existing use

The Not Widely Known Harris Act: Protection of Private Property Rights

Posted by David Adelstein on March 18, 2018
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There is a Florida statute not universally known called the “Bert J. Harris, Jr., Private Property Rights Protection Act” and oftentimes called the “Harris Act” for ease of reference.   The Harris Act is embodied in Florida Statute s. 70.001 (found here) and it deals with the protection of private property rights.  More specifically, it provides a private cause of action when the existing use (or vested rights) of property is inordinately burdened by the Florida government (including agencies thereof).  The Harris Act has some teeth in certain situations, as demonstrated below in a case example, and is a good Act to know because it does create a private cause of action.

The Harris Act was enacted by the Florida Legislature in 1995 as a mechanism to protect and compensate any landowner whose property is affected by government action not rising to the level of a taking. To prevail under the Harris Act, the property owner must prove that “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.” Accordingly, when a claim under the Harris Act is presented for judicial review, the court must first consider whether a claimed “existing use of the real property” or a claimed “vested right to a specific use of the real property” actually existed. If it finds either, it must next determine whether the government action inordinately burdened the property. If the court also finds that there was an inordinate burden, then it must impanel a jury to determine the total amount of compensation to the property owner for the loss caused by the inordinate burden to the property. The party seeking relief under the Harris Act bears the burden of proof. 

Ocean Concrete, Inc.  v. Indian River County, Board of County Commissioners, 43 Fla. L. Weekly D577a (Fla. 4th DCA 2018) (internal citations omitted).

The Harris Act starts off as follows:

(1) This act may be cited as the “Bert J. Harris, Jr., Private Property Rights Protection Act.” The Legislature recognizes that some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution. The Legislature determines that there is an important state interest in protecting the interests of private property owners from such inordinate burdens. Therefore, it is the intent of the Legislature that, as a separate and distinct cause of action from the law of takings, the Legislature herein provides 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.

(2) 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 relief, which may include compensation for the actual loss to the fair market value of the real property caused by the action of government, as provided in this section.

The term “existing use” as used in the Harris Act means:

(3)(b) (1) An actual, present use or activity on the real property, including periods of inactivity which are normally associated with, or are incidental to, the nature or type of use; or

(3)(b)(2) Activity or such reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property.

The term inordinately burdened” as used in the Harris Act means:

(3)(e)(1) Mean that an action of one or more governmental entities 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 permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large.

(3)(e)(2) Do not include temporary impacts to real property; impacts to real property occasioned by governmental abatement, prohibition, prevention, or remediation of a public nuisance at common law or a noxious use of private property; or impacts to real property caused by an action of a governmental entity taken to grant relief to a property owner under this section. However, a temporary impact on development, as defined ins. 380.04, that is in effect for longer than 1 year may, depending upon the circumstances, constitute an “inordinate burden” as provided in this paragraph.

In 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 recent, factually complicated case, Ocean Concrete, Inc., discusses the application of the Harris Act.   Here, a plaintiff purchased undeveloped property that was zoned light industrial.  The plaintiff wanted to build a concrete batch plant.  The light industrial zoning allowed for this use.  

During the site plan review and application process with the County, a neighboring city and other members of the community asked the County to deny the proposed concrete batch plant project.   They wanted the County to modify the industrial light zoning code to preclude using the property as a concrete batch plant or any plant that processes large quantities of materials and would generate loud noise and dust. The County’s Board of Commissioners voted to approve the modification to the zoning code without any exception as to vested rights.  After dealing with certain administrative nuances and appeals and the plaintiff ultimately losing the property through foreclosure, the plaintiff asserted a claim against the County under the Harris Act.   

The trial court held there was no violation of the Harris Act by the County so the plaintiff’s damages were not presented to a jury.  In a de novo appellate standard of review, the appellate court reversed and found that the County did violate the Act and remanded the case back to a trial on damages.

Applying the applicable law, nothing about the physical or regulatory aspects of the property at the time of the government regulation made Appellants’ [plaintiff] expectations for the development of a concrete batch plant unreasonable. A concrete batch plant was a permitted use under the zoning code as a matter of right and throughout the site-plan approval process, Mr. Maib [plaintiff] was led to believe that approval was inevitable. Further, Mr. Maib obtained the services of an expert engineer who told him that the development was feasible. Finally, the property abutted a railroad and Mr. Maib was able to install a spur to facilitate the importation and exportation of materials. That the overall undertaking may have been expensive and a significant task does not invalidate the fact that, based on the property itself, Appellants’ investment-backed expectations were reasonable.

Ocean Concrete, Inc., supra.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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