As I mentioned in my previous post regarding the legal substance of the Bert J. Harris Private Property Rights Protection Act (the “Act”), this post will center on the procedural aspects of the Act.
Maybe not quite as exciting, but very important to know. If the procedure isn’t followed correctly, the claim has no leg to stand on.
As a quick refresher, the Act was formulated to provide protection (often by way of compensation) to private property owners when a rule, regulation, law, or ordinance of the state or political entity in the state restricts or limits private property rights.
As for the procedure, a claim brought under the Act must be presented to the government entity no later than one year after the rule, regulation, ordinance, or law is first applied. However, the 1 year deadline is tolled while the property owner seeks other available administrative or judicial relief.
To begin an action, the Act requires that a property owner (also referred to as the claimant) give at least 180 days notice to the governmental entity before filing a claim under the Act. A property owner wishing to bring an action must present the claim in writing to the head of the governmental entity against whom he/she intends to file. If more than one governmental entity will be involved in the action, the property owner must present the claims to each of the governmental entities separately. Along with the notice of the claim, the property owner must submit a bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property (i.e. the inordinate burden).
After receiving notice of the claim, the governmental entity must report the claim in writing to the Department of Legal Affairs in Tallahassee within 15 days. Additionally, the governmental entity must provide written notice of the claim to all property owners of real property contiguous to the claimant’s property. This step is done is to ensure that adjacent property owners are made aware that they may have a similar claim.
During the 180 day notice period, the governmental entity must make a written settlement offer to the claimant. The governmental entity may offer to:
- modify, adjust, or change the application of the rule, regulation, or ordinance;
- issue a development order, variance, or special exception for the claimant;
- purchase the real property from the claimant; or
- make no change at all to the rule, regulation, or ordinance.
However, any settlement offered by the governmental entity must protect the public’s interest and represent necessary and appropriate relief and may not be solely to avoid the claim.
Once the offer has been conveyed, the claimant may decide to accept or reject the offer. If the claimant does not accept the offer, the governmental entity must issue a written ripeness decision identifying the ‘allowable uses’ of the property, or the uses to which the subject property may be put. The ripeness decision basically means that a claimant has exhausted all the administrative avenues to address their issues and has established a sufficient factual basis for the claim.
If the property owner rejects the settlement offer and the ripeness decision, the property owner may file a claim for compensation in the circuit court in the county where the property is located.
The circuit court will then decide whether an existing use of the property or a vested right to a specific use of the property existed and, if so, whether the governmental entity has inordinately burdened the property. If more than one governmental entity is involved, the court must determine the percentage of responsibility each governmental entity contributed.
If the court determines that the governmental entity has inordinately burdened the property, the court will impanel a jury to determine the total amount of compensation that should be paid to the property owner. The jury will determine the amount of compensation by evaluating the difference in the fair market value of the real property prior to the governmental action and the fair market value of the real property as inordinately burdened. Additionally, the property owner will be entitled to recover reasonable costs and attorneys’ fees. However, if the governmental entity prevails in the litigation, it will be entitled to costs and attorneys’ fees.