Bert Harris

Question 1

3 Factors

Answer 1

Mafioso Bert “VIC” Harris
VIC is Permanently Burdened by a Direct FIB
———–
1. Vested right to a use or existing use
2. Inordinately burdened
3. Compensation, incl variance & $ loss to FMV.

Question 2

What must accompany a Claim?

Answer 2

Appraisal by certified or licensed appraiser (complies w/ 475.611) that shows loss in FMV.
———–
NOTE - does NOT require a Valid appraisal - requires 475.611

Question 3

Dfn. Action of LG - New 2021

Answer 3

Act on permit, pass ordinance.
LG inaction does not qualify.

Question 4

Dfn. Real Property Interest - New 2021

Answer 4

Includes subsurface, minerals, any interest.

Question 5

Dfn. Inordinately Burden

Answer 5

BERT HARRIS
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Mafioso VIC is Burdened Permanently by a Direct FIB.
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1.   Permanent restriction.
2.  Direct restriction.
3.  Foreseeable use. 
4.  o unable to attain Investment Backed expectation.

Question 6

Who can claim?

Answer 6

Title owner only, not neighbor.

Question 7

Retain claim? New 2021

Answer 7

O retains rights of claim even if conveys property before claim resolution.

~~somewhat similar, develop rts of parent parcel do not pass w/ fee title~~

Question 8

What cannot support a Bert Harris claim?

Answer 8

BERT HARRIS

a. Use not reas foreseeable (ex. requires legis change).
b. Temporary burden.
c. Burden czd by LG remediating a public nuisance.

Question 9

BERT HARRIS
Settlement - New 2021

Answer 9

BERT HARRIS
Settlement offers presumed to protect the public interest.
———–
Case law required. Now EXPRESSLY STATED.

Question 10

What does Court review determine?

Answer 10

If LG inordinately burdened.

Question 11

BERT HARRIS
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Atty Fees - New 2021
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State:
(1)  From when they start & 
(2)  Who decides?

Answer 11

Either side can get from date presented claim.
———–
JUDGE only gives. No jury. (although jury can decide compensation, w/o AF).

Question 12

LG housekeeping if settlement accepted.

Answer 12

LG has 15 days to notify Dept. of Legal Affairs.

Question 13

What are 2 factors affecting when regulation is 1st applied to property, thus initiating 1 yr claim deadline.

Answer 13

BERT HARRIS

1. Written notice mailed by LG to O.
2. Impact of law on prop is clear and unequivocal.

Question 14

Is O application for development order always required? New 2021

Answer 14

No. Under enact-only O may write an impact letter. No app needed.

Question 15

Name 4 exemptions to Bert Harris.

Answer 15

BERT HARRIS
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The 1995 METs are exempt from Harris.
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The following are not eligible for Harris claims:
A.	Regs & orders pre-5/11/1995;
B.	Related 
(1)     Maps of Flood Insurance Rate.
(2)    Eminent Domain, re: transportation.
(3)    Transportation facilities.

Question 16

Does Sovereign Immunity protect LG?

Answer 16

No - it is waived!

Question 17

Limits on court remedies.

Answer 17

Once suit filed, O can only get money damages.

Question 18

Can neighbor assert BH claim?

Answer 18

No. Title O only,

Question 19

If Court determines LG inordinately burdened, how can parties proceed?

Answer 19

Bert Harris

(1) LG can file interlocutory appeal.
(2) O empanel jury OR Judge* for dmgs.
* new 2021
* BUT only JUDGE decides C+AF*

Question 20

BERT HARRIS
Who determines O damages?

Answer 20

Jury or Court. BUT only JUDGE decides C+AF from date of claim (not date of suit)
———–
New 2021 - for DAMAGES, O can forego Jury & opt for dmgs.

Question 21

BERT HARRIS
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What are the 2 modes of transmission required for: 
(1)   Owner's claim
(2)  LG's response?

Answer 21

Certified mail & email (if avail).

Question 22

11 thing LG can do in its response to Owner’s Bert Harris claim?

Answer 22

BERT HARRIS

1.  Change permit stds or DUI (density, use, intensity).
2. Transfer developmental rights or swap lands.
3.  Mitigate, including $ in lieu of onsite mitigation.
4.  Locate to least sensitive portion of the property.
5.  Conditioning amt of development or use permitted.
6.  Address multi-issues on comprehensive basis rather than a single proposed use or development.
7.  Issue development order, variance, special exception, or other extraordinary relief.
8.  Compensate or purchase the property.
9.  Nothing.

Question 23

When might regulation impact on property not be readily ascertainable?

Answer 23

If regulation generally & potentially applies to property (if LG retains discretion to approve or disapprove), may not readily ascertainable until permit denial.

Question 24

Does claim deadline start ticking from date of ruling on development order?

Answer 24

No. Starts from the date of rendition of the order.

Question 25

Dfn. “Property Owner.”

Answer 25

One whose real property is the subject of and directly impacted by the action of LG.

Question 26

Dfn. “Real Property”

Answer 26

Parcels that are the subject of and directly impacted by the act of LG.

Question 27

Can LG inaction give rise to Bert Harris claim?

Answer 27

No.

Question 28

State statutory definition of “exists,” i.e., when use or vested right to use “exists.”

Answer 28

Not defined in statute. Decided by Court.

Question 29

BERT HARRIS
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What guidance does statute give courts in determining "exists"?
(a) USE
(b) VESTED RT

Answer 29

BERT HARRIS
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Statute does not define but says:
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USE, actual, foreseeable & enhances FMV
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existing VESTED RT
Apply equitable estoppel or Florida statutory law.

Question 30

How does equitable estoppel determine an O has a vested right to use?

Answer 30

you can’t Equitably eSTOP a GOOD ACT from CHANGING you.
———–
It’s inequitable & unjust to destroy O’s acquired right if:
1) In GOOD faith;
2) Upon lg ACT or omission;
3) Made substantial CHANGE or incurred extensive expenses.

Question 31

Dfn. “Existing use.”

Answer 31

ACTUAL:
Can be inactive & can be incidental.
POTENTIAL:
(a) Reasonably foreseeable, non-speculative use
(b) Suitable & compatible with adjacent &
(c) Creates FMV greater than FMV of actual use.

~~I miss this tending to think that FMV effect is an element of Bert Harris. That is “Foreseeable use.”~~

Question 32

Are business damages available in Bert Harris lawsuit?

Answer 32

No.

Question 33

Why does statute encourage written settlement offers?

Answer 33

NEW 2021 - They are presumed to protect the public interest.

Question 34

Who decides Bert Harris damages, judge or jury?

Answer 34

NEW 2021 - Judge is now an option. (previously strictly jury).

Question 35

From when can AF be considered for an award?

Answer 35

NEW 2021 - From time O notifies LG of claim. (previously from time filed suit).

Question 36

Does O lose its claim/lawsuit if O sells property during the proceeding?

Answer 36

NEW 2021 - No.

Question 37

BERT HARRIS
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What can O do if:
LG enacts a law that unequivocally affects O's property, 
Gives O no notice,
BUT
O isn't seeking a permit at this time?

Answer 37

NEW 2021 -
O may send ‘impact letter’ to LG via cert mail & EM (if avail). No need to make application.

Question 38

Can O use Bert Harris for a facial challenge to a new law?

Answer 38

Yes. Only applies to laws after 5/11/1995

Question 39

What are specifically exempt from being an exaction & Bert Harris claims?

Answer 39

Impact fees.
Non-ad valorem assessments.

Question 40

Who gets to simply send an impact ltr as a prerequisite for a Bert Harris?

Answer 40

BERT HARRIS
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Enact-Only.  ~~I miss this one a lot.~~
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See deck "Bert Harris, Mechanics & Timelines."