Twelfth Circuit Judge Brian Iten threw out the city of Holmes Beach’s attempt to dismiss the Bob and Ellen McCaffrey complaint under the Bert Harris Act.
The March 28 hearing ended with Iten taking the motion under advisement but, two days later, he issued his decision.
His three-page order denied the city’s dismissal motion and motion to strike the appraisal.
It also orders the complainants, Bob and Ellen McCaffrey, to shore up allegations on how the city applied the living-ratio ordinance to their property at 7003 Holmes Blvd.
The McCaffreys filed the complaint in January alleging $106,000 in damages under the Bert J. Harris Private Property Rights Protection Act. The 23-year residents also allege the city violated the Sunshine Law by failing to consider their claim at an open meeting.
During the hearing, attorney John Schaefer, on behalf of the city, sought to convince the court the McCaffreys’ claims were legally insufficient. Attorney Fred Moore battled the dismissal motion for the McCaffreys.
Schaefer, of Schaefer, Wirth & Wirth, of Safety Harbor, was retained by the Florida League of Cities, the insurer for Holmes Beach.
The McCaffreys filed a claim in August 2016, alleging two ordinances adopted in 2013 and four in 2015 created “a dizzying array of new ordinances and building moratoriums which impacted the viability of their plans,” according to Moore.
The plaintiffs allege the LAR reduces redevelopment of their property to 3,350 square feet from a pre-LAR limit of 5,800, as well as an aggregate burden from other new ordinances, including the joined duplex-footer prohibition, the 2015 moratorium, pool and deck setbacks, parking requirements and condo ownership restrictions.
Schaefer argued the appraisal, required by the Harris Act, was based on a theoretical vacant lot and a mathematical calculation, without sales figures, market analysis and “no ultimate facts at all.”
Moore countered the naked land valuation fit into the act and the appraisal was from a bona fide licensed appraiser.
Schaefer emphasized the complaint was devoid of “ultimate facts” about how the city applied an ordinance to the property. According to the city, the McCaffreys submitted no development permit or application.
But, argued Moore, the McCaffreys spent more than a year submitting plans to the city. When the city responded with “written comments” that the Holmes Boulevard property did not comply with city ordinances, the McCaffreys filed the claim.
The judge’s decision requires the McCaffreys to include the city’s comments in an amended complaint.
In the second count of the complaint, the couple alleges the city violated the Sunshine Law for failing to bring its response letter — required by the Harris Act within 150 days of filing— before the city commission.
City attorney Patricia Petruff sent the McCaffreys a response letter Jan. 13 without the commission’s concurrence.
“My client had a right to be at the meeting,” Moore told the judge.
Citing a Bradenton case standing for the principle, the judge dismissed Schaefer’s argument that there was no meeting and no meeting required, and adopted Moore’s view that if a meeting should be held, the Sunshine Law will cover it.
The McCaffreys’ case is one of two Bert Harris claims against Holmes Beach pending in court.
The other lawsuit, filed in March, alleges $225,000 in damages from the city’s LAR, occupancy and other ordinances to 106 75th St by owners, Swackhamer Investments VI, BMeehan Investments VI and KMeehan Investments VI, with corporate managers in Texas and UK.
The other 30-plus claims under the Bert Harris Act that flooded Holmes Beach in 2016 are reaching their 150-day deadline for settlement or court.
Iten ordered the McCaffreys amend their complaint in 30 days.