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Hardee County v. Finr II, Inc.

Supreme Court of Florida

May 25, 2017

FINR II, INC., Respondent.


         Application for Review of the Decision of the District Court of Appeal - Certified Direct Conflict of Decisions Second District - Case No. 2D14-788 (Hardee County)

          Frank 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

          Edward 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

          QUINCE, J.

         This 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.


         Respondent, 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.

         In 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.


         This 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 (Fla. 2007).

         I. Plain Meaning

         The Act 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.

         The Act 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 another ...

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