HomeMy WebLinkAboutR-2003-078 Harris Act REVISED FINAL RESOLUTION NO. 2003-078
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA EXPRESSING
OPPOSITION TO SENATE BILL 1164 AND HOUSE BILL 113
WHICH SET FORTH AMENDMENTS TO THE BERT J.
HARRIS, JR. ACT AND ANY AND ALL OTHER PROPOSED
AMENDMENTS THAT WOULD SUBJECT LOCAL AND
STATE GOVERNMENTS TO FURTHER LIABILITY FOR
THE CONSTITUTIONAL EXERCISE OF THEIR
LEGISLATIVE AND QUASI-JUDICIAL RESPONSIBILITIES
AND POWERS; TRANSMITTING THE RESOLUTION TO
THE PRESIDENT OF THE SENATE, SPEAKER OF THE
HOUSE AND GOVERNOR; SETTING AN EFFECTIVE DATE.
WHEREAS, the Bert J. Harris, Jr. Private Property Rights Protection Act ("Harris Act"), as
codified in Section 70.001 of the Florida Statutes, was enacted in 1995 to provide a limited remedy
for property owners when their property has been "inordinately burdened" by the action of a
governmental entity; and
WHEREAS, since its inception, numerous commentators and governments alike have
expressed concern that the Harris Act is impermissibly vague, fraught with various problems in its
application and interpretation, and has had a chilling effect upon numerous governments in their
planning and zoning activities; and
WHEREAS, in the eight years since the enactment of the Harris Act, there have been over
258 claims asserted against local governments in Florida; and
WHEREAS, despite its various constitutional infirmities relating to, inter alia, its failure to
define "inordinate burden" and "reasonable, investment-backed expectations;" the automatic
ripeness provisions that appear to violate separation of powers doctrine; and the uncertainties
inherent in its attempt to create a statute of limitations period; the Act nonetheless provided in clear
language that it does "not affect the sovereign immunity of government"; and
WHEREAS, the legislation proposed via Senate Bill 1164 and House Bill 113, if
constitutional, in part seeks to adversely affect the ad valorem taxpaying public of Florida in as
many as 258 other claims pending statewide, by not only amending the Harris Act to provide for a
total waiver of sovereign immunity for government, but providing that such waiver is retroactive to
May 11, 1995; and
WHEREAS, the economic impact of amending the Harris Act as proposed and making it
retroactive for eight (8) years would be devastating for the State and for local governments
statewide; and
WHEREAS, that portion of the proposed legislation which seeks to abolish sovereign
immunity protection retroactive to May, 1995, if enacted, and determined to be constitutional,
• would frustrate as much as eight years of litigation throughout the State (5 years in the City of
Miami Beach alone), the expenditures of inordinate amounts of public and private funds for
1 RESOLUTION NO. 2003- 078
attorneys' and appraisers' fees and court costs, and potentially would set off a brand new round of
litigation between the public and private sectors; and
WHEREAS, the gross inequity of such a result is exacerbated when it is realized that the
actual value of the properties which are subject to pending claims have increased, in many cases in
exponential proportion in excess of their respective actual values since May, 1995, thereby creating
the possibility for unjustly enriching the respective owners far beyond any investment-backed
expectations; and
WHEREAS, of greater or equal impact, the proposed amendments, if enacted, will
seriously impair local governments in their efforts to comply with State-mandated requirements in
such areas as growth management, comprehensive planning, concurrency, protection of fragile,
environmentally sensitive areas such as wetlands, beachfronts and forestlands, concern with
carrying capacity, and many other quality of life concerns; and
WHEREAS, during the century and one half of Florida's existence, a comprehensive body
of law has developed through Court interpretation of the State and Federal Constitutions and
legislative enactment which has defined "takings" and the power and cost to the public incident to
the exercise of eminent domain, all of which have amply protected and amply protect private
ownership interests against the necessary as well as the arbitrary and capricious action of state and
local governments.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF
• THE CITY OF DANIA BEACH, FLORIDA that:
Section 1. The aforegoing recitations are adopted in their entirety.
Section 2. The City opposes the enactment of Senate Bill 1164 and
House Bill 113 which set forth amendments to the Harris Act and further
opposes any and all other proposed legislative enactments which would
subject State and local governments to further liability for the
constitutional exercise of their legislative and quasi-judicial
responsibilities and powers.
Section 3. The Clerk is directed to provide certified copies of this
Resolution to the President of the Senate, Speaker of the House, and the
Governor.
Section 4. This Resolution shall become effective upon adoption.
PASSED and ADOPTED this 8TH day of APRIL, 2003.
2 RESOLUTION NO. 2003-078
•
B ANTON
MAYOR-COMMISSIONER
ATTEST: ROLL CALL:
COMMISSIONER CHUNK - YES
4,14 ()4� COMMISSIONER FLURY - YES
CHARLENE JOHNJON COMMISSIONER MIKES - YES
CITY CLERK VICE-MAYOR MCELYEA - YES
MAYOR ANTON - YES
APPROVED AS TO FO AND CORRECTNESS:
BY: �r
TH WAS J. ANSBRO
CITY ATTORNEY
3 RESOLUTION NO. 2003-078
AGENDA REQUEST FORM
CITY OF DANIA BEACH
AGENDA ITEM NO.!;e
1. DATE OF COMMISSION MEETING: APRIL 8, 2003
2. DESCRIPTION OF AGENDA ITEM: AMENDMENT—BERT J. HARRIS JR ACT
3. COMMISSION ACTION BEING REQUESTED: ADOPT RESOLUTION
4. SUMMARY EXPLANATION & BACKGROUND: SEE STAFF REPORT
5. ATTACHED EXHIBITS AND ADDITIONAL BACKUP MATERIALS (PLEASE LIST):
Resolution
Staff report
6. FOR PURCHASING REQUESTS ONLY: Dept: Amount: $
7. REVIEWED AND APPROVED FOR ADDITION ON AGENDA:
Submitted by:
Laurence G. Leeds, AICP, Director Date April 2, 2003
Growth Management Department
City Manager Date
STAFF REPORT
GROWTH MANAGEMENT DEPARTMENT
DATE: April 8, 2003
TO: Ivan Pato, City Manager
VIA: Laurence Leeds, AICP, Director G G
FROM: Corinne Church, AICP, Principal Planner so
RE: A Resolution Expressing Opposition to Senate Bill 1164 and House Bill
113 amending the Bert J. Harris, Jr. Act.
The Bert J. Harris, Jr. Private Property Rights Protection Act (70-001 Florida Statues) was
enacted in 1995 to provide a limited remedy for property owners when their property has been
"inordinately burdened" by the action of a governmental entity. Since its inception, local
governments have expressed concern that the Bert J. Harris, Jr. Act is impermissibly vague,
fraught with various problems in its application and interpretation, and has had a chilling effect
upon numerous governments in their planning and zoning activities. In the eight (8) years
since the enactment of the Bert J. Harris, Jr. Act, there have been over 258 claims asserted
against local governments in Florida. There is at least one Bert J. Harris claim against the City
of Dania Beach.
Despite its various legal deficiencies regarding a failure to define "inordinate burden" and
"reasonable, investment-backed expectations", the current Act still provides in clear language
that it does"not affect the sovereign immunity of government".
The proposed legislation would waive the sovereign immunity for local governments, not just
for future claims, but for all existing claims retroactive to 1995 That portion of the proposed
legislation which seeks to abolish sovereign immunity protection would frustrate as much as
eight (8) years of litigation throughout the State, the expenditures of inordinate amounts of
public and private funds for attorney's and appraisers fees and court costs, and potentially
would set off a brand new round of litigation between the public and private sectors.
Most important, the proposed amendments, if enacted, will seriously impair the City of Dania
Beach in its efforts to comply with State-mandated requirements in such areas as growth
management, comprehensive planning, concurrency, and protection of fragile, environmentally
sensitive areas such as wetlands, beachfronts, and wooded areas
STAFF RECOMMENDATION
Staff has reviewed the Florida Senate Bill 1164 and House Bill 113 and recommends that the
® City Commission pass a Resolution opposing these amendments.
Bert Harris staff report.doc
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P FLORIDA
April 9, 2003
Senator Steven Geller
400 South Federal Highway#204
Hallandale Beach, F133009
Re: Proposed Amendments to the Bert J. Harris Act
Dear Senator Geller:
Enclosed are copies of a Resolution of the City Commission of the Dania Beach
expressing the City's opposition to the referenced amendments which you are proposing
to be adopted by the Florida Legislature during the current legislative session and a letter
sent by me, on behalf of the City, to Governor Bush and elected state officials, including
you.
The City of Dania Beach is alarmed and dismayed to find that you, as one of our
® principal representatives in the state capitol, are sponsoring legislation which could
seriously undermine the City's ability to perform its constitutional legislative duties, by
exposing them to the substantial risks of litigation and damages for a function which has
been, and must necessarily remain, immune from suit, if localities are to continue to
govern effectively. The retroactive feature of the proposal is also likely to disrupt the two
hundred and fifty-eight (258) lawsuits which were brought under the Act, by re-opening
the claims to new claims for economic relief which could never have been foreseen, since
the Act itself has consistently and expressly provided that it "does not affect the
sovereign immunity of government".
On behalf of the citizens of Dania Beach, who are also your constituents, the City urges
you to reconsider your sponsorship and to send this measure to a committee comprised of
all parties concerned, to allow them the opportunity to work together to fashion and
propose amendments which achieve the objective we all seek, which is the equitable
balance of property rights, to be enjoyed by those who own property and those who seek
to regulate it for the common good.
Sincerely, ,
Robert Anon
® Mayor j
"Broward's First City"
100 Wesr Dania Beach Boulevard Dania Beach, Florida 33004 Phone: (954) 924-3600 www.ci.dania-beach.ft.us
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FLORIDA
1
April 10, 2003
Governor Jeb.Bush
State of Florida
Executive Office of the Governor
The Capitol
Tallahassee, Florida 32399-0001
Re: Resolution of City of Dania Beach, Florida Expressing Opposition to Harris
Act Amendments (HB 1113 and SB 1164)
Dear Governor Bush:
Enclosed please find a copy of a Resolution passed by the City Commission of the City
of Dania Beach, Florida expressing opposition to Senate Bill 1164 and House Bill 113 which
propose amendments to the Bert J. Harris, Jr. Private Property Rights Protection Act ("Harris
Act"). The amendments proposed in the subject Bills would have serious adverse effects upon
local governments throughout the State. For example, the amendments would allow claims to
commence within one year after a law or regulation has been "first applied" to a particular
property, yet the enactment of a new law would not constitute "applying the law or regulation to
a property." This provision effectively makes the period for filing claims open-ended, thereby
subjecting governmental entities and their citizens to unpredictable future liability. Moreover,
another provision in the proposed legislation would not only waive sovereign immunity
protection for all governmental entities against which claims have been asserted under the Harris
Act, but such waiver would be retroactive to May, 1995. This provision would have devastating
economic impacts upon local governments throughout the State.
The City of Dania Beach opposes the proposed amendments. That does not mean that
reasonable amendments may not be considered, but it is unclear as to whether the proponents are
interested in compromise or whether anything less than a repeal of the Harris Act in its entirety
can remedy its various constitutional infirmities. Those infirmities include, inter alia, vagueness
in its definitions of "inordinate burden" and "reasonable, investment-backed expectation"; the
violation of the separation of powers doctrine by its automatic "ripeness" or "final decision"
provisions; and the creation of an "unfunded mandate" by imposing liability without any
mechanism for funding. From its inception, the Harris Act has not served its expectation as a
measure to protect homeowners or owners of agricultural lands that were unfairly disadvantaged
"Broward's First City"
100 \Vcsr Dania Beach Boulevard Dania Beach, Florida 33004 Phone: (954) 924-3600 www.ci.dania-beach.tl.us
,p
by the rezoning of surrounding areas resulting in something short of a full "taking." Instead of a
• shield for homeowners and farm property owners, the Harris Act has become a sword for large
developers and land investors to seek compensation for paper losses due to poor business or
speculation decisions. The public is not benefited when, for example, as occurred in Miami
Beach, comprehensive planning and zoning decisions are made to meet State mandates, and to
improve quality of life, only to be challenged by developers who are given a vehicle to invade
the public treasury when they have either made no application for development, or had permits in
hand that.lapsed. Our ad valorem taxpayers will have to ultimately carry this burden!
These legislative proposals will have significant economic impacts on local governments
in Florida which far exceed the millions of dollars in claims already brought under the Act.
Since the Harris Act was adopted in 1995, there have been, according to our best information,
over 258 claims asserted against local governments. Some of those claims have been disposed of
by settlement, some have been abandoned, some have actually gone to trial, and some are
pending in the courts. One of the claims against the City of Miami Beach resulted in a Summary
Judgment favorable to that city (Royal World Metropolitan Inc., et al v. City of Miami Beach,
Case No. 99-17243, 111h Judicial Circuit Court, in and for Miami-Dade County). (See Exhibit
B). This result was based on the Court's determination that the doctrine of Sovereign Immunity
was applicable and immunized the city from liability for its legislative actions in making
comprehensive zoning changes. This holding was supported by decades of established case law
and by clear language in the Act which provides:
"This Section does not affect the sovereign immunity of government."
• §70.001(13), Fla. Stat. The decision in Royal World has been appealed to the Third District
Court of Appeal of Florida and is presently pending consideration.
The proposed Hams Act amendments are an unabashed attempt to interfere with the
pending judicial process in the Royal World case, as well as the numerous other cases pending
before the various courts in this State. That portion of the proposed legislation which seeks to
abolish sovereign immunity protection retroactive to May 1995, if enacted, and if determined to
be constitutional, would inject itself into over five years of litigation, the expenditures of
inordinate amounts of public (and private) funds for attorneys and appraisers' fees, and court
costs, and will potentially set off a brand new round of litigation between the public and private
sectors.
Assuming that the proposed retroactive legislation can pass constitutional muster, the
economic impact on the general funds of local governments can be devastating. In Miami Beach
alone, the amounts claimed in eight remaining pending cases total $24,817,750. To that sum can
be added interest, attorneys' fees and court costs. The gross inequity of such a result is
exacerbated when it is realized that the actual value of the properties which are the subject of the
pending claims have increased, in many cases in exponential proportions in excess of their
respective actual values as of May 1995, thereby unjustly enriching the respective owners far
beyond"investment based expectations."
I r;P
)Y
These Bills, if enacted, will seriously impair local governments in their efforts to comply
with state mandated requirements, such as growth management, comprehensive planning,
concurrency, protection of fragile environmentally sensitive areas, wetlands, forest lands,
beachfronts, concern with carrying capacity, and many other quality of life concerns.
I hope that this analysis, although brief, will be of assistance to you and to our policy
makers in explaining the degree of damage which can unnecessarily result to governmental
entities in Florida. Such damage will directly impact the ad valorem tax payers of Florida, who
are constituents of the State policy makers, as well as the local policy makers.
Sincerely,
Mayor
City of Dania Beach, Florida
cc: James E. King, Jr., President of the Senate
Johnnie B. Byrd, Speaker of the House
Sen. Steven Geller, Chairman, Senate Comprehensive Planning Committee
Sen. Alex Villalobos, Chairman, Senate Judiciary Committee
Rep. Ken Sorenson, Chairman, Local Government and Veteran's Affairs
Rep. Jeff Kottcamp, Chairman, House Judiciary Committee
Rep. Joseph Spratt, Chairman,House Natural Resources Committee
Florida Senate - 2003 SB 1164
By Senators Pruitt and Geller
28-665A-03
1 A bill to be entitled
2 An act relating to property rights; amending s.
3 70 . 001, F.S. , the "Bert J. Harris, Jr. , Private
4 Property Rights Protection Act"; amending
5 procedures for determining a governmental
6 entity's final decision identifying the
7 allowable uses for a property; providing that
8 enactment of a law or adoption of a regulation
9 does not constitute applying the law or
10 regulation; providing for a retroactive waiver
11 of sovereign immunity for liability; providing
12 an effective date.
13 WHEREAS, the Legislature wishes to clarify its original
14 intent with respect to a waiver of sovereign immunity under
® 15 section 70.001 (13) , Florida Statutes, the Bert J. Harris, Jr. ,
16 Private Property Rights Protection Act, and, therefore, to
17 make the effective date of the clarification retroactive to
18 May 11, 1995, the date of adjournment sine die of the
19 Legislative Session in which section 70.001, Florida Statutes,
20 was enacted, and
21 WHEREAS, the Legislature wishes to make other changes
22 to clarify provisions of this act and to improve the reporting
23 of cases filed under the act, NOW, THEREFORE,
24
25 Be It Enacted by the Legislature of the State of Florida:
26
27 Section 1. Paragraph (b) of subsection (4) , paragraph
28 (a) of subsection (5) , and subsections (11) and (13) of
29 section 70 .001, Florida Statutes, are amended to read:
30 70.001 Private property rights protection. --
31 (4)
1
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® Florida Senate - 2063 SB 1164
28-665A-03
1 (b) The governmental entity shall provide written
2 notice of the claim to all parties to any administrative
3 action that gave rise to the claim, and to owners of real
4 property contiguous to the owner's property at the addresses
5 listed on the most recent county tax rolls. Within 15 days
6 after the claim is Bing presented, the governmental entity
7 shall report the claim in writing to the state land planning
8 a enc Bepaxtritent of Beja± kEfai=s,and shall provide the
9 agencydepartntient, with the name, address, and telephone 71 number
10 of the employee of the governmental entity from whom
11 additional information may be obtained about the claim during
12 the pendency of the claim and any subsequent judicial action.
13 (5) (a) During the 180-day-notice period, unless a
14 settlement offer is accepted by the property owner, each of
® 15 the governmental entities provided notice pursuant to
16 paragraph (4) (a) shall issue a written ripeness decision
17 identifying the allowable uses to which the subject property
18 may be put. The failure of the governmental entity to issue
19 such a written ripeness decision during the 180-day-notice
20 period shall cause he deented to ripeln the prior action of the
21 governmental entity to become its final decision identifying
22 the uses for the subject property, an"' shall 0jderate
23 -------- that has been rejected by the propexty
24 owner. Whether rendered by submission of a written decision
25 during the 180-day-notice period or by failure to submit such
26 a written decision, the final decision of a governmental
27 entity produced under this paragraph operates as a final
28 decision that has been rejected by the property owner. This
29 final decision The ripeness decisim , as a matter of law,
30 constitutes the last prerequisite to judicial review of the
31 merits, and tile Matter shall be deented ripe or final for the
2
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Florida Senate - 2063 SB 1164
28-665A-03
1 purposes of the judicial proceeding created by this section,
2 notwithstanding the availability of other administrative
3 remedies.
4 (11) A cause of action may not be commenced under this
5 section if the claim is presented more than 1 year after a law
6 or regulation is first applied by the governmental entity to
7 the property at issue. Enacting a law or adopting a regulation
8 does not constitute applying the law or regulation to a
9 property.If an owner seeks relief from the governmental
10 action through lawfully available administrative or judicial
11 proceedings, the time for bringing an action under this
12 section is tolled until the conclusion of such proceedings.
13 (13) In accordance with s. 13, Art. X of the State
14 Constitution, the state, for itself and for its agencies or
15 subdivisions, waives sovereign immunity for liability for
® 16 actions subject to this section, but only to the extent
17 specified in this section. This subsection applies
18 retroactively to May 11, 1995.This sect±orr-does-nor
19 tile
20 Section 2. This act shall take effect July 1, 2003,
21 and the amendment to section 70.001 (13) , Florida Statutes,
22 shall operate retroactively to May 11, 1995.
23
24 * r*********** r,r*** ►**,t**** r***,t**********
25 SENATE SUMMARY
26 Amends s. 70.001, F.S. , the "Bert J. Harris, Jr. , Private
Property Rights Protection Act. " Amends procedures for
27 determining a governmental entity's final decision
identifying the allowable uses for a property. Provides
28 that enactment of a law or regulation does not constitute
application of the law or regulation. Provides for a
29 waiver of sovereign immunity for liability, retroactive
30
to May 11, 1995.
31
3
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
Mr
"® HB 0113 2003
1 A bill to be entitled
2 An act relating to private property rights; amending s .
3 70. 001, F.S. ; redefining the term "action of a
4 governmental entity"; revising language with respect to
5 the final decision of a governmental entity identifying
6 the allowable uses for certain property; providing
7 language with respect to the first application of a law or
8 regulation that alters the density, intensity, or use of
9 certain property; providing a waiver of sovereign
10 immunity; providing an effective date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1 . Paragraph (d) of subsection (3) , paragraph (a)
® 15 of subsection (5) , and subsections (11) and (13) of section
16 70 . 001, Florida Statutes, are amended to read:
17 70. 001 Private property rights protection. --
18 (3) For purposes of this section:
19 (d) The term "action of a governmental entity" means a
20 specific action of a governmental entity which affects real
21 property, including, but not limited to, the adoption of any
22 regulation that alters the density, intensity, or use of the
23 owner' s property and any action on an application or permit.
24 (5) (a) During the 180-day-notice period, unless a
25 settlement offer is accepted by the property owner, each of the
26 governmental entities provided notice pursuant to paragraph
27 (4) (a) shall issue a written decision identifying the
28 allowable uses to which the subject property may be put. The
29 failure of the governmental entity to issue said a written
30 fieenees decision during the 180-day-notice period shall cause
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F L 0 R I D A H 0 U S E. O F R E P R E S E N T A T I V E S
01C
HB 0113
2003
31 be deemed to rip the prior action of the governmental entity
32 to become its final decision identifying the allowable uses for
33 the subject property. Whether rendered by submission of a
34 written decision during the 180-day-notice period or by failure
35 to submit said written decision, the final decision of a
36 governmental entity or entities produced by this paragraph
37 shall, and shall perate as a r4:penessdeeislen that has been
38 Ee jeet . ep er-ty-ems-The-rige=e s s de e l s i en, as a
39 matter of law, constitute ensti -id the last prerequisite to
40 judicial review of the merits,-and the matter shall be deem
41 yipeer final for the purposes of the judicial proceeding
42 created by this section, notwithstanding the availability of
43 other administrative remedies.
44 (11) (a) A cause of action may not be commenced under this
0 section if the claim is presented more than 1 year after a law
46 or regulation is first applied by the governmental entity to the
47 property at issue.
48 (b) For the purposes of this section, a law or regulation
49 that alters the density, intensity, or use of the owner' s
50 property is first applied to the property upon adoption of such
51 law or regulation if actual notice, as described in s.
52 125 . 66 (4) (a) , is given to the property owner. Where actual
53 notice is not provided, the law or regulation is first applied
54 when a specific action of the governmental entity affects the
55 owner' s parcel of real roperty.
56 (c) If an owner seeks relief, including development
57 approval or a variance from a law or regulation that alters the
58 density, intensity, or use of the owner' s property, from the
59 governmental action through lawfully available administrative or
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 0113 2003
60 judicial proceedings, the time for bringing an action under this
61 section is tolled until the conclusion of such proceedings .
62 (13) In accordance with s. 13, Art. X of the State
63 Constitution, the state, for itself and for its agencies or
64 subdivisions, waives sovereign immunity for liability to the
65 extent specified in this act. This provision shall be applied
66 retroactively to May 11, 1995. Thi:seetren gees net affect the
67
68 Section 2 . This act shall take effect upon becoming a law.
i'
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