The Bert J. Harris, Jr., Private Property Rights Protection Act: an overview, recent developments, and what the future may hold.

• Author: Ketterer, Amber L.
• Position: Florida

Florida is a state that provides relief to private landowners when a law, regulation, or ordinance inordinately burdens, restricts, or limits private property without amounting to a taking under the U.S Constitution. (1) The State of Florida enacted the Bert J. Harris, Jr., Private Property Rights Protection Act in 1995, which provides a specific process for landowners to seek relief when their property is unfairly affected by government action. Under the act, a claim exists if a governmental entity inordinately burdens an existing use of real property or a vested right to a specific use of real property. (2) The act was subsequently amended in 2008 and 2011. The amendments were principally done to expedite the claims process and clarify the application of the act. The amendments also appeared on their face to extend protection, making it less stringent to landowners. In 2009, the First District Court of Appeal in City of Jacksonville v. Coffield 18 So. 3d 589 (Fla. 1st DCA 2009), said "[w]e have found no case in which an appellate court has affirmed relief granted pursuant to the [a] ct." While the courts extended protection since then, cases continue to indicate that the courts conservatively construe the act so as not to expose local government to a massive amount of liability. There is new legislation and recent court cases that will have a significant effect on the way Harris Act claims are handled in the judicial system.

In addition, despite the amendments and various court opinions regarding the act, there appears to be a great deal of ambiguity as to what is protected under the act, how it should be applied, and what exactly constitutes a vested right, an existing use, or an inordinate burden. While the cases and the act itself provide some guidance, it is simply not clear at this time. The new legislation that attempts to further clarify the application of the act and the recent case of City of Jacksonville v. Smith, 2015 WL 798154 (Fla. 1st DCA 2015), that certified a major Bert J. Harris Act issue to the Florida Supreme Court evidences such. (3) As for now, the trend in the appellate courts appears to be conservative and results in favorable rulings for local government entities, cautioning landowners. The new legislation and recent court cases may change that trend to some degree.

Timing and the "As-Applied" Issue

Attorneys should be mindful of the strict procedural prerequisites of the act, and aware of the courts' evolving interpretations regarding how they apply. The first requirement to keep in mind is the initial requirement for a timely claim and subsequent lawsuit. The act provides that a claim (versus a lawsuit) must be presented to the governmental agency within one year from the time the law or regulation is first applied by the governmental entity to the property at issue. (4) The 2011 amendment further provides that the one-year statute of limitations not only accrues once the law or regulation is first applied, but also when notice is provided by mail to the property owner informing him or her that the regulation may impact the landowner's property rights and that the landowner may only have one year from receipt of the notice to pursue any rights. (5) Otherwise, the clock starts to tick when there is a formal denial of a written request for development or variance, although there is some ambiguity as to when the denial takes effect. (6) Generally, a regulation is first applied to a property when the impact of that regulation is readily ascertainable to the property owner. (7) If the impact of a new law or regulation is readily ascertainable to the property owner when the regulation is implemented, a claim under the act must be submitted within one year of that new regulation's enactment. (8) Further, the timeline for submitting a claim and the four-year statute of limitations is also tolled if the landowner seeks relief from the government action via administrative or judicial proceedings.

(9)

However, there are some instances when the impact of a governmental regulation cannot be determined prior to the submission of an actual development permit. (10) The definition of what constitutes a development permit is provided in the Community Planning Act. (11) For example, in Wendler v. City of St. Augustine, 108 So. 3d 1141 (Fla. 5th DCA 2013), the city amended an ordinance, authorizing the Historical Architectural Review Board to deny demolition or relocation requests for certain structures, including those on the plaintiff landowner's property. The court ruled that the amendment was not readily ascertainable to the Wendlers as the amendment was general and only potentially applied to the Wendlers' property. As the city retained significant discretion to grant or deny a permit, the amendment was not reasonably ascertainable to property owners at the time of enactment, As such, the court found that the impact of the ordinance was not readily ascertainable until the Wendlers' permit applications were denied. Thus, because they filed their claim within one year after their permit application was denied, their claim was timely. (12)

The Second District also recently discussed the "as-applied" issue in RLE., LLC v. Desoto County, 133 So. 3d 577 (Fla. 2d DCA 2014). InP.I.Et the trial court dismissed the Harris Act action because it was filed more than one year after the board's vote to deny the development permit. The appellate court reversed the dismissal and remanded with instruction to determine what date the board's denial of the permit took effect, whether it took effect the day the commission voted or the day the denial was reduced to writing. It was a factual determination for the trial court to make. It is suggested that the Third District Court of Appeal would rely on...