Hardee County, Florida, etc. v. FINR II, Inc., etc. , 221 So. 3d 1162 ( 2017 )

Supreme Court of Florida
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No. SC15-1260
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HARDEE COUNTY, FLORIDA,
Petitioner,
vs.
FINR II, INC.,
Respondent.
[May 25, 2017]
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.
BACKGROUND
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
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under the Bert Harris Act for devaluation of the claimant’s property based on
governmental action on the adjacent parcel.
ANALYSIS
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.
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§ 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
parcel. Because reasonable minds may disagree with this interpretation, we turn to
other tools of statutory construction.
II. Canons of Construction, Attorney General Opinion, and Legislative
History
Statutes that alter the common law are narrowly construed. See Allstate Ins.
Co. v. Rudnick, 761 So. 2d 289, 293 (Fla. 2000). Waivers of sovereign immunity
must be construed narrowly in favor of the government. See Rabideau v. State,
409 So. 2d 1045, 1046 (Fla. 1982); Manatee Cty. v. Town of Longboat Key, 365
So. 2d 143, 147 (Fla. 1978). Narrow interpretation of waivers of sovereign
immunity protect “the public against profligate encroachments on the public
treasury.” Spangler v. Fla. St. Tpk. Auth., 106 So. 2d 421, 424 (Fla. 1958). Where
a statute is open to multiple interpretations, Florida courts endeavor to avoid
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interpretations which would lead to absurd results. Tampa-Hillsborough Cty.
Expressway Auth. v. K.E. Morris Alignment Serv., Inc., 444 So. 2d 926, 929 (Fla.
1983). Because the Act alters the common law and waives sovereign immunity, it
must be narrowly construed.
Legislative history can be helpful in construing a statute when its plain
language is unclear. BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 289
(Fla. 2003). Additionally, this Court has held that “[a]lthough an opinion of the
Attorney General is not binding on a court, it is entitled to careful consideration
and generally should be regarded as highly persuasive.” McKenzie Check
Advance of Fla., LLC v. Betts, 928 So. 2d 1204, 1214 (Fla. 2006) (quoting State v.
Family Bank of Hallandale, 623 So. 2d 474, 478 (Fla. 1993)). Amendments to
statutes enacted shortly after controversies regarding the interpretation of the
original act arise may be considered guidance for the original interpretation.
Lowry v. Parole & Prob. Comm’n, 473 So. 2d 1248, 1250 (Fla. 1985). Long
periods between original enactment and amendment render use of the amendment
to demonstrate original legislative intent inappropriate. Betts, 928 So. 2d at 1210.
With these principles in mind, we consider the parameters of the Bert Harris Act.
The Act is an alteration of common law principles of eminent domain and
inverse condemnation. Therefore, the Act must be construed narrowly, no more
broadly than clearly specified. See Rudnick, 761 So. 2d at 293. Because the Act
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does not clearly extend to owners whose property has not been directly regulated
by government action, we decline to so broadly construe it.
In addition to being a derogation of common law, the Act is also a waiver of
sovereign immunity. This Court construes waivers of sovereign immunity
narrowly to protect public funds. See Rabideau, 409 So. 2d at 1046; Town of
Longboat Key, 365 So. 2d at 147; Spangler, 106 So. 2d at 424. This canon of
construction also encourages a narrow reading of the Act. If we interpret the Act
more broadly, local governments would be subject to claims under the Act each
time they made changes to their own property or performed duties within their
well-established police powers which may affect private property. A broad
interpretation leads to an absurd result, which we endeavor to avoid. See K.E.
Morris Alignment Serv., Inc., 444 So. 2d at 929.
In interpreting a statute, legislative history is also instructive. Meeks, 863
So. 2d at 289. The legislative history of the Act indicates that the Legislature
intended to create new procedures to give inordinately burdened property owners a
day in court before exhausting all administrative remedies and to give them the
ability to arbitrate a dispute with a governmental entity without first having to
obtain its consent. Fla. H.R. Comm. on Judiciary, CS for HB 863 (1995), Bill
Analysis & Economic Impact Statement 2-3 (final May 23, 1995) (on file with Fla.
State Archives). In a scholarly article, three original drafters of the Act provided a
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detailed history of its origin. David L. Powell et. al., A Measured Step to Protect
Private Property Rights, 23 Fla. St. U. L. Rev. 255, 259-61 (1995). According to
the drafters, the Legislature was focused on “the appropriate means to give
landowners protection . . . against some regulatory actions which do not rise to the
level of a taking.” Id. at 258. In the drafters’ words, “[a] governmental action
which indirectly burdened or inadvertently devalued an owner’s land, because of
regulatory decisions regarding another owner’s property, would be too attenuated
for relief under the Harris Act.” Id. at 273. Thus, legislative history supports the
interpretation that the Act was intended to apply to property that was itself the
subject of the governmental action, not to tangential property.
Attorney General opinions are also persuasive in statutory construction.
Betts, 928 So. 2d at 1214. While not binding on this Court, the Florida Attorney
General favored a narrow construction of the Act in an opinion issued the year the
Act became effective. The Attorney General found that the Act does not apply to
property that has “suffered a diminution in value or other loss as a result of its
proximity to the property that is subject to” a government action. Op. Att’y Gen.
Fla. 95-78 (1995). We agree.
While long periods between a statute’s enactment and its amendment render
the use of the amendment to demonstrate original legislative intent inappropriate,
amendments enacted shortly after controversies as to the interpretation of the
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original act arise may be considered useful guidance for the original intent. Lowry,
473 So. 2d at 1250; Betts, 928 So. 2d at 1210. The 2015 Amendment to section
70.001(3)(f) made clear that the Act does not apply to property owners whose
parcel is not “the subject of and directly impacted by the action of a governmental
entity.” Ch. 2015-142, § 1, Laws of Fla. (2015). The Final Bill Analysis of the
2015 Amendment cites the conflict case, Smith, 159 So. 3d at 888, as the impetus
for the Amendment. See Fla. H.R. Comm. on Judiciary, CS for CS for CS for HB
383 (2015), Final Bill Analysis 5 n.25 (final June 17, 2015) (available at
https://www.flsenate.gov/Session/Bill/2015/0383/Analyses/h0383z2.CJS.PDF).
Although the 2015 Amendment was passed nearly two decades after the original
enactment, the 2015 Amendment was passed in response to the novel controversy
arising from this case. We find the 2015 Amendment persuasive.
These tools of statutory interpretation favor a narrow interpretation of the
Act. Owners whose property has not been directly acted upon by a governmental
entity may not state a claim under the Act. With this interpretation, we return to its
application to this case.
III. Application to FINR
The government action in this case directly applied to the mining setback.
For FINR to state a claim, FINR must have a property interest in the setback.
Setbacks can be enforced through restrictive covenants or deed restrictions or
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imposed by the government through its police power. In holding that setbacks may
be accomplished by police power, this Court noted the following:
[S]etback lines . . . do not really create an easement in the strict legal
sense. No one acquires any right of passage or other use to the
exclusion of the owner over that part of the lot upon which buildings
or structures are forbidden. The effect of setback lines and open yards
and spaces in zoning ordinances is merely to regulate the use of
property. It gives no beneficial use to another, except as light and air
may rest undisturbed in the space where structures are prohibited.
This restriction of use is based upon the exercise of the police power
for the general welfare, and is not based on contract rights or the
exercise of the power of eminent domain.
City of Miami v. Romer, 58 So. 2d 849, 851 (Fla. 1952) (emphasis added) (quoting
State v. Houghton, 213 N.W. 907, 908 (Minn. 1927)). The setback in this case was
created by police power—land use designation—for the general welfare. The
setback in this case is not a property right for which FINR may state a claim under
the Act.
CONCLUSION
Based on the foregoing, we approve the First District’s decision in Smith,
disapprove the Second District below, and remand for further proceedings
consistent with this opinion.
It is so ordered.
LABARGA, C.J., and PARIENTE, and LEWIS, JJ., concur.
LAWSON, J., concurs specially with an opinion, in which CANADY, J., concurs.
POLSTON, J., concurs in result only.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
LAWSON, J., specially concurring.
I agree with the result reached by the majority and most of the majority
opinion, but concur specially because much of the majority’s analysis is
unwarranted. The text of the statute fully resolves this case, leaving “no occasion
for resorting to the rules of statutory interpretation and construction,” Holly v.
Auld, 450 So. 2d 217, 219 (Fla. 1984) (citations omitted), and rendering section II
of the majority opinion improper, id. As the plain language of the statute ends our
inquiry, I would end our analysis with the conclusion in section I that: “The plain
language of the Act provides that claims under the Act may not be based on
government action on another parcel.” Majority op. at 4.
CANADY, J., concurs.
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,
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for Respondent
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