The Grammar of Bert Harris Claims

“The past is always tense, the future is perfect.”
. . .Zadie Smith

In a lot of lawsuits, most problems can be solved by money. In others, the greatest troubles in the law are due to questions of grammar. One of the purest joys in my life is diagraming sentences and checking verb tenses. In a new Bert J. Harris, Jr., Private Property Rights Protection Act case, Dean Wish, LLC v. Lee County, 316 So.3d 840 (Fla. 2nd DCA 2021), Florida’s Second District Court of Appeal settled a high-stakes case on a narrow linguistic question.

But first, a little history about the Bert Harris Act is in order. Traditional regulatory taking cases are difficult for property owners to win because owners have to prove that the regulation is so onerous that it virtually denies all use or value of property – in other words, the property is almost valueless. The Florida Legislature adopted the Bert Harris Act to create a new statutory remedy to give inordinately burdened property owners a new day in court. The Bert Harris Act set a lower proof threshold for owners when a land use regulation inordinately burdens existing or vested property uses. This lower pleading and proof threshold means that owners don’t have to prove that a regulation effectively takes private property rights by depriving them of nearly 100 percent of their property’s value. Before filing a lawsuit under the Bert Harris Act, an owner serves the local government with a notice of claim and appraisal documenting the amount of the inordinate burden.

In 2010, Mr. Dean and Gary Wishnatzki formed Dean Wish, LLC to develop land in Lee County. On May 18, 2015, it submitted a development application to Lee County to increase administratively the standard maximum density for “Coastal Rural” lands and to permit development of 336 dwelling units on its 640 acres  – about 1 unit per 2 acres. In November 2015, Lee County’s Zoning Division responded that it was not authorized to approve the application administratively. It suggested that Dean Wish apply for a planned development application or change Lee County’s Comprehensive Land Use Plan.

Before Dean Wish could apply, Lee County amended its Comprehensive Land Use Plan to decrease the “Coastal Rural” land density to 1 unit per 2.7 acres – a 30 percent density reduction. Dean Wish then presented Lee County with a notice of claim under the Bert Harris Act in August 2016. It also submitted an appraisal asserting a monetary loss over $9 million. It later sued Lee County, contending that the Comprehensive Land Use Plan change reduced the property’s development potential and inordinately burdened it under the Bert Harris Act. The lawsuit went on for several years.

Fatefully (or perhaps fatally), Dean Wish then sold the property “as is” at auction. The auction was necessary due to lack of market interest in the property, litigation costs, and Mr. Dean’s retirement, increasing age, and medical expenses. The sales contract and deed specified that Dean Wish retained all rights to compensation in the lawsuit. After the sale, Lee County filed a summary judgment motion, arguing that Dean Wish could not maintain the lawsuit because the Act required Dean Wish to be the property owner until the case’s conclusion. Dean Wish responded that the time for measuring ownership was when Lee County imposed the inordinate burden.

The trial court held that Dean Wish was no longer the “property owner,” defined under section 70.001(3)(f) as “the person who holds legal title to the real property.” (emphasis added). The critical word in the statute was “holds.” The trial court observed:

The [Act] utilizes the present indefinite tense (“holds legal title”) in demarcating who is a proper [claimant]. It does not use the past tense (“held legal title”) or the past perfect tense (“had held legal title”). As a result, the plain language of the [Act] requires a [claimant] to be the current legal title holder of the property that is the subject of a Bert Harris claim in order to avail itself of the remedies offered by the [Act].

Under the time-honored rule that the interpretation of a statute begins primarily with an examination of its plain language, the appellate court affirmed the trial court ruling and dropped a grammatical lagniappe. Citing to Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 141 (1st ed. 2012), the court noted that statutes “are presumed to be grammatical in their composition. They are not presumed to be unlettered. Judges rightly presume, for example, that legislators understand subject-verb agreement, noun-pronoun concord, the difference between the nominative and accusative cases, and the principles of correct English word-choice.” The trial court properly recognized that the Act utilized the present indefinite tense to determine a proper claimant. Using the present tense in a statute strongly suggests it does not extend to past actions. The simple present tense of “holds” communicates that a person currently holds legal title to the impacted property. And Dean Wise lost.

The Legislature amended the Bert Harris Act last year. In cases filed after October 1, 2021, a court would reach a different result. The legislature rewrote subsection 70.001(2) and added that “[a] property owner entitled to relief under this section retains such entitlement to pursue the claim if the property owner filed a claim under subsection (4) but subsequently relinquishes title to the subject real property before the claim reaches a final resolution.” Alas, the amendment wasn’t retroactive and didn’t help Dean Wish.

It’s time to dust off those dog-eared copies of Strunk and White’s Elements of Style, Hodge’s Harbrace College Handbook, Eats, Shoots, and Leaves, and the Handbook for Writers. Joan Didion wrote, “Grammar is a piano I play by ear.” Here’s hoping there’re no tone-deaf lawyers.

Jay Small practices in the areas of eminent domain, condemnation, property rights, inverse condemnation, and land use law. If you have any questions about how government regulations can affect your property, contact him at (407) 425-9044, by email at [email protected], or follow him on LinkedIn.

This blog and these materials are not intended to provide legal advice. They do not represent the legal opinions of the firm, nor should they be regarded as the legal positions of any client of the law firm of Mateer Harbert, P.A. They are provided for general informational purposes only. These materials should not be used as a substitute for the advice of qualified legal counsel.

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