Several of our clients who own shopping centers have expressed concern about the 2004 United States Supreme Court ruling of Kelo v. City of New London and its possible impact in Florida. In Kelo, the Supreme Court upheld the exercise of eminent domain power by a Connecticut city, New London, to take private property owned by residents of New London in furtherance of a private redevelopment plan. The Supreme Court ruled that the redevelopment plan was considered a public use, thereby justifying the city’s exercise of eminent domain.
As initially predicted, Kelo, so far, has had no reported effect in Florida. The Florida Constitution forbids local governments from taking private property, except for a public purpose and with full compensation to be paid to the owners. Not only must the taking be justified by a public use, but the public use must be shown to be necessary. According to Florida Governor Charlie Crist, it is unlikely that a situation like the one in Kelo would happen in Florida. This is because unlike Connecticut laws, Florida’s eminent domain laws provide greater protection of property rights and explicitly prohibit the use of eminent domain for economic development except to eliminate “blight.”
Florida law defines a “blighted” area as one in which there are a substantial number of deteriorated, or deteriorating structures, in which conditions, as indicated by government-maintained statistics or studies, are leading to economic distress or endanger life or property. Unless the shopping center meets the requirements of a “blighted” area, under Florida law, it cannot be taken by a local municipality for private redevelopment under eminent domain. Even if the shopping center is deemed blighted, the political agency exercising eminent domain authority must still establish public purpose and necessity, which, under Florida law, is a high hurdle to jump.