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Florida Legislature Passes Landmark Property Rights Legislation

Posted Tuesday, April 28th, 2015

The Florida Legislature passed CS/CS/CS/HB 383 by Representatives Edwards and Perry (and Senate sponsor Diaz De La Portilla). The legislation provides clarification to the Bert Harris Private Property Rights Protection Act by clarifying that Harris Act claims are not to be used in a “not in my back yard” “(NIMBY)” context but instead are limited to property owners filing claims for action directly taken upon that claimant’s land. This will prevent future efforts of land owners seeking to file Harris Act claims based upon government actions on an adjacent parcel such as the approval of requested permit. Further, the settlement options provided under the Harris Act may now be used both before and after an actual lawsuit under the Act is filed. The Harris Act revisions also provide that governmental entities may not be subject to Harris Act claims for the ministerial act of adopting Federal Emergency Management Agency (FEMA) approved flood maps.

Section 2 of the bill creates a statutory cause of action for property owners subjected to unlawful exactions imposed by government as a condition to some requested government approval like a permit or zoning order. Notice to pursue this new statutory cause of action must be provided to the governmental entity within 180 days of the imposition of the alleged unlawful exaction or the claim is waived. Once a claim is filed, the burden rests upon government to prove both an essential nexus and rough proportionality of the exaction to the harm it seeks to redress. Relief available under the claim includes injunctive relief from the exaction, damages for reduced property values or a refund of the illegal portion of the exaction. Attorneys fees are available at the court’s discretion to the prevailing party.

This legislation takes effect on October 1, 2015.

For questions, please contact Gary Hunter.

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