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What the Future May Hold for Land Developers and Local Governments: Relief from Burdens on Real Property Rights

June 17, 2021

By: Laura Walda, Tara Tedrow & Kyla Szubinski*

Local governments may face challenges as a new proposed legislation regarding relief from burdens on real property rights awaits the approval of Governor DeSantis. An amendment to the Bert Harris Act, CS/CS for HB 421 & HB 1101, was passed by the House on April 21, 2021, and amended on April 28, 2021. The new legislation makes it easier for property owners to challenge local government regulation that burdens, restricts or limits their property. The bill is scheduled to go into effect October 1, 2021, subject to the Governor’s veto powers.
 
Florida is a state that provides legal remedies to private landowners when a regulation inordinately burdens private property that does not qualify as a formal “taking” under the U.S. Constitution.i  The State of Florida enacted the Bert J. Harris, Jr., Private Property Rights Protection Act in 1995, which provides a formal process for landowners to seek relief when their property is unfairly burdened or limited by government action.
 
In order to have a Bert Harris claim, the government must “burden the existing use of real property or a vested right to a specific use of real property.”ii Under the Act, the property owner may notify the government of the burden, the government must make a written offer to settle the claim; and the property owner may accept the settlement offer or reject the offer and file a lawsuit against the government for damages.iii
 
Additionally, a property owner may also seek resolution of government action disputes under the informal process created by the Florida Land Use and Environmental Dispute Resolution Act (“FLUEDRA”), which amends the Bert Harris Act to Revise the terms “action of a governmental entity” and “real property.”
 
This new bill specifically amends the Bert Harris Act to:
  • Reduce the timeframe for a claimant to notify the government;
  • Specify that written settlement offers are presumed to protect the public interest;
  • Allow the claimant to have a judge, rather than a jury, determine damages;
  • Allow a prevailing claimant to recover attorney fees and costs from the time the claimant files notice; and
  • Provide that a property owner may pursue the claim even if the property owner subsequently relinquishes title to the subject real property before the claim’s resolution.iv
*It is important to note that the amendments apply only to Bert Harris Act claims brought on or after July 1, 2021.
 
While the trend in litigation has resulted in numerous favorable rulings for local governments, implications of this bill include an increase in government liability in favor of property owners, causing an “indeterminate negative fiscal impact” on government entities.v The bill makes it easier for property owners to challenge local government regulation that burdens their property, increases attorney fees and costs that a local government must pay (hundreds of thousands of dollars in legal fees), and in some circumstances, allows a property owner to continue pursuing a claim under the Act after relinquishing title to the real property.vi Conversely, the bill positively impacts private property owners by simplifying the procedural process for establishing a Bert Harris claim.vii
 
The proposed bill may impact land-use projects across the state, deterring local governments from approving project developments that could have the potential to infringe on entitlements of current properties. Accordingly, the bill could impinge on land developers’ acquisitions and expansive projects in the future, limiting the improvement of areas afflicted by arduous parking, dangerous roads, and nonfunctional design. For example, in Winter Park, Fla., project plans to create an overlay district as the “Orange Avenue Overlay” have faced recent controversy resulting in litigation between property owners and the city.
 
The implementation of HB 421 & HB 1101 evidences Florida Legislature’s objective to recognize and honor private property owner’s rights pursuant to the Bert Harris Act. While the courts battle with the extent to which the protection extends, the new legislation could inadvertently affect local governments’ planning efforts.

*Kyla Szubinski, a summer law clerk, assisted with this article. 

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Laura

Laura Walda is a shareholder in the firm’s commercial real estate practice area focusing on contract and lease negotiation and drafting, real estate acquisitions and dispositions, negotiation and structuring of credit facilities and review of title insurance matters. She also has experience in commercial litigation focusing on title insurance matters, landlord/tenant disputes and banking litigation.

Tara
Tara Tedrow is a shareholder in the firm’s Land Use, Zoning & Environmental Group and serves as chair of the Cannabis & Controlled Substances Group. She brings years of experience handling an array of complex legal matters for multi-billion dollar valued companies and entrepreneurs alike.
With a significant portion of her practice devoted to land use and development, Tara regularly advises clients on entitling projects for commercial, residential, industrial, office and mixed uses. She works with local governments and regulatory agencies to address the needs of her clients related to environmental permitting and compliance, zoning, comprehensive plans, concurrency, site plan approval, variance and waiver requests, due diligence and property rights.

Often sought out for high-profile and high-stakes land development projects, Tara has delivered positive outcomes for clients ranging from large multi-national and U.S.-based companies to high-net worth individuals seeking land use entitlements. With over 15 years of competitive debate experience, she is uniquely suited to handle complex and controversial projects and public hearings that present a myriad of political and legal challenges.

Tara has provided developers and clients with legal counsel and representation in Section 70.51 mediations. Her experience in land use and environmental dispute resolutions offers a unique benefit to clients navigating the alternative dispute resolution process following denial of a development order, zoning approval and other land use matters around the state.

Well-known for providing legal and lobbying representation for a wide range of cannabis clients, Tara and her team work with physicians, lenders, real estate developers, landlords, ancillary service providers, banks, licensed adult use and medical marijuana companies, cultivators, processors, retailers and license applicants, helping them to navigate the ever-changing regulatory landscape of marijuana and hemp regulations. She also assists clients in the national hemp industry in obtaining licensing and approvals for processing, retailing, cultivation and other forms of secondary byproduct monetization. Her deep knowledge of regulatory laws and understanding of operations and logistics for cannabis companies, along with her ability to make connections and build partnerships, bring strategic value to her clients. 

Tara is the only person in the state of Florida to be appointed by the Florida Department of Agriculture and Consumer Services to both the inaugural Industrial Hemp Advisory Council created under Senate Bill 1020 and to the state’s Hemp Advisory Committee, which she currently chairs. A prolific presenter and speaker at industry seminars and conferences, she has served as the keynote speaker on industry regulations at over 60 events in the past two years. In the fall of 2018, Tara became the first professor in the state of Florida to teach a law school course on marijuana law and policy at the University of Florida Levin College of Law, where she continues to teach today.

Prior to joining the firm, Tara worked as a legal extern for the University of Florida General Counsel and Office of the Vice President as well as for the Orlando Juvenile Public Defenders Office. For over a decade, she has also worked professionally as a private speech and debate coach and taught at multiple national debate institutes, including the National Debate Forum at Emerson University, the National Symposium for Debate at Grinnell College and Victory Briefs Institute at UCLA.

Tara is a contributing writer at the Orlando Sentinel and has spoken about various real estate topics on Fox News.

To view Tara's information specific to Land Use or Cannabis, click the corresponding links below. 



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