HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 421 & 1101 Governmental Actions Affecting Private Property Rights
SPONSOR(S): Judiciary Committee, Local Administration & Veterans Affairs Subcommittee, Tuck and others
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee 15 Y, 3 N Mawn Jones
2) Local Administration & Veterans Affairs 15 Y, 2 N, As CS Darden Miller
Subcommittee
3) Judiciary Committee 14 Y, 5 N, As CS Mawn Kramer
SUMMARY ANALYSIS
The Takings Clause of the U.S. Constitution prohibits the government from depriving a person of his or her
private property for public use "without just compensation." However, not every government action burdening
private property amounts to an illegal "taking" under the Takings Clause. Florida law provides legal remedies
when a local government burdens property rights in a manner that does not amount to a "taking.” Specifically:
 If a local government enacts a regulation inordinately burdening private property, under the Bert Harris,
Jr., Private Property Rights Protection Act (“Bert Harris Act”):
o The property owner may notify the government of the burden;
o The government must make a written offer to settle the claim; and
o The property owner may:
 Accept the settlement offer; or
 Reject the offer, and file a lawsuit against the government for damages.
 If the local government unreasonably rejects a property owner's proposed use of his or her property,
otherwise known as an "exaction," the property owner may sue the government after providing notice
and allowing the government to explain why the exaction is lawful, or remove the exaction.
A property owner may also resolve government action disputes under the informal process created by the
Florida Land Use and Environmental Dispute Resolution Act (“FLUEDRA”).
CS/CS/HB 421 and 1101 modifies the Bert Harris Act to:
 Revise the terms “action of a governmental entity” and “real property”;
 Reduce the timeframe under which a claimant must notify the government before filing an action;
 Specify that written settlement offers are presumed to protect the public interest;
 Allow the claimant to have the court, rather than a jury, determine damages;
 Extend the point from which a prevailing claimant may recover attorney fees and costs; and
 Authorize a property owner, under specified conditions, to notify the government that he or she deems
a law or regulation’s impact on his or her real property to be restrictive of allowable uses.
The bill also:
 Allows a property owner to challenge an unlawful government exaction upon his or her property without
waiting for a written notice of the action if the local government action is imminent.
 Revises the definition of “land” and “real property” under FLUEDRA.
The bill does not appear to have a fiscal impact on state government, but may have an indeterminate negative
fiscal impact on local governments.
The bill provides an effective date of October 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0421d.JDC
DATE: 4/15/2021
 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Takings Clause
The U.S. Constitution prohibits the government from depriving a person of his or her private property
for public use "without just compensation."1 However, some government actions restrict the use of
private property without amounting to a "taking" as contemplated by the U.S. Constitution.
Bert J. Harris, Jr., Private Property Rights Protection Act
In 1995, the Florida Legislature enacted the Bert J. Harris, Jr., Private Property Rights Protection Act
(“Bert Harris Act”).2 The Bert Harris Act created a new cause of action for private property owners
whose real property is inordinately burdened by a government action3 not rising to the level of a taking.4
The inordinate burden can apply in the context of either an existing use of real property5 or a vested
right6 to a specific use.7
Before filing an action under the Bert Harris Act, a claimant must generally give 150 days' notice to the
government entity, along with a valid appraisal showing the loss in the property’s fair market value.8
The government must then notify all property owners adjacent to the claimant's property of the pending
claim and make a written settlement offer to the claimant, which may include an offer to:
 Adjust land development or permit standards;
 Transfer developmental rights;
 Conduct land swaps or exchanges;
 Mitigate;
 Condition the amount of development or use permitted;
 Issue a development order, variance, special exception, or other extraordinary relief;
 Purchase the property or an interest therein; or
 Take other actions, including making no changes to the proposed government action.9
This encourages settlement of property rights claims and allows a government to settle individually with
each property owner to avoid unnecessarily burdening property rights.
A property owner may reject the settlement offer and file an action in circuit court.10 The court must
determine whether the government inordinately burdened the property, and if so, calculate each
involved government entity’s percentage of responsibility.11 A jury must determine damages but cannot
1 U.S. Const. amend. 5; see also art. I, ss. 2, 9, Fla. Const. (restricting the deprivation of private property).
2 Ch. 95-181, Laws of Fla., now codified as s. 70.001, F.S.
3 S. 70.001(3)(d), F.S., provides that the term "action of a governmental entity" means a specific action of a governmental entity which
affects real property, including action on an application or permit.
4 S. 70.001(1), (9), F.S.
5 “Existing use” means: 1) an actual, present use or activity on the real property, including periods of inactivity normally associated with,
or incidental to, the nature or type of use; or 2) an activity or such reasonably foreseeable, non-speculative land uses which are suitable
for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the
property greater than the fair market value of the actual, present use or activity on the property. S. 70.001(3)(b), F.S.
6 The existence of a “vested right” is determined by applying the common law principles of equitable estoppel or substantive due
process or by applying the state’s statutory law. S. 70.001(3)(a), F.S.
7 S. 70.001(2), F.S.
8 S. 70.001(4)(a), F.S. If a property is classified as agricultural under s. 193.461, F.S., the notice period is 90 days.
9 S. 70.001(4)(c), F.S.
10 S. 70.001(5)(b), F.S.
11 S. 70.001(6)(a), F.S.
STORAGE NAME: h0421d.JDC PAGE: 2
DATE: 4/15/2021
 consider any business damages relative to the development, activity, or use the government has
restricted or prohibited.12
The claimant is entitled to recover costs and attorney fees incurred from the time the action was filed if:
 The claimant prevails; and
 The court determines that the settlement offer was not a bona fide offer which reasonably would
have resolved the claim.13
The government is entitled to recover costs and attorney fees if:
 The government prevails; and
 The court determines the claimant did not accept a bona fide settlement offer which reasonably
would have resolved the claim fairly.14
A claim cannot be filed more than one year after the government applies a law or regulation to the
property at issue.15 The one-year timeframe begins when the law or regulation unequivocally impacts
the property and notice is mailed to the affected property owner.16 If the law or regulation does not
unequivocally impact the property, or if notice to the property owner is not mailed, the one-year period
does not start until the government formally denies the property owners’ request for development or
variance.17
Private Property Rights and Unconstitutional Exactions
The doctrine of unconstitutional conditions prohibits the government from denying a benefit to a person
because he or she exercises or vindicates a constitutional right.18 In 2013, the United States Supreme
Court held that a government cannot deny a land-use permit based on the property owner's refusal to
agree to the government's demands to relinquish property unless there is an essential nexus and rough
proportionality between the government's demand on the property owner and the effect of the proposed
land use.19 Extortionate demands to relinquish property in the land-use permitting context violate the
Fifth Amendment Takings Clause not because of an actual taking but because such demands
impermissibly burden the right not to have property taken without just compensation.20
The property owner in the case considered by the Supreme Court owned land consisting primarily of
wetlands, wanted to develop part of the property, and offered a conservation easement to the St. Johns
River Water Management District (“district”). The district rejected his proposal, stating it would deny his
permit unless he agreed to scale back his plan and give the district a larger conservation easement or
maintain the plan but pay to improve separate district-owned land. The district also offered to consider
alternative approaches. The property owner sued the district under the statute authorizing property
owners to sue a government for actions related to land-use permitting that constitutes an unlawful
taking.21
The Supreme Court found that while the district's conditions unconstitutionally burdened the property
owner's Fifth Amendment rights, no constitutional taking had occurred. The Court left it to the states to
determine remedies available to a property owner subjected to an unconstitutional demand, but where
no actual taking occurs.22 The Court explained:
Where the permit is denied and the condition is never imposed, nothing has been taken.
While the unconstitutional conditions doctrine recognizes that this burdens a
12 S. 70.001(6)(b), F.S.
13 S. 70.001(6)(c)1., F.S.
14 S. 70.001(6)(c)2., F.S.
15 S. 70.001(11), F.S.
16 S. 70.001(11)(a)1., F.S.
17 S. 70.001(11)(a)2., F.S.
18 Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595 (2013).
19 Id. at 606.
20 Id. at 607.
21 S. 373.617, F.S.
22 See id. at 609.
STORAGE NAME: h0421d.JDC PAGE: 3
DATE: 4/15/2021
 constitutional right, the Fifth Amendment mandates a particular remedy – just
compensation – only for takings. In cases where there is an excessive demand but no
taking, whether money damages are available is not a question of federal constitutional
law but of the cause of action – whether state or federal – on which the [property owner]
relies.23
Consequently, the Court left unanswered the question of whether the property owner in the case could
recover damages for his unconstitutional conditions claims predicated on the Takings Clause because
his claim was based on Florida law.24 Specifically, because the statute allows for damages when a
state agency's action is "an unreasonable exercise of the state's police power constituting a taking
without just compensation," whether that provision covers an unconstitutional conditions claim is a
question of state law.25
Unlawful Government Exaction Challenges
In 2015, the Legislature enacted s. 70.45, F.S., to provide a state cause of action against a prohibited
exaction. A "prohibited exaction" is any condition imposed by the government on a property owner's
proposed use of real property that lacks an essential nexus to a legitimate public purpose and is not
roughly proportionate to the impacts of the proposed use that the governmental entity seeks to avoid,
minimize, or mitigate.26
A property owner may bring an action to recover damages caused by a prohibited exaction, in addition
to any other remedies available in law or equity, if:
 The prohibited exaction is imposed or required, in writing, as a final condition for approval of
the proposed land use; and
 At least 90 days before filing the action, but no later than 180 days after the exaction is
imposed, the property owner gives the government written notice:
o Identifying the exaction;
o Explaining why it is unlawful; and
o Estimating the damages.27
Upon receiving written notice of the alleged claim, the governmental entity must review the notice and
respond in writing by identifying the basis for the exaction and explaining why the exaction is
proportionate to the harm created by the proposed use of real property, or by proposing to remove or
modify the exaction.28 The government's written response may only be used against it in subsequent
litigation for assessing attorney fees and costs.29
For a claim filed under s. 70.45, F.S., the government has the burden to prove the exaction has an
essential nexus to a legitimate public purpose and is roughly proportionate to the impacts of the
proposed use that the governmental entity is seeking to avoid, minimize, or mitigate. The property
owner has the burden of proving damages resulting from the prohibited exaction.30
The prevailing party in an action under the statute may recover attorney fees and costs.31 Moreover, if
the court determines the exaction lacks an essential nexus to a legitimate public purpose, the court
must award attorney fees and costs to the property owner.32
Florida Land Use and Environmental Dispute Resolution Act
23 Id. at 608-09.
24 Id. at 609.
25 Id. at 610.
26 S. 70.45(1)(c), F.S.
27 S. 70.45(2) and (3), F.S.
28 S. 70.45(3)(a), F.S.
29 S. 70.45(3)(b), F.S.
30 S. 70.45(4), F.S.
31 S. 70.45(5), F.S.
32 Id.
STORAGE NAME: h0421d.JDC PAGE: 4
DATE: 4/15/2021
 In 1995, the Legislature adopted the Florida Land Use and Environmental Dispute Resolution Act
(“FLUEDRA”), codified as s. 70.51, F.S., to facilitate the resolution of disputes between property
owners and government entities.33 FLUEDRA provides an informal mechanism for a property owner to
challenge a government action that may infringe on his or her property without having to file a lawsuit.
FLUEDRA does not create a private cause of action or require that a property owner do anything
before exercising his or her right to file a lawsuit.34 Under FLUEDRA, a property owner who believes
that a government notice or order unfairly or unreasonably burdens his or her property may, within 30
days of receiving the notice or order, file a request for relief with the government that issued the notice
or order.35 The government must forward the request to a special magistrate, who must hold a hearing
within 45 days of receiving the request for relief.36 The special magistrate's primary role is to facilitate a
resolution of the conflict between the property owner and government without involving the courts.37 In
this role, the special magistrate acts as a "facilitator or mediator."38
If the parties cannot reach an agreement, the special magistrate must determine whether the
government action is unreasonable or unfairly burdens the property owner's real property, based on a
list of statutory guidelines.39 Within 14 days of the hearing's conclusion, the special magistrate must
submit a written recommendation to the parties.40 If the special magistrate's recommendation is that the
government action does not unreasonably or unfairly burden the property, the property owner may still
file suit or pursue other remedies.41 If the recommendation is that the government action unreasonably
or unfairly burdens the property, the special magistrate may, with the property owner’s consent,
recommend one or more alternatives that allow for reduced government restraints on the property.42
The government must respond within 45 days of receiving the special magistrate's recommendation
and indicate whether it accepts, accepts in part, or rejects the recommendation.43 If the government
accepts the recommendation in whole or in part, but the property owner rejects the acceptance or
modification, the government must put into writing within 30 days the specific permissible uses of the
property.44
The special magistrate's recommendation finding that the government acted unreasonably or unfairly
may serve as a basis to