1997 update on the Bert Harris Private Property Protection Act.

• Author: Weaver, Ronald L.
• Position: Florida

The Supreme Court of Florida held, "The legislative branch is empowered to enact legislation that establishes standards and criteria for regulating the use of land."

The Bert J. Harris, Jr. Private Property Rights Protection Act, F.S. Chapter 70,[1] created a new cause of action for an aggrieved property owner who demonstrates that governmental action occurring after May 11, 1995, "inordinately burdens" his or her property. Under the act, which took effect on October 1, 1995, a landowner must show, with an appraisal in hand, unreasonably "disproportionate" limitations or restrictions on investment-backed expectations for such uses.[2] This article focuses on the cases interpreting the act so far.

To constitute an "inordinate burden," an action of one or more governmental entities must be direct and must either:

1. Restrict or limit the owner's use of the subject property such that the property owner is permanently (not just temporarily) restrained from attaining reasonable,investment-backed expectations for the "existing use of the real property or a vested right to a specific use of the real property as a whole;" or

2. Leave the property owner with "existing" or "vested" uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden that should be imposed on the public at large. Wetlands, woodpeckers, scrubjays, and the like should be protected generally, but owners need no longer bear disproportionate shares of the burden of that protection.

   Six-Month Period for Government Response

   Before initiating a lawsuit under the act, the landowner must present a written claim to the head of the affected governmental entity, including a "bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property." Within 180 days, unless extended by agreement of the parties, the governmental entity must make a written settlement offer or notice of intention not to resolve the landowner's claim.

   Cases Brought Under the Act

   By June 30, 1997, there were nine reported Bert Harris Act Part I cases.[3] In Villasol Realty C. v. St. Johns Water Management District, Edward Tietig, a lawyer-developer from Melbourne, Florida, sought dredge and fill and surface water permits for 27 lots at Grant Lake. For wetlands and drainage reasons, he was approved instead for 10 smaller lots by the St. Johns Water Management District. On February 11, 1995, he filed a one-half page claim with that district, attaching, as the law requires, an appraisal verifying the "inordinate burden" of the challenged government action.

   Stephen Brubaker, of Hanson Appraisal Services, appraised the property on February 8, 1996, at $300,000 before the "environmental constraints" and at $30,000 after the constraints. He did not say whether the regulations or nature created the difference. On April 11, 1996, the St. Johns Water Management District rejected the claim because the challenged regulations had been enacted prior to May 11, 1995 (the act only compensates for government actions after this date).[4] As of the date of this writing, the applicant has not refiled a claim under the act; rather, the parties have held informal discussions concerning an alternative project.

   In Sivore v. City of Weston, the plaintiff claimed that the adoption by the City of Weston of a specific land regulation rendered his commercial property legally nonconforming (in a now residential designation). Moreover, Sivore claimed that the newly enacted ordinance deprives him of the opportunity to undertake new construction.

   In USA Express, Inc. v. City of Miami Beach, the plaintiff asserted that when the City of Miami Beach designated areas of the Ocean Beach as an historic district, which included the plaintiff's building as a contributing structure, the city's act constituted an "inordinate burden" that permanently restricted or limited the use of his property. The city asserted several defenses to USA Express's claim.

   First, the city challenged the act itself on constitutional grounds. In particular, the city claimed the act violates due process requirements as it renders governments liable for regulations that inordinately burden property, for which the determining standard is too vague. The city further claimed that the act violates the separation of powers provision in the state constitution. As drafted, the act creates ripeness for review of the government action, but the city claimed ripeness determination is a judicial rather than a legislative function.

   Second, the city claimed the suit was not yet ripe for review by the courts. The city argued that to be a taking, the government must have made a "final determination" as to permissible uses of the property. In other words, the government must have denied a request of the property owner for development of the subject property under new regulations. The city claimed no application for development had been made, much less denied, in the USA Express case, allegedly making the owner's claims speculative and not yet ripe for review.

   Third, the city argued the claims by USA Express under the act are not valid. According to the act itself, no plaintiff may maintain a cause of action if the claims are based on regulations enacted before May 11, 1995. Here, the city's ordinance setting forth procedures for designating the Ocean Beach Historic District was allegedly enacted on April 15, 1989. The city, therefore, claimed USA Express does not have a valid claim for compensation under the act.

   Finally, the city maintained that the designation of the historical district did not inordinately burden the subject properties, as required for recovery under the act. It claimed that any reduction in property values occurred prior to the allegedly burdensome zoning ordinance's enactment. The city also claimed the designation has not caused any economic...