On May 22, 2015, the Florida Supreme Court accepted review of a First District en banc decision that certified that following as a question of great public importance:

May a property owner maintain an action pursuant to the [Bert J. Harris, Jr., Private Property Rights Protection Act] if that owner has not had a law, regulation, or ordinance directly applied to the owner’s property which restricts or limits the use of the property?

See Smith v. City of Jacksonville, No. SC15-534. The Bert J. Harris, Jr., Private Property Rights Protection Act or “Harris Act” as it is commonly known provides relief or compensation to property owners when a new law “may inordinately burden, restrict, or limit private property rights without amounting to a taking” under the state or federal constitution. See § 70.001, Fla. Stat. (2012) (emphasis added). The Act filled a void in Florida law because, prior to its enactment, there was no means for an owner to receive compensation for the adverse financial effects of government regulation of land without satisfying the constitutional standards for a “taking,” namely physical invasion or the loss of all economically viable use. To view the First District’s slip opinion, click here.  See also City of Jacksonville v. Smith, 159 So. 3d 888 (Fla. 1st DCA Feb. 26, 2015).

In May 2005, R. Lee Smith and Christy Smith purchased undeveloped river front property next to a similar lot owned by the City of Jacksonville. Both lots were zoned “residential low density.” A deed restriction limited use of the City’s lot to the leisure and recreation of Duval County employees. In October 2005, the City cancelled this deed restriction and rezoned the property to construct a fire station. After construction was completed, the station included a two-story, 13,000 square foot building, which housed multiple fire and rescue vehicles, and a 265 foot dock with berths for two large fireboats and a Florida Marine Patrol boat. The Smiths sued for damages under the Harris Act claiming that the City’s construction and operation of a fire station next to their property “inordinately burdened” their property because it effectively made their property unmarketable as a luxury home site and diminished its value by $470,000.

After a bench trial, the trial court determined that the Smiths were left with an inordinate burden on their property “as to its viability for [luxury home] use.” The court rejected the City’s argument that the Act did not apply because the City had not taken any action directly against the property. The court directed that a jury be impaneled to determine the amount of the loss in the property’s value. The City appealed.

The First District reversed the trial court’s decision. The First District found that, based on language in the Act and an opinion of the Attorney General, there must be a direct regulatory restriction applied to plaintiffs’ property to maintain a Harris action. It found that the trial court’s interpretation of the Act “would create a cataclysmic change in the law of regulatory takings which common sense dictates the Legislature would not have intended without directly and specifically providing for it.” The First District also certified the above question for the Florida Supreme Court to answer.

Image Courtesy of Flickr by Vinnyman1 (no changes).