Florida’s Bert J. Harris Act
By Toby Prince Brigham and Amy Brigham Boulris - Brigham Moore
The Bert J. Harris Private Property Rights Protection Act, (“Harris Act” §70.001 Fla. Stat.), came into effect in October, 1995, along with its companion legislation, the Florida Land Use Dispute Resolution Act (§70.51 Fla. Stat). These acts were enacted as an attempt to provide greater protection to private property rights in response to government’s over-regulation and superfluous rulemaking.
Landowners and government agencies have struggled over the compensation of property owners affected by land use, environmental, or similar regulations. While governments have often prevailed, landowners have achieved some recent success outside of claims under the Bert J. Harris Act.
The Bert J. Harris, Jr., Private Property Rights Protection Act, focuses on protecting real property owners’ rights to existing uses, or vested rights to specific uses, of their property. The act provides a statutory remedy for seeking compensation or relief when a new regulation (after May 1995) or governmental activity implementing the new regulation has “inordinately burdened” an existing use or a vested right in real property. That inordinate burden must be to an extent that the property owner is permanently unable to attain the reasonable investment-backed expectations for the existing use (or vested right) of the property as a whole. Those “expectations” must be reasonable, or the claim fails.
There are three important distinctions to note in the act. First, it adopted a principled (rather than formulaic) approach to liability for diminutions in property value, which must be determined on a case by case basis. While it may require more litigation to determine, this assures greater fairness to both government agencies and landowners than does a formula.
Second, the Harris Act virtually eliminates the gamesmanship that often occurs in coming to a final decision of allowable use. A landowner must still generally make a meaningful application, but after that, the government must come forward with a decision of allowable use. An owner need not re-apply and/or amend multiple times. Forcing agencies to make a positive statement of what they will allow has saved time and resources on both sides, and has led to many practical solutions.
Third, while it allows for monetary compensation, the procedural component of the Harris Act ensures that compensation is really the last resort in providing relief. The extensive pre-suit procedure required by the act, as well as the latitude afforded agencies in solving disputes on a practical level, using the Dispute Resolution Act have been the biggest policy successes of the act in its first decade.
The act requires the government to take a closer look at the impact that new regulations will have on the use of private property. Perhaps the effect will be the enactment of future regulations that recognize and protect private property rights and at the same time preserve legitimate government interests in the regulation of real property use. The act has fulfilled its intended effect to make governments think twice before implementing regulations or ordinances that might unfairly burden private property.
The act has not “opened the floodgates” of litigation, bankrupted local government, or prevented needed land use regulation. It has instead fostered appropriate tailoring of regulations before adoption and practical problem solving in individual cases after adoption. In the rare circumstance where protection of the public interest and relief from inordinate burdens cannot be accomplished by negotiated agreement, compensation has been paid.
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South Florida Legal Guide 2011 Edition