The Bert J. Harris, Jr., Private Property Rights Protection Act

1. The Bert J. Harris, Jr., Private Property Rights Protection Act

2. The Bert J. Harris, Jr. Private Property Rights Protection Act, Chapter 70, Florida Statutes • Creates a new cause of action for aggrieved property owners who’s claims do not rise to the level of an unconstitutional regulatory taking.

3. A property owner who demonstrates that a governmental action, occurring after May 11, 1995, • "inordinately burdens" the property • is provided with a formal process for approaching and then resolving differences between • the landowners’ perception of appropriate government regulation of the property and the government’s desire to act in the public interest.

4. Why have Bert? • Takings litigation didn’t work! • The litigation was . . . • Too costly • Too long – some well over 10 years • Unsuccessful in that the burden imposed on plaintiff property owners was extremely difficult to carry, and • Property owners largely lost.

5. But the problem remained . . . • Many property owners found themselves in positions where . . . • They were precluded from beneficial use of their ownership, and • They did not have ready access to a forum to seek redress. • Thus, . . .

6. Many states, including Florida, • Passed takings legislation. • This legislation • Was designed to offer redress in situations where the regulations did not rise to the level of a taking – a sub-takings taking • The thrust of the process was to be “fairness” rather than the balancing of competing interests. • Some 16 states have enacted some type of “takings legislation,” 4 of which actually do something, . . . • Florida, • Texas, • Louisiana and • Mississippi.

7. What problem is this legislation supposed to solve? They’re all over the place . . . • On the one hand, some enactments sought to provide an easier route to the receipt of monetary compensation • On the other, some created a form of variance on the basis of hardship. • Most were simple expressions of philosophy – people’s property should not be taken without compensation!

8. Florida’s Act • How did Florida’s Act get two parts? • In 1994, the Florida Legislature passed a bill requiring the payment of compensation if property value was reduced by 40% or more as a consequence of government action. • The Governor vetoed the bill and created the “Florida Property Rights Commission,” chaired by former Supreme Court Justice Alan Sundberg, the author of Estuary.

9. The Commission . . . • Held hearings around the state and concluded that . . . • Additional legal routes were not the solution • Property owners needed a simple (or simpler) route to achieve actual use of their property or some type of compensatory action in lieu, which might include payment. • They drafted Part II, the mediation solution where actual use was the goal, not payment.

10. Mr. Harris wanted . . . • Property owners to be paid cash-money when the property value was reduced “inordinately.” • He accepted “inordinate” as a substitute for 40% diminishment • The 40% line would create an appraisal battle, with 39% experts dueling it out with 41% experts.

11. The competing views • The Commission wanted a mediation process, without the need for legal counsel, with the result being a type of use variance or something in lieu. • The “hard liners” wanted to punish miscreant governments by making them pay compensation. • The Legislature stapled to two bills together and passed them both.

12. Part I • 70.001(2) When a specific action of a governmental entity has inordinately burdened an existing use of real property or • a vested right to a specific use of real property, • the property owner of that real property is entitled to relief, • which may include compensation for the actual loss to the fair market value of the real property caused by the action of government,

13. Inordinate Burden . . . • 70.001(3)(e) The terms "inordinate burden" or "inordinately burdened" mean that an action of one or more governmental entities has directly restricted or limited the use of real property such that • the property owner is permanently unable to attain • the reasonable, investment-backed expectation for • the existing use of the real property or • a vested right to a specific use of the real property with respect to the real property as a whole, or

14. Inordinate Burden continued . . . • that the property owner is left with existing or vested uses that are unreasonable • such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large.

15. Existing Use . . . 70.001(3)(b) The term "existing use" means an • actual, present use or activity on the real property, • or such reasonably foreseeable, non-speculative land uses which are suitable for the subject real property • and compatible with adjacent land uses • and which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property (The Hopping Amendment)

16. Governmental Action . . . • 70.001(3)(d) The term "action of a governmental entity" means a specific action of a governmental entity which affects real property, including action on an application or permit. • Meaning that the property owner must ask for and be refused the use claimed to be appropriate for the property. [Agins]

17. So . . . • If A’s property was rezoned from residential to conservation, • Could A seek redress under BJH because of that action? • No! • A would first have to ask for some residential development and be denied. • Then A could possibly file a “Harris Action.”

18. Property owners cannot file for . . . • Any temporary action • [70.001(3)(e) “. . . has directly restricted . . . the use of real property such that the property owner is permanently unable to attain . . ..” • Any claim relating to operation, maint-enance, or expansion of transportation facilities [i.e., roads], see 70.001(10) • Any action occurring before May 11, 1995 [date of enactment] see 70.001(12)

19. The Harris Process • The landowner must commence a cause of action under the Act within one (1) year after the relevant law or regulation is first applied to the property by the government entity. • The property owner must submit, along with the claim, a bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property.

20. The claim is filed with the local government. • Within 180 days, the local government shall make a written settlement offer. • Settlement offers may include . . .

21. An adjustment of . . . permit standards or other provisions controlling the . . . use of the land. • Increases or modifications in density or intensity of use • The transfer of developmental rights. • Land swaps or exchanges. • Mitigation, including payments in lieu of onsite mitigation. • Location on the least sensitive portion of the property. • Conditioning the amount of development permitted. • A requirement that issues be addressed on a more comprehensive basis than a single proposed use or development. • Issuance of the development order, a variance, special exception, or other extraordinary relief. • Purchase of the real property, or an interest therein, by an appropriate governmental entity. • No changes to the action of the governmental entity.

22. Ripeness . . . • One objective of the required settlement offer was to clarify just what the property may be used for, and • should constitute a final action with respect to available uses of the land, thereby • making a case ripe for adjudication in some other forum.

23. If a property owner rejects an offer . . . • the property owner may file a claim for compensation in the circuit court, • Actions [70.001] shall be brought only in the county where the real property is located.

24. The circuit court shall determine whether an existing use of the real property or a vested right to a specific use of the real property existed and, if so, whether, the governmental entity has inordinately burdened the real property

25. An award of compensation shall be determined by calculating the difference in: • the fair market value of the real property, as it existed at the time of the governmental action at issue, as though the owner had the ability to attain the reasonable investment-backed expectation or was not left with uses that are unreasonable, whichever may be, • and the fair market value of the real property, as it existed at the time of the governmental action at issue, as inordinately burdened. • In determining the award of compensation, consideration may not be given to business damages relative to any development, activity, or use that the action of the governmental entity has restricted, limited, or prohibited. • The award of compensation shall include a reasonable award of prejudgment interest from the date the claim was presented.

26. In any Harris action: • the property owner is entitled to recover reasonable costs and attorney fees incurred, if the property owner prevails and the court determines that the settlement offer did not constitute a bona fide offer to the property owner; and • the governmental entity or entities are entitled to recover reasonable costs and attorney fees incurred, if the governmental entity prevails and the court determines that the property owner did not accept a bona fide settlement offer.

27. What’s happened under Harris?

28. Part II • 70.51 "Florida Land Use and Environmental Dispute Resolution Act." • A mediation process, initiated by the property owner, • 70.51(3) Any owner who believes that a development order . . . • is unreasonable or unfairly burdens the use of the owner's real property, may apply within 30 days after receipt of the order or notice of the governmental action for relief under this section.

29. An owner must file a request for relief with the elected or appointed head of the governmental entity that issued the development order . . .. • The head of the governmental entity may not charge the owner for the request for relief and must forward the request for relief to the special master who is mutually agreed upon by the owner and the governmental entity within 10 days after receipt of the request.

30. (15)(a) The special master shall hold a hearing within 45 days after receipt of the request for relief unless a different date is agreed to by all the parties. The hearing must be held in the county in which the property is located. • 15 days following the filing of a request for relief, the governmental entity that issued the development order . . . shall file a response to the request for relief with the special master . . .. • The response must set forth in reasonable detail the position of the governmental entity regarding the matters alleged by the owner. • The response must include a brief statement explaining the public purpose of the regulations on which the development order is based.

31. (17) In all respects, the hearing must be informal and open to the public and does not require the use of an attorney. • The hearing must operate at the direction and under the supervision of the special master. • The object of the hearing is to focus attention on the impact of the governmental action giving rise to the request for relief and to explore alternatives to the development order . . . by the governmental entities in order to recommend relief, when appropriate, to the owner.

32. If an acceptable solution is not reached by the parties after the special master's attempt at mediation, • the special master shall consider the facts and circumstances set forth in the request for relief • in order to determine whether the action by the governmental entity unreasonable or unfairly burdens the real property.

33. If the special master finds that the development order is unreasonable or unfairly burdens use of the owner's property, • the special master may recommend one or more alternatives that protect the public interest served by the development order . . . at issue but allow for reduced restraints on the use of the owner's real property, including, but not limited to:

34. An adjustment of . . . permit standards or other provisions controlling the . . . use of the land. • Increases or modifications in density or intensity of use • The transfer of developmental rights. • Land swaps or exchanges. • Mitigation, including payments in lieu of onsite mitigation. • Location on the least sensitive portion of the property. • Conditioning the amount of development permitted. • A requirement that issues be addressed on a more comprehensive basis than a single proposed use or development. • Issuance of the development order, a variance, special exception, or other extraordinary relief. • Purchase of the real property, or an interest therein, by an appropriate governmental entity.

35. Within 45 days after receipt of the recommendation, the governmental entities responsible for the development order must consult among themselves and each governmental entity must: (a) Accept the recommendation of the special master as submitted and proceed to implement it by development agreement, (b) Modify the recommendation as submitted, or (c) Reject the recommendation.

36. Hardship & Variance • 70.51(25) A special master's recommendation that an action is unreasonable or unfairly burdens use of the owner's real property • may serve as an indication of sufficient hardship to support modification, variances, or special exceptions to the application of statutes, rules, regulations, or ordinances to the subject property.

37. Comp Plan Amendment • 70.51(26) A special master's recommendation constitutes data in support of, and a support document for a comprehensive amendment, but is not, in and of itself, dispositive of a determination of compliance with chapter 163. • Any comprehensive plan amendment necessary to carry out the approved recommendation of a special master under this section is exempt from the twice-a-year limit on plan amendments

38. Effective Date • 70.51(30) This section applies only to development orders issued, modified, or amended, or to enforcement actions issued, on or after October 1, 1995.

39. Part I & II • Part I • Make ‘em pay! • As much a desire to punish as to compensate • As soon as money is introduced, compromise goes out the door • No money has changed hands under Bert J. Harris • Part II • Work it out, but with no money. • No data on how this is working.