October 13, 2017

When Will Florida Courts Start Protecting Property Rights?

By Mark Miller Senior Attorney

Ten years ago, Florida’s DeSoto County put out the red carpet for Tom Finney, owner of an excavation business.

County staff invited him to buy a million-dollar piece of property in the county to use and support his family business. County commissioners then pulled that rug out from under him, vetoing his plan for the property only after he purchased it, destroying his family business along their merry way.

Now, he drives a truck for a living. Good work to be sure, but not what he planned before DeSoto County had its way with him.

Florida law requires that the courts right this wrong, and Florida’s 2nd District Court of Appeal in Tampa will have a chance to do so later this month when it hears Finney’s case.

The dispute arises from a family business and an effort to make the business a little more successful.

Finney, who with his family owned Finney & Sons septic and excavating business in southwest Florida, decided to buy property. His intention was to mine it for sand and fill in order to increase the business’ profits on contracting work—otherwise, he would have to buy the fill on the market at a higher price.

Finney asked DeSoto County’s Planning Department for instruction on where to purchase property in the county for that purpose, and the county told him to find certain zoned property—at least 20 acres in size—with good road access.

Finney found the right-sized lot with good road access and zoned for his planned use. County staff members approved the site.

Finney then formed a partnership with a colleague in the same business, and they created P.I.E., LLC (Partners In Excavating). P.I.E. purchased the property for $1.25 million.

In its condition as a grove at the time of the purchase, the property was worth $1.1 million. But as an excavation site, it was worth $3.3 million.

Finney and his partner then invested over $250,000 to survey the property, retain an engineer, secure a water management district permit, and ultimately submit a complete excavation permit application to DeSoto County.

County staff accepted the excavation permit application, deemed it complete, and told Finney that the application complied with all the county’s rules. The DeSoto County planner, county attorney, county engineer, and county manager all recommended to the County Commission that it approve the permit.

The County Commission reviewed the application in a public hearing and, against the staff recommendation, rejected the permit application with a generalized complaint about protecting the “health, safety, and welfare” of the county.

Perhaps the many neighbors—and voters—who showed up at the meeting and demanded the commissioners ignore Finney’s property rights had something to do with the vote. Who could know?

Two months later, the county passed a revised excavation ordinance that rendered Finney’s plans for the property dead. Finney and his business lost over $2 million as a result.

In fact, Finney lost his family business altogether. Finney & Sons could not survive the blow.

Twenty-one years ago, the Florida Legislature passed a law—the Harris Act—to ensure private property rights received the protection our Constitution demands. The Legislature designed that law to address just this kind of situation.

But the trial court refused to follow the Harris Act. It determined the county could make promises to Finney, watch him act on those promises, and then renege on the deal it had struck, with no consequences for the county.

Too often in the years since passing the Harris Act, Florida’s courts have failed to respect private property rights, instead siding with government over individuals—just as the lower court did to Finney.

It’s time for the courts to start correcting course. This case gives the 2nd District Court of Appeal a chance to do so.

Certainly, there may be cases where developers buy large tracts of land on a longshot bet that county rules will be accommodated for development of the land. But that is not what happened here.

To the contrary, here we have a small business owner who put his trust in a county that then turned its back on him.

The Harris Act requires that a property owner be financially compensated for his losses in cases like this.

If Finney cannot recover on these facts, then one must question whether a landowner can ever recover under the law. That would frustrate an owner’s property rights, and it would violate the very purpose and language of the Harris Act itself.

It would also be a grave injustice.

Published by The Daily Signal

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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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