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Bill would assist property owners challenging government land-use restrictions

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Rep. Kaylee Tuck

Rep. Kaylee Tuck

A House panel has approved a measure that would make it easier for property owners to challenge government land-use restrictions under the Bert Harris Property Rights Act.

The House Property Rights and Veterans Affairs Committee voted 15-2 on April 1 to approve PCSMB for HB 421 and 1101, a proposed committee substitute that merges, respectively, bills by Rep. Kaylee Tuck of Sebring and Rep. Jenna Persons-Mulicka of Ft. Myers, both Republicans, and both land-use attorneys.

The measure would, among other things, change the definition of protected rights under the Bert Harris Act to include “any legal interest in land,” including “subsurface, and mineral estates and any other relevant land interest held by a landowner.”

Persons-Mulicka said the change was a “clarification” to better reflect case law and the intent of the original Bert Harris Act authors in 1995.

“Our Democratic-led Legislature realized that our existing law…didn’t protect people enough from government action,” she said. “Real property includes the whole bundle of rights that you have in your property.”

Critics, including the Sierra Club and the Florida League of Cities, warned that the measure would encourage litigation and tie the hands of regulators.

One provision would give property owners the right to challenge a land-use decision before a permit application has been denied.

Another would allow landowners who prevail to recovery attorney fees from the time they file a notice of intent, instead of from the time they file suit. It would reduce the notice period from 150 to 90 days.

Property owners would be able to ask that a judge, instead of a jury, determine the amount of damages.

David Cruze, deputy general counsel with the Florida League of Cities, said “the Bert Harris Act is working very well” and doesn’t need to be improved.

“It has a very balanced remedy provision, and there’s a couple of provisions [in the bill] that would move that balance,” he said. “The universe of people that would be affected is very greatly expanded.”

But Gary Hunter, a Tallahassee land-use attorney who represents the Association of Florida Community Developers, said it’s unfair to force property owners “hire an architect and an engineer” to prepare an application for a permit they already know will be denied.

Hunter said he has been representing clients with Bert Harris claims since 1995, and they very rarely “go to judgement.” The bill will drive more potential litigants to the bargaining table, he said.

“It will help resolve claims and not increase them,” he said.

David Cullen, a lobbyist for the Sierra Club, warned that expanding the Bert Harris Act definition to include “subsurface mineral rights” would encourage oil companies to expand fracking operations in a state already threatened by sea-level rise.

“From its inception, real property has always meant real estate for development,” Cullen said. “It will be used to intimidate local governments from exercising their rights.”

Jane West, policy and planning director for the environmental group, 1,000 Friends of Florida, said the bill ignores the rights of homeowners who expect local governments to protect their quality of life.

“This is yet another incremental expansion of the Bert Harris Act…without consideration of the impact on other property owners,” she said. “We would encourage you to stop weaponizing the Bert Harris Act.”

Adam Basford, director of legislative affairs for the Florida Farm Bureau, said he supports the bill because farmers need robust property rights protections.

“Their land is their most important asset,” he said. “It’s what they can borrow against…it’s their retirement account. When they’re burdened, they need to have recourse.”

Rep. Joe Harding, R-Ocala, who owns a landscaping and construction company, said he agrees with the Farm Bureau.

Protecting property rights will protect the environment, he said.

“The farmers are the last hope, they’re the first environmentalists,” he said. “They’re the last hope for any green space in Florida.”

The bill has one more committee stop, in Judiciary, before reaching the House floor. A companion, SB 1876, by Sen. Ben Albritton, R-Bartow, also has one more committee stop, Rules, before reaching the Senate floor.

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