1999 Update on the Bert J. Harris Private Property Rights Protection

The Bert J. Harris, Jr., Private Property Rights Protection Act in Florida was created in 1995 to help protect property owners from unfair government actions that restrict their property rights. It allows property owners to file a claim if they can show that the government’s actions have unreasonably limited their ability to use their property. The act also provides a special mediation process for property rights disputes, allowing property owners to seek relief from unfair government actions. In February 1998, there were 12 reported cases under the Act. In June 1998, there were twice as many cases in Miami Beach related to changes in zoning laws. Some property owners claimed that the changes unfairly burdened their properties and filed claims under the Act. For example, Dennis O. Morin claimed that the changes caused a $392,000 loss for his properties. The city argued that the Act is unconstitutional and that Morin’s claim is not valid. The city is challenging a law that they believe is unconstitutional because it requires them to spend public money if someone sues them. They also think the law is not clear enough about what actions can make the city liable for damages. The city also thinks the law violates the separation of powers because it gives the government the power to decide if a case is ready for trial, which they believe should be up to the courts. The city argues that the claim of lost value due to changes in land development rules is speculative. Florida courts require a final determination from the government on what can be done with the property in taking cases. In past cases, claims were not considered ripe for review if there were still reasonable economic uses for the property under existing rules. The courts also said that claims were not ripe if the property owner had not actually sought approval from any agency for a proposed development. The city is saying that Morin’s claim is not valid because they didn’t try to get permits before suing, and the city hadn’t made a final decision about the law. They also say that Morin’s claim won’t be valid until they try to get permits and get denied. The city also says that the properties were zoned differently than what Morin’s appraisal assumed, so their claim can’t be based on the law. Additionally, the city says that the law actually helps Morin by increasing the base value of their properties. The city passed a law that limited how a person could use their property. The person said it was unfair and sued the city. The city said the law was okay for a few different reasons. Finally, the city made a settlement offer to try to end the lawsuit. The city of Miami Beach made an ordinance to designate certain areas as historical districts, which can increase property values. A company called USA Express hasn’t sued the city over this. In another case, a county downzoned a property, and the owner demanded compensation. The county said the owner didn’t appeal the downzoning and that the law allowing the lawsuit is unconstitutional. Now, the question is whether being in a historical district is good for property or a burden, and this will continue to be an issue for property owners in Miami Beach. In Wollard v. Monroe County, the landowner is saying that a rule in the county’s Year 2000 Comprehensive Plan is making it really hard for him to use his property. The rule says the county has to figure out how much demand there is for new businesses before they can make any new rules for building. Because of this, the county won’t let the landowner get any building permits. The county says the landowner’s claim isn’t right and that he should be asking for a temporary pause on the rules instead. The landowner is asking for $547,261 in damages. For now, both sides are waiting to see if the rules will change and if the Department of Community Affairs will let more building permits be issued. No further action has been taken yet. The City of West Palm Beach had a rule that allowed buildings to be 15 stories tall. Citizens wanted this rule changed to only allow buildings to be 5 stories tall, so they had a special vote and it passed. Fidelity Federal Savings Bank wanted to build two 15-story buildings, but the city said no because of the new rule. Fidelity said the new rule was unfair to them, but the court agreed with the city. In the end, they settled the issue and Fidelity was allowed to build the 15-story buildings, but not a parking garage. In 1997, two churches in West Palm Beach, Holy Trinity Church and First Church of Christ Scientist, claimed that a new height restriction law unfairly affected their property. The city argued that the law was not a government action and that the churches’ claims didn’t meet the requirements of the law. The court upheld the law, but said that a citizen’s initiative could be considered a “governmental entity.” Both sides appealed, but their appeals were eventually dismissed. Two cases are pending in Palm Beach County and Sarasota County regarding claims of property being burdened by government actions. In both cases, the property owners are alleging that the government’s actions have negatively affected their businesses. The courts will have to decide if the government’s actions were allowable under certain exemptions in the law. In the Sarasota case, the property owner was allowed to continue operating his business on residential property for a certain period of time, but the government later enforced zoning laws that would not allow the business to continue. The government argues that their actions were within their rights. The city is saying that Kolar’s claim isn’t ready to be heard because they didn’t ask to change their property’s zoning. They also say that the law Kolar is complaining about was made before 1995, so Kolar can’t make a claim about it unless a recent change to the law is causing them big problems. Finally, the city says that the law only looks at how a recent change to the law affects Kolar’s property, not the original law. Right now, the two sides are talking about settling the case with a cash payment. The Kolar case shows that government regulations can have a “chilling” effect, meaning they make it harder for new regulations to be made. This is because governments are afraid of having to pay out a lot of money in lawsuits. So far, the act has not had much impact on Florida’s economy. Some other cases are pending that might change how the act is used by landowners. In another case, a couple won a lawsuit against a water management district for taking their land without paying them. In 1989, the St. Johns Management District made rules to protect the Wekiva River, including a 550-foot habitat protection zone. The Saboffs, who owned land near the river, were allowed to build a house on some of their land, but only if they gave the district an easement for public conservation use. The court said this was unfair and went against the Saboffs’ rights, even though they could still use some of their land. The Supreme Court also said that even if a landowner can still use some of their property, the government might still have to pay them for the loss of value caused by the rules. This decision could set a new standard for protecting landowners. In the case of City of St. Petersburg v. Bowen, the court found that when the government closes an apartment complex for one year to stop drug dealing, it’s considered a taking of the property. This means that the government has to compensate the property owners for the loss of income. However, in another case, City of Miami v. Keshbro, the court ruled that the city doesn’t have to compensate the property owners when they close a motel for the same reason. The owners of a motel were upset when the city closed it down for six months to stop illegal activities like drugs and prostitution. They said it was like the city took their property and they should be paid for it. The court said the city didn’t have to pay because the illegal activities were too connected to the motel, and the owners didn’t have a right to do those things on their property. So the court said the city can keep the motel closed. After Hurricane Andrew in 1992, insurance companies started canceling or not renewing residential insurance policies in Florida to avoid big losses in future disasters. The Florida government made laws to stop this from happening, and some insurance companies sued, saying it violated their constitutional rights. The court said the government’s actions didn’t count as taking their profits, but they didn’t decide if it was a different kind of taking. They said there are three important things to look at when deciding if a government action is a taking. The court said that they still need to figure out how much the new law will affect businesses, and didn’t talk about the argument that the law messes up the business plans of the people suing. They also mentioned that the law might be forcing businesses to stay in Florida when they don’t want to. The court said that when the government has a good reason for the law, like protecting the Florida real estate market, it’s less likely to be considered a taking of property. They sent the case back to be looked at again. In a case involving a landowner’s rezoning request being denied, the court decided that property rights can only be protected through certain legal claims. The court also emphasized the importance of balancing government requirements with the impact on landowners, as seen in the Dolan v. City of Tigard case. This means that government requests for land must be roughly proportional to the impact on the landowner. A landlord wanted to build homes on their land, but the city kept adding more rules and eventually denied the project. The landlord sued the city and won. Now, the Supreme Court will decide if the city has to pay the landlord for the denied project. This case could make it harder for cities to deny building projects in the future. As government rules about property use change, so will the rules about when landowners can get compensation for their loss. Florida’s growing population will put pressure on public areas, leading to new laws about where things can be built and how landowners must treat their property. These changes will probably create new courts just for land use issues, and make sure that new rules don’t hurt landowners too much. This is a legal case where the city of Miami Beach is being sued for passing an ordinance that restricts property development. The lawsuit argues that this ordinance violates property rights. The city is arguing that the ordinance is necessary for public safety and to prevent illegal activity. The case references previous legal cases and laws to support their arguments. The outcome of the case will determine if the city has the right to restrict property development for public safety reasons. Ronald L. Weaver is a lawyer in Tampa who specializes in real estate and land use law. He went to the University of North Carolina for his bachelor’s degree and Harvard Law School for his law degree.

Source: https://www.floridabar.org/the-florida-bar-journal/1999-update-on-the-bert-j-harris-private-property-rights-protection/