The city of Holmes Beach lost a motion to dismiss a lawsuit filed by Key Royale homeowners who are fighting to be compensated for damages due to the city’s denial of a building permit.
The city’s motion, filed by Jay Daigneault, of Trask, Metz & Daigneault LLP, sought a quick out of the Bert J. Harris Jr. Private Property Rights Protection Act case brought by plaintiffs, Leah Marie Enterprises and Kathleen C. Morgan.
Twelfth Circuit Judge Gilbert A. Smith Jr. denied the motion July 2 and ordered the city to answer the plaintiffs’ complaint within 20 days.
About the denial, Daigneault said such motions are rarely granted and he expects the city to win the case on the merits.
In an email, the plaintiffs’ attorney, David Johnson, of Sarasota, wrote, “We are glad the court saw it our way in denying the city’s motion.”
The act that became state law in 1995 gives homeowners the right to sue governmental entities that “inordinately burden” their properties. And if successful, it awards aggrieved owners damages for the resulting loss of market value.
Johnson filed the Bert Harris complaint in March, seeking full loss of market value for the 626 Key Royale home, red-tagged by the city building department in December 2013. The complaint includes an August 2014 appraisal of $319,479.
The plaintiffs’ remodeling contractors began work under a building permit in October 2013, but were stopped two months later.
The city stop-work orders and red tags put a halt oncontractors until identified deficiencies are corrected.
According to the plaintiffs, they were halted by the city’s interpretation that prevented their contractors from replacing more than 30 percent of the roof, instead requiring the old roof be maintained under the new roof.
After the construction, a city field report and notice of violation erroneously applied the same 30 percent rule, according to the plaintiffs’ suit.
In his motion to dismiss, Daigneault argued that the act was not designed to protect homeowners who based their claims on a city’s failure to correctly interpret the Florida Building Code.
He also contended a survey of case law revealed no case in which a plaintiff had successfully sued a municipality based on an erroneous interpretation of a building code.
According to Johnson, the homeowners’ claim was indeed protected by the statute that aims to remedy unreasonable governmental regulation, and the lack of reported case law did not bar the action. A majority of Bert Harris cases were withdrawn and settled, he argued.
In addition to the judge ruling for the plaintiffs July 2 on the Bert Harris case, the court combined it with another case previously filed against the city involving the same property.
The earlier case asks the court to order the issuance of the building permit.
In that case, the city of Holmes Beach answered the complaint with defenses, including assertions of work performed beyond the scope of the permit, governmental immunities and rights to set off damages.
