Fear, Goblins and the 'Bert Harris Act'

        Since its publication date in 1812, nannies and babysitters have read tales of frightful creatures of the night, taken from the fertile imagination of "Grimm's Fairy Tales," to calm unruly children through the use of fear.
        In a similar manner, land developers know they can make some local politicians tremble like frightened children simply by citing a State of Florida legal hobgoblin - the "Bert Harris Act".
        "Bert Harris" is the memorial name for the "Private Property Protection Act".  The act was passed by the Florida Legislature, and enacted into law in May 1995.
        The law reads; "When a specific action of a government entity has inordinately burdened an existing use of real property, or a vested right to a specific use of real estate, the property owner of the real property is entitled to relief, which may include loss to fair market value caused by government..."
        At its best, Bert Harris protects Florida property owners from unfair eminent domain actions, and makes local governments think twice before implementing regulations that unfairly burden private property.
        At its worst, Bert Harris is manipulated by development LLC's, real estate flippers and their lobbyist minions, and used to intimidate local government officials into amending existing zoning rules or land uses for the benefit of the builders.
        At too many public hearings in recent years, it is fear of lawsuits under Bert Harris, rather than wise land use policy or the public interest, that is the deciding factor when new development projects appear before local planning boards.
        Local government budgets are tight, defending against a suit in court is expensive, and the outcomes and penalties uncertain. Planning and legal staff advise accommodation, not litigation, and developers win easy victories without going to court.
        However, while the Bert Harris Act has been upheld by the Florida Supreme Court, it has not opened a floodgate of new court cases. The act is intended to eliminate property use "gamesmanship" by both local governments and developers. Property owners who use the act to "game" local governments into favorable land use actions, do so at their own risk.
        In its first 16 years of implementation, 200 claims have been filed under Bert Harris, but only a few cases were fully adjudicated in Florida courts. The burden of proof in Bert Harris complaints rests with developers to prove land uses or new zoning rules enforced by government have "inordinately burdened" the property owner.
        Unfortunately, pro-development politicians readily cite Bert Harris as the reason to approve a new project even if the law does not apply. It is like "crying wolf" once too often in a Brothers Grimm folktale. Citizens become disillusioned when local officials use this tactic at public hearings. The public good is not served.
        Perhaps it is time for local homeowner associations to turn the tables on developers who seek to increase the zoning density in their impacted communities and thereby reduce the appraised values of rural or suburban properties.
        A Bert Harris lawsuit filed against a local government agency or political board responsible for changing existing zoning solely to benefit developers - at the expense of established neighborhoods - would certainly get the attention of politicians, and perhaps prevent unwanted urban sprawl.
        As the Halloween celebration nears, remember this trick. To spread fear in the catacombs of city hall, don't shout "BOO" - just say "Bert Harris"!
(c.) Davidsson, 2014.
 *NOTE: Additional articles archive in Older Posts