In 1995, a group of extraordinary leaders within the Florida Legislature worked to draft and pass the Bert J. Harris, Jr., Private Property Rights Protection Act. The Bert Harris Act was created to restore balance to the regulatory process by providing citizens with a mechanism for seeking compensation when government regulations or policy actions inordinately burdened their property rights.
The Fifth Amendment to the U.S. Constitution states, “nor shall private property be taken for public use, without just compensation.” The right to compensation includes eminent domain actions (where property is taken outright) and regulatory takings (when regulations effectively “take” or diminish ownership rights.)
In 2008, after witnessing how the Bert Harris Act had functioned at the practical level during the past thirteen years, the Florida Legislature had a unique opportunity to amend the Act through a substantive amendment or “glitch bill.”
The measures offered for consideration were House Bill 881 sponsored by Representative Steve Precourt (along with co-sponsors Dean Cannon, Frank Attkisson, Chris Dorworth, Bryan Nelson, and Trudi Williams) and Senate Bill 1578 sponsored by Senator Carey Baker. The legislation closely resembled a 2003 bill sponsored by Senator Ken Pruitt, (along with co-sponsors Durell Peaden, Evelyn Lynn and Steven Geller) and its house companion sponsored by Representive Jeff Kottkamp. These leaders recognized the need to improve upon the original language of the Act.
In 1995, the strongest critics of the Bert Harris Act (primarily city and county governments) saw no need to compensate property owners for the impact of regulation upon the freedom to use private property and on property values. When the Act passed, critics predicted tens of thousands of claims and billions of dollars in compensatory payments. Their doom and gloom predictions never materialized as the Act had been underutilized for over a decade.
Citizens do not file suit against their governments unless they believe their rights have been egregiously impacted. The extended length of time it takes to get a Bert Harris claim into court, combined with a brief 1 year statute of limitations and the cost of litigation are factors which provide significant deterrence.
However, the Act was originally intended to offer average citizens the opportunity to file legitimate claims and to have their day in court.
The Precourt-Baker bills sought to expedite the Bert Harris Act claims process and to make it more accessible to ordinary land owners. The legislation also clarified several technical provisions of the Act, specifically:
- Shortens the statutory time periods affecting when claims become actionable in court from 1 full year to nine months, allowing victims the opportunity to have claims reviewed in court in less than a year. Reduces all 180-day notification and response periods to 120 days.
- Extends the Act’s incredibly short statute of limitations of 1 year to 2 years, allowing citizens additional time to recognize the full legal and financial ramifications which a regulatory action may have triggered and to retain legal experts and consultants to document these impacts.
- Adds government-imposed moratoria lasting over one year into the Act, to provide citizens whose land use rights have been “held hostage” by government actions with the ability to have claims heard regarding this impact. (Note: In Florida, local governments can and have adopted moratoria restricting property owners from applying for permits necessary to use their land or having permits reviewed, with little or no factual evidence supporting these actions, other than the desire by officials to amend existing ordinances)
- Clarifies technical language referencing sovereign immunity (government’s ability to avoid financial liability claims over $100,000) based upon a crystal clear ruling issued by the 3rd DCA. This ruling highlighted an inconsistency in the original text of the Act.
- Clarifies technical language with respect to whether or not the application of a regulation or adoption of a regulation triggers the claims process under the Act.
The Bert Harris Act is a rare piece of legislation which benefits land owners of different scales, across a myriad of different uses. It touches land owners large and small, rural and urban, agricultural and industrial, residential and commercial.
While the Act does not revoke the regulations overlaid, it provides victims of regulatory abuse with the opportunity to seek justice – and just compensation – for the diminishment of their property rights and values.
This is exactly what our Founding Fathers envisioned when they crafted the Takings Clause in the 5th Amendment. The compensation requirement is an important check on the growth of government authority over private property rights.