The kids show Sesame Street began running in 1969 and provided useful lessons for kids. Sesame Street featured the characters Bert and Ernie. Ernie would greet Bert each time with “Hey, Bert!” Today, I’d like to focus on another “Bert” that impacts property owners — The Bert J. Harris, Jr., Private Property Rights Protection Act
Carlos focuses his practice on real estate disputes (sales and purchase disputes, foreclosures, title insurance litigation, commercial and residential evictions, and other real estate related claims) and business claims (fraud and contract lawsuits, shareholder disputes, and other claims between business partners). A major part of his real estate litigation practice involves eminent domain/condemnation matters, which have included inverse condemnation and Bert J. Harris, Jr., Private Property Rights Protection Act claims.
In addition to being admitted to all Florida state courts, Carlos is admitted to practice in the U.S. District Court for the Middle and Southern Districts of Florida.
Carlos speaks and writes for a variety of audiences, including the firm's Legal Scoop on Southwest Florida Real Estate blog. The Florida Bar’s Eminent Domain Committee, The Florida Bar's City, County & Local Government Section, and the Florida Association of County Engineers & Road Superintendents have featured Carlos as a lecturer on eminent domain topics, and the West Coast Florida Chapter of the Appraisal Institute has featured Carlos as a panel speaker on witness preparation in eminent domain cases. The American Bar Association published an article Carlos wrote about the use of eminent domain to condemn underwater mortgages (December 10, 2012 web post). The Florida Bar Journal has published several of Carlos's articles, including two that he wrote about eminent domain topics. The Supreme Court of Florida cited his article, “Eminent Domain: Identifying Issues in Damages for the General Practitioner,” in System Components Corp. v. Florida Dept. of Transportation, 14 So.3d 967 (Fla. 2009). Carlos is AV rated by Martindale-Hubbell.
Growing up out West, discussed a bit in my post about The Magnificent Seven and the Freedom to Choose, I remember going with my granddad and my dad when they hunted. Like many families, we had a special nickname for granddad; we grandkids knew him as “Pompa,” from a name my oldest cousin, as a toddler, gave him.
When I was a kid, the first day of hunting season was a state or school holiday, if I remember right. I was too little to carry a rifle, so I got up early, put on orange, froze my fingers and toes off, and had to be quiet and sit still. Pompa would get his limit every year, which meant lots of venison and home-made jerky. I remember the year my dad got a cow elk—lots of elk steak and elk burger for months! …
Merriam-Webster’s on-line dictionary defines “ripe” in several ways. One example is “fully grown,” as in the case of ripe fruit. The Black’s Law Dictionary, 7th edition, on my credenza defines “ripeness” as:
[t]he circumstance existing when a case has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made.”
That’s a lot of fruit in one bite.
According to a recent decision of Florida’s Fourth District Court of Appeal in GSK Hollywood Development Group, LLC v. The City of Hollywood, Florida, in order to bring a claim under the Bert J. Harris, Jr., Private Property Rights Protection Act, the claim must be ripe.
What Does “Ripe” Mean Under the Bert Harris Act?
In something of a rarity, an appellate court has written an opinion in favor of a property owner bringing a claim under The Bert J. Harris, Jr., Private Property Rights Protection Act.
In Ocean Concrete, Inc. v. Indian River County, Board of County Commissioners, the Fourth District Court of Appeal reversed a trial court order denying relief to a property owner under the Bert Harris Act. As the Fourth District explained, in order to obtain relief under the Bert Harris Act, a plaintiff has to show
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.”
Bert Harris Act in a Nutshell
Last year, the Florida Supreme Court issued an important opinion on property rights that you need to know about if you own real estate in Florida. I had written a blog post right after the decision, but a case I was handling at the time involved some issues related to the post, so I delayed the post until after my case resolved. In any event, the Florida Supreme Court opinion updates my blog posts of July 8, 2015 and August 20, 2015 about the Bert J. Harris, Jr., Private Property Rights Protection Act topic.
Land Use Designations in Hardee County
As mentioned in my earlier post, this case originates from a land purchase in Hardee County in 1996. The purchaser, FINR, bought land that held an “agriculture and public institutional purpose” future land use designation. In 2007, FINR successfully applied to amend the Hardee County Comprehensive Plan and change FINR’s future land use designation to rural center. The “rural center” designation provided FINR with a quarter-mile setback that applied to the adjacent properties and prohibited phosphate mining activities in the setback.
If you’re a regular reader of this blog (and I hope you are, or will become one!), you will know that many of my posts, over the years, have to do with property rights. An important component of property rights is valuation of the property right taken, or at stake. Today, as part of my series with local appraisers, I am interviewing Matt Simmons, an appraiser and principal with the firm of Maxwell, Hendry & Simmons, LLC.
Carlos: What do appraisers do?
Matt: At the core, we value the bundle of rights inherent in real property. We typically determine the value through application of one or more commonly accepted approaches to value: the Sales Comparison, Cost, or Income approach. But within each approach the nuance of the overall rights remains the value driver. The acronym DUE encompasses the fundamental rights most fee simple real property possesses. These are the rights of disposition, use, and exclusion. When an action (governmental or otherwise) impacts one of these rights, the value of the property is almost always impacted.
Carlos: What made you want to become an appraiser?
Matt: Like many professionals, I was introduced to the profession through a friend. I began working in appraisal data entry when I was 19 and gained my initial trainees license the following year. I’ve always had an interest in real estate and the opportunity to analyze properties, solve complex valuation issues, and build a real estate centered business is incredibly rewarding.
Carlos: How do you work with attorneys in property rights cases?
What do they have in common? Nothing…except that when I was getting a new set of tires put on my car, I had time to read Murr v. Wisconsin, the recent U.S. Supreme Court 40-page decision in a property rights case involving a regulatory takings analysis.
The facts of the case are pretty simple. The Murrs purchased Lots E and F separately in the 1960s, transferring Lot F to a family plumbing business, but keeping ownership of Lot E in their own names. The Murrs transferred Lot F to their kids in 1994 and Lot E to the kids in 1995. The lots each had less than one acre available for development. The Murr kids brought the lots under common ownership (in other words, the kids owned both lots, unlike the parents, who owned one lot through a company and the other lot as individuals).
Once under common ownership, state and local rules forbidding separate sale or development of the lots came in to play. The Murr kids wanted to sell Lot E as part of an improvement plan for both lots, and requested variances from the local zoning authority. The zoning authority denied the variance request, and the state courts affirmed the denial of the variance request.
It’s an old saying, but it’s true in life and in court, as illustrated in a recent takings decision, Town of Ponce Inlet v. Pacetta, LLC, et al. The Town appealed “a multi-million-dollar” judgment on an inverse condemnation claim. Like most takings cases, this one has a long and confusing history.
The property owners had purchased ten adjoining parcels, seeking to develop a waterfront project. The Town, however, amended its comprehensive land use plan, leaving the property owners unable to develop the ten parcels as contemplated.
The property owners sued the Town, challenging the amended comprehensive land use plan. The property owners successfully argued, at both trial and on appeal, that the ten parcels should be treated as a single 16 acre parcel.
[t]o stand up against something or assert oneself.”
Recently, as a nation, we celebrated the 241st anniversary of the Declaration of Independence. We are justly proud of that independence. The signers, and other heroes, stood against tyranny and asserted themselves for liberty.
It took a fight to achieve that independence. It has taken many other fights since then to preserve it.
I need to let you know how my Saturday project went. In my last post, I told you about a home improvement project that I needed my dad’s help on. And I told you about the concept of “highest and best use.”
I asked my dad to come by at 9 am. He brought a low wattage, high illumination fluorescent shop light that gave off way more light at a lower heat than the work light I had. He also brought a ten inch sliding compound miter saw, saw horses, and a saw table, plus a whole lot more.
The work went pretty quickly, and it had to. It gets hot fast in an attic in Florida this time of year. It was very cramped and hard to get enough room for a good hammer swing on the mend plates. No such problem installing the construction screws. My dad pre-drilled the 2 by 6 splice lumber. (“Son, this drill is practically a family heirloom. It was my Uncle Bob’s. It’s a 3-way drill, so it can hammer, drill, and do both at the same time. Works great on concrete. They don’t make ‘em like this anymore.”) The power screwdriver made the rest easy.