By: Nathan Cochran | Student at the University of Florida Levin College of Law, Class of 2025
Florida property rights are grounded in the state constitution, which guarantees individuals the right to acquire, possess, and protect private property. This right, outlined in Article I, Section 2 of the Florida Constitution, is secured against governmental actions that result in a complete “taking” of title or deprivation of the value of one’s property under Article X. However, not all governmental actions constitute a full constitutional taking of private property.
Enter Bert Harris Jr., a Florida Agricultural Hall of Famer and one of the state’s most prominent advocates for private property rights. Harris Jr. and other Florida legislators were tasked with addressing the gap between the constitutional remedy of full compensation for total takings and the lack of a meaningful remedy for governmental actions that imposed an “inordinate burden” on private property. Before the passage of the Bert Harris Act in 1995, private property owners had no recourse for recovering losses from governmental actions that fell short of a complete constitutional taking.
As I discussed in an article last month, Florida adopted the country’s most comprehensive property rights legislation in response to growing concerns over overdevelopment and unsustainable population growth. The legislation had two distinct, but related parts. The first, the Bert J. Harris, Jr. Private Property Rights Protection Act (Bert Harris Act), created a cause of action for private property owners to receive money damages based on inordinate burdens of real property imposed by the government. The second, the Florida Land Use and Environmental Dispute Resolution Act (Dispute Resolution Act), established a mediation process by which landowners could acquire relief from government restrictions that were allegedly “unfair” or “unreasonable.” The former provided substantive property rights protection and procedural safeguards, which was uncharted territory.
Since the inception of the Bert Harris Act, however, courts have struggled to determine the statute’s scope and limits of the Act’s protections. This uncertainty has impaired the process by which government officials make zoning and other land use decisions. Local government officials are often unwilling to deny development permits, fearing costly claims from property owners that could supposedly strain local budgets, giving rise to Developers using intimidation efforts, including threats of lawsuits against local governments if projects are denied. Perhaps this is why most Bert Harris claims are settled by the parties, often in favor of developers. This tendency to settle claims prevents courts from establishing clear standards to determine under which circumstances landowners are entitled to compensation.
The Bert Harris Act undoubtedly shifted the balance of power between real estate developers and the public, significantly restraining the government’s ability to implement new land use regulations. This shift created the so-called “chilling effect” I referenced in last month’s article, where local planners and government attorneys find themselves constrained in performing their duties effectively. The clear winners of Florida’s takings initiative have been the well-endowed special interest groups. Much anecdotal evidence indicates that influential developers can strong-arm the government into granting development rights, leaving public outcry unheard. Why are these well-positioned players allowed to override public interests and essentially coerce local governments into removing regulatory obstacles, enabling larger and more environmentally intrusive developments than would otherwise be available in the absence of the legislation?
Although champions of property rights often claim they are protecting homeowners, in many instances, regulatory decisions made in the shadow of the Bert Harris Act have done more harm than good for the average homeowner. The original purpose of the Bert Harris Act seems to have been lost, evolving into a tool—or even a weapon—for developers to secure higher densities and expanded uses, leading to greater financial returns that were once unobtainable. As courts are left with the very difficult task of grappling with the nuances of the Bert Harris Act, they face the ongoing challenge of balancing private property rights with the broader public interest.
