, which Capital Plaza holds are not compensable.
Parking: The Quiet Killer of Remainder Value
Parking is often the single most important feature a business loses in a taking, and it can be underweighted in the condemning authority’s initial offer.
Retail, restaurant, medical office, and service businesses live and die on parking ratios. Municipal codes typically require a minimum number of spaces per square foot of building area. A taking that clips the front five rows of a strip center parking lot can drop the property below code minimums, triggering nonconforming-use status; force a site plan amendment or variance application to remain in compliance (the same kind of process covered in our post on tips for a successful rezoning); reduce the leasable square footage a landlord can support; change the tenant mix the center can attract, because a restaurant tenant may require a higher parking ratio than retail; and reduce the rents tenants will pay for the remaining space. Those downstream rent impacts then ripple into lease obligations, co-tenancy clauses, and exclusives, which is why taking-driven parking losses can spawn commercial leasing disputes alongside the condemnation proceeding.
Florida severance damages can capture each of those effects when the taking causes them, but only if they are proved. Building that proof typically requires a coordinated team led by counsel: a real estate appraiser who understands income-approach and cost-approach adjustments, a land planner who can quantify the code consequences, and, where applicable, a business damages expert. Most owners do not know which of those pieces apply to their property until someone walks the site with them. The first call should be to an experienced Florida eminent domain attorney who can scope the claim and tell you what your rights actually are under the statute. Contact Jimerson Birr to start that conversation.
Owners and tenants often assume the condemning authority’s appraiser will flag these issues. That is not a safe assumption. The condemning authority’s appraisal is prepared for the condemning authority. The owner’s job is to develop an independent record, and that job is best begun before the taking rather than after. Our broader real estate transactions and disputes practice coordinates with our eminent domain team at this early diagnostic stage.
Other Business-Critical Features
The same analytical framework applies to a longer list of features that rarely appear in a taking-area exhibit but routinely determine a business’s economics.
Signage & Visibility
A pole sign or monument sign in the taken area is an improvement that must be valued, and a taking that forces a sign to move to a less effective position can affect the value of the remainder. Sight-line changes from new noise walls or elevated roadways are frequent disputes in corridor-widening projects, and they support remainder damages only when the loss is caused by the taking itself. Tenant signage rights are often governed by lease provisions that interact with the condemnation award, a set of issues we cover under disputes involving easements, facility usage, signage, and security matters.
Loading & Service Access
Warehouses, grocery stores, auto repair shops, and restaurants depend on specific truck approach angles. A taking that shortens the apron, narrows the drive aisle, or forces trucks to back in from a public road can impair operations even if no building square footage is taken.
Drive-Through Lanes & Stacking
Quick-service restaurants and banks have measurable stacking requirements. A taking that shortens the stacking lane below franchisor standards can trigger operational penalties or remodel obligations that may bear on severance or business damages.
Outdoor Display & Storage Areas
Car dealerships, garden centers, equipment rental yards, and lumber yards use their yards as revenue-generating spaces. Reducing that yard reduces inventory capacity, which reduces revenue capacity.
Utilities, Drainage, & Site Circulation
Taking a corner of a site can strand a dry retention pond, force relocation of a grease trap or transformer, or disrupt on-site traffic flow. Each of those is a line item in a properly built severance damages model, and each often requires revisiting underlying easements and restrictive covenants that predate the taking.
Business Damages: Florida’s Distinctive Add-On
In addition to severance damages, Florida is one of a small number of states that allow separate business damages in eminent domain cases. Under Florida Statute § 73.071(3)(b), when FDOT, a county, a municipality, or another public body takes part of a property for a right-of-way, the owner of an established business of more than five years’ standing, owned by the party whose land is taken and located on adjoining land that party owns or holds, may recover the probable damages that the denial of the use of the property taken may reasonably cause the business.
Business damages are distinct from the real estate valuation and require their own evidentiary record: historical financials, forecasts, expert testimony from a qualified business damages appraiser, and often industry-specific testimony on how customers respond to access and parking changes. The claim must be set out in the owner’s written defenses, and under § 73.015(2)(c) within 180 days after receiving the condemning authority’s notice, or after the notice is returned as undeliverable, the business owner must submit a written business damage offer to the condemning authority, with copies of the business records that substantiate it. A court must strike a late claim absent a showing of good faith justification.
For businesses that depend on convenience parking or specific operational geometries, the business damages claim can be a significant part of the case. Tenants can qualify when their leasehold includes the land being taken and they hold the adjoining land under a lease, and they should review their commercial leases in light of post-pandemic market realities and allocation-of-condemnation-proceeds clauses before a project hits.
If your business has been established for more than five years and a road or other right-of-way project will take part of the property, you may have a business damages claim that is separate from the real estate value of what’s being taken. The 180-day deadline applies, and a late claim must be struck absent good faith justification. Talk to Jimerson Birr about whether a Florida Statute § 73.071(3)(b) business damages claim fits your operation.
Fees and Costs: Why Florida Owners Have Leverage
Florida’s eminent domain statutes require the condemning authority to pay the owner’s reasonable costs of defense, including reasonable appraisal fees and, when business damages are compensable, a reasonable accountant’s fee, plus reasonable attorney’s fees, as assessed by the court, under § 73.091 and § 73.092. That fee-shifting structure is why owners can retain their own counsel and their own experts rather than simply accepting the initial offer.
The court assesses what is reasonable, and attorney’s fees under § 73.092 are generally calculated on the benefits achieved over the condemning authority’s last written offer made before the owner hired counsel, or its first written offer after, if none came before. That changes the economics of whether to contest an offer.
The cost objection is usually the wrong objection. Florida’s eminent domain statutes require the condemning authority to pay the owner’s attorney’s fees, calculated on the benefits achieved, and reasonable costs of defense, including appraisal fees. Before you sign the condemning authority’s offer, get a second opinion from Jimerson Birr.
What Business Owners Should Do at the First Sign of a Project
By the time a condemning authority makes an offer, evidence has already started to erode. Traffic patterns change. Signage comes down. Parking gets restriped. The baseline conditions that support severance and business damages claims need to be captured early.
Steps worth taking as soon as a project is announced along a corridor or adjacent to a site: request the project plans from the condemning authority, including the roll plans and typical sections; document existing conditions with dated photos, traffic counts, and site plans; preserve financial records that demonstrate the revenue-to-site-condition relationship; review leases for condemnation clauses, which allocate rights between landlord and tenant; and engage counsel early, including before any order of taking hearing in a quick-take case under Chapter 74. Developers with entitlements in progress should also consider how the project interacts with applicable zoning district development restrictions, since nonconforming-use issues created by a taking can compound already-complex entitlement positions.
How Jimerson Birr Approaches Eminent Domain
Jimerson Birr represents Florida property owners, landlords, developers, and operating businesses facing partial and full takings by FDOT, counties, cities, and other condemning authorities. Our work in this area focuses on building a complete record of the real damage a taking does to the remainder, including access, parking, signage, circulation, and business operations, and pursuing full compensation under Florida’s owner-favorable statutory scheme. We work with clients in the real estate development and construction industry, and we appear opposite governmental entities that are exercising condemnation authority.
For further reading on related topics, our Florida commercial real estate and land use law blog publishes regularly on takings, easements, zoning, and leasing issues that interact with eminent domain.
If your property or business is in the path of a road widening, utility corridor, drainage project, or other public improvement, contact Jimerson Birr to discuss how Florida eminent domain law applies to your specific operation.