Condemnation Blight as a Per Se Taking: Clarifying the Limits of The Government’s Power of Eminent Domain Under Florida Law

Condemnation blight is defined as the physical and economic deterioration suffered by private property subject to the government’s announcement of condemnation. This deterioration is attributable to the cloud of uncertainty imposed on the property by the announcement of condemnation or by the unreasonable passing of time between the announcement and the acquisition of property. During this period, property owners may suffer damages such as the depreciation in the market value of the property, loss of use, loss of rental income and business profits, among other incidental damages. However, in most jurisdictions, including Florida, property owners cannot recover such damages because the government’s planning activities in anticipation of condemnation do not constitute a taking of property subject to compensation. Instead, property owners need to wait until the government exercises its power of eminent domain to receive “just compensation” for what they lost. Interestingly, the concept of “just compensation” or “full compensation” under the federal and state constitutions may not necessarily include compensation for damages other than depreciation in the market value of the property. In order to balance the right of property owners to be fully compensated for damages suffered during precondemnation planning and the importance of planning as a tool to achieve public goals, this Article proposes the existence of an inverse condemnation action structured on a prima facie basis that allows for the shifting of the burden of proof from plaintiffs (landowners) to defendants (municipalities, cities, etc.). The purpose of this action is to limit the negative effects of the process of condemnation while helping the government to be an effective planner.