By Noreen Marcus
Having just won his battle against Boca Raton to build Concierge, a high-end assisted living facility, landowner Robert Buehl gave a verbal thumbs up to the Bert J. Harris Jr. Private Property Rights Protection Act.
“The Harris Act is a wonderful tool,” Buehl said a few days after the Nov. 13 settlement. “It shouldn’t have to be used, but if a municipality forces your hand, then it’s a wonderful tool to have.”
Under the Harris statute, a landowner whose property is “inordinately burdened” by a government action can sue for compensation. Once a claim is filed, there’s a 150-day window to settle or mediate it to conclusion; failing that, the owner must prove how much the government’s action is costing him or her to reach a damage figure.
Buehl never actually filed a Harris claim, but he had threatened a $100 million lawsuit in August, when the Boca Raton City Council rejected his $75 million downtown project. Pre-filing negotiations led Buehl and developer Group P6 to agree to pare down the number of units in Concierge.
They have plenty of company in using the Harris law as a strategic warning shot, or at times a courtroom weapon. Also targeting the Boca council, Crocker Partners has a pending $137.6 million Harris claim over its proposed live-work-play Midtown project. Crocker’s planning partner, Cypress Realty of Florida, has filed its own suit alleging the city is slow-walking its development efforts.
And Delray Beach has a pending Harris case. Old School Bakery owner Billy Himmelrich is challenging the city’s height restriction for a commercial stretch of East Atlantic Avenue.
Just as landowners are attracted to the Harris strategy, cities seem to be repelled by it.
“As far as cities go, it’s a challenging law,” said Lynn Gelin, the interim Delray city attorney who has filed a motion to dismiss the Himmelrich lawsuit. She said a city is allowed to change its development plans, and that Harris burdens a city with having to notify landowners about those changes — or, the law gives them “the opportunity to seek redress in the form of damages.”
Max Lohman, the previous Delray city attorney, said he has handled only three Harris claims during his 15 years as a municipal lawyer. “They don’t come up very often,” he said.
“Most people realize the folly in trying to bring suits for something that’s hard to quantify,” Lohman said. He was referring to exactly how much a government action has reduced a property’s value.
That can’t be what Bert Harris had in mind. Harris, who turns 99 this month, was known as a property rights champion during his 14 years in the Florida Legislature. In 1995, just before the Lake Placid citrus farmer left the House, his colleagues passed his namesake law.
Robert Rhodes, counsel to Foley & Lardner in Jacksonville, remembers that period well. The longtime real estate attorney helped write the Harris law as executive director of the first Florida governor’s study commission on property rights.
Legislators were hearing sad stories about property setbacks and height restrictions, he said. “Any type of land use regulation can be taken to an extreme, and that’s what they were concerned about.”
Eminent domain protections didn’t help because they focus on government “takings,” meaning actions that wipe out a property’s value to its owner.
“So the gap was, what about a situation where the government takes a good chunk of value away, not all of your value?” Rhodes asked. “Should that be compensable for the property owner? That was the policy issue and that’s what generated the Harris Act.”
One important goal was to encourage settlement, Rhodes said. “It’s fair to say litigation is really the last resort in the Harris Act because it provides so many opportunities for the parties to get together to resolve their differences.” He noted companion legislation that created an informal, land use dispute-resolution mechanism involving a special master.
How far the Harris law should reach has incited extensive discussion and some litigation over the past 23 years.
“Florida courts still grapple with its interpretation,” Anthony De Yurre of Bilzin Sumberg in Miami wrote in the National Law Review earlier this year. He extolled a March 2018 decision of the Fourth District Court of Appeal that protected an Indian River landowner’s interest in building a cement plant after rezoning scuttled that plan. The owner had a “reasonable investment-backed expectation” that had been stymied by a board of county commissioners, De Yurre wrote.
The Harris statute has been amended three times: in 2008, 2011 and 2015. Also in 2015, Rhodes won a case in the Florida Supreme Court that reinforced the Legislature’s call to put the brakes on overextending the law. It could not be applied to property that’s adjacent to land “inordinately burdened” by government action, the court ruled.
“The argument could be made about adjacency and even beyond adjacency,” Rhodes said. If Harris covered neighboring land, why not land that’s two blocks away? “People were talking about that possibility, in the property rights realm and those who are familiar with the act.”
The Legislature and the Supreme Court said no that time. But Rhodes said he wouldn’t be surprised if land use lawyers who represent owners and developers devise some other way to extend the Harris law.
“Lawyers can be creative,” he said with a laugh.
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