This post skims the surface of the issue of property rights but given that this topic is important when talking about development, it seemed appropriate to do some research. More to come….
When I first moved to Florida, I kept hearing people say, “Florida is a property-rights state.” Makes sense to me. Someone buys the property, they have the right to use that property as they intend, so long as it doesn’t violate any laws or regulations. (My words…paraphrasing my understanding)
Having become more involved in County government, I now recognize that is far more than just a saying. It is law. To be specific, in Florida it is the “Bert J. Harris, Jr., Private Property Rights Protection Act or Florida Statute 70.001 Private Property Rights.” [Read about Bert J. Harris.]
My paraphrasing can’t do justice to the significance of this Act for St Johns County, so I will provide a bit of text directly from the Act.
“This act may be cited as the “Bert J. Harris, Jr., Private Property Rights Protection Act.” The Legislature recognizes 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.
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. A property owner entitled to relief under this section retains such entitlement to pursue the claim if the property owner filed a claim under subsection (4) but subsequently relinquishes title to the subject real property before the claim reaches a final resolution.”
Private real property
The purchase of real property is an investment and rarely is that investment inexpensive. Individuals and businesses acquire property, generally with a purpose in mind. For an individual, it may mean purchasing land to build a home or buying a home already on property. For a business, it is most likely tied directly to the viability of the business. If the intended purpose doesn’t materialize, the investment is significantly diminished in value.
It seems that the spirit of the Bert Harris Act is to ensure that the property owner can fulfill the intended purpose of the purchase and that, if a government rule or law makes fulfilling that purpose impossible, the property owner can claim a loss to the government…. aka can sue the government.
Slowing development poses a risk
Commissioners are keenly aware that decisions they make have consequences, and those consequences have financial impact to the County. Commissioners are required to complete education related to their role and duties.
Denying property rights is a serious decision for all Commissioners which is why there are many steps in the process to vet the proposed development against the Comprehensive and Land Use Plans before the decision even reaches the Commissioners.
To put forth the notion that a bloc of commissioners can decide on slowing development and use that mantra to inform their votes before ever seeing the proposal from the developer is not only illegal, but just plain wrong.
It is a daunting task for a commissioner to read the volumes of information presented, listen to both developers’ and residents’ presentations, and make an educated and balanced decision that aligns with the spirit of the law.
I have never seen any law (including wading through decades of human resources law) that was straightforward. Case law, the adjudications that courts make after the law is enacted, is where the real ambiguity comes into play. And because the cases are sometimes spaced years apart, the case law can become conflicting.
This is what our commissioners must navigate with each decision. Is there ever a “right” answer? In my personal experience, rarely is there a single “right” answer.
Resources:
http://leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0070/0070.html
https://law.justia.com/cases/florida/supreme-court/1993/79720-0.html
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