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S. Elise Batsel
Tampa
Jacob T. Cremer Tampa
Darrin J. Quam Tampa
Special thanks to Nicholas Marler who assisted in the drafting of this alert. Nicholas is a third year Juris Doctor Candidate at Stetson University College of Law. |
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Following Hillsborough County, City of Tampa to Consider Development Moratorium on
February 4, 2021
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Local governments in the Tampa Bay area are adopting, formulating, and debating moratoria on development including on February 4, 2021 in the City of Tampa. Landowners and developers in Tampa are encouraged to offer public comment at this hearing.
The following development moratoria exist or are being contemplated in Tampa Bay:
- Hillsborough County WVR-2/RP-2 Moratoria: In Wimauma Village residentially zoned areas ("WVR-2") and the Balm Riverview area ("RP-2"), Hillsborough County enacted moratoria halting all new rezoning filings. The moratoria do not expire until June 1, 2021, well beyond the Bert J. Harris Act's one year limitation on temporary development effects.
- Hillsborough County De Facto School Moratorium: Additionally, a de facto moratorium has arisen in much of southern Hillsborough County due to the failure of Hillsborough County and the School Board to agree on school sites that can be used to satisfy school concurrency proportionate share obligations.
- City of Tampa's Proposed Multifamily Moratorium: Most recently, the City of Tampa is considering a moratorium to temporarily halt rezoning filings and comprehensive plan amendments for the development of multi-family units larger than four units in some areas of South Tampa, although other parts of the City have been discussed.
Because moratoria oftentimes infringe upon landowner and developer property rights, local governments must enact moratoria only as a last resort. When a moratorium is enacted, local governments have a responsibility to ensure that it is not illegal or unconstitutional. Depending on each landowner's individual circumstances, these moratoria could be subject to legal challenges and could require just compensation.
In some instances, developers and landowners may have a claim of action when a local government's regulation results in an unconstitutional taking or a deprivation of due process under Florida's Constitution or the United States Constitution. This includes instances where the regulation deprives a property owner of reasonable economic use of property or where the impact of the regulation on property outweighs the local government's justification for the regulation. For example, a down-planning or down-zoning of an area that removes density that has been allocated to wetland areas could be actionable. Similarly, moratoria that unreasonably disallow landowners to use or develop their land could be actionable.
Florida's Bert J. Harris, Jr., Private Property Rights Protection Act ("Bert J. Harris Act") was enacted to address regulations by local governments that inordinately burden property rights. These burdens do not have to rise to the level of a taking under the Florida Constitution or the United States Constitution. If a court finds that an inordinate burden exists, a local government will be required to pay just compensation to the property owner for the loss of use and the decline in value in the affected property. The Bert J. Harris Act specifically provides that even "temporary impact on development" that lasts for longer than one year may constitute an inordinate burden. Further, under existing Florida case law, if a local government acts in bad faith by delaying the issuance of permits, despite applicants meeting all requirements, and then enacts a moratorium to further halt the issuance of permits, the local government may be required to issue the permits.
Almost any moratoria enacted by a local government will infringe upon landowners' and developers' property rights in some way. But, the infringement must rise to a certain level to give rise to a legal claim. If a local government enacts a moratorium in bad faith, beyond an appropriate timeframe, or outside the bounds of its own Comprehensive Plan, the moratorium may be subject to property rights claims. In addition, even if legal, a moratorium may still subject a local government to claims for compensation by landowners as overly burdensome on their property rights.
Again, landowners and developers in Tampa are encouraged to offer public comment when the Tampa City Council decides whether to enact a new development moratorium during its meeting on February 4, 2021. Public comments are encouraged on the effects that moratoria have not only on development and property rights, but also on the perception that moratoria create that a community is anti-business or anti-growth.
Our Land Development, Zoning Environmental team has extensive experience advising clients on government takings, local Comprehensive Plan requirements, and local government moratoria. We will continue to monitor and provide updates regarding any local moratoria that will be potentially subject to legal action. For more information, please contact us.
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