Florida Legislature Strengthens Act To Protect Property Rights

Bilzin Sumberg Client Alert

Client Alert
June 14, 2011

This legislative session, the Florida Legislature passed HB 701, a reform bill aimed at clarifying the intent of the Bert J. Harris Private Property Rights Protection Act, Section 70.001, F.S., et seq. (the "Act") to protect private property rights.

Created in 1995, the Act creates a cause of action for an aggrieved property owner who can demonstrate that a governmental action inordinately burdened his or her property. Property owners harmed by governmental action have used the Act to show either that the property has been singled out to bear a disproportionate share of a regulatory burden, or that the owner is unable to attain, reasonable investment-backed expectations for the use of the property.

This bill, effective July 1, 2011, better protects property owners from those government actions which may be temporary or legislative on their face, but harmful to property owners in practice, and expressly codifies recent judicial decisions to make clear to interested parties how the Act should be interpreted moving forward.

Shortens Notice Period
HB 701 shortens the time period for property owners to notify the government prior to filing suit under the Act from 180 days to 150 for all non-agricultural property.

Clarifies Trigger for Claims Accrual to Include Certain Legislative Enactments
HB 701 clarifies the trigger for claim accrual for development restrictions. The Act currently requires that a claim be made within 1 year after the law or regulation is first applied. In some cases in the past, laws or regulations (including the adoption of an entire new zoning code) arguably applied restrictions to identifiable property from the time of enactment, raising questions as to the maturity of claim accrual. HB 701 provides for accrual upon enactment of a regulation if the impact is "clear and unequivocal in its terms" and "notice is provided by mail to the affected property owner."

Includes Temporary Restrictions
HB 701 amends the definition of "inordinate burden" to clarify that government action that causes a temporary impact on development (in effect for more than 1 year) may in fact constitute an inordinate burden on a subject property. In determining whether reasonable, investment-backed expectations are inordinately burdened, consideration may be given to the factual circumstances leading to the time elapsed between enactment of the law or regulation and its fist application to the subject property.

Waives Sovereign Immunity
HB 701 also specifically includes an express waiver of sovereign immunity for actions brought under the Act, meaning that all government agencies are subject to suit for causes of action based upon the application of any law, regulation, or ordinance that may create an inordinate burden on reasonable, investment-backed expectations.

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Property owners and other interested parties may benefit from these changes to the Bert J. Harris Private Property Rights Protection Act.

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About KBS Strategies

KBS Strategies Group LLC, a subsidiary of Bilzin Sumberg, offers a variety of consulting services to clients that facilitate government relations. These services include developing lobbying strategies for all levels of government, advocating before key decision makers, drafting of governmental policy and legislation and navigating key legislative, executive and procurement processes. KBS Strategies does not provide legal services. For more information, please visit the website at www.kbs-strategies.com 

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