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Date of Issue: March 17, 2005

Height ordinance could open up 'Bert Harris' can of worms

Anna Maria city commissioners set to hear the final reading of an ordinance at their Nov. 18 meeting limiting the height of new development along Pine Avenue in the residential-office-retail district might want to first consider the Bert Harris Jr. Private Property Rights Act enacted by the Florida Legislature in 1995.

The act provides for compensation to private property owners when an act of government is shown to lower the "future fair market value" of their property.

According to the Florida State Law Review (1996), the act, named after Highlands County legislator Bert J. Harris Jr., "protects a landowner's existing use of the land," or a "vested right to a specific use of the land from an inordinate burden" created by an action of a government entity.

While the BHA does say that an existing use of the land is "an actual or present use on real property," it adds that there are some circumstances in which a "prospective future use [of the property] may be considered an existing land use and therefore, compensable."

Does that mean lowering the building height along Pine Avenue from 37 feet to 27 feet takes away a future fair market value?

Sandra Oldham of 307 Pine Avenue doesn't know, but she wants the commission to consider the Bert Harris Act before taking any action.

In a Nov. 8 letter to the commission, Oldham said she objected to the ordinance because "it is unfair to property owners who choose to operate a business with a residence in the ROR district, and devalues the value of all properties in the ROR district." That's because the current ordinance allows a residence above the first floor of business up to the 37-foot limit, which would allow two floors of residential living area. A 27-foot height restriction would eliminate one floor of livable space.

Removing one floor of buildable living area could devalue the future fair market value of the property, she contended.

Under the BHA, landowners are entitled to seek compensation for the actual or future loss to the fair market value of a property affected by a government action, she said.

And an aggrieved property owner doesn't have to first file a civil action against the government entity, according to the FSU Law Review.

The Bert Harris Act says that the affected property owner can file a claim with the government body. The claim must include an appraisal that demonstrates the current or future loss in fair market value to the property by the government's action. The governmental body then has 180 days to respond, either to make an offer at resolution or to dispute the claim.

If the governmental body rejects the claim, the property owner can pursue the matter through civil court.

Under the BHA, compensation offered by the governmental entity does not necessarily have to be monetary, but could be in the form of other mitigation.

If the governmental body involved agrees to mitigation, but can't reach an agreement with the property owner, that owner can then proceed in civil court.

Oldham said she's making no claim that the height ordinance would result in any claims against the city under the BHA, only that it could be a "can of worms" if passed.

Bert Harris winners
A loss by any governmental entity under a Bert Harris claim could be expensive.

Since the Bert Harris Act was passed in 1995, there have been 200 claims, according to the FSU Law Review. Of those, 193 were either settled out of court or withdrawn by the applicant. Only seven cases reached a decision by a civil court, five of which were won by the applicant.

In the most recent Bert Harris case, residents of Vanderbilt Beach near Naples in Collier County won a $375 million civil court judgment in September 2004 from the county commission under the Bert Harris Act. The court ruled that a county commission ordinance had, indeed, taken away a future fair market value of the residents' property.