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.

Continue Reading Not Your Property? Then You’ve Got No Claim Under the Bert Harris Act

For the possible record number of attendees at July’s Real Estate Investment Society (“REIS”) luncheon, this won’t be news. For those folks who may have missed it, Assistant County Attorney Michael Jacob and Lee County Planning Manager Mikki Rozdolski walked us through the newly created Pine Island Transfer of Development Rights Program that is not only winning awards but has the potential to offer a workable density transfer program for Lee County developers and landowners.

Among the program’s highlights and innovative concepts is the ability to strip density units from qualifying land in Greater Pine Island and use “off-island” to qualifying receiving lands at a 1:2 ratio. For those looking to increase commercial square footage, the program also allows for the conversion of one (1) density unit to 10,000 square feet of commercial retail and office space. Attorney Jacob noted there is no limit to this conversion (i.e. if your project needs an additional 30,000 square feet, all you need is three (3) density units).

Another novel aspect of this program is that the land from which you take the units does not necessarily lose all economically viable use merely by participation in the program. An example Planning Manager Rozdolski provided was that you could strip off the development units from eligible property, but use that same property for limited agricultural uses, like growing mangoes and then selling those mangoes from a farm stand on the property. Clearly this incentivizes participation in the program since the landowner benefits from selling the units but continue to receive economic benefit from the property as well as general use and enjoyment of the property. This is in stark contrast to most other attempts at a TDR program where landowners remove development rights and essentially lose any benefit of owning the property.

The good news for anyone who wasn’t with us at REIS, the county has done a phenomenal job at getting the word out about this program and making information as accessible as possible. Head on over here to get additional information and dig into the myriad of innovative and inventive aspects this program has to offer.

On October 1, 2015, various revisions to the Bert J. Harris, Jr., Private Property Rights Act will take effect. On October 1, among other things, the definitions of “property owner” and “real property” will change as set forth in Chapter 2015-142 Laws of Florida. The changes may limit the reach of the Second District Court of Appeal’s decision that expanded the rights of property owners in Southwest Florida since “property owner” will mean “the person who holds legal title to the real property that is the subject of and directly impacted by the action of a governmental entity.” The FINR II, Inc. v. Hardee County decision held that the Bert Harris Act provided a cause of action to owners of real property “inordinately burdened and diminished in value due to governmental action directly taken against an adjacent property.” With the change in definition effective October 1, it seems the impact of the FINR II decision may be short-lived.

We’ll be sure to keep you updated!

The Second District Court of Appeal, which covers fourteen counties in West Central Florida and Southwest Florida from Pasco County in the north to Collier County in the south, issued a decision in June 2015 that significantly expands the rights of real property owners in Southwest Florida. In the case entitled FINR II, Inc. v. Hardee County, the appellate court ruled that

the Bert [J.] Harris [, Jr., Private Property Rights Protection] Act provides a cause of action to owners of real property that has been inordinately burdened and diminished in value due to governmental action directly taken against an adjacent property.” (Emphasis added.)

Facts of the Case

Continue Reading Recent Court Decision Expands Rights of Property Owners in Southwest Florida

George Wheeler is a 30 year employee with the Florida Department of Revenue. He currently serves as IDP Administrator in Classified Use Administration. His responsibilities as Senior Appraiser at DOR include the areas of agriculture/greenbelt, conservation, and working waterfront.

Since a recent article in the Florida Land Development News about property taxation and potential exemptions, we have received numerous questions about the treatment of conservation lands for ad valorem taxation. We first ran into this issue some time ago, and had the pleasure of working with George Wheeler with the Florida Department of Revenue to determine the best option for the landowner in that case. For this blog post, we imposed on George again and he was kind enough to chat with us about this rather misunderstood area of property taxation.

Continue Reading Thoughts on Ad Valorem Assessment of Conservation Lands: A Conversation with George Wheeler

In my household, a letter from the county property appraiser or the county tax collector is typically met with a “what-now” groan because it’s rare for good news to come from those offices. If you’re an agricultural land owner, you may have recently received such a letter from your local property appraiser notifying you that your agricultural tax classification for the 2011 tax year has been denied. And while a groan may be the proper response, tossing this letter in a pile and ignoring it is not – because you now only have 30 days to appeal this denial to the county’s Value Adjustment Board.

An agricultural classification can save a property owner tens of thousands of dollars in property tax owed to the local government, and according to the Lee County Property Appraiser’s Agricultural Division, agricultural classification denials for Lee County were mailed on or about June 27, 2011. Typically, the rationale for denial is that the property is not being “used primarily for bona fide agricultural purposes” as required by F.S. 193.461(3)(b). Any appeal of this determination must be timely filed, and evidence and testimony must be presented at a hearing to support the contention that a bona fide agricultural use existed on the property as of January 1, 2011. The statute sets forth 7 factors to be considered in determining whether a “good faith commercial use of the land” was in place:

  1. The length of time the land has been so used.
  2. Whether the use has been continuous.
  3. The purchase price paid.
  4. Size, as it relates to specific agricultural use, but a minimum acreage may not be required for agricultural assessment.
  5. Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices.
  6. Whether the land is under lease and, if so, the effective length, terms, and conditions of the lease.
  7. Such other factors as may become applicable.

These appeals can become extremely complicated, and without the presentation of competent, relevant evidence and testimony, a property owner’s chances of success can be very low. So, if you tossed that denial letter in a “to-do” pile, dig it out and consider whether you would like to appeal the denial. The filing fee to appeal the denial is as low as $15, however waiting too long to address the issue can be quite costly.


The landscape of Florida has seen rapid change over the last several decades, and none has been more drastic that the urbanization and development of Florida’s farms and agricultural areas. With increased development comes higher property values and increased property taxes. In an effort to assist farmers and agricultural landowners, the Florida Legislature passed bills that became known as the Greenbelt Laws, providing a property tax break for agricultural lands.

128px-Angus_mix.JPGCurrent laws allow for an agricultural tax classification for bona fide, commercial, agricultural use of land. Over the years, Florida courts have been called on to determine the balance between the tax benefit provided to agricultural landowners and the need for cities and counties to accurately assess non-agricultural lands and collect the taxes for municipal services. Today, it is not uncommon for a county and a landowner to disagree regarding the bona fide nature of a use, or the extent of that use on the property. For example, a property appraiser may deny the classification on a property because he feels that there are too few cows grazing on the land, or not enough has been done to properly care for the land.

So what can a landowner do to ensure that his or her agricultural classification is granted?

  • Know the commercially-accepted practices for the type of agriculture you are engaged in. For example, if all cattle ranchers mow and seed their pastures annually, following these practices may support the contention that a property should be granted the classification.
  • Ensure that there is documentation regarding the improvements or activities that are part of the agricultural operation, including any lease agreements. Some owners hire professional property managers to ensure that the agricultural use is managed properly.  
  • Communicate with the property appraiser’s office before a determination regarding the classification is made can be beneficial, as well, so that a property owner may provide additional documentation or information that will be persuasive.

Ultimately, if a property owner cannot convince the local property appraiser that a property should receive an agricultural classification – and a drastically lowered tax bill – the owner must seek appeal to the Value Adjustment Board. This appeal process generally hinges on the evidence and testimony related to the agricultural use, making it even more important to keep documentation regarding activities and expenditures related to the agricultural use. 

On October 15, 2010, the Environmental Protection Agency will usher in a new era of water quality regulation for Florida’s lakes and flowing waters. Known as the Numeric Nutrient Criteria (“NNC”) rule, the final rule will establish specific numeric limitations on nitrogen and phosphorous concentrations in fresh water lakes and streams.

Before the implementation of this rule, Florida water quality rules were based on a narrative standard that used descriptive language to identify polluted bodies of water. The rule also creates restoration standards for water bodies that are designated as “impaired.” Impaired waters may be waters that are deemed to be polluted to the point where they no longer are suitable for their intended use. The new rule only applies to fresh water, however a similar NNC rule for coastal waters and estuaries is slated for consideration in 2011. These new water quality standards will have significant economic and operational effects on municipalities, agricultural operations, utilities, and future development.

Continue Reading EPA Numeric Nutrient Criteria