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New Developments Regarding Scope of Bert Harris Act
By:
Michael R. Bray
Section 70.001, Florida Statutes, also known as the "Bert Harris Act," provides a cause of action to aggrieved property owners, who demonstrate their property has been "inordinately burdened" by governmental action. The Act defines "property owner" as “…the person who holds legal title to the real property at issue. The term does not include a governmental entity.” §70.001(3)(f), Fla. Stat. (emph. added). The term "real property at issue" is not defined within the Act, and to date, has not been clarified by the courts. However, it appears some significant interpretation may be on the way.
There are currently two appeals pending, one at the Florida First District Court of Appeal and one at the Second District, in which the courts may address whether the Act applies only to owners of property that a governmental entity has explicitly named as the subject of regulation, or whether it also applies to owners of property adjacent to those parcels, who are affected by the governmental action.
First, in R. Lee Smith and Christy Smith v. City of Jacksonville, Case No. 2012-CA-007994-XXXX (4th Jud. Cir. Ct. (Duval County) April 15, 2014), the plaintiffs are property owners who purchased a parcel of vacant riverfront property zoned "Residential Low Density" as an investment, intending to resell it to a residential buyer. The parcel immediately to the northeast of the plaintiff's lot was owned by the defendant, and was zoned "Residential Low Density" as well. The defendant's lot also had a deed restriction limiting the use of the lot to the leisure and recreation of Duval County employees.
The defendant obtained a cancellation of the deed restriction and a rezoning of its property for the purpose of building a fire station. The rezoning was accomplished, and the fire station was built. Thereafter, the plaintiffs filed a lawsuit pursuant to the Bert Harris Act, alleging that their property had been inordinately burdened by the defendant's actions, because the noise, light, boat and land vehicle traffic, among other things, had substantially reduced the value of their property.
A trial was conducted and in the final order, the court held the threshold question it must decide was whether the Act applies to the plaintiff's property at all, because the governmental action in question was taken on the defendant's property, to which the plaintiff's property is merely adjacent. The court concluded as follows:
It thus appears that confining the operation of the [Bert Harris] Act to circumstances where a governmental entity took a direct action against property, substantially diminishing its value, would be to limit the Act to situations in which the property owner would already have a remedy for inverse condemnation. That would mean the Act would have no real purpose. Yet this Court is compelled to interpret the Act such that its provisions are made meaningful. See, Gomez v. Village of Pinecrest, 41 So.3d 180, 185 (Fla. 2010). The Court concludes, then, that the Act provides legislative relief to owners of property when their property has been incidentally diminished in value due to governmental action taken against an adjacent property.
Thereafter, the defendant appealed, and the case is currently pending at the First District, where the briefing stage has concluded. See, City of Jacksonville v. R. Lee Smith and Christy Smith, Fla. 1st DCA Case No. 1D14-2191.
The court in FINR II, Inc. v. Hardee County, Case No. 130000614CAAXMX (10th Jud. Cir. Ct. (Hardee County) January 27, 2014) reached the opposite result. In FINR, the plaintiff is a facility providing health care, rehabilitation, and other services to survivors of traumatic brain injuries. The plaintiff's property is adjacent to property owned by a phosphate mining company, which had been zoned agricultural, when plaintiff was granted a quarter-mile no-mining setback by the defendant county, which protected the plaintiff's property from the various deleterious effects of active mining operations.
Subsequently, a phosphate mining company petitioned the county to re-zone the adjoining property for mining and requested a reduction of the setback area protecting the plaintiff’s property. The defendant county granted the request, thereby allowing phosphate mining much closer than a quarter-mile to the plaintiff's medical facility and patients. Subsequently, the plaintiff filed a lawsuit pursuant to the Bert Harris Act, alleging that permitting phosphate mining and all of its attendant noise, vibration, dust, and other pollution in such close proximity to its health care and rehabilitation facilities would prevent it from adequately providing those services. As a result, the plaintiff alleged, based on before and after appraisals that the property's value was reduced approximately 90% by the governmental action.
The circuit court dismissed the case with prejudice. In direct contrast to Smith, the trial court in FINR held that an adjacent property owner has no remedy under the Bert Harris Act. The court reasoned:
Are the reduced mining setbacks on [the phosphate company's] adjoining property (Bert Harris Act) governmental action, vis-a-vis, [the plaintiff's] property? The answer depends upon what is "real property at issue" in the Bert Harris Act.
… [The defendant county] argues "real property at issue" is the property actually identified in the governmental action on the plain language of the Act and on the application of Tampa-Hillsborough County Expressway Authority; v. K. E. Morris Alignment Service, Inc., 444 So. 2d 926 (Fla. 1983).
[The plaintiff] argues "real property at issue" includes any property inordinately burdened by governmental action, i.e., inordinately burdened property is "real property at issue." In this a posteriori-esque sequence, one first determines inordinate burden on (any) property, and then it follows that the owner of the inordinately burdened property has a Bert Harris Act remedy, even if the inordinately burdened property is not the property identified (specifically described) in the governmental action.
One argument is limited, the other expansive. Section 70.001(13) of the Act provides the waiver of sovereign immunity creating a cause of action under the Act is "only to the extent specified in this section." Absent decisional authority to the contrary, the limited application of the Bert Harris Act is applied.
The plaintiff appealed, and the case is currently pending at the Second District, where briefing and oral argument have concluded. See, FINR II, Inc. v. Hardee County, 2d DCA Case No. 2D14-788.
The outcomes of these appeals should provide landowners and local governments with much needed guidance as to the scope of the Bert Harris Act, and may substantially increase the number of Bert Harris Act lawsuits going forward, if the courts interpret the Act as applying to adjacent property inordinately burdened by the governmental action. If you have questions about the Bert Harris Act, the attorneys at de la Parte & Gilbert can assist you. For more information, contact Vivian Arenas-Battles or Michael Bray at (813) 229-2775, or email them at varenas@dgfirm.com or mbray@dgfirm.com.
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