Legislature boosts property rights in Harris Act

– By Amy Brigham Boulris –

Special to the Harvester

– The Florida Legislature made property rights issues a priority during its shorter-than-usual session this year by passing House Bill 383 before it adjourned in April. The bill included three tweaks to the Bert J. Harris Private Property Rights Protection Act and essentially codified the reasoning of the 2013 U.S. Supreme Court Koontz case concerning unconstitutional land development exactions.

H.B. 383 clarified that the Harris Act does not cover not-in-my-backyard (NIMBY) claims.  This was in response to a controversial pair of cases (both of which remain pending before the Florida Supreme Court) in which neighbors brought inordinate burden claims under the Act against local governments for approving uses on adjacent land which allegedly depreciated the value of their property.

One involved the denial of a neighbor claim after the city of Jacksonville approved a fire station next to a luxury waterfront homesite. The other upheld a claim by a brain injury rehabilitation center after Hardee County reduced setback requirements for phosphate mining operations next to the center. The Legislature clarified that this type of indirect damage claim is not covered by limiting claims to alleged depreciation of property that is “subject of and directly impacted” by government regulatory action.

The bill also limited the Harris Act’s scope by excluding claims based on local government adoption of FEMA Flood Insurance Rate Maps in the course of participating in the National Flood Insurance Program. Although this may not have been a reaction to a particular court ruling, it appears designed to cut off future claims of this sort and a concern that potential liability under the Harris Act could inhibit local government participation in the federal insurance program.

The last tweak to the Act clarified that settlements with a government entity, even if reached after a lawsuit is filed in circuit court, are valid. This was in apparent response to a court ruling in a Collier County case that invalidated a settlement because it was not reached during the statutory pre-suit negotiation period.

The more substantive improvement to property rights protection contained in H.B. 383 was its establishment of a section of statutes titled “Government Exactions,” which became effective this month. This section broadens protection against excessive permitting requirements (land, money or other impositions on a developer by government in order to obtain a permit). It provides relief, including monetary damages, for permit exactions that are disproportionate to the impacts of the proposed development. This type of statutory protection had previously been limited to environmental permitting, but H.B. 383 expands that to all other state and local regulatory contexts.

The new statute provides both injunctive relief and monetary damages (measured by loss in fair market value of land or the amount of excessive fees or infrastructure costs that exceed permissible limits), although it exempts development impact fees (excessive impact fees can still be challenged in other ways). Non-ad valorem assessments also are exempt.

Anyone filing a claim under the new statute must file a pre-suit notice within 180 days after an exaction is actually imposed or is stated as a written requirement for approval by the regulatory agency. The notice must identify the offending condition and provide an estimate of damages. The agency must provide a written response that either specifies the basis for the exaction or offers to delete or tailor it to something that is proportional.

If there is no resolution between the parties, in any ensuing litigation the government has the burden of proof concerning the legitimacy of the exaction, and the landowner has the burden of proof concerning damages. A court may award fees and costs to the prevailing party, but must award fees and costs to a landowner who prevails on the nexus or proportionality issue, regardless of the form or amount of remedy obtained.

Amy Brigham Boulris is a shareholder with the law firm Gunster in the practice areas of environment and land use as well as property rights and eminent domain.

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