Michael Barfield, a legal consultant for Andrea Mogensen, a Sarasota attorney, made a public records request in April of three Anna Maria city commissioners: Carol Carter, Nancy Yetter and Chair Chuck Webb.
Barfield requested any and all emails, text messages and Facebook messages from May 1, 2014-April 10, related to vacation rentals and the short-term vacation rental ordinance.
Barfield didn’t disclose his reasons for making the public records request, but his employer, Mogensen, represents Pine Avenue Restoration LLC, 306 Pine Ave., in a lawsuit against the city.
Barfield’s research into the records also revealed an email conversation between Webb and attorney David Levin, who was hired by the city as a consultant last year, when the commission began discussing a vacation rental ordinance.
Mike Coleman, of PAR, provided a copy July 30 to Mayor Dan Murphy of an Aug. 15, 2014, email from Webb to attorney David Levin that was obtained by Barfield as a result of the public records request.
In the Aug. 15, 2014, email, Webb speculates about countering future Bert Harris Jr. lawsuits against the city. Webb’s idea for the city was to make a counterclaim to a property owner making a Bert Harris claim for a partial loss of property, to take the whole property in an eminent domain action.
“It was just an idea to help save the city money,” Webb said during a phone interview. “Sometimes developers use Bert Harris claims as a club to force the city to do what they want. Any time the city does anything, (developers) threaten with Bert Harris claims.”
The Bert Harris Jr. Property Rights Protection Act, passed by Florida legislature in 1995, allows a property owner to pursue a civil action against a local government for causing their property to lose value.
If a government action has caused the loss of value, the property owner making a Bert Harris claim has one year from the date of the government action to make his or her claim against the city.
The city then has 150 days from the day the claim was submitted to offer a settlement or go to court.
“When a developer or property owner makes a claim, the city has to decide to either settle or fight,” said Webb, adding his idea would only be used if it would be less expensive to buy the property.
But Florida statutes provide that a government or authority “may not exercise the power of eminent domain to take private property for the purpose of abating or eliminating a public nuisance.”
Under eminent domain, property can only be taken — either all or a portion — for a public project, such as building a new school or road.
The government or authority also must negotiate a price for the property being acquired under eminent domain. The government must at least attempt to give a fair price for the property, based on a professional appraisal.
Webb said he had heard of an acceptable practice in eminent domain which, in order to save money, proceeded to purchase an owner’s full property instead of buying a partial piece.
“There have been cases where it’s cheaper to buy the whole lot instead of just a corner,” he said.
In the email, Webb asked Levin if he had heard of anything similar and if he knew of an expert Bert Harris attorney that could offer an opinion.
“It was just speculation,” Webb said, adding he never heard back from Levin about the topic and there were no further emails disclosed on the topic.
If the city was able to purchase the land, but didn’t end up using it, Webb said, they’d sell it back to the owner at the same price they paid.
If the owner bought it back, the city would’ve only had to pay attorney’s fees and costs. He also speculated that the city could impose development rights before reselling the property.
He said, on the other hand, if the city fought the claim, it would pay fees, costs and damages.
Anna Maria Mayor Dan Murphy declined to comment.
Efforts to reach Coleman by phone were unsuccessful.
Under Florida’s Government-in-the-Sunshine Law, correspondence related to government matters, including emails and text messages, with few exceptions, are public record.
Webb public records
From: Chuck Webb – City of AnnaMaria To: David Levin Subject: RE: Vacation Rentals Date: Friday, August 15, 2014 3:37:26 PM
Thanks, Good Luck really may mean loosing. Let me bounce an idea off you on a counter to a Burt Harris claim. Where owner is claiming a partial taking, counter with eminent domain to take the whole property. The public purpose would be to save money for the city. Rather than pay a claim and really get nothing
in return, condemn and pay just value for the property. There is an accepted theory in eminent domain that says taking more property than need is acceptable in order to save money. Once the case is completed, place deed restrictions on the property if necessary. Then, following the new statutory limitations, offer the property to the owner at the price of just value. If owner accepts, city is only out attorney fees and costs for the suit. If owner rejects, then city sells property on open market with a possible gain. Paying attorneys fees and costs may be better than paying attorneys fees, costs and damages for a partial regulatory taking. What do you think.
Also, do you know of an attorney expert on Burt Harris (70.001, FS), I think there is one in Tampa but can remember his name. After hearing Dye’s advice which sounds like he is arguing for the other side, I think we need a second opinion. Thanks again. chuck