Judge dismisses 1 count, delays Bert Harris ruling

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Holmes Beach resident and plaintiff Bob McCaffrey testifies Aug. 15 in a Manatee County courtroom against the city of Holmes Beach.
Holmes Beach Commissioner Judy Titsworth watches the Bert Harris trial Aug. 16 alongside attorney Randy Mora and Jay Daigneault, the city’s counsel from the Clearwater firm of Trask, Daigneault.
Attorney Jay Daigneault shows Judge Lon Arend information on his cellphone Aug. 13 to resolve a pretrial argument in the case of McCaffrey v. city of Holmes Beach. Islander Photos: Kathy Prucnell
Holmes Beach resident and plaintiff Ellen McCaffrey leans over the courtroom railing Aug. 15 near attorneys for the McCaffreys, Fred Moore and Scott Rudacille, during a break in the 12th Circuit Court proceedings.

The trial of Robert and Ellen McCaffrey versus the city of Holmes Beach ended Aug. 17 with a postponed decision on three counts of a four-count complaint.

The city won one battle Aug. 16 when 12th Circuit Judge Lon Arend dismissed the McCaffreys’ count alleging a Government-in-the-Sunshine Law violation.

The plaintiffs had alleged the city failed to consider the McCaffreys’ claim before city attorney Patricia Petruff sent a letter responding to it under the Bert J. Harris Jr. Private Property Protection Act. City commissioners later ratified the letter.

Still to be decided by the judge are two Bert Harris counts in which the McCaffreys allege 2013-16 ordinances prevented the profitable redevelopment of their home at 7003 Holmes Blvd., and a count alleging a violation of the state’s public records law.

Bob McCaffrey said Aug. 18 the trial “went exceptionally well” and that “finally” the matter is before the judge.

The McCaffreys’ claims came after the city denied their plans to redevelop 7003 Holmes Blvd. in June 2016, after two years of back-and-forth with building officials at a time when the city was enacting ordinances to combat party houses.

Blalock Walter attorneys Fred Moore and Scott Rudacille represent the McCaffreys.

Defending the city are Clearwater attorneys Jay Daigneault and Randy Mora, of Trask Daigneault, appointed by the city’s insurer, the Florida League of Cities.

Both sides will submit proposed findings of facts and conclusions by Sept. 7 for Arend’s consideration.

Witnesses for the plaintiffs’ case included Bob McCaffrey, his real estate agent Michelle Laade, builder Darrin Wash, appraiser Richard Bass and the McCaffreys’ attorney, Scott Rudacille.

Deposition testimony from Patricia Petruff and Stacey Johnston was read into the record.

The defense called Dawn Wash, land planner Robert Pergolizzi, appraiser Shawn Wilson and public works clerk Susan Corsi.

The McCaffreys, with Darrin Wash of Wash Family Construction, filed for a city permit in January 2015 to build two five-bedroom homes on their 9,800 square-foot lot.

After several resubmissions, the city denied the permit under its 2013 land-area-ratio ordinance.

The McCaffrey complaint calls out the LAR and five other ordinances for causing $341,000 in damages as supported by Bass’ appraisal.

In court, Bass defended his appraisal, saying the vacant land analysis was best suited to determine “the highest and best use” after it was criticized by city witnesses the day before.

Wilson testified the appraisal failed to properly apply adjustments and lacked “before and after” appraisals.

Daigneault argued the appraisals were invalid.

He pointed to a prior 12th Circuit case, Leah Maria Enterprises/Kathy Morgan, where Judge Gilbert Smith Jr. recognized the need to tie the fair market value to the date when the city is alleged to violate claimant’s rights.

“They lumped the claims together” but haven’t appraised them, Daigneault told the court.

Another argument raised by Daigneault was that Darrin Wash, Laade and Rudacille “manufactured” a Bert Harris claim, looking for a denial from the city.

McCaffrey denied any sort of deal from Wash Construction and testified he submitted the application to build “strictly to get as much money as possible” for his and his wife’s retirement.

Holmes Beach Commissioner Judy Titsworth watched the proceedings gavel to gavel.

“We feel we have a pretty strong case” based on the questions the judge asked, Titsworth said.

She said “the city was well within our rights to police and legislate” with the ordinances.

The city enacted the ordinances after citizens sought relief from loud noise, too many parked cars and a proliferation of party houses.

Moore called the Holmes Beach ordinances “death by a thousand cuts.”

Rudacille testified that before the 2013-16 ordinances, redevelopment in Holmes Beach was only limited by setbacks, height and lot-coverage restrictions.

Among the Bert Harris allegations, the ordinances alleged to have created an inordinate burden for the McCaffreys in Count I are:

  • 13-03: Living-area-ratio restrictions for single-family homes and duplexes in the R-2 district, reducing redevelopment footprint as well as lot coverage, building height and setbacks by 42 percent.
  • 13-05: Duplex footer repeal. Under the prior code, duplexes could be constructed with a combined foundation to resemble single-family homes.
  • 15-10: Increased setbacks around pools and patios. Pools now are considered impervious and counted in 40 percent lot coverage requirements.
  • 15-19: Pool and spa restrictions, setbacks between units. The new rule allows a maximum of 180-square feet of pool area for condominium ownership.

Under Count II, the ordinances under attack are:

  • 15-12: New duplex construction rules, including limit of two bedrooms per unit, two persons per bedroom and modified driveway width and tandem parking limits.
  • 16-02: A comprehensive vacation rental regulation, providing for licensing and enforcement.

On the Bert Harris counts, if the judge rules for the McCaffreys, the city is expected to appeal before a jury is convened to determine damages.

As far as the McCaffrey public records count, testimony at trial indicated it took nearly a month to get back to Moore’s records request.

“Twenty-seven days is utterly too long. It doesn’t take that long,” Moore said.

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