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

As set forth in the Ocean Concrete case, the first thing the trial court must consider is whether the plaintiff’s property involved an “existing use of the real property” or a “vested right to a specific use of the real property.” If so, the trial court must then determine whether government action inordinately burdened the plaintiff’s property. If there was an inordinate burden, the trial court must allow a jury to determine the total amount of compensation to the property owner for the loss.


The facts of the Ocean Concrete case are a bit complicated. The plaintiff wanted to build a concrete batch plant and bought a piece of property zoned “light industrial,” a zoning that allowed for a concrete batch plant. After the plaintiff bought the property, local opposition to the planned concrete batch plant developed. As a result, the County changed the allowed uses of property zoned “light industrial,” and concrete batch plants were no longer allowed. No “grandfather” exception existed and the plaintiff could not develop his property as a concrete batch plant. The plaintiff filed a lawsuit seeking relief under a variety of theories, including a Bert Harris Act claim. At trial, the court denied relief on all theories.

Appellate Court Decision

In reversing the trial court’s decision on the Bert Harris Act claim, the Fourth District Court of Appeal ruled that an existing use could be found, even if the property was not being currently used in the proposed format, if the area was zoned for the proposed use prior to the change in zoning.

The Fourth District rejected the trial court’s reliance on takings law in finding no inordinate burden. Instead, as the Fourth District pointed out, the Berth Harris Act specifically states that takings law is a separate and distinct body of law.

The new decision provides an additional tool to property owner counsel in the battle over property rights.

Take-Away for Business and Property Owners

If you are facing a similar situation, make sure you talk to a property rights lawyer. The law in this field is highly specialized and can be difficult to navigate. Stay tuned to this blog for future updates on the Bert Harris Act in Florida.