Some background: the Bert J. Harris, Jr., Private Property Rights Protection Act was enacted in 1995 to provide protection for landowners beyond the law of takings and inverse condemnation. The Florida Legislature recognized that:
some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution. The Legislature determines that there is an important state interest in protecting the interests of private property owners from such inordinate burdens. Therefore, it is the intent of the Legislature that, as a separate and distinct cause of action from the law of takings, the Legislature herein provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property.§ 70.001(1), Fla. Stat. Thus, it "provides a cause of action for governmental actions that may not rise to the level of a taking under the State Constitution or the United States Constitution." Id. at (9). The remedy that the is that:
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, as provided in this section.Id. at (2). The Bert Harris Act defines "inordinate burden" using phrases that are familiar from takings law:
Mean that an action of one or more governmental entities 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 owner 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.Id. at (3)(e)(1).
It's imperative that property owners start thinking about Bert Harris Act claims as soon as a regulation is applied to their property for the first time. The claims have a very short shelf life: the law provides for a 1 year presuit notice requirement that commences upon the first application of a law, regulation, or rule. Id. (11)(e). This is made even shorter by a requirement that the government entity must be given either 90 or 150 days' notice, depending on the property type before an action can even be filed in court. Id. at (4)(a). The notice must attach "a bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property." Id.
This is where a recent case out of the 2d DCA comes in. Turkali v. Safety Harbor, — So.3d —-, 2012 WL 3020381 (Fla. 2d DCA 2012). In Turkali, the landowner filed his claim and his notice on time. The appraisal was deficient, however, in two ways. First, the appraisal did not set out the value of the property just before and just after the harmful action. Second, it bundled the property's value with several adjoining properties that landowner did not own, assuming that they would be developed together. Because the appraisal was deficient, the trial court held that notice to local governments involved was ineffective. Consequently, the trial court dismissed the case, and the 2d DCA affirmed.
This is where a recent case out of the 2d DCA comes in. Turkali v. Safety Harbor, — So.3d —-, 2012 WL 3020381 (Fla. 2d DCA 2012). In Turkali, the landowner filed his claim and his notice on time. The appraisal was deficient, however, in two ways. First, the appraisal did not set out the value of the property just before and just after the harmful action. Second, it bundled the property's value with several adjoining properties that landowner did not own, assuming that they would be developed together. Because the appraisal was deficient, the trial court held that notice to local governments involved was ineffective. Consequently, the trial court dismissed the case, and the 2d DCA affirmed.
It's not clear from the case whether the landowner could have sent the local government another notice and appraisal with the case still pending in court. What is clear, however, is that property owners should be careful in obtaining a solid appraisal to provide up front during the notice period.
