Bert Harris & The Environment
The League of Women Voters of Lee County Florida hosted an educational program on the Bert Harris Act (BHA) and how it impacts cities and counties’ ability to protect sensitive environmental areas. Dr. Frank Alcock, Associate Professor of Political Science from New College in Sarasota, presented “Environment & The Bert Harris Act” at The Collaboratory in Downtown Fort Myers on Saturday morning, January 5, before a capacity crowd of roughly 100 people. Dr. Alcock, who teaches World Politics and International Law & Environmental Policy, holds a Ph.D. in Political Science from Duke University. He is the former Director of the Marine Policy Institute at the Mote Marine Laboratory in Sarasota who regularly appears as a political analyst on ABC News.
The Bert Harris Act
The State of Florida in 1995 enacted the Bert J. Harris Private Property Protection Act, with updates in 2011 and 2014, that created a new course of action for aggrieved property owners. If property owners could demonstrate that a government action “inordinately burdens” their property, they can receive some form of compensation. Prior to the BHA, government agencies became quite adept at implementing zoning changes that significantly reduced a property owner’s rights and investment potential, but not to the level of “taking” it under eminent domain or Inverse Condemnation and would not have to compensate property owners for their loss. The Florida Legislature found this an injustice and passed the BHA to provide protection for property owners.
The BHA establishes a formal process for resolving certain types of land disputes between property owners and government entities that do not meet the high standard required under an Inverse Condemnation analysis. Inverse Condemnation is a situation in which the government takes private property but fails to pay the compensation required by the 5th Amendment of the United States Constitution, forcing the property owner to sue to obtain just compensation. Of particular importance is the last section, the Takings Clause, that limits the power of eminent domain and requires the entity to pay just compensation for the taking of private property for public use.
There are two parts to the BHA: Part One stipulates that a land owner must demonstrate that unreasonably “disproportionate” limitations or restrictions have been placed on investment-backed expectations for the existing use of real property or that the governmental action denied the vested right of a specific use of the real property. Part Two provides a mediation process for property disputes. Property owners may apply for relief if they allege that the government action is “unreasonable” or “unfairly burdens” the property’s use.
To qualify to file a BHA claim, you must meet the following qualifications: The government action must inordinately burden an existing use of real property or a vested right to a specific use of real property. Additionally, it must appear that it is a reasonable foreseeable non-speculative use that is suitable for the subject real property and compatible with adjacent land uses. The Harris Act does not apply if the “Taking Authority” is the Federal Government but is applicable to most branches of state and local governments. Further, the Act must apply directly to your property and not an indirect damage as a result of some type of ruling regarding an adjacent property.
Three Key Factors
“The BHA came about in the mid-1990s as a result of a national movement,” explained Dr. Alcock, “where about 20 states undertook similar legislation. Florida updated it twice, in 2011 and 2014, mostly to broaden the Takings Clause context. The three key factors of the BHA are accurate property assessments, compensation to property owners who face inordinate burdens, and the Dispute Resolution mechanism that actually keeps most cases from ever reaching the courts.”
Florida requires environmental impact assessments on all major projects, to protect the rights of property owners, “so if you do not provide a fair appraisal, your case goes nowhere,” cautioned Dr. Alcock. “You have a potential BHA claim if a government entity’s actions place an inordinate burden on real property, including restricting its use so the owner cannot receive a fair and reasonable return on their investment. For environmental sustainability parcels, anything below the market value of the land is subject to the BHA, but successful BHA claims are not the easiest things to achieve, though courts tend to uphold those assessments, while giving local governments broad discretion over variances, zoning, and permitting. The BHA tends not to have much influence in regions that have overdevelopment and upzoning, usually moving in the other direction, where reducing restrictions to allow the maximum commercial value often occurs at the expense of environmental concerns.”
Dr. Alcock cited studies conducted with attorneys with a great deal of BHA experience, “and they paint a pretty interesting picture, stating that if you are in a county that attempts to down-zone, you are in BHA territory. If you are moving in the other direction, to increase zoning, urbanization, and regulation, this tends not to trigger the BHA because you are increasing property prices at the expense of public interest areas. Unfortunately, many government officials and even most judges still do not know a great deal about the BHA, meaning when cases do occur, they have to learn a lot on the fly, including those that move up to the Florida State Supreme Court.”
For this and other reasons, Dr. Alcock finds a great deal of value to the BHA’s Dispute Resolution Process. “If the parties do not settle prior to court, the litigant on the losing end is not only on the hook for the monetary award but must pay the opposing attorneys, with legal fees often reaching five to six figures, so this makes the case for settlement a moving one. Developers prefer the settlement process, even if they think they can win in court, because they do not want to damage any long-term relationship with local government officials, meaning the Dispute Resolution Process occurs far more often than actual litigation because it tends to be in the best interest of all parties, making it an indispensable tool.”
Dr. Alcock’s biggest concern over the future of the BHA is that “traditionally, courts are bound by previous case histories, but a more conservative court can overthrow those and rule differently. This will be interesting over the next few months and years, as incoming Governor Ron DeSantis will soon make three new appointments to the Florida State Supreme Court, especially in their interpretation of the Takings Clause. I care a great deal about environmental property rights so I favor any steps that provide maximum value for environmental policy protections over private property rights. Local governments still have a lot of authority over BHA claims and I am reassured by recent court interpretations, but future courts can change those to make it easier to file more claims against environmentally sensitive areas.”
The sponsor of this program was The League of Women Voters of Lee County Florida, a nonpartisan political organization that encourages informed and active participation in government, works to increase understanding of major public policy issues, and influences public policy through education and advocacy. For information, see www.lwvlee.org, call 239-278-1032, or email firstname.lastname@example.org.
By Gary Mooney