On December 14th, the Florida First District Court of Appeal issued a decision which impacts the rights of property owners and their ability to contest local ordinances. The decision was in the case of M&H Profit, Inc. v. City of Panama City . The question before the court was whether a property owner could file a valid lawsuit under the Bert J. Harris, Jr., Private Property Rights Protection Act (Bert Harris Act) based upon the adoption of a local ordinance of a general nature. In the M&H Profit case, the local ordinance directly impacted the owner’s ability to develop his property. The question had not been raised in any other court before. The court held that the mere adoption of a local ordinance, without some affirmative action by an owner in the form of a development application, can not give rise to file a lawsuit under the Bert Harris Act.
In the M&H Profit case, the owner’s property was located in the City of Panama City and was zoned CG-1. When the property was purchased in February 2005, there were no height restrictions in the CG-1 zoning district. The owner intended to build a 20 story residential condominium on the site, but about six weeks after the property was purchased, the City of Panama City adopted an ordinance imposing a 150-foot height restriction in the CG-1 zoning district. M&H had not submitted a development application to the City at that time.
Following the adoption of the ordinance, M&H participated in a number of informal discussions with the City regarding development of the property, and the city planning manager even wrote a letter to M&H noting that the plans would not meet the City’s setback and height restrictions. In agreement with the requirements of the Bert Harris Act, and based upon the letter from the City, M&H submitted a Notice of Intention to File a Claim with the City. The City responded stating that the claim did not fall within the scope of the Bert Harris Act. M&H filed a complaint in Circuit Court and the City filed a motion to Dismiss. The trial court granted the motion and the 1st District Court of Appeal upheld the dismissal.
The 1st District Court of Appeal analyzed the Bert Harris Act and noted that the Act repeatedly refers to local legislation “as applied” to the restriction or limitation of private property rights. The court held that the informal pre-application meetings and discussions between the owner and the City did not constitute the specific “application” of the ordinance to the owner’s property. The court found that until an actual development plan was submitted to the City, neither the City nor the court could determine the actual impact, if any, of the ordinance to the property. The court discussed the fact that numerous other regulations (local, state and federal), would likely impact what could or could not be developed on the property. The court stated that a local government should not be required to “site plan” a piece of property for an owner in order to determine what impact an ordinance might have on a piece of property.
The M&H Profit case illustrates that the enactment of an ordinance by a local government does not entitle a property owner to file a claim under the Bert Harris Act. The case further emphasizes the fact that a property owner does not have a vested right in a particular plan of development based upon the zoning in existence at the time of purchase.