Government Violated Developer’s Bert J. Harris Act Rights by Denying Site Plan, Finds Florida 4th District Court of Appeals

by Bilzin Sumberg
Contact

In a significant ruling, Florida’s Fourth District Court of Appeal in the case of Ocean Concrete, Inc. v. Indian River County ruled the government violated the developer’s Bert J. Harris Act rights by denying a site plan for the development of a project that had established a reasonable, investment-backed expectation.  The Ocean Concrete ruling is particularly important because Bert J. Harris claim is one of the only ways to protect development investment expectations against overstepping governmental regulations that fall short of a constitutional taking.

The Bert J. Harris, Jr., Private Property Rights Protection Act was codified in 1995, to provide protection to private property owners against burdens placed on their property rights by governmental entities.  Bert J. Harris claims provide an important recourse for private property owners when a regulation burdens their property rights, but still falls short of an actual constitutional taking.  Specifically, the action of a governmental entity is not required to reach the level of a taking, but only “inordinately burden” an “existing use” or a “vested right” in the private property. While the Act has been on the books since 1995, Florida courts still grapple with its interpretation.

In Ocean Concrete, the property owner planned to build a concrete plant.  The plant was specifically permitted as-of-right pursuant to the County’s zoning code. During the second round of site plan approval, and after making improvements to the property to obtain approval, the County rezoned the property to explicitly prohibit industrial uses such as concrete plants.  In response, the property owner filed a Bert J. Harris claim, but the circuit court, found that the use of the property as a concrete plant was not an “existing use” under the Act, and that the zoning change did not “inordinately burden” the property owner’s rights.

The Fourth District Court of Appeal reversed and remanded the trial court’s order for the determination of an award of damages in favor of the property owner.  The appeals court interpreted the statutory definition of “existing use”, which includes “reasonably foreseeable, non-speculative land uses which are suitable for the subject real property and compatible with adjacent land uses.”  The appeals court found that the inquiry is whether the concrete plant, as a land use, was “foreseeable” and “non-speculative” at the time the County rezoned the property. The appeals court thus held that the concrete plant was an “existing use” under Bert J. Harris, because the property could have been used as a concrete plant at the time of the government action.  Of note, the appeals court found that the concrete plant was per se compatible with the adjacent residential and commercial uses because it was permitted by the zoning code.

The appeals court also found that the existing use was “inordinately burdened” by the County’s action. The Act states that a right is “inordinately burdened” when the property owner is “permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property.”  The court specifically found that “reasonable investment-backed expectation,” depends on the physical and regulatory aspects of the property, rejecting the trial court’s reasoning that the concrete plant was not financially viable.  The appeals court found that the plant was a permitted use under the zoning code as a matter of right; that the County led the owner to believe that the site plan was approved; and, which led the property owner to hire experts who opined that the development was feasible. Therefore, no physical or regulatory impediments existed to the development, and the owner had reasonable, investment-backed expectations for the existing use. Importantly, the court made clear that takings law under the U.S. Constitution does not apply to claims under the Bert J. Harris Act, and that the trial court improperly attributed its reasoning to cases addressing federal constitutional rights.

Understanding Bert J. Harris claim law is important for developers because it provides developers protection against government regulations that do not reach the level of a constitutional taking.  The Ocean Concrete case provides a key example that yields a developer and property owner friendly interpretation of the Bert J. Harris Act.  As Bert J. Harris law matures, developers can be more confident to use the claim should they need protect their property interests and economic expectations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bilzin Sumberg | Attorney Advertising

Written by:

Bilzin Sumberg
Contact
more
less

Bilzin Sumberg on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.