August 11, 2020

Volume X, Number 224

August 11, 2020

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August 10, 2020

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

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.

© 2020 Bilzin Sumberg Baena Price & Axelrod LLPNational Law Review, Volume VIII, Number 79


About this Author

Anthony De Yurre, Bilzin, Real Estate Development Lawyer, Investment Strategies Attorney

Anthony De Yurre is a Partner in Bilzin Sumberg's Land Development & Government Relations Group. His practice focuses on the representation of real estate developers and investors in complex land use and zoning matters with a focus on transit-oriented development, large scale mixed-use development and public-private partnerships.

Anthony is an adjunct professor at the University of Miami Law School Master of Laws (LL.M.) in Real Property Development where he teaches “Problem Solving Large Scale, Mixed-Use Development”.  Upon graduating from...

Elise Holtzman Gerson Land land Use and Government Relations Lawyer Bilzin Sumberg Law Firm

Elise focuses her land use and government relations practice on guiding clients through land use issues and representing clients in all levels of the procurement process. Elise understands how law and policy influence business and development, and her grasp of the political dynamics in South Florida makes her an invaluable advocate on behalf of her clients. This is particularly true when she helps navigate clients through the RFP and/or administrative bid protest process.