July 12, 2017

Making takings law great again in Florida

By Mark Miller Senior Attorney
DeSoto County Courthouse in southern Florida

The Florida Legislature expects the courts of this bonny state to protect property rights. But the courts have not gotten the message. Time after time, the courts of the state fail to protect the property rights of Florida land owners. The latest example of that failure arose in a case called P.I.E., LLC v. DeSoto County. Today Pacific Legal Foundation filed its reply brief with Florida’s Second District Court of Appeal to right this wrong.

When the Florida Legislature enacted the Bert J. Harris, Jr., Private Property Rights Protection Act, it explained that the law provided a remedy to landowners unfairly affected by government regulation on their property. Here, Tom Finney and his small business, “Partners in Excavation”—P.I.E.  for short—deserve that remedy. The facts of the case are simple.

Tom Finney planned to mine fill and septic sand for his family business. He
wished to reduce his costs by digging the materials himself, rather than paying for it on the market. He asked County officials what property he should buy for these purposes, and the officials told him what he needed. They assured Finney the property Finney found would serve Finney’s needs and the County’s requirements. Finney found a partner, they created P.I.E., and paid $1.25 million for the property. They then spent another quarter-of-a-million dollars to make sure the property would meet the County’s rules. It did. County staff approved the plan but the County then pulled the rug out from under P.I.E. It rejected the permit application, and then it re-wrote its law to ensure P.I.E. never could excavate the property as it intended.

When a County acts in this manner, Florida’s Bert Harris Act provides a way for the property owner to recover for its losses. The trial court erred when it refused to grant summary judgment on liability in favor of P.I.E. both for the permit denial and for the ordinance re-write designed to cut off any opportunity for P.I.E. to use the property as it intended and the law allowed. We have asked the appeals court to reverse the trial court’s decision with instructions that the lower court enter summary judgment on liability in favor of P.I.E. and conduct a trial to determine P.I.E.’s damages, or at a minimum conduct a trial on liability and then damages. The law of Florida demands nothing less.

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P.I.E., LLC v. DeSoto County

Florida’s Bert J. Harris Act requires the government to compensate property owners when a regulation “inordinately burden[s]” private property rights. In this case, Partners in Excavation (P.I.E.) purchased a 50-acre site for $1.25 million for the purpose of excavating fill dirt to be used in their septic contracting work. The property was worth $3.3 million as an excavation site. After the DeSoto County Planning Department approved the site, P.I.E. spent another $250,000 to submit a complete excavation permit application to the county. County staff recommended approval but the county instead denied the permit application and two months later passed a law that forbade excavation on the site. Because the permit denial cost P.I.E. over $2 million in value, it sought compensation under the Harris Act.

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