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Date of Issue: November 24, 2005

Attorney threatens Anna Maria with Bert Harris legal action

When Florida Legislator Bert Harris first proposed a bill 10 years ago to protect property owners from governmental actions that could threaten the future value of the property, he probably never dreamed that after the law's approval, his name would become synonymous with property rights and legal threats.

Property owners and their lawyers, however, seem to toss Bert's name around like a football at Raymond James Stadium whenever any government proposes a land-use change that might affect their property.

The Anna Maria City Commission at its Nov. 15 meeting discussed a proposed ordinance that would establish a coastal overlay district to regulate new platted lots and subdivisions seaward of the state-established coastal construction control line.

That prompted attorney Ricinda Perry, representing the Sandbar restaurant, Galati Marine and Lockwood Holdings LLC, to state that in her opinion the proposed ordinance would "inordinately burden" the property rights of her clients and reduce their property values.

Perry claimed that she didn't see anything in the proposed ordinance about the safety and welfare of the citizens, just an action that would affect the values of her clients' properties.

She warned the commission that, "This is a classic Bert Harris issue and we will take it that route if necessary."

Sandbar owner Ed Chiles said he had "concerns" that the proposed ordinance would affect his property rights, regardless of whether or not he ever would want to redevelop his property. "You have devalued my property and you have taken away something."

Hold on a minute, observed City Attorney Jim Dye.

The ordinance only applies to newly platted lots or if someone wants to acquire several parcels within the COD to subdivide into home lots. The ordinance doesn't affect what property owners already have, or if they want to rebuild or redevelop on their existing property.

Dye along with City Planner Alan Garrett are confident the ordinance was not a violation of the Bert Harris Property Rights Act.

In the 10 years since the legislation was enacted, said Dye, only about six cases have ever resulted in legal action.

But faced with the threat of a lawsuit, commissioners were concerned and asked for a second opinion.

Dye said he didn't mind a second opinion, but the commission would never find an attorney to say the ordinance was "bullet-proof." Any ordinance or law can be challenged in court.

Commissioner Duke Miller said the commission needed to be "absolutely certain we are doing the right thing."

Newly elected Commissioner Chris Tollette agreed. "We need a second opinion."

Mayor SueLynn agreed, but said the second opinion should come from a recognized expert on the Bert Harris Act and on Florida land-use laws. Dye said there are only a few lawyers in Florida certified in land use or local government law.

The mayor said she would contact an expert attorney and get an estimate on costs for a second opinion back to the commission at its Dec. 15 meeting, when the commission will hold its first public hearing on the ordinance.

Dye suggested that if the commission direction is to control redevelopment seaward of the CCCL, appropriate language should also be in the comprehensive plan currently under revision to support the ordinance.

Under the ordinance, the density on a lot platted after Dec. 31, 2005, or on a group of lots subdivided after that date, would be one unit per acre, with maximum lot coverage of 25 percent and a maximum height of the dwelling at 27 feet.

Moratorium

In anticipation of the coastal overlay district ordinance, the commission unanimously passed a moratorium on the subdivision of property located seaward of the coastal construction control line. The commission, however, did provide for exceptions in the moratorium, and Dye noted this only applies to subdividing property within the CCCL.

Any property owner of a lot of record in the affected district can still build or rebuild according to the current codes.

Site plan review changes

Commissioners also discussed a modification to the current site plan review procedures that would allow the city administration to approve a final site plan.

The preliminary plan would still be approved by the city commission with modifications and conditions, but the administration could give final approval as long as the plan adhered to that set by the commission.

Dye noted that the commission had become bogged down in administrative matters when it approved the final site plan for the Waterfront Restaurant. That, he said, was a poor use of the commission's time.

Miller agreed with the concept of the changes, but wanted to ensure that the final site plan is not approved if the applicant "goes outside the box."

Commission attendance

The commission unanimously passed an ordinance on attendance of meetings by commissioners. Under its provisions, a commissioner could lose his or her seat if he or she misses three consecutive regular meetings without an excused absence.

Bert Harris winners few, but rich

A loss by any governmental entity under a successful Bert Harris Act claim could be expensive.

Under the BHA, landowners are entitled to seek compensation for the actual or future loss to the fair market value of a property affected by a government action.

And an aggrieved property owner doesn't have to first file a civil action against the government entity, according to the FSU Law Review.

The Bert Harris Act says that the affected property owner can file a claim with the government body. The claim must include an appraisal that demonstrates the current or future loss in fair market value to the property by the government's action. The governmental body then has 180 days to respond, either to make an offer at resolution or to dispute the claim. Compensation offered by the governmental entity does not necessarily have to be monetary, but could be in the form of other mitigation.

If the governmental body rejects the claim, the property owner can pursue the matter through civil court.

Should the governmental body involved agree to mitigation, but is unable to reach an agreement with the property owner, that owner can then proceed in civil court.

Since the Bert Harris Act was passed in 1995, there have been 200 claims, according to the FSU Law Review.

Of those, 193 were either settled out of court or withdrawn by the applicant. Only seven cases reached a decision by a civil court, five of which were won by the applicant.

In the most recent Bert Harris case, residents of Vanderbilt Beach near Naples in Collier County won a $375 million civil court judgment in September 2004 from the county commission under the Bert Harris Act. The court ruled that a county commission ordinance had, indeed, taken away a future fair market value of the residents' property.

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