When a Florida governmental regulation falls short of a constitutional taking but nonetheless substantially diminishes the value or utility of private property, federal doctrine offers the landowner no recourse. Florida's legislature recognized that gap thirty years ago and filled it with the Bert J. Harris, Jr., Private Property Rights Protection Act, Fla. Stat. § 70.001. Understanding the Act's procedural demands—which are strictly enforced—and its substantive standard is essential for any practitioner representing landowners adversely affected by Florida governmental action.
I. The Structural Distinction from Federal Takings Doctrine
Under the federal Takings Clause, a property owner is entitled to compensation only when (1) a regulation denies all economically beneficial use of land (Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)), (2) a physical invasion of permanent character occurs (Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)), or (3) the Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), balancing test is satisfied—a demanding multi-factor inquiry that plaintiffs rarely win. Short of these thresholds, regulatory action reducing a property's market value by 40%, 60%, or even 80% may be entirely non-compensable under federal law.
The Harris Act was enacted expressly to address this structural deficiency. Rather than requiring a "taking," the Act provides a right to compensation when governmental action "inordinately burdens" an "existing use of real property or a vested right to a specific use of real property." Inordinate burden is defined in the Act as action that directly restricts or limits the use of real property such that the property owner (1) is permanently unable to attain the reasonable, investment-backed expectations for the property, or (2) bears permanently a disproportionate share of a burden imposed for the good of the public. Fla. Stat. § 70.001(3)(e).
This standard is meaningfully lower than the federal takings threshold. A landowner whose property has been substantially devalued by a land-use regulation—without losing all economically beneficial use—may have no viable federal claim but a strong Harris Act claim.
II. Procedural Architecture: Strict Compliance Required
The Harris Act imposes a mandatory pre-suit process that courts construe strictly. Failure to follow the procedure results in dismissal of the claim.
A. The 150-Day Pre-Suit Notice
Before filing any action under the Act, the property owner must present a written claim to the head of each governmental entity whose action has allegedly inordinately burdened the property. This notice must be submitted not less than 150 days before the lawsuit is filed. Fla. Stat. § 70.001(4)(a). Courts treat this deadline as jurisdictional.
Along with the written notice, the property owner must submit a bona fide valid appraisal that supports the claim and demonstrates the loss in fair market value attributable to the governmental action. This is not a formality. In Osceola County v. Best Diversified, Inc., 936 So. 2d 55 (Fla. 5th DCA 2006), the court held that failure to submit a qualifying appraisal with the claim results in denial that cannot be cured by filing an appraisal during litigation. Similarly, in State v. Basford, 119 So. 3d 478 (Fla. 5th DCA 2013), failure to submit the pre-suit notice as required by the Act resulted in dismissal.
The appraisal must be a formal written report as defined in Fla. Stat. § 475.611(1)(e). A broker's opinion of value or an informal letter from an appraiser does not satisfy this requirement.
B. Governmental Response During the Notice Period
During the 150-day notice period, the governmental entity has the opportunity—and the obligation—to respond. Unless a settlement offer is accepted, the entity must either:
- Make a written settlement offer to the property owner identifying the relief it will provide; or
- Issue a written statement of allowable uses identifying what uses of the property are permitted despite the challenged action.
If the governmental entity fails to issue a statement of allowable uses before the notice period expires, the failure is deemed a denial for purposes of authorizing the property owner to file suit in circuit court. Fla. Stat. § 70.001(5)(a). A written statement of allowable uses, when timely issued, constitutes the final prerequisite to judicial review.
C. Settlement Offers and Implementation
The Act envisions an active negotiation dynamic during the notice period. The governmental entity's settlement offer may take several forms, including an adjustment of land development regulations, an increase in permitted density or intensity, transfer of development rights, mitigation payments in lieu of on-site mitigation, or any other appropriate method. Fla. Stat. § 70.001(4)(d)(2). Any settlement must protect the public interest served by the challenged regulation.
If the property owner accepts a settlement offer—whether before or after the lawsuit is filed—the governmental entity may implement it through a development agreement, a variance or special exception, or another appropriate mechanism. Fla. Stat. § 70.001(4)(a). Courts have required strict compliance with the statutory framework for settlement implementation; parties who shortcut the required approval process risk having their agreement invalidated.
D. Statute of Limitations
The property owner has one year from the date the law or regulation is first applied to the property to present a Harris Act claim. Fla. Stat. § 70.001(11). The limitations period also accrues when the governmental entity provides written notice to the property owner that the regulation may affect property rights. The clock runs from the earlier of these events.
An important tolling provision: the four-year period applicable under some circumstances is tolled while the property owner seeks relief through administrative or judicial proceedings challenging the same governmental action.
III. The Substantive Standard: Inordinate Burden
The Act applies only to "existing uses" of real property or "vested rights to a specific use." Fla. Stat. § 70.001(1). Courts have interpreted this to mean that speculative future uses not yet established or legally vested do not qualify. In M&H Profit, Inc. v. City of Panama City, 28 So. 3d 71 (Fla. 1st DCA 2009), the court held that a property owner cannot bring a Harris Act claim until a development permit application has been submitted and denied—the impact of the regulation must be ascertained through a formal development process. Ripeness under the Harris Act therefore typically requires at least one denied development application.
The "inordinate burden" inquiry is inherently fact-intensive. The circuit court determines:
- Whether an existing use or vested right existed at the time of the governmental action;
- Whether the governmental entity's settlement offer and statement of allowable uses address the burden; and
- Whether, considering those responses, the governmental entity has inordinately burdened the property.
Fla. Stat. § 70.001(6)(a). The Act authorizes the court to apportion liability among multiple governmental entities where more than one entity's action contributed to the inordinate burden.
Importantly, after a finding of liability, the court is limited to awarding monetary damages only. Collier County v. Hussey, 147 So. 3d 35 (Fla. 2d DCA 2014). The Act does not authorize injunctive or declaratory relief invalidating the governmental action.
IV. Comparison with Federal Regulatory Takings Doctrine
| Feature | Harris Act | Federal Penn Central Balancing |
|---|---|---|
| Threshold for recovery | "Inordinate burden" | Ad hoc balancing: economic impact, investment-backed expectations, character of government action |
| Must all value be lost? | No | No, but very high bar |
| Monetary damages | Yes | Yes |
| Injunctive relief | No | Potentially (§ 1983) |
| Pre-suit notice required | Yes (150 days + appraisal) | No |
| Ripeness requirement | Denied development application | Post-Knick: immediate upon taking |
| Vested-use limitation | Yes (existing uses/vested rights) | No (total takings require all use lost) |
The Act's appraisal requirement is double-edged: it filters out speculative or unsubstantiated claims, but it also means that a property owner with a legitimate claim who fails to commission a compliant appraisal before the notice period runs will lose the claim entirely.
V. The 2015 Exactions Addition: Fla. Stat. § 70.45
The 2015 amendments to the Harris Act added section 70.45, titled "Government exactions." This provision creates a separate cause of action for conditions imposed on a property owner's proposed use of real property that "lack a nexus to a legitimate public purpose." Fla. Stat. § 70.45(c). The exactions provision is the Florida statutory analog to the federal Nollan/Dolan doctrine and functions independently of the inordinate burden standard in § 70.001. It carries its own procedural requirements and provides for monetary relief. After the Supreme Court's holding in Sheetz v. County of El Dorado, 601 U.S. 267 (2024), that Nollan/Dolan scrutiny applies to legislatively imposed exactions as well as administrative ones, the § 70.45 cause of action becomes a complementary state-law claim worth pleading alongside the federal constitutional challenge.
VI. Practice Notes for Plaintiffs' Counsel
Appraisal timing. Commission the appraisal before submitting the notice. The appraisal must accompany the notice—it cannot be supplemented later. Select a certified appraiser with experience in before-and-after analysis of regulatory impacts.
Identify all governmental actors. If more than one government entity (state agency, regional planning board, water management district, county, and municipality) has taken action contributing to the burden, the notice must go to each of them. Failure to identify and notice all relevant entities may foreclose the claim against those entities.
Preserve the state and federal claims in parallel. The Harris Act does not preempt federal constitutional claims. A property owner may simultaneously pursue a Harris Act claim and a § 1983 federal takings claim. The Harris Act's narrower limitations period (one year from first application) may run before the federal claim matures; coordinate the two timelines carefully.
Monitor the response period. The governmental entity's statement of allowable uses constitutes the final prerequisite to judicial review. Once it is issued, the clock for filing suit begins. Do not allow the case to drift.
Interlocutory review. A governmental entity may take an interlocutory appeal from the circuit court's determination that it has imposed an inordinate burden. Fla. Stat. § 70.001(6)(a). The court has discretion to stay proceedings during the appeal; if no stay issues, litigation continues. If the entity loses the appeal, it must pay the property owner's appellate attorneys' fees and costs.
VII. Conclusion
The Harris Act is a materially underutilized tool. For Florida landowners who have suffered substantial regulatory harm that falls short of a constitutional taking, the Act provides a direct, statute-backed path to monetary compensation—provided the procedural demands are met with exactitude. The 150-day notice, the accompanying appraisal, the governmental response process, and the one-year limitations period are not formalities. They are threshold conditions that courts enforce without sympathy for technical non-compliance. Practitioners who invest in procedural rigor at the outset will find the Act a genuinely valuable complement to federal regulatory takings doctrine.
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.