A home can be an investment — a nest egg for retirement.
Robert and Ellen McCaffrey, who’ve lived in Holmes Beach since 1993, hope to realize theirs at 7003 Holmes Blvd.
The McCaffreys, represented by attorney Fred Moore of Blalock Walters, P.A., of Bradenton, filed Jan. 20 a two-count complaint in 12th Circuit Court, alleging the city has violated the Bert J. Harris Jr. Private Property Rights Protection Act and Florida Sunshine Law.
In the Bert Harris count, the McCaffreys say their R-2 zoned property was inordinately burdened by city ordinances that have permanently deprived them of their investment.
Under the Harris Act claim, the complaint alleges the city engaged in a “systematic approach” to restrict development in the R-2 zoning district, “resulting in a cumulative inordinate burden to the property, by enacting five ordinances:
• Restricting the living-area ratio, resulting in a reduction of 40 to 34 percent on McCaffreys’ property.
• Prohibiting duplexes connected by footers.
• Limiting duplexes to three bedrooms per dwelling unit.
• Increasing setbacks for pools, patios and decks.
• Calculating pools as impervious surface.
• Adding requirements that hinder on-site parking.
The McCaffreys state their neighborhood of small single-family homes has converted to mostly large vacation rental duplexes and they expect development rights similar to those afforded their neighbors.
The owners developed plans in 2014 to replace their duplex with two separate units “in order to demonstrate the as-applied impact of the city’s new regulation.”
The McCaffrey plans underwent a two-year building department review. After numerous comments, in June 2016 the city provided the owners notice for the first time that the project did not meet the city’s LAR ordinance.
In the pre-suit claim required by the Harris act, the McCaffreys’ attorney, Scott Rudacille, asked the city to permanently exempt the owners from development restrictions or pay them $106,000 — to “take one for the team” and allow the city to deter more large vacation duplexes.
McCaffreys’ second count goes after the city attorney’s Jan. 17 letter in response to their initial claim, contending the Sunshine Law requires a formal action at an open and noticed meeting.
Under the Harris Act, before a suit can be filed, an owner submits a claim with damages to the head of a government agency.
The agency then has 150 days to offer a settlement, such as payment, allowing the pre-existing use or negotiated terms or no change to the city action.
In the 150-day letter to the McCaffreys, city attorney Patty Petruff responded: “I have been authorized to advise you that the city of Holmes Beach proposes no changes to the ordinances which you assert have adversely impacted the property.”
The complaint attacks the city response.
It states, “The citizens of the city, particularly Mr. and Mrs. McCaffrey, have the right to know what the city considered in determining its formal offer for the claims presented under the Bert J. Harris Act.”
The complaint was served Jan. 26 on Holmes Beach Mayor Bob Johnson. The city answer is due Feb. 14.
A remodeling project is halted at 626 Key Royale Drive in July 2015 and the home remains unoccupied in January 2017. The owners filed a third court case against the city of Holmes Beach alleging improper city building practices. Islander Photo: Kathy Prucnell
Holmes Beach settles related fraud case for $2k
The city of Holmes Beach now has one less lawsuit to worry about.
For $2,000, Leah Marie Enterprises LLC and Kathleen Morgan, owners of 626 Key Royale Drive, will drop a 12th Circuit Court case that alleged fraud and negligence against the city and defamation by former Mayor Carmel Monti.
Through the city insurance carrier’s attorney, the city and Monti made four proposals to settle the case for $500 from each defendant to each plaintiff, which includes a final case dismissal and release of claims.
Each release was signed Jan. 5 by Morgan. Four settlement proposal acceptances were filed in court Jan. 20 by Morgan/Leah Marie’s Sarasota attorney David Johnson.
The fraud-negligence-defamation case began with Leah Marie/Morgan’s July 2015 complaint after city building decisions in December 2013 halted their Key Royale home remodel.
In the settlement releases, Holmes Beach and Monti deny “any liability, fault or wrongdoing” and the payments made are to compromise disputed claims.
Mayor Bob Johnson said Jan. 27 he had not received final word on a settlement.
Trask Daigneault LLP of Clearwater is the law firm assigned by the city’s insurer.
The settlement offers were extended without consulting with commissioners or the mayor, attorney Jay Daigneault said Jan. 26, because the city’s insurance contract allows the insurer to handle “entirely financial” settlements.
“We had a sense that the plaintiffs didn’t want to go through another trial,” Daigneault said about why he proposed the settlements.
The case was set for a January hearing and May trial.
Daigneault also said pressure came from a fee-shifting state law, which could have made Leah Marie and Morgan liable for city attorney fees.
“The stick or hammer leading to this result is the threat that if the party receiving the offer rejects it and does not do at least 75 percent as well as offered, that party will have to pay the offeror’s attorneys fees and costs from the date of the offer,” according to Jeffrey B. Crocket in the Florida Bar Journal, March 2006.
Under the settlements, each party will be responsible for its own attorney’s fees. The settlements also release and dismiss Monti and the city from claims related to fraud, negligent misrepresentation, negligence and defamation.
Leah Marie and Morgan initially claimed more than $15,000 damages for each count and demanded a jury trial. The complaint alleged Monti defamed Morgan in meetings and the city breached its duties to protect the plaintiffs from unlicensed building employees and their actions.
The building department issued the owners a permit in October 2013 but red-tagged the premises two months later. The city claimed the plaintiffs’ contractor exceeded the scope of the permit.
Daigneault acknowledged the settlements leave open the claims in another case alleged by Leah Marie/Morgan — now pending a judge’s decision on a Bert J. Harris Jr. Private Property Rights Protection Act cause of action.
In the plaintiffs’ Bert Harris suit — including dismissed counts of due process, equal protection, declaratory, injunctive and mandamus— the judge is expected to rule after a review of the closing arguments.
Morgan and her attorney, David Johnson, did not respond to requests made Jan. 24-26 for comment on the settlement.
Morgan/Leah Marie filed a motion Dec. 26 seeking a rehearing on the dismissed claims but, as of Jan. 26, no hearing is set on the motion.
While homeowner makes closing
argument …
“The city of Holmes Beach inordinately burdened this little house, and this little owner, because it could.”
These remarks came in a Jan. 17 closing argument by Sarasota attorney David Johnson on behalf of his clients, wife Kathleen Morgan and Leah Marie Enterprises LLC.
Twelfth Circuit Judge Gilbert A. Smith Jr. allowed delayed closing arguments on a count under the Bert J. Harris Jr. Private Property Rights Protection Act after dismissing other claims following a five-day trial in December.
Johnson alleged the city acted to inordinately burden the existing use of 626 Key Royale Drive by enforcing a 30-percent rule that “does not make any sense in residential construction,” and “reduced the value of the structure to zero.”
In citing the rule, the city building department required the plaintiffs’ contractor to leave an old roof under a new roof that limited the structure’s ceiling height to 70 percent. The city also shut down construction after claiming the rule was exceeded — all inordinate burdens to his clients’ property rights, according to Johnson.
Representing the city at trial were Clearwater attorneys Jay Daigneault and Erica Augello of Trask Daigneault LLP, assigned by the city’s insurer. They contended the plaintiffs exceeded the scope of a city permit. Daigneault said he would file his written closing argument Jan. 31.
The Leah Marie/Morgan case filed in March 2015 was the first Bert Harris lawsuit against an island city to go to trial — although others have since been filed, including, in Holmes Beach, the owners of 306 Clark Drive and, most recently, 7003 Holmes Blvd.
