HomeMy WebLinkAboutSubmittal;-Correspondence-Everglades Law Center, Inc.Everglades
Law Center, Inc.
Defending Florida's Ecosystems
and Communities
Shepard Broad Law Center
Nova Southeastern University
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Ft Lauderdale, Florida 33314
Phone :(954)262-6140
Fax: (954) 262-3992
Northern Everglades Office
818 U.S. Highway 1, Suite 8
North Palm Beach, Florida 33408
Phone: (561) 630-1565
Fax: (561) 630-1540
Board of Directors
President
Thomas T. Ankersen, Esq.
Treasurer
Richard Hamann, Esq.
Secretary
Joel A. Mintz, Esq.
Laurie Ann Macdonald
Janet Reno. Esq
David white, Esq.
Executive Director
General Counsel
Richard Grosso, Esq.
Regional Director
Senior Counsel
Lisa Interlandi, Esq.
Trial Counsel
Robert N. Hartsell, Esq.
Staff Counsel
Jason Tatoiu. Esq.
April 15, 2008
Mr. Hadley Williams,
Miami Neighborhoods United
Coalition of Neighborhood Associations
Re: Harris Act Analysis
Dear Mr. Williams;
This letter is in response to your request for a legal analysis and
opinion on the issue of whether any potential action by the City of Miami to
amend its Comprehensive Plan and / or Zoning Code to reduce allowable
density or intensity would result in liability under Florida's Bert Harris Jr.,
Private Property Rights Act ("the Harris Act").
Our analysis of the law results in the following overall observations:
• Only general conclusions can be made absent a case by case analysis,
based on the individual impact on any particular landowner as a result
of any "down -zoning decision" or "down -planning" in specific
application to a particular piece of property.
• While the Harris Act was intended to provide land owners greater
protection than is afforded by constitutional "takings" law, it does not
provide compensation for every burden placed upon a property as a
result of agency action. Only "inordinate" burdens are entitled to
compensation under the Act.
• There is not a significant amount of reported appellate or circuit court
cases interpreting and applying the Act, and its biggest impact appears
to come from claims that were settled. Our review of available
settlements under the Harris Act reveals that they rarely involve
significant monetary compensation by local governments to
landowners, except in egregious circumstances, but instead tend to
involve the approval of modified development applications.
Our analysis is described in more detail below.
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Constitutional "Takings" Law
The United States and Florida Constitutions provide for compensation to landowners for a
regulatory "taking" of private property. U.S. Const. Amendment V, XIV; Fla. Const. art. I, §2, §9;
art. 10, §5. A regulatory taking may occur when government action leaves property with no
economically viable use or when the regulation goes "too far", such as an undue interference with
an investment backed expectation. Lucas v. South Carolina Coastal Council, 505 U.S. 1014
(1992); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978).
These "takings" clauses have consistently been interpreted to allow a local government to
"down -zone" land, as long as the property retains an economically viable use and the change is not
arbitrary — i.e. it is for a valid planning purpose. See, for example, Corn v. City of Lauderdale
Lakes, 95 F 3d 1066 (11`" Cir. 1996); Graham v. Estuary Properties, 399 So.2d 1374, 1380 (Fla.
1981). Unless one has expended substantial sums of money in reliance on existing zoning to the
extent that a court would say it is inequitable to change the rules, there is no vested right to the most
economically viable or best use of a property. Goldblatt v. Town of Hempstead, 369 U.S. 590
(1962); Graham v. Estuary Properties, 399 So.2d 1374, 1380 (Fla. 1981).
The Bert Harris Act- What It Means And How It Has Been Interpreted
The Bert Harris Act was enacted in 1995 and creates a cause of action for a property owner
who is aggrieved by a government action that "inordinately burdens" the owner's property.
§70.001 Fla. Stat. (1995). The Harris Act provides statutory relief that is supplemental, but
independent from constitutional "takings" protection. §70.001, Fla. Stat. (2007). It is generally
thought to grant additional landowner rights only by slight degrees and that the existence of the Act
does not grant property owners significantly more rights than they currently enjoy under the
Constitution. The Act provides in pertinent part:
"When a specific action of a governmental entity has inordinately burdened an
existing use of real property or a vested right to a specific use of real property, the
property owner of that real property is entitled to relief, which may include
compensation for the actual loss to the fair market value of the real property caused
by the action of government...." §70.001(2), Fla. Stat. (2007).
With the adoption of this statute, landowners in Florida became entitled to some form of
relief — either a change in the government action giving rise to their claim, or some form of
compensation, when they are "inordinately burdened", and not just when government action leaves
their property with "no economically viable use." Based on the details in the law and the existing
judicial interpretations, it is the view of various commentators, including this office, that the Act
does not significantly increase the number of situations in which local (or state) governments will
be deemed to have violated a landowner's property rights.
Inordinate Burden
The Act defines inordinate burden as:
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"[a]n action of one or more governmental entities [that] has directly restricted or
limited the use of real property such that the property owner is permanently unable
to attain the reasonable, investment -backed expectation for the existing use of
the real property or a vested right to a specific use of the real property with
respect to the real property as a whole, or that the property owners is left with
existing or vested uses that are unreasonable such that the property owner
bears permanently a disproportionate share of a burden imposed for the good of
the public, which in fairness should be borne by the public at large." Fla. Stat.
§70.001(3)(e)(emphasis added).
Significantly, the Act directs courts to take into account, when determining if such a
burden exists, the same factors historically used by the courts in constitutional takings analysis.
Thus while the general legislative intent of the Act is that the bar (for granting a landowner
"relief') should be lower in Harris Act cases than under the Constitution, it does not appear that
the Act supports an interpretation that the bar should be a lot lower. Sylvia R. Lazos Vargas,
Florida's Property Rights Act: A Political Quick Fix Results in a Mixed Bag of Tricks, 23 Fla. St.
U. L. Rev. 315, 363 (1995); Susan Trevarthen, Advising the Client Regarding Protection of
Property Rights: Harris Act and Inverse Condemnation Claims, 78 FLA. B.J.61, 61 (2004);
Richard Grosso, Old McDonald Still has a Farm: Agricultural Property Rights After the Veto of
S.B. 1712, 79 Fla. B.J. 1 (2005).
In situations involving local government action to "down -zone" or "down -plan" a particular
area, or reduce height limits, the most difficult element for a landowner to prove is that he or she
was "inordinately burdened" by such a decision to down -zone. Regulatory actions have been upheld
against takings claims even where they dramatically diminished the value of the property, including
impacts potentially as great as 95 percent. Susan Trevarthen, Advising the Client Regarding
Protection of Property Rights: Harris Act and Inverse Condemnation Claims, 78 FLA. B.J.61, 61
(2004); see Hadacheck v. Sebastian, 239 U.S. 394 (1915) (reducing property value by over 90
percent); Graham, 399 So. 2d at 1382. (75-percent reduction of value not a taking); Penn Central,
438 US. at 124. (in some cases regulations may result in a 95-percent loss without justifying
compensation as a taking).
In Florida, so long as the approved zoning allows some economically viable use, a
landowner is not entitled to more favorable or economically valuable zoning. A particularly
important case is Lee County v. Morales, 557 So. 2d 652, 655 (Fla. 2d DCA 1990), rev. den., 564
So. 2d 1086 (Fla. 1990), where the Court rejected a takings claim against a "down -zoning" because
the resulting densities were economically viable and the reductions were not made arbitrarily, but
for valid planning reasons based on a study. The court found that the county acted within its
discretion to revise the zoning allowances based upon the new information presently available.
In Palm Beach Polo, Inc. v. Village of Wellington, 918 So.2d 988 (Fla.. 4th DCA 2006), a
rare appellate court opinion interpreting the substance of the Harris Act, the Fourth District rejected
a claim for compensation under the Act. In 1972, a PUD was approved for the subject property,
allowing greater development densities on some parts of the property in exchange for maintaining
other parts of the property as preservation area. In 1993, Polo acquired the property with notice of
this designation. In 1999, the Village of Wellington's re -designated the preservation area as a
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"conservation area." The court ruled that this name change changed nothing regarding the property,
but was just another word for the same thing. Accordingly, Polo failed to establish that at any time
it was entitled to build on the property and thus the court ruled its Bert Harris claim was "frivolous".
Existing or Vested Uses
To succeed on a claim that a down -zoning decision inordinately burdens an existing or
vested property right, the landowner would have to prove that he or she is permanently unable to
attain the "reasonable, investment -backed expectation" for the existing use of the property. The
concept of a reasonable, investment -backed expectation has been discussed significantly in takings
cases. As a result, courts would likely draw from takings cases to make such a determination. See
Penn Central Transp., 438 U.S. at 124; Graham, 399 So.2d at 1380; Namon v. DER, 558 So. 2d 504
(Fla 3d DCA 1990).
Under Federal and state takings law, the scope of the court's inquiry into whether a
landowner has "reasonable, investment -backed expectations" is to see if the landowner has actually
taken specific, concrete steps in investing in and developing his or her property. See Penn Central
Transp., 438 U.S. at 124; Graham, 399 So.2d at 1380; Namon, 558 So. 2d 504; This is also an
important factor under the Harris Act. §70.001(3). This analysis includes looking into what extent
the owner has incurred substantial expenses and obligations to attain the intended use of the
property. Moreover, the court would likely explore the history of the title of the property, the
history of the development efforts, zoning and regulatory history of the property, the current status
and nature of the property and surrounding properties, any common law restraints on development,
and the immediate effect of the down -zoning. See Reahard v. Lee County, 968 F.2d 1131, 1135-36
(11th Cir. 1992). A subjective expectation that the land could be developed is not sufficient. See
Namon at 505.
Under the Harris Act, the property owner would have to further prove that he or she has an
"existing use" which is inordinately burdened by the down -zoning decision. Such a use must either
be a lawful present use or reasonably foreseeable, nonspecualtive future use which is suitable for
the property, is compatible with adjacent land uses and which have created an existing fair market
value in the property. §70.001(3)(b), Fla. Stat..
Alternatively, a landowner could be entitled to relief if a "vested right" is inordinately
burdened. However, in order to establish a vested right, the landowner would have to prove that its
due process rights were violated or the landowner made a substantial change in position or incurred
substantial obligations or expenses and relied in good faith on some act or omission of the local
government, such that it would be unjust to deprive the landowner of his interest in developing his
or her property in a manner now prohibited by the down -zoning. See 70.001(3)(a), Fla. Stat.
(applying the principles of equitable estoppel or substantive due process to determine the existence
of a vested right). See also Hollywood v. Hollywood Beach Hotel, 283 So.2d 867 (Fla 4th DCA
1973) (citing Sakolsky v. City of Coral Gables, 151 So. 2d 433 (Fla. 1963) (discussing the elements
of equitable estoppel).
This aspect of property rights law has led to two major points of law that are often not fully
understood by landowners and others, who tend to believe, or at least argue, that they have a vested
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right to current allowances (in terms of use or intensity) in zoning codes or comprehensive plans.
But courts have clearly determined there is no vested right to the continuation of existing
comprehensive planning or zoning designations and allowances. Smith v. City of Clearwater, 383
So. 2d. 681 (Fla. 2nd DCA 1980). State property rights law does not guarantee a landowner the
maximum densities or intensities permitted by a local comprehensive plan or zoning code. Brevard
County v. Snyder, 627 So.2d 469 (Fla. 1993). Many comprehensive plans have explicit policies
describing how maximum densities are not guaranteed and establish ceilings — not floors or
entitlements — and are subject to consistency with all provisions of the Plan or Code, including those
related to issues such as neighborhood compatibility, and height and other intensity restrictions.
Thus, the fact that a comprehensive plan or zoning code currently allows the potential for
development at X units per acre or to X building height does not create a vested or current use in the
property that precludes government from reducing that allowable density or intensity.
A trial court rejected a Harris Act claim in the twin cases of City of West Palm Beach v.
First Church of Christ, Scientist, and City of West Palm Beach v. Holy Trinity Episcopal Church of
West Palm Beach, Inc., et al., Cir. Ct. Case Nos. CL 97-4710-AE, CL 97-4711-AE (15th Judicial
Circuit 1997). In March of 1997, Holy Trinity Church and First Church of Christ Scientist
submitted claims under the Act, arising from a height restriction ordinance limiting building heights
to five stories. Both churches claimed that the restriction inordinately burdened their property.
However, unlike Fidelity, neither Trinity nor Christ Scientist had submitted site plan applications.
The City argued that there was no government action - that because Trinity and Christ
Scientist did not submit site plans for construction of structures over five stories, their claims failed
to meet the "as applied" language of the Act." On August 28, 1997, the circuit court judge rejected
the City's challenge to the constitutionality of the Act, but ruled that "until an application is made
and denied we are in no position to determine if the governmental action inordinately burdens
the property" and "until there is some adverse action by a governmental entity the mere
existence of a statute or ordinance does not trigger Bert Harris."1
In a Citrus County case which has garnered some recent attention, a Circuit Court judge
determined that the belated application of a zoning restriction was an inordinate burden on the
landowner and the public should share the burden. Hall's River Development, Inc. v. Citrus County,
Order, No. 2005-CA-4547 (Fla. 5`h Cir. Feb., 2008). The County has appealed that decision to the
appellate court.
The facts are that the County had expanded its "coastal lakes" zoning which had very
limited development rights. They did this under the understanding that they retained the right to
permit higher densities. Subsequently, prior to purchasing property in this coastal lakes zoning area,
and before submitting a development application to the County Commission, the landowner
contacted the County staff to confirm that he could build his proposed project on the property.
Although there were disagreements over exactly how many units could be built on the property, the
County staff had consistently maintained that multiple units could be built. After obtaining approval
This case is described in "Private Property Rights Protection Legislation: Statutory Claims for Relief from
Governmental Regulation", Ronald L. Weaver and Joni Armstrong Coffey, Florida Environmental and Land Use Law
(February 2001).
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from the Army Corp of Engineers and the South Florida Water Management District, the project
was approved by the County Commission. Afterward, environmentalists sued the County over the
approval of the development claiming it was not in compliance with the comprehensive plan. The
court ruled that the "reservation of right" to approve higher densities than that specified in the Plan,
and on which the County was basing their authority to approve the project on, was unenforceable.
Thus, the court ruled that the project was inconsistent with the county's comprehensive plan and
that the County's approval of the development was therefore null and void. The property was then
only approved for the construction of one home. The owner sued under the Harris Act, claiming
$3.5 million.
The court determined that the landowner had suffered an inordinate burden because he had
justifiably relied on the representations of the County that the site was appropriate for a multiple
unit development, changed his position based on this reliance, and suffered damages in the form
of the diminution in value of his property after the permit was withdrawn. There has not been a trial
on damages yet.
What this case stands for is that retroactively denying a permit after its approval, whether by
a court (as in this case) or the county commission, can amount to an inordinate burden on a property
owner. Even if this case is upheld on appeal, its import would be that Harris Act claims could have
potential for success where they involve financial reliance by landowners on previous government
actions and representations and a subsequent pulling of the proverbial carpet out from under the
landowner. The case will not support claims based simply on pre-existing planning or zoning
allowances upon which a landowner had relied by preparing to build and securing permits.
However, rulings by Trial Judges (Circuit Judges) in Florida are not considered precedent,
and, while they can be somewhat useful in predicting how other judges might view cases, are
generally thought to be unreliable as precedent given the wide divergence of views at the trial court
level. A recent appeals court ruling, in Holmes v. Marion County, 2007 WL 1852123 (Fla. 5th DCA
June 29, 2007) offers a more reliable view of likely judicial interpretations of the Harris Act. In that
case, the Fifth District Court of Appeal held that the denial of a three-year extension of a special use
permit for a landfill was not an "inordinate burden" under the Act, and is therefore not
compensable. The Court found that there was no reasonable expectation by the property owner that
a time -limited, special use permit would be allowed to continue indefinitely, thus the Bert Harris
claim was denied.
Bearing A Disproportionate Share Of The Public Burden
A landowner may also challenge a down -zoning regulation by establishing that the
remaining uses on the property are unreasonable. Unreasonableness, however, is not based on what
the landowner feels but whether the remaining uses on the property are unreasonable because the
landowner is being singled out from similarly situated property owners to serve an otherwise
legitimate government interest. See Penn Central Transp. at 140. However, in a circumstance
where the landowner is just one of many equally affected by the down -zoning decision, a landowner
may not have strong support for a Bert Harris claim under this provision.
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A particularly relevant and important legal ruling is embodied in the Chisholm Properties v.
City of Miami Beach case, 8 Fla. L. Weekly Supp. 689 (Fla. 11 `h Cir. Ct. August 9, 2001). The Ritz
Carlton Hotel had filed an application for a 15 story addition to its beachfront property. Before the
application had been approved, a zoning regulation was passed that prohibited new additions in the
historical district taller than 5 stories. The Ritz subsequently filed three actions against the City, one
of which was a Harris Act claim. Before these three cases were decided, the Ritz and the City
entered into a settlement agreement whereby the City stipulated that it would recommend in favor
of voting for the variances needed by the Ritz. The Ritz then sought its necessary variances from the
Board of Adjustment, which approved them under threat that the denial of them would subject them
to Harris Act liability.
A third party - Chisholm Properties - then challenged the Board of Adjustment's decision
to grant the variances. While that suit was pending, the Ritz and the City entered into another
settlement agreement where the City agreed to grant the same two variances in order to settle the
Bert Harris Act claim.
The Circuit Court ruled that the City had violated its ordinances in granting the variances,
and that the settlement agreement under the Harris Act did not justify the violation because (1) the
granting of the variances did not protect the public interest served by the zoning restriction, and (2)
the variances were not necessary to prevent the governmental regulatory effort from inordinately
burdening the real property.
Significantly, the court found that the argument that the settlement of the Harris Act claim
was necessary simply to allow a local government to avoid a pending Harris Act lawsuit was "an
illogical application" of the statute that rendered the Act meaningless. The Ritz's inability to build
during the pendency of the appeal of the underlying variance approval did not rise to the level of
"necessary" as meant under the Act. In fact the court found that this settlement was entered into for
the mere purpose of taking away the Court's jurisdiction to review the legality of the variance
approvals.
The Ritz appealed to the Third District Court of Appeal, which unanimously denied the
appeal. A concurring opinion by Judge Fletcher went so far as to describe the variances as "totally
unjustified and illegaP' and referred to the settlement agreement as a "sweetheart settlement" of a
"spurious action" by the hotel owner against the City. City of Miami Beach v. Chisholm Properties,
830 So. 2d 842 (Fla. 3rd D.C.A, 2002). He suggested that the appeal was "so clearly --indeed, at
best --frivolous that sanctions should be imposed" against Ritz and the City.
This case is particularly relevant. The same appeals court has jurisdiction over the City of
Miami and thus the opinion is binding. The opinion is a strong warning to owners who might hope
to force a local government into an ill-advised financial settlement or development approval.
Additional History of Activity Under the Harris Act
Since the Harris Act was passed in 1995, there have been an estimated 200 claims filed. Bert
Harris Update, Ronald L. Weaver, Presentation to the Litigating Land Use CLE (December 3,
2007); Attorney threatens Anna Maria with Bert Harris legal action, Rick Catlin,
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http://www.islander.org/11-23-05/am_city_overlay.php (November 22, 2005). It is not possible,
absent a very time-consuming and exhaustive review of every case file, to analyze and report upon
each claim. However, we have been able to draw some useful observations from information
available from the Office of the Florida Attorney General, a number of legal articles on activity
under the Act, and the available reported cases.
It appears that the majority of Harris Act claims were either settled out of court or
withdrawn by the claimant. A Lexis - Nexis legal search for relevant federal and state cases
returned only 24 results. Of those cases that have been decided by the courts, the majority of the
rulings have turned on procedural issues and not substantive interpretations or analysis of the Act.
Perhaps the biggest observable impact of the Act has been through the cases that settled. It is
our observation that local governments tend to take into account a combination of the expense and
length of litigation along with the uncertainty in potential results. However, often the perceived
liability of local governments to landowners and the actual liability under the Act are not
necessarily the same. Advising the Client Regarding Protection of Property Rights: Harris Act and
Inverse Condemnation Claims, Susan Trevarthen, Florida Bar Journal (July 2004). The fear of large
compensatory awards has limited local government far more significantly than the actual terms of
the Act or court precedent actually interpreting and applying the Act.
In addition to the conclusions made above, a few important additional observations can be
drawn from the reported cases and available information about settled claims:
(1) The potential for Harris Act liability seems particularly low where local government is
down -zoning or down -planning lands that have never received approvals under existing
zoning and planning allowances.
(2) The potential for Harris Act liability exists where government changes the rules or
perhaps denies approval through referenda or initiative after landowners have changed
their financial position substantially in reliance on existing rules.
(3) The settlements we have been able to review do not typically involve significant
monetary compensation to landowners. More often than not, they tend to allow for some
modified version of the original development plan.
We discuss what we believe to be a representative sample of settlements below.
Discussion of Selected Individual Cases and Settlements Under the Harris Act
Aquaport v. Collier County2
(Development application approved; belated application of a zoning restriction after the approval;
settlement of Bert Harris claim for $ 2.75 million)
2 Aquaport, Inc. v. Collier County, Case No.-3-1609-CA (20th Jud. Cir. 2004); Larry Hannan, Collier Settles Property
Rights Claim With Developer for $2.75M, Naple News (Sept. 25, 2004).
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County approved building permits for a development for a 68 unit condo. After neighbors
challenged that the approval as being inconsistent with the Comprehensive Plan, the County voted
to terminate the permits. It then amended the Code to limit density to 26 units per acre. Under the
new Code, the landowner was allowed only to build a 15 unit hotel instead of the originally
permitted 68 unit hotel. The owner sued under the Harris Act and eventually settled with the County
for $2.75 million. The county paid $175,000 of the settlement and its insurance carrier covered the
remainder.
Fidelity Federal Savings Bank v. City of West Palm Beach
(Down -zoning ordinance passed during application process; height reduction ordinance passed;
settlement between landowner and county)
In January of 2006, the citizens of Palm Beach County petitioned the city to enact an
ordinance mandating a reduction in the allowable height of buildings. The city declined, and a
referendum on the issue was scheduled for March 12, 2006. On March 11, 2006, in anticipation of
the election, Fidelity Federal Savings Bank filed a site plan application requesting permission to
construct two fifteen story buildings and a six story garage. After the passage of the referendum, the
city denied the permits. In January 1997, Fidelity filed a claim under the Act, alleging the
referendum constituted an "inordinate burden" on its property. The City Commission settled the
matter, allowing Fidelity to construct two fifteen -story buildings, but not the six -story parking
structure.
West Side Partners Ltd., et al v. City of Miami Beach3
(City agreed to not change current zoning as part of development agreement; Development
application filed, then put to referendum and denied; settlement for modified version of original
development)
The City entered into a series of agreements, including a development agreement, pertaining
to two South Beach parcels. The development agreement included that the zoning laws applicable to
the parcels would not change. Thereafter, the plaintiffs filed development approval applications,
relying on this agreement. The applications were accepted, filed, and noticed for public hearing.
However at the public hearing the City informed the applicants that the applications had to be
approved in a special election before the Commission could take any action. Thereafter, the City, by
public referendum of the electorate, rejected the developments and the Commission never
considered the development applications. Additionally, an ordinance was passed that reduced the
maximum floor area ratio. The plaintiffs filed claims that the passage of the ordinance was a breach
of the development agreement and claimed that the referendum had inordinately burdened their
property. The parties went through extensive mediation and finally entered into another settlement
agreement to settle all the claims.
The final settlement agreement involved amendments to the City's Land Development
Regulations, Comprehensive Plan, Zoning map, and Future Land Use Map. The city also agreed to
3 West Side Partners, Ltd. v. City of Miami Beach, Florida, Case No. 98-13274 (11`h Cir.) (September 8, 2004);
Weaver, "Bert Harris Update," Presentation to the Litigating Land Use CLE (December 3, 2007).
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convey certain lands to the plaintiffs in exchange for certain lands being conveyed to the city.
Whether the breach of the development agreement claim or the Bert Harris Act claim persuaded the
city to settle is unknown.
Settlement between W. W. Caruth, Jr. and Citrus County4
(Downzone ordinance; settlement for modified version of original development; developer pays for
roads, water, septic infrastructure and agrees to environmental mitigation)
The developer brought a Harris Act claim in 2003 shortly after the County eliminated the
property's mixed use zoning category and designated the property as Coastal and Lakes, which
allowed only one home per 20 acres and no commercial development.
In 2006, to resolve this $730,000 Harris Act claim, Citrus County entered into a settlement
agreement to approve a 50 unit riverfront subdivision with 25 boat docks, located on 70 acres
formerly used as an RV Park. As part of the settlement, the developer would pave a limerock road
and dedicate it to the county for maintenance, install water and septic systems, limit the number of
docks and retain certain trees. Also, the agreement has provisions that mitigate or prevent any
damage to wetlands and to the river. There was no information on what the status of the building
permits at the time of the passage of the density reduction ordinance.
Settlement between the Portofino Group and the City of Miami Beach 5
(Downzoning ordinance; settlement for modified version of original development proposal)
In 1994 Thomas Kramer initiated efforts to build a high rise condo in South Beach. In 1998
the city down -zoned the property - reducing by half the square footage the developer could build.
The developer brought several suits, including a Bert Harris Act claim for $15 million dollars. The
parties agreed to a settlement that included allowing the development of a 30 floor high rise condo
at over 40% of the currently allowed density. There was no information on what the status of the
building permits at the time of the passage of the density reduction ordinance.
Future of the Harris Act
There are currently two identical bills moving forward in the Senate and the House that
would amend the Bert Harris Act. However, neither of these bills further clarifies the meaning of
the "inordinate burden" term. In addition to a number of technical corrections, key revisions to the
statute include:
• a reduction of the notice period an owner must give the government from 180 to 120 days
before filing a Harris Act claim in circuit court;
a Jorge Sanchez, "Housing project suit ends with deal," St. Petersburg Times (January 12, 2006.
5 Weaver, "Bert Harris Update," Presentation to the Litigating Land Use CLE (December 3, 2007).
The Everglades Low Canter, Inc. is a tax- exempt Florida nor -for -profit corporation pursuant to Section 5O1(e}(3) of the paternal Revenue Code
Submitted into the public
record in connection with
item PZ.1 on 05-08-08
Priscilla A. Thompson
City Clerk
• an increase of the statute of limitations from one (1) to two (2) years after application of the
regulation;
• a clarification of what constitutes the "application of a regulation" to property;
• a clarification on the extent of the State's waiver of sovereign immunity for claims brought
under the Act, conforming the statute to recent judicial interpretation; and
• inclusion of governmentally -imposed development moratoria extending over one (1) year as
actionable under the Harris Act.
We can make no predictions about the likely fate of these bills.
Conclusion
The Bert Harris Act grants property owners a small amount of greater rights than those
under current takings law. Under its terms and the few reported appellate court interpretations of the
Act, it is unlikely that courts will read the Act broadly to grant compensation to landowners in many
situations that would not already require compensation under either the state or federal
constitutions. Local governments never have been, and still are not, required to grant landowners
development approval for maximum allowable densities or intensities (such as height and floor area
ration allowances) and can down — plan and down -zone land so long as the result is not so drastic as
to constitute an "inordinate burden" as defined by the Act. Should the City of Miami lower the
current maximum densities and/ or intensities allowed by its Comprehensive Plan or Zoning code, it
would be difficult except for extraordinary circumstances, for the landowners to successfully prove
that they have been inordinately burdened. Nothing short of a retroactive denial of a development
permit by a County has ever been judicially determined to meet the inordinate burden standard.
Finally, even if there is a landowner who may have a legitimate case, the Bert Harris Act is
designed to encourage settlement and the terms of the Act and its settlement history indicates that
the likelihood of significant financial liability on the party of the City is very low.
We hope that you find this information useful. Should you have any further questions
please don't hesitate to call.
Sincerely,
Richard Grosso, Esq.
Executive Director
Everglades Law Center, Inc.
Laura Beason,
Certified Legal Intern
The Everglades Law Center, Inc. is a tax- exarnpt Florida not -for -profit corporation pursuant to Section 5010(3) of the Internal Revenue Code