Holmes Beach wins discovery spat in Bert Harris war

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Bob and Ellen McCaffrey stand by their home of 24 years, the subject of a Bert Harris lawsuit against the city of Holmes Beach. Islander Photo: Kathy Prucnell

The city of Holmes Beach notched a discovery “win” in court in January.

Judges typically err on the side of requiring disclosure — and such was the case Jan. 30 at the Manatee County courthouse in a Bert J. Harris Jr. Private Property Rights case brought by Bob and Ellen McCaffrey.

The McCaffreys seek to recover losses due to city ordinances adopted 2013-16 that restricted redevelopment of their residence, 7003 Holmes Blvd.

Twelfth Circuit Judge Lon Arend granted the city’s motion to compel documents and information — including specifics on allegations and mortgages — but denied the city’s request to tag the homeowners with city costs and attorneys’ fees.

The couple, represented by Fred Moore of Blalock Walters, now must respond to the city interrogatories and document the requests within 30 days.

The case is set for a May 21-23 civil trial.

Attorney Jay Daigneault of Trask Daigneault of Clearwater, the firm provided for Holmes Beach by the Florida League of Cities’ insurer, said Jan. 31 the city’s win was “just a discovery motion — not on the merits.”

“The judge could have, but chose not to exercise his discretion” on the attorneys’ fees and costs, Daigneault added.

Moore called the court proceeding “relatively uneventful.” He said the ruling asks for more clarity on four city requests.

The McCaffreys’ amended complaint includes two Bert Harris counts — one challenging ordinances about the living-area ratio, swimming pools, setbacks, underground footers and parking, and another against a two-bedroom limit and two-person per bedroom occupancy rules.

In other counts, the McCaffreys allege Sunshine Law notice and public records violations against the city.

The McCaffrey case is one of 11 ongoing Bert Harris suits and 40 claims not yet brought to court against Holmes Beach, citing various city ordinances caused investment losses.

The city enacted a VRO and building regulations between 2013 and 2016 as residents urged commissioners to stop a trend of large party-house construction.

The McCaffreys’ case was the first of 11 Bert Harris lawsuits, alleging about $4 million in losses, filed in 2017 against the city in the 12th Circuit Court.

An additional $20 million is alleged by about 40 other owners who filed Bert Harris claims with the city, but have yet to bring their case to court.

The Bert Harris act allows property owners to sue county and municipal governments for enacting laws that deprive them of reasonable investment-backed expectations.

First, the owners must first file a claim with the government entity, which, in turn, is required to respond with an offer of settlement.

However, the law allows the city to offer no changes in the actions of the governmental entity — and Holmes Beach has thus far responded to all claimants with “no change” offers.

Anna Maria also was hit by a flurry of Bert Harris claimants in 2015-16. And unlike Holmes Beach, the city of Anna Maria reached compromises with most of the 112 claimants. Most settlements were structured to allow a two-person per room plus two additional guests, bending its eight-person occupancy rule.


Ten Bert Harris cases are queued up in court behind Bob and Ellen McCaffrey’s suit.

They allege the Holmes Beach land-area-ratio and vacation-rental ordinances led to devalued investments under the Bert J. Harris Jr. Private Property Rights Protection Act.

Each case is in a stage of pleading or discovery.

Along with the McCaffreys’ suit alleging a $341,000 loss, the city — and the Florida Municipal Insurance Trust- appointed attorneys — are litigating over $4,013,000 in appraisal-based claims, namely:

  • Florida Gulf Coast Vacation Homes, with corporate owners Joe and Kelly Varner of Holmes Beach, for property of 211 54th St. The filing was in April 2017 for $395,000.
  • Frederick C. Hutchinson II trust sued in April 2017 for 104 75th St. and $552,000.
  • Swackhamer VI Investments LLC, Bmeehan VI Investments LLC, Kmmeham VI Investments LLC, sued for $225,000 in March 2017 for 106 75th St.

In November 2017, seven additional Bert Harris suits were filed:

  • R. Carlile Roberts for a $380,000 loss at 6422 Gulf Drive, Unit 5.
  • Brian Wien for a $220,000 claim at 111 81st St.
  • Robert and Michele Carl filed suit for 118th 50th St. Unit A for a $400,000 loss, and a $275,000 claim for 4805 Second Ave., Unit B.
  • Coral Escape of Holmes Beach LLC filed suit on a $240,000 claim for 132 50th St.
  • 307 66th Street LLC filed for 307 66th St. based on a $295,000 loss.
  • AMI Breeze LLC filed a $690,000 claim for 209 54th St.

Owners who have not yet filed a Bert Harris suit for loss caused by the VROs must exercise their rights by Oct. 1.

The city invoked a one-year statute of limitations sending postcards Oct. 1, 2017, to affected property owners.

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