Bert Harris Flashcards
3 Factors
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.
What must accompany a Claim?
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
Dfn. Action of LG - New 2021
Act on permit, pass ordinance.
LG inaction does not qualify.
Dfn. Real Property Interest - New 2021
Includes subsurface, minerals, any interest.
Dfn. Inordinately Burden
BERT HARRIS ----------- Mafioso VIC is Burdened Permanently by a Direct FIB. ----------- 1. Permanent restriction. 2. Direct restriction. 3. Foreseeable use. 4. o unable to attain Investment Backed expectation.
Who can claim?
Title owner only, not neighbor.
Retain claim? New 2021
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~~
What cannot support a Bert Harris claim?
BERT HARRIS
a. Use not reas foreseeable (ex. requires legis change).
b. Temporary burden.
c. Burden czd by LG remediating a public nuisance.
BERT HARRIS
Settlement - New 2021
BERT HARRIS
Settlement offers presumed to protect the public interest.
———–
Case law required. Now EXPRESSLY STATED.
What does Court review determine?
If LG inordinately burdened.
BERT HARRIS ----------- Atty Fees - New 2021 ----------- State: (1) From when they start & (2) Who decides?
Either side can get from date presented claim.
———–
JUDGE only gives. No jury. (although jury can decide compensation, w/o AF).
LG housekeeping if settlement accepted.
LG has 15 days to notify Dept. of Legal Affairs.
What are 2 factors affecting when regulation is 1st applied to property, thus initiating 1 yr claim deadline.
BERT HARRIS
- Written notice mailed by LG to O.
- Impact of law on prop is clear and unequivocal.
Is O application for development order always required? New 2021
No. Under enact-only O may write an impact letter. No app needed.
Name 4 exemptions to Bert Harris.
BERT HARRIS ----------- The 1995 METs are exempt from Harris. ----------- 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.
Does Sovereign Immunity protect LG?
No - it is waived!
Limits on court remedies.
Once suit filed, O can only get money damages.
Can neighbor assert BH claim?
No. Title O only,
If Court determines LG inordinately burdened, how can parties proceed?
Bert Harris
(1) LG can file interlocutory appeal.
(2) O empanel jury OR Judge* for dmgs.
* new 2021
* BUT only JUDGE decides C+AF*
BERT HARRIS
Who determines O damages?
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.
BERT HARRIS ----------- What are the 2 modes of transmission required for: (1) Owner's claim (2) LG's response?
Certified mail & email (if avail).
11 thing LG can do in its response to Owner’s Bert Harris claim?
BERT HARRIS
- Change permit stds or DUI (density, use, intensity).
- Transfer developmental rights or swap lands.
- Mitigate, including $ in lieu of onsite mitigation.
- Locate to least sensitive portion of the property.
- Conditioning amt of development or use permitted.
- Address multi-issues on comprehensive basis rather than a single proposed use or development.
- Issue development order, variance, special exception, or other extraordinary relief.
- Compensate or purchase the property.
- Nothing.
When might regulation impact on property not be readily ascertainable?
If regulation generally & potentially applies to property (if LG retains discretion to approve or disapprove), may not readily ascertainable until permit denial.
Does claim deadline start ticking from date of ruling on development order?
No. Starts from the date of rendition of the order.
Dfn. “Property Owner.”
One whose real property is the subject of and directly impacted by the action of LG.
Dfn. “Real Property”
Parcels that are the subject of and directly impacted by the act of LG.
Can LG inaction give rise to Bert Harris claim?
No.
State statutory definition of “exists,” i.e., when use or vested right to use “exists.”
Not defined in statute. Decided by Court.
BERT HARRIS ----------- What guidance does statute give courts in determining "exists"? (a) USE (b) VESTED RT
BERT HARRIS ----------- Statute does not define but says: ----------- USE, actual, foreseeable & enhances FMV ----------- existing VESTED RT Apply equitable estoppel or Florida statutory law.
How does equitable estoppel determine an O has a vested right to use?
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.
Dfn. “Existing use.”
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.”~~
Are business damages available in Bert Harris lawsuit?
No.
Why does statute encourage written settlement offers?
NEW 2021 - They are presumed to protect the public interest.
Who decides Bert Harris damages, judge or jury?
NEW 2021 - Judge is now an option. (previously strictly jury).
From when can AF be considered for an award?
NEW 2021 - From time O notifies LG of claim. (previously from time filed suit).
Does O lose its claim/lawsuit if O sells property during the proceeding?
NEW 2021 - No.
BERT HARRIS ----------- 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?
NEW 2021 -
O may send ‘impact letter’ to LG via cert mail & EM (if avail). No need to make application.
Can O use Bert Harris for a facial challenge to a new law?
Yes. Only applies to laws after 5/11/1995
What are specifically exempt from being an exaction & Bert Harris claims?
Impact fees.
Non-ad valorem assessments.
Who gets to simply send an impact ltr as a prerequisite for a Bert Harris?
BERT HARRIS ----------- Enact-Only. ~~I miss this one a lot.~~ ----------- See deck "Bert Harris, Mechanics & Timelines."
