HB 1061 – Study of “Bert J. Harris Private Property Protection Act”

Rep. Miller has introduced HB 1061 which urges the study of the “Bert J. Harris Private Property Protection Act” – which is Florida legislation that seems to expand the situations for which property owners can be compensated due to government regulatory action. You can read a discussion of the Bert Harris act here.

Very generally, a landowner can be compensated under the “takings” clause of the U.S. Constitution pretty readily if there is some sort of physical intrusion of the government on the property. A regulatory taking — where the government issues a regulation that limits the use of the property in some fashion — is much less likely to occur. The landowner isn’t necessarily entitled to the “highest and best” use of the property. Rather, the regulation has to “deny the property owner any economically viable use” of the land before it’s regarded as a taking in the Constitutional sense. So, for example, if the government tears up a road and that lets you get on the main highway 1/10th of a mile down the road and leaves you with a situation where you now have to travel a mile to get to the main highway, that obviously impairs the use of your property, but it’s not a compensable taking. If the government tears up the only road that goes to your property, it probably has committed a compensable taking.

The Bert Harris act gives landowners an expanded cause of action to get money from taxpayers if a regulation impairs the landowner’s use of the property “inordinately” where “inordinate” is described as being, among other things, being “permanently unable to attain reasonable, investment-backed expectations for use of the property” as a result of the regulation.

Sounds reasonable. After all, mean old government is telling you what you can’t do with your land. You have reasonable, investment backed expectations and now those expectations are frustrated. Pay up for frustrating me, taxpayers! But, here is the thing — the government is exercising its police powers which, unless it is an illegitimate use that can be struck down as being beyond those police powers, are being exercised to improve the health and welfare of the community; at least as the lawmakers see that health and welfare. This means that, in one sense or another, the property owner’s investment backed expected use of the property externalizes a cost of some sort onto the community. Let’s say the regulation is some variant of “don’t pollute.” The landowner says “I had a reasonable, investment backed expectation of being able to pollute.” With this law, the government seems to have a choice between letting the landowner impair the use and enjoyment of land by the landowner’s neighbors in the community or, in effect, paying him not to pollute.

In any event, when lawmakers consider this, they shouldn’t regard it in the context of some abstract, capricious government versus an aggrieved landowner. Rather, it should be regarded in the context of a landowner whose actions have consequences for the rest of the community and determine where the proper balance between property rights and other sorts of rights ought to be struck.