Protecting property owners from governmental misdeeds

November 20, 2012 | By CHRISTINA MARTIN

Friday, Pacific Legal Foundation filed an amicus brief with a Florida appellate court in a shocking case of local government gone awry: The Town of Ponce Inlet v. Pacetta, LLC. According to the trial court, the Town Council broke its promises of fair dealing, instead tying the hands of developers who had already invested millions and started construction, in order for the Town to later swoop in and snap up the property at a rock bottom price.

The trial court found in favor of the developers on multiple grounds. The Town violated their Constitutional rights under the Due Process, Equal Protection, and Just Compensation Clauses. The Town also violated Florida’s Bert J. Harris, Jr., Private Property Rights Protection Act. Damages are yet to be determined by a jury, however, the Bert Harris Act holding is before the appellate court in the meantime.

The Bert Harris Act protects private property rights beyond federal and state Constitutional law. Under the Act, generally Florida property owners can sue when a local government “inordinately burdens” the value of their land, such as through a zoning restriction. Bert Harris protection extends to present uses, reasonably forseeable nonspeculative future uses, and “vested” uses. Regarding “vested” uses, the Bert Harris Act explains: “The existence of a ‘vested right’ is to be determined by applying the principles of equitable estoppel or substantive due process under the common law or by applying the statutory law of this state.”  Fla. Stat. § 70.001(3)(a). Before the Bert Harris Act, Florida agencies suffered few consequences for changing rules or breaking promises mid-development, to the detriment of property owners.

In this case, the Town has tried to abdicate any responsibility for the Johnsons’ reliance on Town actions, arguing that its comprehensive land use plan forbade certain uses, and thus its promises should have been ignored. PLF’s amicus brief argues that under the Bert Harris Act it is irrelevant whether the comprehensive land use plan allowed certain uses, because development rights can also vest under the Act through reliance on principles of substantive due process. Thus, the Bert Harris Act should protect property when government acts in bad faith, or arbitrarily and capriciously.

As the Supreme Court said in County of Sacramento v. Lewis, the Constitution’s due process requirement “was intended to prevent government officials from abusing their power, or employing it as an instrument of oppression.” If the Town of Ponce Inlet is permitted to get away with its abuse of power, property owners everywhere will be even more vulnerable to governmental misdeeds.