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The Bert J. Harris, Jr. Private Property Rights Protection Act of 1995 created a new cause of action for an aggrieved property owner who demonstrates that governmental action “inordinately burdens” his property. This may become important to homeowners who will be impacted by the Legislators bill no. 373.807 “Protection of water quality in Outstanding Florida Springs.” This bill mandated a process called Basin Management Action Planning (BMAP) where Florida’s springs were consolidated into areas requiring the remediation of nitrogen entering the springs.

Despite direct legislative mandates given to Florida’s Department of Health to develop alternative passive (non-electric) repair and replacement strategies along with performance based treatment strategies (PBTS), the FDOH has systematically denied testing permits for any commercial non-electric solution. The BMAP process is now due to publish its requirements by July 1, 2018 but contains no passive non-electric alternatives for homeowners with septic systems. This is important to homeowners because electrically powered septic system solutions, whether aerobic, performanced based or the new FDOH designed non-passive alternative septic systems,  carry with them the high risk of lowering one’s home value and causing personal harm (Reference is from FDOH 1). While not intended as an extensive list, here are some of the “solution” issues homeowners will face as a result of BMAP mandates:

  • Homes cannot use toilets without electric power and run a high risk of waste backing up into the home during power outages.
  • Many homeowner insurance companies will either not insure against waste backup or charge extra for homes dependent on electricity to process waste.
  • Alternative non-passive such as PBTS and aerobic systems are “dosing” systems, meaning they are designed to function with fixed daily capacities. Large crowds for a party or extended stay guests can cause overloads. They impact daily life style. Even laundry loads must be carefully timed.
  • Electric based systems have pumps. If you do not use the system for an extended time (vacations), waste can solidify and require maintenance to start up again.
  • Some PBTS technologies may be sensitive to drugs. Families on chemotherapy, medications or even certain cleaning products may find their systems will not work.
  • All electrically powered nitrogen-reducing septic systems must be permitted annually, all requiring inspections, fees and maintenance contracts. You may be required to relinquish your property rights to an easement for these purposes.
  • As a last point, technology such as PBTS and other electronic dependent solutions often use filters, timers, circuits, relays, etc. that have a more rapid obsolescence factor than a conventional septic system (typical life – 20+ years).

The probability will exist that for homeowners in a county or State BMAP area requiring the use of PBTS or other electronic solutions, home sales will be more difficult and/or values will drop. The statute’s description 2 of the requisite showing of injury is perhaps the most complex provision in the Act. The Bert Harris Act provides:

The terms “inordinate burden” or “inordinately burdened” mean that an action of one or more governmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large.

Broken out into parts, the injury element is best understood as an independent, alternative means of demonstrating “unfairness” in the governmental action at issue. One deals with specific uses that are presently existing or proposed for the property and for which the property owner can demonstrate some degree of reasonable expectation of present or future development. Under this provision, the owner must show that he or she has been deprived by the offending regulation of either a specific existing use of the property (defined to include both present and certain foreseeable uses) or a vested right to a specific use.

In a claim under the Act, a property owner could advance either or both theories, depending on the facts of the case at hand. The owner may demonstrate such an “inordinate burden” by showing either (1) that the property has been unfairly singled out to bear a “disproportionate” share of the regulatory burden imposed to meet a legitimate governmental end, or (2) that the owner is now permanently unable to attain reasonable, investment-backed expectations for use of the property. Those expectations may include expectations for the continued present use of the property, or for a vested right to a specific future use of the real property, or, within prescribed limitations, for reasonably anticipated future uses. An example of this might be the inability to rent your property in the future because of the complexity of the waste treatment system.

The second means of proving injury looks not at the regulation’s impact on specific proposed uses, but instead at the uses remaining after the governmental regulation takes effect, and considers whether the remaining uses for the property represent a reasonable range. Under this option, a property owner must show that the property has such limited remaining uses that it is unfairly bearing the brunt of a regulatory burden that should not properly be imposed upon an individual property owner, but instead upon the public, which benefits from the regulation.

For relief under Part I of the Act, a landowner must show, with an appraisal in hand, a permanent inordinate burden. The inordinate burden claim must be presented to the governmental entity no later than one year after the regulation is first applied thus impacting the homeowner. It is not clear how a 20-year BMAP Regulatory program will impact this statute of limitations. BMAP itself will come in 4 waves of strategies spanning 5 years each. Simply put, a homeowner could find themselves impacted at any time during the 20 years following the implementation of the statute, including the forced replacement of one of a prior mandated solution.