1997 update on the Bert Harris Private Property Protection Act.

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 deprivation. The city claimed that in Miami Beach, as well in other cities, property values tend to increase significantly following designation as an historical district. These positive economic effects exist in the instant case; city appraisals allegedly show no adverse effect. The city claimed the lack of evidence showing a negative impact and its potential positive economic effect mean the designation as an historical district did not inordinately burden the subject properties as required by the act. As of the date of this writing, USA Express has not initiated a circuit court action under the act.

In Wollard v. Monroe, the landowner claimed that Monroe County's 2010 Comprehensive Plan, enacted on January 5, 1996, resulted in an "inordinate burden" on his property. As a defense, Monroe County asserted that Wollard's claim was not applicable because a temporary moratorium claim is more appropriate, and the act only redresses permanent takings of uses. Under the new Monroe County plan, the claimant's commercial use is limited to 239 square feet per new residential unit under the Rate of Growth Ordinance limiting the number of such new units each year, and commercial allocations had been exhausted when claimant applied. Settlement discussions were underway as this article went to press.

There are three Bert Harris Act cases pending against the City of West Palm Beach.[5] The City of West Palm Beach's zoning code capped allowable building height along the downtown waterfront at 15 stories. In January 1996, the citizens of West Palm Beach petitioned the city to enact an ordinance mandating the reduction of the allowable height to five stories. In response, the City Commission of West Palm Beach declined, but pursuant to its local rules, called a special referendum election on the issue. On March 12, 1996, the voters of West Palm Beach voted accordingly to decrease the allowed building height on certain downtown waterfront parcels from 15 stories to five.[6]

Anticipating the referendum election, Fidelity Federal Savings Bank filed a site plan application on March 11, 1996, requesting permission to construct two 15-story buildings and a six-story parking garage; however, also pursuant to local rules, once the citizen petition was pending, applications pertaining to the coming referendum were not processed. Fidelity's claim, in effect, was frozen until the results of the election. After the referendum, the City of West Palm Beach denied Fidelity's request for new construction to a height of 15 stories.

In January 1997, Fidelity brought filed a claim under the act, requesting relief as an owner "inordinately burdened" by the referendum. In response, West Palm Beach asserted the act's inapplicability because there was no actionable governmental "entity" action in the people's decision. West Palm Beach's rationale was that the city itself did not change the zoning laws; rather, the voters of West Palm Beach, pursuant a referendum election initiated by a petition from the citizens, voted to enact the height restriction.[7] The circuit court judge, however, rejected West Palm Beach's argument, stating in his order denying West Palm Beach's motion for rehearing: "[i]t does not matter if the city enacts the ordinance at the request of some of its citizens or if the idea springs from the minds of city commissioners. All that matters is whether it inordinately burdens private property rights."[8]

West Palm Beach's request for rehearing was denied, and the city commission voted not to appeal the judge's order to the Fourth District Court of Appeal. In June 1997, West Palm Beach made a settlement offer to Fidelity. The offer allows Fidelity to construct two 15-story buildings, but not the six-story parking structure over the alleged city alley.[9] As of July 1, 1997, Fidelity had not responded to the settlement offer.

In March 1997, Holy Trinity Church and First Church of Christ Scientist submitted Bert Harris Act claims against the City of West Palm Beach, also arising from the newly enacted height restriction. Unlike Fidelity, neither Trinity nor Christ Scientist have site plan applications. They claim the city's very adoption of the new restriction "inordinately burdens" their private property.[10]

West Palm Beach asserted several arguments in its complaint for declaratory relief from Bert Harris Act liability. First, West Palm Beach is reasserted its argument that there was no government action because the restriction was the result of a citizen referendum election. Second, West Palm Beach argued that Trinity and Christ Scientist have not submitted site plans for construction over five stories, and their claims fail to meet the "as applied"[11] language of the act. In other words, West Palm Beach asserted that the act is not applicable until an application is filed with the city to construct a building that exceeds five stories in height, and that application is denied.

West Palm Beach argued that the act violates the Florida Constitution for several reasons, including, but not limited to the following: 1) the act violates Article VIII (2)(b), in that it usurps the power of Florida municipalities and their zoning and other governmental duties;[12] 2) the act is unconstitutionally vague and ambiguous and conflicts directly with the Florida Constitution because it lowers the standard for obtaining just compensation from a "taking" to an "inordinate burden," amending the Constitution without the requisite due process and voter approval.

In Ficken, the plaintiff claimed that the subject property had historically been rented as six units. He sought an occupational license modification, seeking to expand the number of units. The City of Clearwater denied the license modification on the basis that it failed to comply with the current zoning laws for the property. In his claim letter, Ficken asserted that th4 city's denial constituted an "inordinate burden" on the existing use of the property that resulted in a loss in value of $40,000. He attached to his claim letter a self-prepared personal estimate of the decline in value. In its response, the city noted that a search of the public records revealed that Ficken was not the record title owner of the subject property; therefore, Ficken did not have standing under the act to bring the claim (the record title owners have since filed a notice in support of Ficken's claim).

The city also noted that Ficken challenged, as an inordinate burden, the denial of an occupational license modification which was based upon a city ordinance that came into effect before May 11, 1995. The act applies only to laws enacted after May 11, 1995. The city also rejected the claim for the following alleged reasons: The claim was untimely, because the act requires a claim to be presented one year or less after the law or regulation is first applied; the claim did not meet the requirement that governmental action relate to an "existing use" of the property; and, Ficken failed to submit a bona fide valid appraisal in support of his claim. Thus, the city intends to seek a declaratory judgment that Ficken may not maintain suit under the act.

In Kolar v. City of Sarasota, the plaintiff alleges that his business is located in an area recently rezoned for residential, single-family use. According to the claim, the City of Sarasota has given Kolar until January 10, 1999, to discontinue his business.

Some claim the new act has "terrorized" many of Florida's 467 local governments and dozens of regional and state agencies since May 11, 1995. Some claim they have "bronzed their codes" rather than risk huge awards because of new inordinate burdens that may be caused by new regulations.

Shortcomings of the New Act

The act has several notable limitations, however, including the following:

1. The cause of action created by the act does not apply to any laws, rules, regulations, or ordinances adopted, or formally noticed for adoption, prior to May 11, 1995, the adjournment date of the 1995 regular session of the legislature.

2. The governmental action in question must have been "applied" to the subject real property because the act does not apply to facial attacks.

3. The act does not apply to federal agencies or federal programs administered by state or local governments in Florida. For example, the act does not apply to the National Pollution Discharge Elimination System administered by Florida's Department of Environmental Protection.

4. The act only protects direct, not indirect, restrictions and limitations of use.

5. The act only applies to real, not personal, property interests.

6. The act only provides recovery for permanent losses or impacts to real property (courts generally draw that line between one and three years). The act does not define such permanent losses.

7. Contiguous neighbors must be given notice of the claim within 15 days of its filing and may be (but are not automatically) allowed to intervene in the settlement of the "claim" negotiations during the 180-day "cooling-off" or counteroffer" period.

8. Affected governmental entities may take an interlocutory appeal of the court's determination that the challenged action resulted in an inordinate burden. Even if the government loses, it can call the process to a halt before damages are awarded by a jury, and subject the landowner to a lengthy and perhaps expensive appeal process. Landowners, however, may not take an interlocutory appeal from the circuit court's adverse determination. The legislature must amend the act to allow both parties even-handed appeal rights.

9. The landowner must commence a cause of action under the act within one year after the relevant law or regulation is first applied to the property by the governmental entity. Much longer statutes of limitations govern other property rights causes of action.

10. The government is entitled to recover reasonable costs and attorneys' fees incurred from the date of filing of the circuit court action, but only if the government prevails and the court determines that the property owner rejected a bona fide settlement offer and ripeness decision.

Consider the following example: A property owner requests government approval to erect a 16-story building, but only receives approval for a 10-story building. He proceeds to notify the governmental entity or entities involved of his claim as required under the act. If the government proposes a settlement offer whereby the property owner could erect a 12-story building and the owner rejects the offer, seeking instead the 16 stories it is comprehensively planned for, the government may recover its costs and attorneys' fees. To permit recovery, the court would have to determine that the owner should be allowed to build fewer stories than the government offered without constituting an inordinate burden, such as 11 stories if the government had offered 12 stories. The judge, not the jury, determines whether to award attorneys' fees. Likewise, if the property owner prevails and the court determines that the government's settlement offer, including the ripeness decision, did not constitute a bona fide offer, the owner may recover reasonable costs and attorneys' fees incurred from the date of filing of the circuit court action.

11. The act expressly excludes relief for cases involving 1) "operation, maintenance or expansion of transportation facilities," or 2) traditional eminent domain laws relating to transportation. The former exclusion leaves several unanswered questions, such as whether such exclusions affect transportation concurrency moratorium, denial of median, or curb-cut cases.

Floridians have waited 178 years for real property rights relief and promising small starts such as these are better than none.

The Dispute Resolution Act

HB 863, also established in F.S. Chapter 70, at Part II, a new act, that is entitled the "Florida Land Use and Environmental Dispute Resolution Act." It provides an informal, nonjudicial avenue of relief whereby a landowner may, through a special master, seek review from a development order that is "unreasonable"or "unfairly burdens" the use of real property. This is a much easier standard than Part I of the act, which provides judicial relief only for "inordinate burdens" of real property use. By June 30, 1997, there were 27 reported cases pending.[13]

To institute a proceeding under Part II, the affected landowner must file a request for relief within 30 days of receiving the development order. The request must be filed with the governmental entity that issued the order, and that entity must forward the request to the special master within 10 days.

Within 14 days of the conclusion of the hearing, the special master must make a written recommendation that the governmental entity must accept, reject, or modify within 45 days.

Proposed Additional Constitutional Protections

On May 15, 1997, the Supreme Court of Florida, pursuant to an advisory opinion requested by the Attorney General of Florida, rendered a ruling on a proposed amendment to the Florida Constitution regarding property rights.[14] The proposed amendment would provide that landowners be compensated in full when the government restricts the use of private property causing a loss in fair market value. The court, however, held that the proposal violated the single-subject requirement set forth in a prior advisory opinion by the Florida Supreme Court.[15] In discussing the single-subject requirement, the court stated: "any such revision or amendment, except for those limiting the power of government to raise revenue, shall embrace but one subject and matter directly connected therewith."[16]

In the May 15, 1997, advisory opinion, the court held that the proposed property rights amendment violates the single-subject requirement because both the legislative and executive branches are affected by land use regulation.[17] Specifically, the court held that the "legislative branch is empowered to enact legislation that establishes standards and criteria for regulating the use of land."[18] The executive branch also is directly affected by land use regulation:

[t]he executive branch is charged with the responsibility of carrying out the various functions of government which in multiple ways impact the use of real property in Florida. Restriction of use of real property inherently affects multiple functions of the executive branch in executing its responsibility ... The initiative affects not just legislative appropriations and statutory enactments but executive enforcement and decision-making.[19]

The Supreme Court also found that the proposed amendment would affect other levels of government, such as special districts and local governments that "have various legislative, executive, and quasi-judicial functions which are applicable to land use including comprehensive planning, zoning, and controlling storm-water drainage and flood water."[20]

The court further found that the title of the initiative ballot was ambiguous because it did not specify the meaning of the word "owner" (did the definition include corporate entities, or was it limited to property owners?).[21] The court was also concerned about certain ambiguous phrases, such as "common law nuisance" and "loss in fair market value, which in fairness should be home by the public."[22]

Thus, the Supreme Court of Florida held the proposed initiative to be constitutionally deficient for the foregoing reasons. Further opportunities to amend the Florida Constitution were discussed at public hearings conducted by the Constitution Revision Commission, from July 22, 1997, to September 12, 1997, in Panama City, Pensacola, Jacksonville, Gainesville, Miami, Ft. Lauderdale, West Palm Beach, Orlando, Daytona Beach, Tampa, and Ft. Myers. Their decisions will be on the November 1998, ballot for all Florida electors to decide.

[1] Fla. Stat. [sections]70.001 (1995).

[2] Fla. Stat. [sections]70.001 (1995).

[3] Brevard County:

BH-96-05-01 Villasol Realty Co. v. St. Johns Water Management District

Broward County: BH-97-06-03 Sivore v. City of Weston

Dade County: BH-96-13-02; BH-96-13-03; BH-96-13-05 USA Express, Inc. v. City of Miami Beach

Monroe County: BH-97-44-01 Wollard v. Monroe County

Palm Beach: BH-97-50-02 Fidelity Fed. Sav. Bank v. City of West Palm Beach BH-97-50-04 Holy Trinity Church v. City of West Palm Beach BH-97-50-05 First Church of Christ Scientist v. City of West Palm Beach

Pinellas: BH-96-52-04 Ficken v. City of Clearwater

Sarasota: BH-97-58-06 Kolar v. City of Sarasota

[4] In the 1997 Florida Legislature, Senator Charles Williams filed S.B. 1889 (with House counterpart H. 1146) to roll back the effective date of the act to May 11, 1990, but it was not considered in House committees and while on the agenda of the in Senate Judiciary Committee for April 18, 1997, it was not considered. By Senate rules, it died at end of session; by House Rule 96 it carried over automatically to 1998 session.

[5] BH-97-50-02Fidelity Fed. Sav. Bank v. City of West Palm Beach BH-97-50-04Holy Trinity Church v. City of West Palm.8each BH-97-50-05First Church of Christ Scientist v. City of West Palm Beach

[6] Ordinance 29-19-96.

[7] West Palm Beach, in its request for declaratory relief, cited Florida Land Co. v. City of Winter Springs, 427 So. 2d 170 (Fla. 1983), in support of its argument. In its motion for rehearing, West Palm Beach also cited the following cases for the proposition that an ordinance enacted pursuant to a referendum election is not government action: Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978); Fred Meyer, Inc. v. Casey, 67 F.3d 1412 (9th Cir. 1985); and LeBlanc-Sternberg, 67 F.3d 412 (2d Cir. 1995).

[8] City of West Palm Beach v. Fidelity Fed. Sav. Bank of Florida, No. Cl 97-1470-AE (Fla. 15th Cir. Ct. May 28, 1997).

[9] Fidelity's original site plan application included plans to construct a six-story parking garage atop an abandoned alley.

[10] Trinity's claim is based on an alleged reduction in property value due to the ordinance (alleging $6,300,000 in damages). Similarly, Christian Scientist is claiming a loss of $9,900,000 due to a reduction in fair market value of its property.

[11] Fla. Stat. [sections]70.001(1): "[t]he Legislature recognizes that some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution" (emphasis added).

[12] In its complaint, West Palm Beach cited Fla. Stat. [subsections]166.021(l) and 166.021(,1). The latter statute grants municipalities the power to enact legislation concerning any subject matter, subject only to certain exceptions that Palm Beach asserted were not applicable here.

[13] Charlotte County:

DR-97-08-06Tower Technology Corp. of Tampa v. Charlotte County

Lake County: DR-96-35-W Walker v. Lake County DR-96-35-03 Lake Butler Groves v. Lake County DR-96-35-04 Langley v. Lake County DR-96-35-05 Watson v. Lake County DR-96-35-06 McKinnon Groves, Inc. v. Lake County DR-96-35-07 Kittredge v. Lake County DR-96-35-08 Floyd v. Lake County DR-96-35-09 Renningers FL Twin Markets v. Lake County DR-96-35-10 MacKay v. Lake County DR-96-35-11 White v. Lake County DR-96-35-12 Barber v. Lake County DR-96-35-13 Kiekamp v. Lake County DR-96-35-14 Condev Land Fund v. Lake County DR-96-35-15 Condev Orlando v. Lake County DR-96-35-18 Longenbach v. Lake County DR-96-35-19 The Hills Homeowners Ass'n v. Lake County DR-97-35-02 International Tournament Skiing, Inc. v. Lake County DR-97-35-01 Treasure Island Estates, Inc. v. Lake County DR-97-35-03 Oak Lane Mobile Home Park v. Lake County DR-97-35-04 Abrams v. Lake County DR-97-35-05 Dale v. Lake County

Lee County: DR-96-36-61 Alagold Communities v. Lee County DR-96-36-16 Nyman v. Town of Ft. Myers DR-96-36-21 Figuerado v. Town of Ft. Myers Beach

Manatee County: DR-96-41-20 Palma Sola Bay Assoc. v. Manatee County

Sarasota County: DR-96-58-17 Stonehedge Dev. v. Sarasota County

[14] Advisory Opinion to the Attorney General re Property Rights, 1997 WL 251288 (Fla.1997).

[15] Advisory Opinion to Attorney General re Tax Limitation, 664 So. 2d 486 (Fla. 1994).

[16] Id. at 495-96.

[17] Advisory Opinion, supra note 14, at 3.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id. at 4 (specifically, the Florida Supreme Court thought the words "nuisance" and "fairness" should have been defined).

Ronald L. Weaver is a senior managing partner in the Tampa office of Stearns Weaver Miller Weissler Alhadeff & Sitterson, PA., where his practice includes land use, environmental, real estate acquisition, and real estate finance. He received his undergraduate degree from the University of North Carolina and his law degree, with honors, from Harvard Law School. He has served as chair of the ABA Property Rights Subcommittee and published articles in the national Development magazine and the Urban Land Institute Urban Land magazine, addressing property rights, environmental, and land use law.

This column is submitted on behalf of the Environmental and Land Use Law Section, Robert W. Wells, Jr, chair, and Sid F. Ansbacher editor.