The owners of 626 Key Royale failed to prove Holmes Beach burdened the use of their property. So there was no valid claim in this Anna Maria Island test of the Bert Harris Act.
Twelfth Circuit Judge Gilbert A. Smith Jr. entered a final judgment March 23 for the city and against the plaintiffs Leah Marie Enterprises LLC and Kathleen Morgan in an eight-page decision, which reviewed the dispute over the owners’ remodeling project.
The judge considered the testimony of 18 witnesses among other evidence and applied the Bert Harris Jr. Private Property Protection Act.
“The Bert Harris Act was intended to protect property owners affected by land-use changes, not from the interpretation of a building code,” Smith wrote.
The plaintiffs filed a claim and $319,479 appraisal in 2014 and followed with the Bert Harris lawsuit in March 2015.
Equitable claims seeking a court-ordered building permit were subsequently combined into the Bert Harris case but dismissed as unproven on the last day of a five-day trial in December 2016.
The judge reserved his decision until written arguments were submitted by the attorneys.
Clearwater attorneys Jay Daigneault and Erica Augello of Trask Daigneault LLP, assigned by the city’s insurer, the Florida League of Cities, argued the plaintiffs failed to bring a cognizable Bert Harris claim and blamed the plaintiffs’ problems on their contractor, who exceeded the scope of work.
Sarasota attorney David Johnson — the husband of Morgan — argued a 30-percent rule imposed by city’s building department limiting the roof and ceiling height created the Bert Harris claim.
A Florida Building Commission opinion sought by the plaintiffs agreed that the city’s application of the substantial damage rule was misapplied.
Nonetheless, according to the court’s decision, the plaintiffs’ claim under Bert Harris depends on whether the city acted to burden an existing property use or a vested right in real property.
The judge also wrote, “Plaintiffs’ claim that a subsequent review and reversal of a previous interpretation of the Florida Building Code could lead to liability under the Bert Harris Act is misplaced.”
“The city did not cause the property to be in an unfinished construction condition. The plaintiffs have the right to use the property as a single-family residence and the city has taken no action which burdened that right.”
Smith also said, “maybe most importantly,” the plaintiffs also failed to prove they complied with the pre-suit notice requirement of submitting a valid appraisal that supports the claim and demonstrates a loss in fair market value.
Noting there was no city act and no claim, Smith wrote, “Assuming, however, that there was an act by the city and it was when the plaintiffs’ designer met with city about their initial plans, the appraiser should have appraised the property on a specific date before construction began and then a specific date after construction would have been completed according to the plaintiffs’ initial plans.”
The plaintiffs brought another case in 2015 under the same facts, naming the city and former Mayor Carmel Monti, alleging fraud, defamation and negligence. The case was settled in January for $2,000.
Daigneault advised city officials of the judge’s Bert Harris decision in a March 22 email, pointing out the court retained jurisdiction to order fees and costs and the plaintiffs have 30 days to appeal.
“It is difficult to speculate whether they will appeal or not, but my impression is that to do so would be unwise,” Daigneault wrote, adding the statute would allow the city to recover attorneys’ fees dating back to March 2015.
… as another HB-Bert Harris claim goes to court
A Bert Harris claim for losses at a 75th Street property has taken a turn to the courthouse for resolution, according to a summons served March 23 to Holmes Beach Mayor Bob Johnson.
The claim filed under the Bert J. Harris Jr. Property Rights Protection Act is brought by three limited liability corporations for a home at 106 75th St. in the Residential-2 zone.
The plaintiffs are Swackhamer Investments VI, BMeehan Investments VI and KMeehan Investments VI. They are respresented by Fred Moore, attorney, of Blalock Walters, P.A., of Bradenton.
The corporations list managers Bronwyn Meehan and Leslie Swackhamer, both of Texas, and Katherine Meehan of Wallingford, Oxfordshire, U.K.
The lawsuit claims certain city ordinances amount to a “systematic approach to significantly restrict development rights within the R-2 zoning district.” These regulations include restrictions on living-area ratios and a duplex party wall requirement; increased setbacks for pools, patios and decks; lot coverage restrictions; a limit on duplexes of two bedrooms per unit; parking modifications; and occupancy limits. They are “collectively the development restrictions.”
The lawsuit maintains the property owners and their families — related to Albert Leach — purchased the property “long before the development regulations at issue were ever considered.”
According to the claim, the land value was diminished by $225,000 by the city’s development restrictions.
The city sent a settlement letter Feb. 16 offering no change to the development restrictions.
The LLCs are seeking relief in the form of a permanent exemption from the development restriction or an alternative, a payment for the diminished value as the court deems appropriate.
As of March 9, the city faced a total of $12.5 million in Harris Act claims.
Most claims allege losses in reasonable-investment backed expectations due to vacation rental ordinances passed in 2015-16.