Florida’s awful Bert Harris Act is for the birds

There is nothing our Florida legislators enjoy better than picking state symbols. They have given us a bunch, from the official state sand (Myakka fine) to the official state play (“Cross and Sword,” last performed in St. Augustine in 1997).

Sometimes their choices have resulted in rhubarbs. They fought over which pie to pick (Key lime beat pecan). They resisted naming the panther our state animal even though it had been chosen by schoolchildren (some lawmakers favored the gator). And every few years — this year included — somebody brings up the idea of changing our state bird.

Contrary to what you may have heard, Florida’s state bird is not the construction crane. It is the common mockingbird (Mimus polyglottos), known for its ability to mimic everything from other birds to cell phone chimes. It’s also known for being everywhere in the South, from the swamps to the suburbs. I can hear a couple of them chirping in my front yard right now.

The Legislature selected the mockingbird in 1927, and then Arkansas, Mississippi, Tennessee, and Texas copied us because, like I said, mockingbirds are everywhere. Seeing our mockingbird choice mimicked, ironic though it may be, bothers a lot of folks.

In 1999, 10,000, schoolchildren proposed changing our state bird to the Florida scrub jay, an endangered species that exists only in Florida. That choice didn’t fly then or when it came back up in 2000.

Then, in 2009, 20,000 kids voted for the osprey, which is not endangered but looks cool when it dives straight into the water to grab a fish. All three attempts at change were shot down (gun pun intended) by Marion Hammer, the tough-talking National Rifle Association lobbyist who also happens to love mockingbirds.

Now here comes Republican Sen. Jeff Brandes, representing part of Pinellas County, once again raising the idea of ditching the mockingbird. “He wants a bird that ‘immediately says Florida,’ like orange juice does as the state drink,” the Tallahassee Democrat reported, failing to mention that oranges are not native to Florida.

Several people have asked me what I think about the latest bird brouhaha. You know what I think? I think it’s not worth thinking about.

If I ran the Legislature, I wouldn’t waste the taxpayers’ money fighting over state symbols (well, maybe Key lime pie, but only if I get to eat some). Instead, I would be calling for the immediate repeal of what’s been the most damaging piece of legislation passed in the last 30 years.

I am referring to the little-known Bert J. Harris Jr. Private Property Rights Protection Act of 1995.

I have a theory that the longer the name slapped on a bill, the worse the bill will turn out to be. This is my Exhibit A. The real name, I think, should be “The Developers Can Do What They Want Law.” Isn’t that clearer?

The act is strictly for the birds, in the sense that it’s for killing them and every other bit of the environment.

I have lost count of how many times over the years I have heard local government officials say some variation of this sentence: “Gee, we would really love to reject this terrible development that none of our constituents want, but we’re worried we will get socked with a lawsuit under the Bert Harris Act and have to pay millions of dollars and raise taxes.”

When the Legislature first passed the Bert Harris Act 26 years ago, the law “had a big chilling effect” on local governments trying to control growth, recalled Jim Beever, a retired regional planner and biologist from Fort Myers.

The Bert Harris Act was supposed to protect the poor, beleaguered landowner from burdensome government regulations by granting them the right to sue for damages if, say, a zoning change hurt their plans for their property.

Instead, it became a cudgel for developers who wanted local officials to say yes to the most destructive of projects.

“There weren’t a lot of Bert Harris Act cases,” Beever told me, “but whenever developers wanted to fill a lot of wetlands or build on the water side of the mean high water line or up the density on a piece of land, that’s the law the city or county attorneys would cite, and say, ‘If you don’t give them what they want, you will have a Bert Harris Act suit on your hands.’”

And then the local government would cave.

Rolling back environmental protection

You will not be surprised to hear this law was sponsored by a state representative from Lake Placid named (well, DUH) Bert Harris Jr. He was a grower of cadmiums and citrus who devoted his life to promoting agriculture.

This was, as the old folks like to say, way back in the long-time-ago — back in the days when Democrats controlled the Legislature and the governor’s mansion. In the mid-1990s Harris, a Democrat, chaired the House Agriculture Committee, meaning he was pretty influential.

In a 2012 interview, Harris said his namesake bill was born one day when he bumped into another representative named Ken Pruitt on an elevator. Pruitt was a water well contractor from Port St. Lucie, which means he benefited from new development.

The two of them started talking property rights versus regulations — you know, like you do — and pretty soon they had worked up a bill that Pruitt insisted on naming for his co-sponsor. Together they pushed it through both houses and persuaded then-Gov. Lawton Chiles to sign it, which I think may be Walkin’ Lawton’s biggest boo-boo.

One legal analysis published in 1995 said that the new statute “has stirred fears that it will empty the public purse and roll back decades of work in environmental protection and growth management,” but assured readers, “If properly implemented and applied, the measure will have none of the above effects.” (That was the point where I started laughing. Hindsight is hilarious!)

I should mention that that legal analysis was written by a couple of lawyers who represented developers and the real estate industry, and an attorney working for Chiles who then began working for the state’s biggest developer.

They got one thing right, though. This law was a reaction against all the new laws Florida passed in the 1970s and ’80s to protect the environment and control runaway growth. I mean, how dare local governments try to save even an acre of forest or swamp!

This was, by the way, a completely unnecessary law. Under the Fifth Amendment to the U.S. Constitution, any time the government takes your property, say, for use as a road right-of-way, then you have to be paid. It’s called a “taking,” and it’s an established piece of the law just like the Second Amendment (which Marion Hammer loves more than mockingbirds).

But, under the Bert Harris Act, the definition of a taking expanded to cover a whole lot more than just the government seizing your land. Instead, if the government imposed some regulation that was so burdensome it prevented you from using your land in a way that you wanted to use it, then that counted as a taking too, and the government had to pay you.

And by “the government,” I of course mean “the taxpayers.” Because all that money comes out of our pockets.

There is irony here. The Bert Harris Act was supposedly created to protect family farms and ranches. In reality, it has rewarded the speculators who wipe out farms and ranches, explained Wayne Daltrey, who before retirement was Lee County’s smart growth coordinator.

Meanwhile, the landowners who didn’t want to change a thing, but just wanted to enjoy their woods or prairies, were out of luck, Daltrey told me. The law gives them no tools to block a developer with designs on the property next door, someone ready to use the Bert Harris Act to clobber any local government standing in the way.

The law itself is a mess. A 2015 analysis published by the Florida Bar Journal said that “there appears to be a great deal of ambiguity as to what is protected under the act, how it should be applied, and what exactly constitutes a vested right, an existing use, or an inordinate burden.” The only way it could be more confusing is if it were written in Esperanto.

As a result, when Bert Harris-related lawsuits do hit the courts, they tend to be lengthy and expensive. One such suit, Pacetta v. Town of Ponce Inlet, “spanned over a decade with multiple appeals … costing millions in attorneys’ fees,” according to one analysis I read. It reminded me of the lawsuit in Charles Dickens’ novel “Bleak House” that went on for so long that people were born into it and died out of it.

The Ponce Inlet case didn’t even involve something local government did, but rather something it did not do — namely, that it did not pass new rules to allow a boat storage complex to be built. Oh, the horror!

Because the law is so poorly written, the Legislature keeps tinkering with it, trying to get it right. When I was chatting with Eddy Labrador of the Florida Association of Counties about this, he suggested a creative solution: apply a version of Bert Harris law to the people who make our laws:

“Imagine if the Legislature did that to itself,” he said, “where every time they passed a bill that affects a business, someone could file a lawsuit and demand damages.”

The most recent changes that the legislators made took effect in October. The new version tips the scales even further toward developers, because why put the onus on the folks with the bulldozers to pay for things when you can stick it to the taxpayers?

‘Cheaper to buy a legislator’

Like the law it amended, the 2021 reform bill had a faintly ridiculous name: “The Relief From Burdens on Real Property Rights” bill.

But it was more vicious than it sounded.

The Bert Harris Act required a property owner to give 150 days’ notice to the local government of a potential lawsuit, along with handing over a valid appraisal showing the amount of supposed damage done to the property value. This new law cuts that notice time down to a mere 90 days. And there’s no longer any need for a valid appraisal, just a signed statement about the value.

There are other provisions that hurt local government and taxpayers, such as the one that says any property owner who wins gets to collect attorney’s fees starting from when the claim was filed, rather than when the suit started.

The really sneaky part of the latest Bert Harris changes had Tallahassee trying to overturn a court decision involving Lee County.

A developer sued Lee under the Bert Harris Act, but then sold the property in mid-suit. An appeals court ruled that the sale ended the lawsuit and thus Lee County won.

This new legislation, though, says that a property owner who sells his or her land during a Bert Harris Act lawsuit can still win the suit.

Yes, that’s right, the Legislature says someone who doesn’t even own the disputed property any more can still collect damages from the taxpayers over an obstacle to its development.

When I asked Daltrey about lawmakers trying to overturn an appeals court decision to benefit a developer who lost, he quipped, “It’s always cheaper to buy a legislator with campaign contributions than to do the right thing.”

And Gov. Ron DeSantis, a graduate of Harvard Law School who claims to be a friend of the environment, was OK with that. He signed the Bert Harris changes into law, with nary a concern about the local taxpayers who will bear the burden or for the legal ruling that was overturned.

The thing we should do is stop trying to rewrite the Bert Harris Act and just repeal it. That should be a bipartisan shoo-in.

To the Republicans now controlling the Legislature, I say: The Bert Harris Act is a law written by Democrats with a Democrat’s name on it and it hurts taxpayers, so why would you want to keep it? To the Democrats I say: Here’s another mistake of the past that needs to be junked like a Confederate general’s statue.

Not only is the Bert Harris Act confusing and expensive, but it ties the hands of local governments as they try to combat climate change. How can they tell people not to build homes in areas that more frequently flood if the Bert Harris Act says they can’t impose such “burdensome” regulations?

But I doubt the legislators will take my suggestion. This makes the Bert Harris Act the perfect symbol of how screwed up Florida’s state government can be.

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Craig Pittman reporting via Florida Phoenix.

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