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Proposed Florida law a ‘nuclear bomb’ to local control of zoning, attorney says

The Bert Harris Act was enacted in 1995 to protect property rights. Pinellas beach officials hope to defeat proposed changes that could result in multi-million dollar costs to cities if they opt to change existing zoning.
Pinellas County beach town officials are hoping to defeat a proposed new state law they fear would cost them to millions of dollars in liability settlements and undermine their ability to make changes to zoning and land use rules.
Pinellas County beach town officials are hoping to defeat a proposed new state law they fear would cost them to millions of dollars in liability settlements and undermine their ability to make changes to zoning and land use rules. [ SKIP O'ROURKE | Times (2005) ]
Published Feb. 5, 2020
Updated Feb. 6, 2020

REDINGTON SHORES — Pinellas County beach town officials are hoping to defeat a proposed new state law that they fear would cost them millions of dollars in liability settlements and undermine their ability to determine their very character through changes to zoning and land use rules.

“This is a terrible bill … it is a nuclear bomb to local regulation of land use,” Jay Daigneault, attorney for two beach communities, told the Barrier Island Governmental Council last week.

Daigneault, who represents several Pinellas beach towns, is in the process of defending the city of Holmes Beach against multiple lawsuits that could cost the Manatee County city $19 million in liability costs.

He said the proposed changes to the state’s Bert Harris Act property rights law could make existing financial threats even worse.

“This is a death knell to local control of zoning. It is going to impact everything you do in land use regulations,” Daigneault told council members.

The Bert Harris Act was enacted by the Florida legislature in 1995 to protect property rights for private property owners in Florida.

Currently, the act allows property owners to seek compensation from their municipality for losses in resale value resulting from municipal actions such as changes to zoning or land use regulations.

The aim of the latest Harris Act amendment would make that process easier and less costly for property owners. But as originally proposed, it also could result in multi-million dollar costs for cities if they opt to change existing zoning regulations.

According to the initially proposed legislation, any compensation or settlement under the Harris Act because of zoning or land use changes would be required to be applied to any other properties “similarly situated.”

The proposed legislation, House Bill 519 and its companion Senate Bill 1766, were first proposed last year, but failed at the committee level.

This year, the revived bill has already been approved by multiple House committees and a revised version was approved by the Senate Judiciary Committee Tuesday.

The revised Senate version removed what Daigneault says is the most egregious provision that would apply settlement provisions to similar properties. It is not known at this point whether the House version would be similarly changed.

Judiciary Committee Chairman Sen. David Simmons said Tuesday that including the “similarly situated” provision would make it “exceedingly difficult” to reach a settlement on a Harris Act claim.

The Florida League of Cities supported the amended Senate version but opposes the House version, which the Sierra Club of Florida said would make it “overwhelmingly risky” for any municipality seeking to make changes in its zoning or land use regulations.

According to Daigneault, if the undefined term — "similarly situated” — remains in the bill, it could be interpreted to include almost any property.

Because of the resulting cost, he said the House version of the bill would effectively force cities and towns to abandon any attempts to change their current zoning and land use plans or even to grant variances to existing regulations.

Any such change would expose municipalities to “tens of millions of dollars” in liability claims and potentially “bankrupt” cities that tried to fight those claims, Daigneault said.

For example, in 2016 and 2017, the beach city of Anna Maria, with fewer than 2,000 residents, settled virtually all of more than 100 Harris Act claims, mostly involving zoning limits the city had enacted on vacation rental units.

Property owners demanded over $37 million in compensation for lost rental units. Instead, the city opted to reinstate the lost units, even though many residents opposed short-term rentals in their residential neighborhoods.

In contrast, neighboring Holmes Beach decided to fight similar claims.

“It’s unbelievable what is going on. Every year the Legislature is cutting oversight by local communities,” said North Redington Beach Mayor Bill Queen, whose town also is represented by Daigneault.

“For example, any exception we might make in a planned development would become the rule for all similar properties,” Queen said.

Daigneault is urging beach towns to call their state legislators to protest the legislation.

“I am hoping this dies on the vine again this year,” he told the council. “This is an unabated effort to take control of local government.”