FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
for Review of the Decision of the District Court of Appeal -
Certified Direct Conflict of Decisions Second District - Case
No. 2D14-788 (Hardee County)
E. Matthews, D. Kent Safriet, Timothy M. Riley, and Mohammad
O. Jazil of Hopping Green & Sams, P.A., Tallahassee,
Florida; and Kenneth B. Evers of Kenneth B. Evers, P.A.,
Wauchula, Florida, for Petitioner
P. de la Parte, Jr., Patrick J. McNamara, David M.
Caldevilla, and Vivian Arenas-Battles of de la Parte &
Gilbert, P.A., Tampa, Florida, for Respondent
case is before the Court for review of the decision of the
Second District Court of Appeal in FINR II, Inc. v.
Hardee County, 164 So.3d 1260 (Fla. 2d DCA 2015). The
district court certified that its decision is in direct
conflict with the decision of the First District Court of
Appeal in City of Jacksonville v. Smith, 159 So.3d
888 (Fla. 1st DCA 2015). We have jurisdiction. See
art. V, § 3(b)(4), Fla. Const. We approve the First
District's holding in Smith that the Bert J.
Harris, Jr., Private Property Protection Act ("Bert
Harris Act" or "Act") does not apply to claims
arising from government action that regulates property
adjacent to the claimant's property. We disapprove the
Second District's contrary decision in FINR II.
FINR, operates a neurological rehabilitation center on a
large parcel adjacent to property owned by a phosphate mining
company. In pursuit of mixed-use residential and commercial
development, Petitioner, Hardee County, encouraged FINR to
apply for a "Rural Center" land use designation for
its parcel which included a quarter-mile mining setback on
adjacent property. In 2007, FINR applied for, and Hardee
County approved, the land use designation change and modified
the Hardee County Comprehensive Plan to grant the setback on
the phosphate mining company's adjacent property.
2012, Hardee County granted the phosphate mining company a
special exception to the land use designation that would
decrease the quarter-mile setback to as little as 150 feet.
FINR brought a claim under the Bert Harris Act, section
70.001, Florida Statutes (2012), against Hardee County
seeking $38 million in damages for devaluation of its
property for use as a neurological rehabilitation center. The
trial court dismissed the claim with prejudice, finding that
the Act did not apply to FINR because the quarter-mile
setback change did not directly restrict or limit FINR's
property. The Second District reversed and certified conflict
with Smith, in which the First District found that a
property owner may not state a claim under the Bert Harris
Act for devaluation of the claimant's property based on
governmental action on the adjacent parcel.
Court reviews statutory interpretation de novo. See
Polite v. State, 973 So.2d 1107, 1111 (Fla. 2007). The
goal of statutory interpretation is to identify the
Legislature's intent. Crews v. State, 183 So.3d
329, 332 (Fla. 2015). To do so, this Court first consults the
plain meaning of the statute's text. W. Fla.
Reg'l Med. Ctr., Inc. v. See, 79 So.3d 1, 9 (Fla.
2012). "When the statute is clear and unambiguous,
" this Court uses the plain language and avoids rules of
statutory construction. Daniels v. Fla. Dept. of
Health, 898 So.2d 61, 64 (Fla. 2005). This Court
endeavors to give effect to every word of a statute so that
no word is construed as "mere surplusage."
Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198
was intended "as a separate and distinct cause of action
from the law of takings . . . for relief, or payment of
compensation, when a new law, rule, regulation, or ordinance
of the state or a political entity in the state, as applied,
unfairly affects real property." § 70.001(1), Fla.
Stat. (2012). An existing use includes "actual, present
use or activity" on the land and "reasonably
foreseeable, nonspeculative land uses" which increase
the fair market value of the property. §
70.001(3)(b)1.-2., Fla. Stat. A vested right is determined
under the principles of equitable estoppel or substantive due
process. § 70.001(3)(a), Fla. Stat.
provides that the government action must "directly
restrict or limit the use of real property" for the
property to be considered "inordinately burdened."
§ 70.001(3)(e)1., Fla. Stat. To ensure that the word
"directly" is not construed as mere surplusage, the
government action must directly act upon the owner's
parcel. To hold otherwise would give the language no more
meaning than if the word "directly" had been
omitted. The plain language of the Act provides that claims
under the Act may not be based on government action on