This blog post is part II in a series of posts to assist private property owners with protecting their property interests and rights in eminent domain actions and government takings.  Part I provided a general overview of eminent domain actions and the government’s ability to take private property for public use.  Future posts in this series will provide further insight into various issues concerning eminent domain actions, such as maximizing just compensation and the ability to recover attorney’s fees.  This post discusses Florida law on determining the allowable scope for the taking of private property by a government entity.

There are two types of takings:  the first is a “per se taking” and the second is a “regulatory taking.”  A per se taking, which is the focus of this post, is the physical occupation of land that deprives the owner of all or a portion of his or her property.  If the taking concerns only a portion of private property then this is accomplished by the condemning authority obtaining an easement over that portion of the property.  See City of Jacksonville v. Shaffer, 107 Fla. 367 (1932).  A taking in the form of an easement is often seen with public utilities where the condemning authority only needs a limited length or width of land to lay underground pipe or wires.  Conversely, if the taking involves an entire tract of private property then this is achieved by the condemning authority obtaining fee simple title to that tract of land.  See St. Johns River Water Management Dist. v. Koontz, 77 So.3d 1220 (Fla. 2011).  No matter whether the per se taking involves a fee simple title or merely an easement, “just compensation” is owed to the private property owner.  Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003).

Regarding the allowable scope of a taking, whether fee simple or an easement, the scope is limited to the purposes for which the condemning authority needs the property.  Rorabeck’s Plants and Produce, Inc. v. School Dist. of Palm Beach County, 853 So.2d 473 (Fla. 4th DCA 2003).  As such, “reasonable necessity” is a required element for a taking, and reasonable necessity encompasses both the amount of land and location of land to be condemned.  Christian Romany Church Ministries, Inc. v. Broward County, 980 So.2d 1164 (Fla. 4th DCA 2008).  Stated another way, a condemning authority is precluded from taking a greater quantity of land or acquiring a greater interest in property than necessary to serve the specific public purpose at issue.  State Dept. of Transp. v. Myers237 So.2d 257 (Fla. 1st DCA 1970).  If a private property owner believes the condemning authority is attempting to take more land than necessary, he or she can bring this as an affirmative defense in the eminent domain proceedings and challenge the reasonable necessity for the attempted taking.  SeeState ex rel. Ervin v. Jacksonville Expressway Authority, 139 So.2d 135 (Fla. 1962).

Keep in mind situations arise where the allowable scope for a taking may be greater than one may initially expect.  For example, in Florida Power Corp. v. Wenzel, the court, in addition to the taking of a right-of-way for a power line, allowed the condemning authority to remove trees and other items of obstruction located adjacent to the right-of-way easement.  113 So.2d 747 (Fla. 2d DCA 1959).  The court ordered the payment of additional just compensation to the property owners for removing those trees and other items of obstruction.  Id.  Florida courts have also held that limiting acquisition costs paid by taxpayers is a valid public purpose; therefore, if acquiring a fee simple is cheaper than acquiring an easement, the condemning authority may be permitted to acquire a larger parcel of land than needed in order to reduce overall taxpayer costs.  See Dept. of Transp. v. Fortune Federal Sav. And Loan Ass’n, 532 So.2d 1267 (Fla. 1988).

The element of reasonable necessity in eminent domain proceedings ensures the condemning authority does not take more private property than necessary for the public purpose at issue.  However, there are exceptions to this reasonable necessity requirement.  Private property owners should also understand that this cuts both ways.  To illustrate, a private property owner cannot force a condemning authority to take fee simple title, and pay just compensation for that fee simple, when the condemning authority needs only an easement to satisfy the public purpose.  Stay tuned for Part III in this series, which will discuss regulatory takings.