LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Bert Harris - Refusal to Extend Permit not Compensible

The Fifth DCA probably got the right result based on the wrong (or incomplete) interpretation of the Bert Harris Act in Holmes v. Marion County.

The Holmes' were denied a "special land use permit" to continue operating a Construction and Debris landfill on their property past the 3 years they already had been operating. Predictably, the denial was based on a bunch of complaints from neighbors.

The Holmes filed under Bert Harris, claiming that the landfill was an existing use, and that the denial inordinately burdened it. The court found that it was not "vested" and that the Holmes "investment backed expectation" was only to run the mine for the 1st three years.

The Court completely botched the analysis.

First, Bert Harris protects either "vested uses" (e.g. one that is already operating) or "existing uses" -- the latter are those uses that are reasonably foreseeable, non-speculative uses that are suitable for the property and compatible with adjacent uses. The Act therefore clearly intended that some "non-vested" uses that a property MIGHT be allowed are protected. By claiming that the Holmes' could not get compensation because their "investment backed expectations" were limited to the rights that had been vested, the Court completely got this issue backward.

Of course, the lower court might have found that the ability to use the land as a landfill was not an existing use because it did not qualify under the definition of an "existing use" and in this case that probably was the case (at least based on the reported facts - god knows what the real facts are).

So, did it come out right? I don't know, but quite possibly. Did the Court get the law right? No.

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