Introduction

Bert J. Harris, Jr. Private Property Rights Protection Act (“Bert Harris Act”), found in Section 70.001, Florida Statutes, was originally enacted in 1995.  This law provides that 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…compensation for the actual loss to the fair market value of the real property caused by the action of government”.[i]  The purpose of the law is to provide for “relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property.”[ii]

The Bert Harris Act guarantees stronger private property rights than is conferred by the Takings clause in the Fifth Amendment of the U.S. Constitution.[iii]  Before the advent of the Bert Harris Act, the only way to seek compensation for loss of market value resulting from government regulation of real property was to assert that it constitutes a “Taking” under an inverse condemnation theory.   To prevail on this theory, the property owner would need to show that the government regulation deprived the owner of all beneficial or economically viable use of the property, resulting in substantial loss of market value.[iv]  Post Bert Harris, however, a Florida property owner need only show that the government regulation inordinately burdened the existing use or vested right to a specific use of the property.[v]  This provides significantly greater protection against government regulations that are burdensome to real property.  The italicized terms are specifically defined in the statute and are explained in more detail below. 

Inordinate burden

The Bert Harris Act defines “inordinate burden”, in part, to mean a government regulation “that directly restricts or limits 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”.[vi] 

To have a right to relief, the government regulation, such as a zoning change, must have been directly applied to the real property owned by the claimant.[vii]  A property owner thus cannot sue for the lost value of his/her real property resulting from a regulation applied to an adjacent property.[viii]  For example, in Vale v. Palm Beach Cnty., an appeal before the Florida Fourth District Court of Appeal, residential property owners sued for Bert Harris Act violations after Palm Beach County rezoned an adjacent golf course and permitted a planned unit development.[ix]  Although this development might have reduced their homes’ market value, the Court in Vale held that the Bert Harris Act did not apply.[x]  The Court explained that the statute only provides a right to relief where the regulation at issue is directly applied to the claimant’s specific real property.[xi]   

There has been limited court interpretation on the meaning of “reasonable, investment-backed expectation”, which is not defined in the statute.  The most recent guidance comes from an appellate decision from the Florida Fourth District Court of Appeal in the case Ocean Concrete, Inc. v. Indian River Cnty.[xii]  The court in Ocean Concrete held that whether expectations are “reasonable” and “investment backed” depends on the physical and regulatory aspects of the property.[xiii]  It went on to find that the property owner in the case was reasonable for expecting to use his property for a concrete batch plant, because this was a permitted zoning use when he purchased the property and this use was feasible under the circumstances.[xiv]  In contrast, in another appellate matter, City of Jacksonville v. Coffield, the court held that the owner did have a reasonable expectation to develop the property into residential subdivision where no public road connected to the property.[xv]    

Existing Use

“Existing Use” is defined in the Bert Harris Act to mean either: (1)“the actual, present use or activity on the real property”; or (2) “activity or such reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property and compatible with adjacent land uses….”[xvi]  If a proposed use was permitted by the zoning code prior to the government action, courts will find that this is conclusive evidence that the proposed use is “reasonably foreseeable, nonspeculative”, “suitable for the subject real property,” and “compatible with adjacent land uses”.[xvii] 

Vested Right

According to the Bert Harris Act, a vested right is “determined by applying the principles of equitable estoppel or substantive due process under the common law”.[xviii]  Under the common law principles of equitable estoppel, a property owner has a vested right if he or she 1) in good faith, 2) upon some act or omission of the government, 3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right he or she acquired.[xix] 

Courts will not permit an estoppel claim against a government entity except in exceptional circumstances, and equitable estoppel does not apply to transactions that are forbidden by law or contrary to public policy.[xx]  Thus, if a government entity misleads a developer regarding his development rights on real property, the developer will not then be permitted to assert an estoppel claim against the government entity if he purchases the property in reliance on the misrepresentation.[xxi]  This is because the property owner is made responsible for knowing the law as it applies to his property, and government misrepresentations about the law cannot change the outcome.

Procedural Considerations

 A Bert Harris Act claim must be presented within one year from the time the government action is first applied to the property at issue.[xxii]  At least 150 days before filing a lawsuit, written notice of the claim must be given to the appropriate governmental entity.[xxiii]  When the pre-suit notice is received, the government has 150 days to consider its options, which include retracting or modifying its action, taking no action, or granting relief in a variety of ways and making an offer to settle.[xxiv]  

Conclusion

If you believe that a government action, including but not limited to a zoning regulation, has inordinately burdened an existing use or vested right to a specific use of your real property, you should consult with an attorney to review your options.  You may be entitled to substantial compensation for the loss of your property’s market value.  

Our firm is prepared to advise you on all options and help you find the best legal course of action.  We have experience representing local government entities, which allows for a more complete understanding of both sides of this complex area of law.

Last updated: February 25, 2019   

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[i] § 70.001(2), Fla. Stat. (2018)

[ii] § 70.001(1)

[iii] § 70.001(9)

[iv] City of Riviera Beach v. Shillingburg, 659 So.2d 1174 (Fla. 4^th DCA 1995); Hadar v. Broward Cnty, No. 16-14569 (11^th Cir. 2017); Bakus v. Broward Cnty, 634 So.2d 641 (Fla. 4^th DCA 1993). 

[v] § 70.001(2)

[vi] § 70.001(3)(e)

[vii] Vale v. Palm Beach Cnty., No. 4D18-1037 (Fla. 4^th DCA Nov. 21, 2018). 

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id.

[xii] 241 So.3d 181 (Fla. 4^th DCA 2018). 

[xiii] Id.

[xiv] Id.

[xv] 18 So.3d 589 (Fla. 1^st DCA 2009). 

[xvi] § 70.001(3)(b)

[xvii] Ocean Concrete, Inc., supra

[xviii] § 70.001(3)(a)

[xix] Citrus County v. Halls River Development, 8 So.3d 413 (Fla. 5^th DCA 2009). 

[xx] Id. 

[xxi] Id. 

[xxii] § 70.001(11)

[xxiii] § 70.001(4)(a)

[xxiv] § 70.001(4)(c)