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Advising the Client Regarding Protection of Property Rights: Harris Act and Inverse Condemnation Claims

City, County and Local Government

This article addresses issues facing the real property practitioner in advising clients on the protection of their private property rights. Overviews of two particular aspects of property rights are provided: rights to compensation for an inverse condemnation of property based on the Fifth and 14th amendments of the U.S. Constitution, and rights under Florida’s statute protecting private property rights, popularly known as the Harris Act. These are complex issues and the law is still evolving. In many cases, the real property practitioner would be well advised to retain special land use counsel to assist in determining, securing, and protecting entitlements and in litigating those entitlements, if needed.

Absent unusually strong facts, inverse condemnation is rarely a viable claim and can result in significant expense and delay to the client. There are also significant barriers to success under the Harris Act unless a settlement can be achieved. The act seems to (and was explicitly intended to) provide a broader basis for relief than inverse condemnation. However, the proper interpretation of the act is quite uncertain, and has not been clarified much by precedent to date. Thus, practitioners are advised to carefully weigh the potential gains against the potential costs of litigation, in time and money, before advising a client to pursue either claim.

Inverse Condemnation
Inverse condemnation is a claim made by a property owner that the effect of a governmental action on its property is so devastating that it is the equivalent of the direct exercise of eminent domain, and thus requires just compensation under the Fifth or 14th amendments. Such claims are also referred to as regulatory takings. In order to establish liability, the property owner must prove that it was deprived of all or substantially all economically beneficial use of its property, whether temporarily or permanently. There is a great deal of case law and commentary on inverse condemnation law; thus, this article’s treatment of this claim is relatively brief.

The typical land use regulation, even where it drastically interferes with use of property for a period of two or three years or revokes an existing use, is unlikely to be held to constitute a regulatory taking.1 As an indication of just how substantial this deprivation of use must be in order to establish a taking, Justice Scalia (one of the most property rights-friendly justices on the Supreme Court) has stated that even a 95-percent reduction in value is not always sufficient to establish liability.2 Even what seem to be rather egregious facts may not be sufficient to establish liability.3 Examples of successful claims include those that can establish physical occupation of the property by the government, complete elimination of use of the property, or elimination of access to the property.4 Property owners with less extreme facts can try to establish liability under the balancing test of Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978).5

Claimants must exhaust their administrative remedies before bringing a takings claim.6 Claimants must also prove that there has been a final decision as to the allowable uses of the property, so that the matter is ripe for judicial review.7 However, on appropriate facts, a taking claim will be allowed to proceed even if not ripe if further review can be shown to be futile, such as where an adopted city policy forbids requested relief.8

The ripeness standard can be quite difficult to interpret and apply, and difficult to satisfy. Several noteworthy cases have spent a decade or longer litigating whether the case is ripe, bouncing back and forth from federal to state court without ever reaching the merits. If the merits are reached, then the property owner has a daunting task in establishing liability under the prevailing constitutional test. For these reasons, I suggest that, unless unusual and extreme facts are present, it is very unlikely that the client will receive much relief from an inverse condemnation claim. The potential for ultimate success may be greater with the second type of claim I examine, a Harris Act claim. However, the uncertainty in the meaning of key statutory terms makes it likely that the litigation will be expensive and time-consuming, unless a settlement is reached.

The Harris Act
The movement toward statutory private property rights protection

Over the past 10 to 15 years, a wave of private property rights protection legislation has swept the U.S. Marketed as grass roots initiatives, but often backed heavily by industries dependent on the use of real property (including agriculture and land development) through the mechanism of “public interest” legal foundations, these statutes have attempted to severely limit what government can accomplish through exercise of its police power and greatly increase the types of regulation that can trigger compensation. This property rights movement sought protection for landowners from what were perceived to be unduly onerous environmental and land use regulations. Several efforts to enact federal legislation failed, but the effort to change the law via state legislatures met with much more success.9

More than 20 states have enacted private property protection laws, including Florida.10 They were designed to address the belief of some property owners that they are being asked to bear a disproportionate share of the burdens of achieving environmental and quality of life goals for the public at large through restrictive regulation of the use of their land. Some of the concern was based on a feeling that the federal taking standard was not protective enough, because compensation is not due under the U.S. Constitution as interpreted by the federal courts unless there is a physical invasion of the property or all economically beneficial or productive use has been removed.11 This policy disagreement was exacerbated by the reluctance of the U.S. Supreme Court to reach the merits of takings cases and the lack of clear standards in taking law. A handful of famous taking cases languished in the state and federal courts for years, frustrating affected plaintiffs and other property owners attempting to understand the constitutional limits.

The legislative response to these concerns took several forms. One followed the example of the National Environmental Protection Act (NEPA), which requires an assessment of environmental impacts prior to federal action, including an identification of alternative actions that may result in less impact on the environment. Private property rights activists adapted this model to develop legislation that required government to assess the impact of land use and environmental regulation on private property rights, and identify alternative forms of regulation that would be less burdensome on those rights. This “assessment” model was adopted in the majority of states.

A second form of legislation is characterized by a requirement for landowner compensation based on some defined diminution in value of its property due to a burdensome regulation. The compensation model was adopted in a minority of states, including Florida.
Florida’s Bert J. Harris, Jr., Private Property Rights Protection Act, F.S. §70.001 et seq.

Much has been written on this act generally.12 For the most complete and up-to-date description of Florida’s experience with the implementation of this law, see the excellent chapter in the treatise published by the Environmental and Land Use Law Section of The Florida Bar.13 In general, it is important to note that Ch. 70 actually contains two statutory schemes: the Harris Act (§70.001) and the Florida Land Use and Environmental Dispute Resolution Act (§70.51), a voluntary dispute resolution process adopted at the same time as the Harris Act. Also, the 2002 Legislature amended the Harris Act to add §70.20, which provides specific compensation rules and procedures for billboards and forbids future amortization of billboards.

These materials will summarize the meager precedent that exists on the Harris Act, and then address more practical issues of litigation and negotiation under the act.

1) Harris Act precedent. There are only a few reported appellate decisions construing the act, and none are from the Florida Supreme Court. An early attorney general’s Opinion opined that the act could not be invoked by one whose property was only indirectly affected by governmental action, such as a neighbor seeking to complain about the effect of the next-door zoning on his or her property.14 The Fourth District determined that the failure to present an appraisal as required prior to filing suit, and the filing of suit prior to the end of the 180-day waiting period specified in the act requires dismissal of a Harris Act suit.15 The Fifth District held that an interlocutory appeal could not be taken from a trial court finding that the county and the Department of Environmental Protection had inordinately burdened a property by denying zoning and permits for a landfill, despite provisions of the act to the contrary in §70.001(6)(a), because only the Florida Supreme Court can establish new appellate rules governing such matters.16

A trial court decision arising from citywide rezoning actions creating new height and density restrictions in Miami Beach held that sovereign immunity barred Harris Act claims against legislative or quasi-legislative actions.17 Although the court’s decision did not note it, §70.001(13) specifically provides that the Harris Act “does not affect the sovereign immunity of government.”

The ruling attracted statewide interest. It seemed to be dictated by §70.001(13), but some argued that it nullifies the act completely and thus frustrates legislative intent. An alternate interpretation was that it simply limited the scope of governmental acts that may be challenged under the Harris Act, leaving the field open for challenges to nonlegislative actions. After all, waivers of immunity must be “clear and unequivocal”18 and the presence of subsection (13) renders any alleged waiver at best “equivocal.” This interpretation is consistent with the law governing rezonings and comprehensive plan amendments, after Snyder19 and Yusem20; only nonlegislative actions are subject to stricter scrutiny and to a record-based certiorari challenge. It is also consistent with the statutory definition of governmental action as a “specific action affecting real property, including action on an application or permit.”21 Finally, the fact that the remedy under the Harris Act is not limited to monetary compensation means that the application of immunity does not defeat the effectiveness of the act.

However, the Third District ruled that the waiver of sovereign immunity was clear from the legislative intent of the Harris Act.22 The city has sought Florida Supreme Court review, and plans to continue fighting this case and the half dozen others pending, all claiming millions of dollars in lost value. Additional important precedent may well arise out of these facts.

The dispute resolution portion of Ch. 70 has also seldom been construed in a reported appellate decision. The Second District held that a letter accompanied by a scientist’s field report suggesting that land proposed for development might be a wetland was not a development order subject to a special master proceedings.23 That court also held that the circuit courts have no jurisdiction over the disposition of a pending special master24 proceeding even if they are hearing related civil litigation, such as a §1983 due process claim arising from the same facts.25

2) Litigation and negotiation issues with §70.001. The great irony of the Harris Act is that it sought to bring clarity to the admittedly muddled body of case law regarding regulatory takings and be more protective of property rights by creating a remedy for “inordinate burdens,” an impact of regulation that explicitly falls short of the federal taking standard. Yet it uses, and in some case modifies, the same terms of art as federal taking case law to flesh out the meaning of “inordinate burden,” while saying that the terms cannot be construed with reference to that case law.26 Another paradox is that the definition of “existing use” is not the plain meaning of that term but instead specifically includes future uses of the property.27 Similar problems exist with the act’s attempts to clarify ripeness. It only allows as applied challenges, and fails to address whether the mere enactment of a generally applicable ordinance can be the basis of an as applied challenge, without the owner first seeking a determination on an actual development application.

This confusion has been the supreme challenge with the Harris Act, and could explain why there is not more precedent construing it. Regulators and property owners alike have thought twice before proceeding with litigation, because the outcome is highly uncertain and there are loads of threshold interpretation issues that have yet to be resolved by the courts. The legislative branch has available to it much more expertise in the area of property regulation and valuation policy than does a federal judge. Yet the legislative branch, not only in Florida but also in other states, has been unable to create more predictable and just rules for compensation in this area of law despite these inherent advantages. These legislative efforts, in a way, legitimate the federal Penn Central taking standard.28 While its ad hoc nature can be frustrating to litigants (and to attorneys trying to advise their clients), that very flexibility allows it to take into account the wide range of unique circumstances presented in taking claims.

While the act appears to have legislated away the ripeness conundrum, it is important to note that traditional ripeness concerns remain. First, ripeness is an issue of subject matter jurisdiction, designed to determine whether there is a concrete controversy that the courts may decide. It remains to be litigated whether the legislative branch has the power to alter that basic judicial requirement. Second, ripeness is at heart a practical issue. If an owner brings a claim based on the mere enactment of an ordinance, how does one define the impact? In Royal World Metropolitan, Inc. v. City of Miami Beach, 863 So. 2d 320 (Fla. 3d DCA 2003), the claim involved a height limit, usually a relatively clear-cut complaint (depending on how clearly the code defines the height of a building). But what if the effect of the regulation on a particular property cannot be determined without analysis, such as with an environmental restriction? Without the benefit of an actual development application and expert staff review to determine how the general requirement applies to a particular property, how can the impact of a density limitation be determined? It is common to find that a particular piece of property cannot develop to the maximum extent theoretically permitted by the code, when all of the setbacks, landscaping requirements, preservation of environmentally sensitive areas, traffic flow and parking requirements, etc., are taken into account. In that event, the financial effect of a downzoning could be overstated if it is measured with respect to the theoretical maximum density and not the density actually achievable on the property.

The actual achievable density cannot be known until one does the work of applying the regulations to the property. If claims are to be allowed under the act based on the mere enactment of a general density limitation, and the owner has not done this work, is the government now forced to site plan the property for the owner in order to figure it out? That seems to go beyond what should reasonably be expected of government. And if the government fails to do so in its statutory ripeness determination, where does that leave the court in trying to understand what development is permissible on the property?29

The act incorporates Penn Central’s concept of “reasonable investment-backed expectations” as part of the definition of “existing use.” This term also raises a host of issues in interpretation, perhaps best outlined by the 11th Circuit in Reahard v. Lee County,968 F. 2d 1131, 1135–36 (11th Cir. 1992). These include examining the history of the title of the property, the history of development efforts, the history of zoning and regulation applicable to the property, the present nature and extent of the property and adjacent properties, the application of common law constraints on development, and the immediate effect of the regulation being challenged.

The act also incorporates the notion of a reasonably foreseeable, yet nonspeculative use into the concept of “existing use.” This could be interpreted as the appraisal concept of “highest and best use,” or perhaps as the Penn Central concept of “economically viable use.” Or perhaps it could be argued that it accounts for Florida’s comprehensive planning system, which allows the comprehensive plan designation on a particular property to exceed the actual zoning for the property, on the theory that the full use contemplated by the comprehensive plan might only be appropriate in the later years of the planning period. Snyder clearly recognizes the difference between planning and zoning, and states that the government is not automatically obligated to zone for the full density or intensity permitted by the comprehensive plan. It also could be seen as an attempt to capture the effect of the neighboring use, as, for example, when a property with residential zoning and an existing single-family residence is located next to an office park or regional mall.30

Another important litigation issue with Harris Act claims is that the measure of monetary compensation is expressed not in terms of the basis of liability or various definitions of inordinate burden and unfairness, but rather in terms of an appraisal of the fair market value of the property with and without the effect of the regulation.31 It is the total difference in value, not the amount which is alleged to be inordinate or unfair to the property owner, or which differs from the vested or existing use of the property. When there has been a small investment in the property, this compensation standard can yield a large return on investment well beyond any definition of “reasonable investment-backed expectations.”

Accrual and expiration of claims for relief is another part of the act’s presenting a fair amount of uncertainty. The act purports to establish a one-year statute of limitations for presenting the claim to the government after the regulation is “first applied” to the property, followed by a 180-day delay to allow for the government’s ripeness determination, before actually filing the claim in court. But the problem is when is a regulation “first applied” to the property? Is it one year after the general enactment of the regulation or one year after it has been applied to the property through a governmental decision on a permit application? Is it inevitably measured from the first application for development, even if that application seeks only a portion of the density or intensity actually allowed by the code, thus time-barring any challenge based on denial of a later application for the full permitted development? Also, though it is clear that the claim may not be filed in court until at least 180 days have elapsed from the presentation of the claim to the government, there is no deadline for filing the claim. The general statute of limitations thus applies, which is four years for a claim based on statutory liability.32

Another timing issue relates to the act’s exemption for governmental regulations adopted or applied prior to May 11, 1995.33 The exemption is muddied by the act’s provision that existing regulations, if subsequently amended, may give rise to a claim if the amendment imposes an inordinate burden apart from the underlying, existing regulation. Once again, attempts to clarify and create certainty only engender more uncertainty and one is faced with the sticky determination of “inordinate burden.”

The biggest impact of the Harris Act may have been through cases that were settled. The level of uncertainty about the meaning of the act leaves a wide playing field for litigants to advance an interpretation that favors them. In negotiation, the perception of the potential liability can be more important than the actual liability, and thus the chilling effect of the act has limited government regulation far more significantly than has the case law precedent actually interpreting and applying the act. It has also prompted settlements where, if the governing law were clearer, the settlement might have been rejected.

In particular, the act allows a local government to settle a claim even though doing so involves a violation of otherwise applicable laws and codes.34 This has played an important role in many settlements where the local government officials and staff might not have been that opposed to a development project, but politics prevented a general change in the code to allow the project and others like it. Such settlements may also frustrate the involvement of third parties, because their rights to notice and participation in the Harris Act litigation are constrained. However, the tolerance of the courts for such settlements may be an issue, as reflected in strongly worded special concurrence of Chief Judge Schwartz regarding such a settlement agreement in City of Miami Beach v. Chisholm Properties South Beach, Inc., 830 So. 2d 842 (Fla. 3d DCA 2002).35

Although there is general language in the act that any variance or other exception from law granted pursuant to subsection (4)(c) must “protect the public interest” and be “the appropriate relief necessary” to relieve the inordinate burden, there are no processes or standards for the implementation of this protection. The procedure for court review and approval of the settlement agreement in subsection (4)(d)1 applies only when the law being violated is a statute. Violations of administrative rules and local ordinances and regulations appear not to trigger this procedure. And the act neither provides for the participation of third parties in the court’s review of the settlement agreement, nor explicitly extinguishes the third parties’ rights to challenge court-sanctioned violations of the statute pursuant to the settlement agreement.

3) Harris Act legislative update. During the 2003 session, the Florida Legislature considered a series of changes to the Harris Act. A summary of the proposed changes follows:

• Clarifies the act’s requirement for the government to provide a 180-day ripeness determination indicating what uses may be permitted on the property, and removes all explicit references to the concept of ripeness from this process (though still utilizing the ripeness terminology of “final decision”);

• Clarifies that the initial adoption or enactment of a regulation does not necessarily constitute an application of that law to property;

• Expressly waives sovereign immunity (in response to the circuit court’s decision in the Royal World Metropolitan case);

• Provides that certain large-scale regional water supply authorities may, in certain instances, be subject to the Harris Act;

• Provides special standing requirements for property owners near a regional water reservoir, a special manner of compensation where an inordinate burden is found to exist, and special review and settlement procedures for Harris Act claims against regional water suppliers; and

• Provides a sunset for regional water supply challenges of December 31, 2005.

None of these changes were enacted. The bill died on the calendar, and interest groups expected it to resurface in the 2004 legislative session. It did not.

What did emerge from the 2004 legislative session was a new cause of action against counties (not cities) under the Harris Act for changes to existing agricultural land use designations or zoning, as part of a larger bill providing for agricultural economic development. The new §70.005 was created by Senate Bill 1712, as follows:

Section 70.005 Cause of action.—The landowner aggrieved by the changing of an existing agricultural land use classification or agricultural zoning or the lowering of the current residential density designation by a county which creates an inordinate burden on property classified as agricultural land pursuant to §193.461 shall have an immediate cause of action in accordance with the procedures provided in §70.001, except that the 180-day notice period shall be reduced to a 90-day notice period.36

Until there is more judicial interpretation and clarification of the meaning of the myriad uncertainties in the act, it is likely to remain a paper tiger and encourage preservation of the regulatory status quo. While the act may not result in as many headline-grabbing monetary awards as some of its proponents might have liked, it will continue to have quiet but significant impacts on the public interest through the approval of projects whose owners threaten litigation and through settlement of Harris Act claims in violation of governing law. q

1 See, e.g., Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (32-month moratorium on development while preservation plan was being developed was not a taking); Bradfordville Phipps Limited Partnership v. Leon County, 804 So. 2d 464 (Fla. 1st D.C.A. 2002) (inverse condemnation claim based on 22-month court-ordered delay in county’s issuance of permits was not ripe and did not establish deprivation of economically beneficial use of property); and Agripost, Inc. v. Metropolitan Miami-Dade County, 845 So. 2d 918 (Fla. 3d D.C.A. 2003) (revocation of unusual use permit for waste treatment facility due to violation of conditions of approval was not a taking).
2 See Lucas v. South Carolina Coastal Commission, 505 U.S. 1003 n.8 (1992).
3 See City of Pompano Beach v. Yardarm Restaurant, Inc., 834 So. 2d 861 (Fla. 4th D.C.A. 2002) (city’s actions in obstructing issuance of hotel building permit, through delay in issuing permits, wrongful revocation of permits, and attempt to repeal special exception, did not rise to level of taking).
4 See Tahoe-Sierra, 535 U.S. at 323 (Lucas establishes a narrow exception where takings liability will result from a permanent deprivation of all beneficial use), and City of North Miami Beach v. Reed, 749 So. 2d 1275 (Fla. 3d D.C.A. 2000) (taking resulted when city installed curbing along plaintiffs’ frontage, thereby denying all vehicular access to the property).
5 See Tahoe-Sierra, 535 U.S. at 314 (Penn Central test involves a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action).
6 Clay v. Monroe County, 849 So. 2d 363, 365-66 (Fla. 3d D.C.A. 2003).
7 City of Riviera Beach v. Shillingburg, 659 So. 2d 1174 (Fla. 4th D.C.A. 1995).
8 Golf Club of Plantation, Inc. v. City of Plantation, 847 So. 2d 1028 (Fla. 4th D.C.A. 2003) (city policy banned the conversion of existing golf courses to any other use, even another recreational use, so matter was ripe for review).
9 See generally Cordes, Leapfrogging the Constitution: The Rise of State Takings Legislation, 24 Ecology L.Q. 187, 204-15 (1997); Culpepper, Comment, The Strategic Alternative: How State Takings Statutes May Resolve The Unanswered Questions Of Palazzolo, 36 U. Rich. L. Rev. 509 (2002); Michael A. Douglass, Note, Have They Gone Too Far? An Evaluation and Comparison of 1995 State Takings Legislation, 30 Ga. L Rev. 1061 (1996) (noting that 38 states were considering such legislation in 1995 alone, and focusing on Texas and Florida statutes); Martinez, Statutes Enacting Takings Law: Flying in the Face of Uncertainty, 26 Urb. Law. 327 (1993); Marzulla, State Private Property Rights Initiatives As A Response to “Environmental Takings,” 46 S.C. L. Rev. 613 (1995) (authored by one of the major proponents of such legislation); Oswald, Property Rights Legislation and the Police Power, 37 Am. Bus. L. J. 527, 540 (2000); Sax, Takings Legislation: Where It Stands and What Is Next, 23 Ecology L.Q. 509 (1996); Smith, Note, Private Property Protection Legislation and Original Understandings of the Takings Clause: Can They Co-Exist?, 21 J. Legis. 93 (1995); Sugameli, Takings Bills Threaten Private Property, People, and the Environment, 8 Fordham Envtl. L.J. 521, 532-50 (1997); and Walsh, Note, Achieving the Proper Balance Between the Public and Private Property Interests: Closely Tailored Legislation as a Remedy, 19 Wm. & Mary Envtl. L. & Policy Rev. 317 (1995).
10 They include Arizona, Colorado, Delaware, Florida, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming. Measure 7, the regulatory takings initiative adopted by popular vote in November 2000 which would have required compensation for any regulation that causes any reduction in property value, was voided by the Oregon Supreme Court due to its violation of the single subject rule. League of Oregon Cities v. State of Oregon, 334 Or. 645, 2002 WL 31235582 (Or. October 4, 2002). The initiative had an exception for adult oriented uses, and was therefore deemed to amend both the just compensation and free expression sections of the Oregon Constitution.
11 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992). Standing alone, of course, this perception reveals an incorrect understanding of federal constitutional law. It ignores the ad hoc balancing test the Supreme Court adopted in 1978 in Penn Central, which allows for the consideration of lesser impacts in light of the property owner’s reasonable investment-backed expectations, the economic effect of the regulation, and the character of the governmental action, as discussed above. See Tahoe-Sierra discussion in Part I above.
12 See, e.g., Butts, Private Property Rights in Florida: Is Legislation the Best Alternative?, 12 J. Land Use & Envtl L. 247 (1997); Douglass, supra note 1; Juergensmeyer, Florida’s Private Property Rights Protection Act: Does It Inordinately Burden the Public Interest?, 48 Fla. L. Rev. 695 (1996); Monaco, The Harris Act: What Relief from Government Regulation Does It Provide?, 265 Stetson L. Rev. 861 (1997); Powell et al., A Measured Step to Protect Private Property Rights, 23 Fla. St. U. L. Rev. 315 (1995); Stroud & Wright, Florida’s Private Property Rights Act: What Will It Mean for Florida’s Future?, 20 Nova L. Rev. 683 (1996); and Vargas, Florida’s Property Rights Act: A Political Quick Fix Results in a Mixed Bag of Tricks, 23 Fla. St. U. L. Rev. 315 (1995).
13 Weaver and Coffey, Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation in Florida Environmental and Land Use Law (August 2002) (cataloguing the trial court proceedings and decisions available under the act).
14 AGO 95-78.
15 Sosa v. City of West Palm Beach, 762 So. 2d 981 (Fla. 4th D.C.A. 2000).
16 Osceola County v. Best Diversified, Inc., 830 So. 2d 139 (Fla. 5th D.C.A. 2002).
17 Royal World Metropolitan, Inc. et al. v. City of Miami Beach, Case No. 99-17243-CA-23 (Order Granting Motion for Partial Summary Judgment, dated July 18, 2002) (reduction in height of apartment project from 24 to six stories; the case was one of several challenging the downzoning).
18 Tampa Hillsborough County Expressway Authority v. K.E. Morris Alignment Serv., Inc., 444 So. 2d 926, 928 (Fla. 1984).
19 Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993).
20 Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997).
21 Fla. Stat. §70.001(3)(d).
22 Royal World Metropolitan, Inc. v. City of Miami Beach, 863 So. 2d 320 (Fla. 3d D.C.A. 2003).
23 Hanna v. Environmental Protection Commission, 735 So. 2d 544 (Fla. 2d D.C.A. 1999).
24 The 2004 Legislature amended §70.51 to change the term “special master” to “special magistrate” as part of an overall revision of the statutory use of this term, which was perceived as being “outmoded” according to the staff analysis. See The bill was adopted and signed, and is at 2004 Fla. Laws ch.11. See
25 Scott v. Polk County, 793 So. 2d 85 (Fla. 2nd D.C.A. 2001).
26 Fla. Stat. §70.001(3)(e).
27 Fla. Stat. §70.001(3)(b).
28 Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978).
29 Compare Taylor v. Village of North Palm Beach, 659 So. 2d 1167, 1172-73 (Fla. 4th D.C.A. 1995) (applying federal ripeness standards).
30 Unfortunately, there is no legislative history to assist with the interpretation of the many issues raised by the “existing use” concept because it was a late night “technical” amendment to the act after its approval. See Vargas, supra note 12.
31 Fla. Stat. §70.001(6)(b).
32 See Fla. Stat. §95.11 (3)(f).
33 Fla. Stat. §70.001(12).
34 Fla. Stat. §70.001(4)(c).
35 Chief Judge Schwartz wrote that “the circuit court, in a comprehensive and insightful opinion by Judge Altonaga, rejected an attempt by a hotel owner and the City of Miami Beach to grant totally unjustified and illegal height variances through the device of a sweetheart ‘settlement’ of a spurious action by the hotel owner against the City under the [Harris Act]. I of course totally agree with this opinion and thus with the panel’s determination to deny review.. . . Beyond that, however, I think that this case is so rife with suspicion that the proceedings in this court, especially the presumptuous motion for rehearing en banc now before us, are, in turn, so clearly—indeed, at best—frivolous that sanctions should be imposed against the petitioners. . . . (citations omitted).” See 830 So. 2d at 843. Compare Parker v. St. Johns County, et al., 2002 WL 31846456 (Fla. DOAH Dec. 17, 2002) (at pages 5 through 7, quoting an order of a circuit court upholding such a settlement, and recommending that a small scale comprehensive plan amendment be found in compliance based in part on the settlement agreement).
36 See The bill was adopted and ordered enrolled. If it becomes law, it will take effect July 1, 2004.

Susan L. Trevarthen is board certified in city, county and local government law and primarily represents local governments in the areas of land use, local government, and related environmental and constitutional law with the firm of Weiss Serota Helfman Pastoriza Guedes Cole & Boniske, P.A., Ft. Lauderdale.

This column is submitted on behalf of the City, County and Local Government Law Section, Craig H. Coller, chair, and Jewel W. Cole, editor.

City, County and Local Government