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.

In 2010, one of FINR’s neighbors, CF Industries, Inc., applied to the County to begin new phosphate mining activities, obtain a major special exception, and reduce the setback. The County granted the special exception and reduced the rural center setbacks to allow CF Industries to mine phosphate within 150 feet to the west and north of FINR’s property and within 207 feet to the east of FINR’s property.

FINR filed a lawsuit seeking compensation under the Bert J. Harris, Jr., Private Property Rights Protection Act, but FINR’s lawsuit was dismissed when the trial court ruled that there was no claim available under the Bert Harris Act in these circumstances. The Second District Court of Appeal, however, ruled that FINR did have a claim.

As I also mentioned in my earlier post, the Second District Court of Appeal’s decision in this case was remarkable because, only a few months beforehand in February 2015, the First District Court of Appeal ruled that the Bert Harris Act does not provide a cause of action to property owners whose property was not subject to any governmental regulation.

Florida Supreme Court Ruling

In 2017, the Florida Supreme Court disapproved the Second District Court of Appeal’s FINR II decision. In reaching its decision, the Florida Supreme Court ruled the Bert Harris Act “must be narrowly construed” and that “[o]wners whose property has not been directly acted upon by a governmental entity may not state a claim” under the Bert Harris Act.

Take-Away

For property owners in Florida, this decision means you should be aware that a local government’s permission of activity on a neighboring property will not create a basis for a claim under the Bert Harris Act.

Stay tuned for more information about your property rights. If you have any questions or concerns regarding this issue, please feel free to contact me at carlos.kelly@henlaw.com or by phone at 239-344-1326.