Another Bert Harris complaint has survived a city motion for dismissal as litigation continues to swirl against Holmes Beach.
After an hourlong hearing March 27, Judge Gilbert A. Smith Jr. ruled against dismissing trustee R. Carlile Roberts’ complaint, but granted another city motion for a more definite statement, instructing the plaintiff to amend the complaint to “crystalize the facts.”
The next day, in a separate Bert Harris suit, Judge Lon Arend delayed ruling on Holmes Beach motions to dismiss AMI Breeze LLC’s claim and strike an accompanying appraisal. He said he would rule after further review.
The motions were similar to others lost by the city in July, August and September brought by plaintiffs Bob and Ellen McCaffrey, Swackhamer VI Investments LLC, Bmeehan VI Investments LLC, Kmmeham VI Investments LLC and Florida Gulf Coast Vacation Homes under the Bert J. Harris Jr. Private Property Rights Protection Act.
The recent spate of Bert Harris litigation is rooted in the city commission adopting vacation rental ordinances to address residents who, at a number of meetings complained about party-house problems, including noise, parking and changing character.
Alleged fair market value losses resulting from ordinances 15-12 and 16-02 — occupancy regulations limiting resort housing to a maximum of two persons per bedroom or six guests, whichever is greater — is at the heart of many of the lawsuits, including the AMI Breeze and Roberts cases.
The AMI Breeze case includes an appraisal tagging damages at $690,000 due to an eight-bedroom home at 209 54th St., previously advertised for 20 occupants, being restricted to 16.
The Roberts suit is based on a $380,000 claim for a three-bedroom unit at 6422 Gulf Drive, which prior to the VROs was advertised for eight persons.
Arguments in court the final week of March focused on three dates: September 2015, when Holmes Beach first established an occupancy rule, its May 1, 2016, effective date, as well as Oct. 1, 2017, when the city sent impacted property owners notice of the vacation rental ordinances. The city notice advised rental owners they had a year to bring a Bert Harris claim under the new ordinances.
The Bert Harris Act requires plaintiffs to allege the dates of enactment, notice and when a governmental entity first applies a law or regulation to an owner’s property, according to Randy Mora, representing the city insurer through the Florida League of Cities.
Mora, of the Clearwater law firm of Trask Daigneault LLP, argued the Roberts’ complaint failed to allege the October 2017 notice date and should be dismissed or, at least, made more clear.
Plaintiff’s attorney Aaron Thomas, of Najmy Thompson PL, countered the city can’t “sit on its hands” and not provide timely notices to the disadvantage of potential plaintiffs.
The Roberts and AMI Breeze cases are two of 15 pending lawsuits against the city. Some $6 million in damages is alleged in the cumulative litigation.
More lawsuits are anticipated because some 54 claims have been filed at city hall, where owners are first required to file their Bert Harris claims.
Like the Roberts and Breeze cases, most allege occupancy rules violated the owners’ property rights, although some cases attack ordinances adopted 2013-16 for inordinately restricting building footprints, living areas, setbacks, parking and pools and similarly devalued their properties.
Looking forward, the plaintiffs’ attorneys told the judges to watch for similar arguments in other cases.
“I’ve got five more of these queued up with the same arguments,” Thomas told the judge in the Roberts case.
The arguments are expected in response to city motions to dismiss complaints brought by Coral Escape of Holmes Beach, Robert and Michele Carl, 307 66th LLC, Mojito Splash, 302 LLC and Shawn Kaleta, as the owner of 204 72nd St.
Mora reminded the court each case should be tried on its own merits.
At the end of the Roberts’ hearing, the judge allotted the plaintiffs 10 days to file a new pleading. The city is expected to respond to the amended complaint by April 20.
After the hearing, Smith, of the Najmy team, responded to a question from Mora about whether they wanted to discuss anything.
“The only thing I’d like to discuss with you is that we don’t want to hear the same argument 30 more times. That’s all.
“When you have the same motions, the same arguments and they get the same result, it’s the definition of insanity,” he added.