EMAILED-CDB_FS2007_70.001_BertHarrisActFLORIDA STATUTES 2007
70.001 Private property rights protection.—
(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.
(3) For purposes of this section:
(a) The existence of a “vested right” is to be determined by applying the principles of equitable
estoppel or substantive due process under the common law or by applying the statutory law of
this state.
(b) The term “existing use” means 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 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.
(c) The term “governmental entity” includes an agency of the state, a regional or a local
government created by the State Constitution or by general or special act, any county or
municipality, or any other entity that independently exercises governmental authority. The term
does not include the United States or any of its agencies, or an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or
municipality, or any other entity that independently exercises governmental authority, when
exercising the powers of the United States or any of its agencies through a formal delegation of
federal authority.
(d) The term “action of a governmental entity” means a specific action of a governmental entity which affects real property, including action on an application or permit.
(e) The terms “inordinate burden” or “inordinately burdened” 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. The terms “inordinate burden” or “inordinately burdened” 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.
(f) The term “property owner” means the person who holds legal title to the real property at
issue. The term does not include a governmental entity.
(g) The term “real property” means land and includes any appurtenances and improvements to
the land, including any other relevant real property in which the property owner had a relevant interest.
(4)(a) Not less than 180 days prior to filing an action under this section against a governmental
entity, a property owner who seeks compensation under this section must present the claim in
writing to the head of the governmental entity, except that if the property is classified as
agricultural pursuant to s. 193.461, the notice period is 90 days. The property owner must submit, along with the claim, a bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property. If the action of government is the
culmination of a process that involves more than one governmental entity, or if a complete
resolution of all relevant issues, in the view of the property owner or in the view of a
governmental entity to whom a claim is presented, requires the active participation of more than one governmental entity, the property owner shall present the claim as provided in this section to each of the governmental entities.
(b) The governmental entity shall provide written notice of the claim to all parties to any
administrative action that gave rise to the claim, and to owners of real property contiguous to the
owner's property at the addresses listed on the most recent county tax rolls. Within 15 days after the claim being presented, the governmental entity shall report the claim in writing to the
Department of Legal Affairs, and shall provide the department with the name, address, and
telephone number of the employee of the governmental entity from whom additional information
may be obtained about the claim during the pendency of the claim and any subsequent judicial
action.
(c) During the 90-day-notice period or the 180-day-notice period, unless extended by agreement
of the parties, the governmental entity shall make a written settlement offer to effectuate:
1. An adjustment of land development or permit standards or other provisions controlling the
development or use of land.
2. Increases or modifications in the density, intensity, or use of areas of development.
3. The transfer of developmental rights.
4. Land swaps or exchanges.
5. Mitigation, including payments in lieu of onsite mitigation.
6. Location on the least sensitive portion of the property.
7. Conditioning the amount of development or use permitted.
8. A requirement that issues be addressed on a more comprehensive basis than a single proposed
use or development.
9. Issuance of the development order, a variance, special exception, or other extraordinary relief.
10. Purchase of the real property, or an interest therein, by an appropriate governmental entity.
11. No changes to the action of the governmental entity.
If the property owner accepts the settlement offer, the governmental entity may implement the
settlement offer by appropriate development agreement; by issuing a variance, special exception,
or other extraordinary relief; or by other appropriate method, subject to paragraph (d).
(d)1. Whenever a governmental entity enters into a settlement agreement under this section which would have the effect of a modification, variance, or a special exception to the application of a rule, regulation, or ordinance as it would otherwise apply to the subject real property, the
relief granted shall protect the public interest served by the regulations at issue and be the
appropriate relief necessary to prevent the governmental regulatory effort from inordinately
burdening the real property.
2. Whenever a governmental entity enters into a settlement agreement under this section which
would have the effect of contravening the application of a statute as it would otherwise apply to
the subject real property, the governmental entity and the property owner shall jointly file an
action in the circuit court where the real property is located for approval of the settlement
agreement by the court to ensure that the relief granted protects the public interest served by the statute at issue and is the appropriate relief necessary to prevent the governmental regulatory
effort from inordinately burdening the real property.
(5)(a) During the 90-day-notice period or the 180-day-notice period, unless a settlement offer is
accepted by the property owner, each of the governmental entities provided notice pursuant to
paragraph (4)(a) shall issue a written ripeness decision identifying the allowable uses to which the subject property may be put. The failure of the governmental entity to issue a written ripeness
decision during the applicable 90-day-notice period or 180-day-notice period shall be deemed to
ripen the prior action of the governmental entity, and shall operate as a ripeness decision that has
been rejected by the property owner. The ripeness decision, as a matter of law, constitutes the
last prerequisite to judicial review, and the matter shall be deemed ripe or final for the purposes
of the judicial proceeding created by this section, notwithstanding the availability of other
administrative remedies.
(b) If the property owner rejects the settlement offer and the ripeness decision of the
governmental entity or entities, the property owner may file a claim for compensation in the circuit court, a copy of which shall be served contemporaneously on the head of each of the governmental entities that made a settlement offer and a ripeness decision that was rejected by
the property owner. Actions under this section shall be brought only in the county where the real
property is located.
(6)(a) The circuit court shall determine whether an existing use of the real property or a vested right to a specific use of the real property existed and, if so, whether, considering the settlement
offer and ripeness decision, the governmental entity or entities have inordinately burdened the
real property. If the actions of more than one governmental entity, considering any settlement
offers and ripeness decisions, are responsible for the action that imposed the inordinate burden
on the real property of the property owner, the court shall determine the percentage of responsibility each such governmental entity bears with respect to the inordinate burden. A
governmental entity may take an interlocutory appeal of the court's determination that the action
of the governmental entity has resulted in an inordinate burden. An interlocutory appeal does not
automatically stay the proceedings; however, the court may stay the proceedings during the
pendency of the interlocutory appeal. If the governmental entity does not prevail in the interlocutory appeal, the court shall award to the prevailing property owner the costs and a
reasonable attorney fee incurred by the property owner in the interlocutory appeal.
(b) Following its determination of the percentage of responsibility of each governmental entity,
and following the resolution of any interlocutory appeal, the court shall impanel a jury to
determine the total amount of compensation to the property owner for the loss in value due to the inordinate burden to the real property. The award of compensation shall be determined by
calculating the difference in the fair market value of the real property, as it existed at the time of
the governmental action at issue, as though the owner had the ability to attain the reasonable
investment-backed expectation or was not left with uses that are unreasonable, whichever the
case may be, and the fair market value of the real property, as it existed at the time of the governmental action at issue, as inordinately burdened, considering the settlement offer together
with the ripeness decision, of the governmental entity or entities. In determining the award of
compensation, consideration may not be given to business damages relative to any development,
activity, or use that the action of the governmental entity or entities, considering the settlement
offer together with the ripeness decision has restricted, limited, or prohibited. The award of compensation shall include a reasonable award of prejudgment interest from the date the claim
was presented to the governmental entity or entities as provided in subsection (4).
(c)1. In any action filed pursuant to this section, the property owner is entitled to recover
reasonable costs and attorney fees incurred by the property owner, from the governmental entity
or entities, according to their proportionate share as determined by the court, from the date of the filing of the circuit court action, if the property owner prevails in the action and the court
determines that the settlement offer, including the ripeness decision, of the governmental entity
or entities did not constitute a bona fide offer to the property owner which reasonably would
have resolved the claim, based upon the knowledge available to the governmental entity or
entities and the property owner during the 90-day-notice period or the 180-day-notice period.
2. In any action filed pursuant to this section, the governmental entity or entities are entitled to
recover reasonable costs and attorney fees incurred by the governmental entity or entities from the date of the filing of the circuit court action, if the governmental entity or entities prevail in the action and the court determines that the property owner did not accept a bona fide settlement
offer, including the ripeness decision, which reasonably would have resolved the claim fairly to
the property owner if the settlement offer had been accepted by the property owner, based upon
the knowledge available to the governmental entity or entities and the property owner during the 90-day-notice period or the 180-day-notice period.
3. The determination of total reasonable costs and attorney fees pursuant to this paragraph shall
be made by the court and not by the jury. Any proposed settlement offer or any proposed
ripeness decision, except for the final written settlement offer or the final written ripeness
decision, and any negotiations or rejections in regard to the formulation either of the settlement offer or the ripeness decision, are inadmissible in the subsequent proceeding established by this
section except for the purposes of the determination pursuant to this paragraph.
(d) Within 15 days after the execution of any settlement pursuant to this section, or the issuance
of any judgment pursuant to this section, the governmental entity shall provide a copy of the
settlement or judgment to the Department of Legal Affairs.
(7)(a) The circuit court may enter any orders necessary to effectuate the purposes of this section
and to make final determinations to effectuate relief available under this section.
(b) An award or payment of compensation pursuant to this section shall operate to grant to and
vest in any governmental entity by whom compensation is paid the right, title, and interest in
rights of use for which the compensation has been paid, which rights may become transferable development rights to be held, sold, or otherwise disposed of by the governmental entity. When
there is an award of compensation, the court shall determine the form and the recipient of the
right, title, and interest, as well as the terms of their acquisition.
(8) This section does not supplant methods agreed to by the parties and lawfully available for
arbitration, mediation, or other forms of alternative dispute resolution, and governmental entities are encouraged to utilize such methods to augment or facilitate the processes and actions
contemplated by this section.
(9) This section provides a cause of action for governmental actions that may not rise to the
level of a taking under the State Constitution or the United States Constitution. This section may
not necessarily be construed under the case law regarding takings if the governmental action does not rise to the level of a taking. The provisions of this section are cumulative, and do not
abrogate any other remedy lawfully available, including any remedy lawfully available for
governmental actions that rise to the level of a taking. However, a governmental entity shall not
be liable for compensation for an action of a governmental entity applicable to, or for the loss in
value to, a subject real property more than once.
(10) This section does not apply to any actions taken by a governmental entity which relate to
the operation, maintenance, or expansion of transportation facilities, and this section does not
affect existing law regarding eminent domain relating to transportation.
(11) A cause of action may not be commenced under this section if the claim is presented more than 1 year after a law or regulation is first applied by the governmental entity to the property at issue. If an owner seeks relief from the governmental action through lawfully available
administrative or judicial proceedings, the time for bringing an action under this section is tolled
until the conclusion of such proceedings.
(12) No cause of action exists under this section as to the application of any law enacted on or before May 11, 1995, or as to the application of any rule, regulation, or ordinance adopted, or
formally noticed for adoption, on or before that date. A subsequent amendment to any such law,
rule, regulation, or ordinance gives rise to a cause of action under this section only to the extent
that the application of the amendatory language imposes an inordinate burden apart from the law,
rule, regulation, or ordinance being amended.
(13) This section does not affect the sovereign immunity of government.
History.—s. 1, ch. 95-181; s. 1, ch. 2006-255.