History:
In 1995, the Florida Legislature passed the Bert J. Harris, Jr. Property Rights Act (s. 70.001, F.S.), which provides statutory relief for property owners who experience a diminution of property value due to the regulatory action of government. In short, if a property owner could demonstrate that a governmental action "inordinately burdened" an existing use or a vested right to a specific use of their property, they would be entitled to some form of compensation. This new cause of action was created in response to planning and zoning changes that reduced a property owner's investment potential, but did not rise to the level of a compensable "taking" under eminent domain or inverse condemnation law.
The law requires that a property owner seeking compensation must present a written claim to the governmental agency which took the action 180 days (90 days for agricultural property) prior to bringing a lawsuit. The written notice must be accompanied by a valid appraisal that shows the loss of fair market value. The property owner must then commence his or her cause of action within one year of the date the law or regulation was first applied by the governmental entity. This requirement has been interpreted as “starting the clock” upon the adoption of a land use regulation.
Legislation has been filed on several occasions since 1995, generally intending to make it easier for property owners to get relief under the Act. This session was no different.
2011 Legislation
Bills were filed in both chambers (HB 701 - Eisnaugle, SB 998 - Simmons) that would revise the statute in favor of private property rights and to the detriment of local government. More specifically, the bills: i) waive sovereign immunity for the purposes of Bert Harris Act claims; ii) allow claims under the Act for “temporary impacts” extending longer than 1 year; iii) reduce the period in which a property owner must notify the local government from 180 to 150 days prior to the claim; and iv) provide for the one-year claim period to commence upon adoption of an ordinance or upon its application to the subject property.
As originally filed, the bills would have significantly impacted counties by creating actionable claims for development moratoria, and by leaving counties subject to claims for indefinite periods of time. The original bill would have also reduced the notice period from 180 to 120 days. As this period of time is intended to facilitate the settlement of claims, it was generally believed that a shorter period of time would have inevitably resulted in more litigation and increased costs. Finally, the original bill would have provided that the “adoption” of an ordinance does not constitute its “application” to the property. This provision would have left counties subject to claims indefinitely, or until a property owner sought and was denied development approval.
After lengthy debates and numerous meetings, FAC and its allied stakeholders were able to get amendments to the bill to ameliorate the impacts to local government. The law, as passed by the legislature (and awaiting the Governor’s signature) now provides as follows:
• The term “moratorium” was replaced by the phrase “temporary impact” and the language now provides that a temporary impact on development that is in effect for longer than 1 year may, depending upon the circumstances, constitute an "inordinate burden."
• The notice period within which a property owner must notify the government entity of the intent to file a claim was increased from 120 to 150 days.
• The “first application” section of the bill now provides that for purposes of determining when the one year claim period accrues, a law or regulation is first applied: (1) Upon enactment and notice if the impact of the law or regulation on the real property is clear and unequivocal; or (2) otherwise, upon the formal denial of a written request for development or variance.
It should be noted that “notice” is now defined as being provided by mail to the affected property owner or registered agent – after adoption of a regulation - at the address referenced in the jurisdiction's most current ad valorem tax records, and shall inform the property owner or registered agent that the law or regulation may impact the property owner's existing property rights. To address the potentially indefinite period of time with which an “as applied” claim may be brought, the amended language provides that “[i]n determining whether reasonable, investment-backed expectations are inordinately burdened, consideration may be given to the factual circumstances leading to the time elapsed between enactment of the law or regulation and its first application to the subject property.”
The bill, if signed by the Governor, takes effect on July 1, 2011.