Florida's Private Property Rights Law

bsmart · 08-11-2006, 04:14 PM

I found this in my reading list which I pick up today, sounds interesting, can't wait to find the time to read it.

For the article in its entirety please visit the link below.

http://www.elulc.org/site/content.ph.../floridas.html

Quote:

Florida’s Private Property Rights Law
Florida's Burt Harris Act: Does it Protect Third Parties and the Public Interest?

Richard Grosso, General Counsel

Environmental and Land Use Law Center, Inc. Ft. Lauderdale, Fla.

Introduction

Florida's "Harris Act" is far too vague to be valuable as legislation. There are no reported cases interpreting or commenting on the substance of the law. Its real impact has been, and will likely continue to be, as a potential "sword" that landowners can hang over the heads of public agencies who are making decisions about new rules or pending permit applications.

It is somewhat clear that the law - often discussed as one law but in reality it is two separate laws and processes - establishes a mechanism that provides the potential for flexibility for government to find a "fix" for cases which really create an unfair burden for a specific landowner. This mechanism exists in both the judicial cause of action for compensation and the Special Master process for "modifications" or "adjustments" to governmental actions.

The compensation part of the law will not be discussed in any detail in this paper, other than to suggest that, the specific terms of the law are likely to yield court judgements on compensation and amounts that are more generous, but not considerably more so, than those currently provided under Constitutional "takings" theories. In this author's opinion, the more frequent and important impact of the Florida law is its impact on proposals for new laws, rules and ordinances and on specific actions on applications for development permits.

The Chilling Effect

As many predicted when the law was initially debated and passed, many decisions to do or not to do something have been made on the basis of a misunderstanding that the legislation has tied government's hands too a far greater extent than it actually has.

The chilling effect springs from two aspects of the Legislation. First, the Act provides for judicially - imposed financial compensation for impacts of a "new law, rule, regulation or ordinance of the state or a political entity in the state...." Sections 70.001 (1) & (2), Fla. Stat. So, proposals for changes that would enact new, more stringent development restrictions or standards, or which would down-zone one or many parcels of land, have consistently been opposed on the strength of claims that such changes would violate this law.

Second, compensation is available for "the actual loss to the fair market value of the real property" caused by "a specific action" of government which has "inordinately burdened an existing use of real property or a vested right to a specific use of real property." 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. Section 70.001(3)(d), Fla. Stat. So, the experience has been that permit and development order applicants can successfully bolster their arguments for the approval of their proposals by claiming that a denial would entitle them to compensation under this law.

This "chilling effect" has been substantial. While, to this author's knowledge, there has been no systematic study of this impact, my own observations and those of colleagues, confirms that many, many permits have been inappropriately issued or issued without proper conditions, because of the perceived threat of financial liability that would result from a denial or the imposition of conditions unfavorable to the applicant. Indeed, the avoidance of financial liability has been the purported justification in several potentially inappropriate settlements of claims under the Act.

Impact On The Rights and Interests of Third Parties

It is important to remember that there are two separate laws and procedures established by this legislation. Their impact on third parties appears to differ significantly, but in both cases the procedural and substantive rights of third parties are unclear.