Business and Legal Insights

The Takings Clause of the U.S. Constitution prohibits the government from depriving an owner of private property for public use without “just compensation.” Governmental action burdening private property does not always amount to a taking of private property. In such instances, private property owners may be able to recover damages against state and local entities in Florida under the Harris Act, although they still face a high hurdle.

Under the Harris Act, if a governmental entity in Florida enacts a regulation which “inordinately burdens” private property:

1. The property owner may notify the government of the burden,
2. The government must make a written offer to settle the claim, and
3. The property owner may: (i) accept the settlement offer, or (ii) reject the offer and file a lawsuit against the government for damages.

An “inordinate burden” does not include a temporary impact to property or an impact to address a public nuisance/noxious use of property.

The case of Ocean Concrete, Inc. v. Indian River County, Board of County Commissioners, 241 So. 3d 181 (Fla. 4th DCA 2018), illustrates how the action of a county inordinately burdened the rights of a property owner who sought to develop property as a concrete batch plant. Concrete batch plants were allowed in light industrial zoned districts when the property owner made application with the county. As a result of opposition to the project from various constituents, the county amended its zoning code to prohibit concrete batch plants in light industrial zoned districts and the county applied such amendment to the project. The Ocean Concrete court concluded that the property owner was entitled to damages under the Harris Act. The complete Ocean Concrete case is available at the following link: Ocean Concrete case. 

The following changes to the Harris Act will take effect on October 1, 2021:

1. The term “action of a governmental entity” is revised to include acting on a permit or adopting or enforcing any ordinance, resolution, regulation, rule, or policy.
2. The term “real property” is revised to include any surface, subsurface, or mineral estates.
3. When submitting a claim, the property owner must now provide an “appraisal report” as defined in Section 475.611(1)(e) rather than a “bona fide, valid appraisal” which was previously required. This change is an improvement which provides greater certainty as to the information which must be provided by the property owner when submitting a claim.
4. The timeframe for a property owner to notify the government before filing a lawsuit is reduced to 90 days.
5. Written settlement offers are now presumed to protect the public interest. This means that a trial court is not required to make findings regarding whether a settlement protects the public before approving the settlement.
6. A property owner may have the court, rather than a jury, determine damages. This should reduce the uncertainty associated with the calculation of damages by a jury.  
7. A prevailing property owner may recover attorneys’ fees and costs beginning on the date the property owner gives notice to the government of the burden as opposed to the date the property owner files a lawsuit is filed. This will increase pressure on governments to resolve colorable claims prior to litigation.
8. A property owner may be entitled to relief under the Harris Act if the property owner files a claim but title to the real property is transferred before resolution of the claim. This clarifies that, so long as a Harris Act claim is timely filed, the property owner is not required to own the real property for the entire duration of the dispute with the government (e.g., property owner loses the property through foreclosure, etc.).
9. The government must mail notice to the property owner after the enactment of a law or regulation in order for the one-year claim period to commence. If the government fails to mail notice to the property owner, then the property owner may give notice by certified mail to the government that the property owner deems the impact of the law or regulation on the property to be clear and unequivocal. Within 45 days, the government must respond by certified mail with a description of the limitations imposed on the property by the law or regulation. In such case, the property owner is not required to formally pursue an application for a development order, development permit, or building permit in order to bring a Harris Act claim. However, the property owner must file the Harris Act claim within one year after receipt of the notice from the governmental entity of the limitations on use imposed on the property.

The complete text of Harris Act, as amended, is located at the following link: http://laws.flrules.org/files/Ch_2021-203.pdf.