The Florida Supreme Court's opinion in Hardee County v. FINR, II, Inc., No. SC1501260 (May 25, 2017), is pretty Florida-specific, because it involves the interpretation of that state's Bert Harris Act (something we wish we had in our arsenal), but there are lessons in the case that make it worth reading -- it's pretty short -- for the rest of us.
The facts are straightforward: FINR (a "neurological rehabilitation center") applied for, and the County approved, a "Rural Center" land designation for FINR's land, which normally would have resulted in a quarter-mile setback on adjacent properties. The County, however, granted an adjacent phosphate mining company an exception which shrank the setback to as little as 150 feet. FINR sued the County under the Bert Harris Act for the loss in value of its property as a neurological rehab center.
The trial court concluded that since the County wasn't regulating FINR's land, the Act didn't apply, and thus FINR had not stated a claim upon which relief could be granted. The Florida courts of appeals had reached conflicting rulings on whether the Act could be applied to actions which were not a regulation of the plaintiff's property, and the Florida Supreme Court granted review.
The Act, the court held, was intended as a separate cause of action from a taking. A property owner has a claim under the Act when a new regulation "as applied, unfairly affects real property" (and you wonder why we wish we had this statute in our quiver). The Act requires the regulation "directly restrict" the use of property, which means, according to the court, that it applies only when the plaintiff's land is the property being regulated. Slip op. at 4 ("To ensure that the word “directly” is not construed as mere surplusage, the government action must directly act upon the owner’s parcel. To hold otherwise would give the language no more meaning than if the word “directly” had been omitted. The plain language of the Act provides that claims under the Act may not be based on government action on another parcel.").
The court also analyzed the statute by reviewing the legislative history, holding that the Act was designed to give landowners relief from actions that don't rise to the level of a taking. Slip op. at 7 ("Thus, legislative history supports the interpretation that the Act was intended to apply to property that was itself the subject of the governmental action, not to tangential property.").
Here, it was the County's waiver of the usual quarter-mile setback which allowed the phosphate mine to be located closer to FINR's neurological facility. The waiver was on the phosphate mine's land, not FINR's. The court concluded -- and here's the part that should be of interest to non-Florida folks -- a setback isn't an easement, and thus only the adjacent land was being regulated. The setback isn't a property interest that belongs to FINR, but a regulatory burden on the phosphate mining parcel.
Hardee County v. FINR II, Inc., No. SC15-1260 (Fla. May 25, 2017)
