Bert J. Harris Act – Part 1

In 1995, Florida enacted The Bert J. Harris Private Property Rights Protection Act (the “Act”) and along with it came the companion legislation, the Florida Land Use Dispute Resolution Act. This post will primarily focus on the substantive law encompassed in the Act while my next post will center on the procedural aspects of the Act.

To begin, the Act was formulated as an attempt to provide greater protection to private property owners in response to the government’s excessive rulemaking and over-regulation.

The Legislature recognized that some rules, regulations, and laws of the state restrict or limit private property rights without amounting to a taking under the laws of Florida or the United States Constitution. Therefore, the Legislature decided to create a separate and distinct cause of action from the law of takings.

The new cause of action provides for payment of compensation when a new law, rule, regulation, or ordinance of the state or political entity in the state, as applied, unfairly affects real property.

So, of course, property owners wanted to know to what extent does the regulation have to affect the property to obtain relief? The Legislature determined that relief would be available if the law or regulation “inordinately burdens” private property rights.

So the next question became, well, what is considered an inordinate burden? It’s defined in Fla. Stat. 70.001(3)(e) as an action of one or more governmental entities that 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 that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large.

With that said, all was well with the Act until 2006, when Brevard County questioned its constitutionality. In Brevard County v. Stack, property owners brought an action under the Act arising out of a county ordinance that restricted their ability to use wetland portions of property. They asserted that they suffered a significant diminution in value because of the ordinance that, as applied, denied them the ability to develop their land and allow offsite mitigation for wetland impacts. The Circuit Court held in favor of Stack, and the County appealed, claiming that the Act was unconstitutional for three reasons.

1. County’s Claim: The Act authorizes local governments to contract away inherent sovereign police powers and requires the government to buy back the ability to exercise those powers, violating due process.

Court’s Ruling: When the government inordinately burdens property through regulation, the Act provides relief for property owners. If an inordinate burden is found, the government can waive, modify, or change the regulation or financially compensate the property owner. The Act does not affect the inherent power of the government, but requires that the government fairly provide relief to the property owner.

2. County’s Claim: The Act violates the separation of powers doctrine and changes the judicial interpretation of a taking under the Florida Constitution.

Court’s Ruling: The Act establishes a new and distinct cause of action separate from a taking.

3. County’s Claim: The Act delegates legislative power to the courts because there are no standards, conditions, or criteria to guide interpretation of the Act.

Court’s Ruling: The Act contains definitions, time periods, settlement options, and other guidelines for determinations to be made by the judicial system, pursuant to statute.

In sum, the Court held that the Act did not violate due process, did not violate the separation of powers doctrine, and did not unconstitutionally delegate legislative power to the courts. Therefore, the Act was upheld as constitutional.

Since that time, landowners have achieved success with claims brought under the Act, and as a result, local governments are becoming more willing to settle with property owners.