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HomeMy Public PortalAboutPRR 16-2158From: Record Requestor [mailto:publicrecordrequester@gmail.com] Sent: Wednesday, April 20, 2016 8:27 AM To: Rita Taylor <RTaylor@gulf-stream.org>; tbaird@jonesfoster.com; OConnor, Joanne M. <joconnor@jonesfoster.com> Subject: Public Record Request regarding Jones Foster - JF.00212 - bert harris - baird - TofGS Dear Custodian of Records, I searched your agency's web site and discovered that record requests are to be sent to rtaylora)gulf-stream.org, Custodian of Records. I am therefore sending this email to you. If you are not the Custodian of Records for your agency then please forward this email as quickly as possible to that person or department. The Town Attorney for your agency apparently refuses to produce the public records I requested to inspect as described in my ORIGINAL EMAIL and CLARIFICATION EMAIL to Mr. Tom Baird. Instead of producing any responsive records, the apparent Custodian of Records for the firm known as the Town Attorney now insists I make this request directly to your agency. The ORIGINAL EMAIL and CLARIFICATION EMAIL are copied below for your consideration. I am therefore now asking you to produce any records responsive to these requests. Please examine each of these emails in its entirety and respond appropriately. I wish to clarify that I am specifically requesting to inspect records in the custody of the Town Attorney and NOT in the custody of your Town. I make this distinction because I wish to inspect the Town Attorney's version of the records and NOT yours. I reserve the right to request your version of these records in the future. Prior to making this request I searched your agency's online archive of records but could not find the records I wish to inspect; hence this email to you now. Please send any response to this request to: publicrecordreguestera().gmail.com Thank you for your assistance in this matter. I hope to hear from you as soon as possible as I believe there is a statutory limit to making a claim under the provisions of the Act that is the subject of this request. Sincerely, publicrecordrequester(cDgmail.com ORIGINAL EMAIL: ---------- Forwarded message ---------- From: Record Requestor <publicrecordreguester(cDgmail. com> Date: Wed, Dec 23, 2015 at 9:05 AM Subject: Public Record Request to Jones Foster - JF.00212 - bert hams - baird To: tbaird(cbionesfoster.com Dear T. Baird, Please forward this email to the individual who is wholly of substantially the Custodian of Records for your firm. Attention Custodian of Records for Jones Foster Johnston and Stubbs P.A. I wish to inspect public records in the custody of your firm pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119 of the Florida Statutes. When I use the phrase "public records" I mean all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by your firm related to any municipal, government, public or similar party. I also direct you attention to the definition of "public records" contained in Florida Statute Chapter 119 and similar statutes. Do not limit your production of responsive records to those records related to any one client or party. Please read the request carefully and produce ALL records responsive to the specific request. Please provide the following record for my inspection. If any record that would be responsive to this request does not exist but did previously exist then please produce the record of disposition for this record Pursuant to §119 and §257.36 Florida Statues Any public record as defined above which is in the custody of your firm and which is wholly or partly concerning any part of the Bert J. Harris, Jr. Private Property Rights Protection Act. Please take note of §119.07(1)(c) Florida Statues and your affirmative obligation to (1) promptly acknowledge receipt of this public records request and (2) make a good faith effort which "includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed." I am, therefore, requesting that you notify every individual in possession of records that may be responsive to this public records request to preserve all such records on an immediate basis. If the public records being sought are maintained by your agency in an electronic format please produce the records in the original electronic format in which they were created or received. See §119.01(2)(f), Florida Statutes. If you contend that any of the records I am seeking, or any portion thereof, are exempt from inspection or disclosure please cite the specific exemption as required by §119.07(1)(e) of the Florida Statutes and state in writing and with particularity the basis for your conclusions as required by §119.07(1)(f) of the Florida Statutes. Please provide only those records for inspection that do not require extensive use of information technologies or extensive staff time or both in excess of 15 minutes. Take note of §119.07(4)(a)3.(d) Florida Statues and if you anticipate that any records exist, the production for inspection of which will require extensive use of information technologies or extensive staff time or both in excess of 15 minutes, then please provide those records that can be produced within the first 15 minutes and advise me of the cost you anticipate to be incurred by your agency for the remaining records prior to incurring this cost. Please do not incur any costs on my behalf without first obtaining my written authorization to proceed. If you anticipate the need to incur any costs that I would be statutorily required to pay in order to inspect these public records which would exceed $1.00 please notify me in advance of your incurring that cost with a written estimate of the total cost. Please be sure to itemize any estimates so as to indicate the total number of pages and/or records, as well as to distinguish the cost of labor and materials. Again, please do not incur any costs on my behalf without first obtaining my written authorization to proceed. I hereby reserve all rights granted to me under the Florida Constitution and Florida Statutes. Please provide for my inspection the requested records within ten (10) days of your receipt of this request. All responses to this public records request should be made in writing to the following email address: publicrecordreauester(o)gmail.com CLARIFICATION EMAIL: Apr 8 (12 Record Requestor <publierecordrequesier(Q,gmail.com> days ago) to tbaird Mr. Baird, Just before Christmas last year I asked you for a public record. Specifically, Any public record as defined above which is in the custody of your firm and which is wholly or partly concerning any part of the Bert J. Harris, Jr. Private Property Rights Protection Act. About a month later, I received a response from your esteemed associate Ms. Joanne O'Connor. I assume she was responding on your behalf since she used the word "we" when referring to the persons who considered the properness of my request and made the determination not to respond further. She wrote, We do not consider it to be a public records request properly made to this Firm under Florida's Public Records Act. Please be advised that we do not intend to respond further. I am uncertain why you and Ms. O'Connor consider my request to not be properly made. She offered no explanation and referenced no authoritative source to support your evidently mutual determination. Perhaps you both have a unique standard for evaluating "proper" requests to inspect public records. It may help me to make requests you may consider proper in the future and that you both may therefore be more inclined to respond further to if you can explain exactly what I am doing improperly. While I wait for that explanation I will again attempt to inspect the records I seek. I will ask again but in a slightly different way. If for a moment you will imagine your standard for what constitutes a proper request to be a moving target - I will now try to hit the bullseye. I respectfully request you provide for my inspection the following public record: Any public record, as the term "public record" is defined by Florida State Statute, which is in the custody of your firm, your firm being Jones Foster Johnston 8 Stubbs P.A., also known in its entirety as Town Attorney according to Mr. Larry Alexander, which is wholly or partly concerning, meaning in the title, text body, attachment or in any part of the record it states, mentions, references, alludes to or in any way is about, the Bert J. Harris, Jr. Private Property Rights Protection Act. In order to further clarify the record I wish to inspect please limit the responsive records to public records which were created, received, reviewed, analyzed, referenced or in any way processed by any member of your firm where the cost of that activity was charged to a municipal agency and paid for with public money. To further clarify the record I wish to inspect and for the sake of economy please limit the responsive public records to the three most recent records which are the object of the aforementioned activity. Please refer to my earlier request for the references and conditions I wish to be associated with this request. Ciao, publicrecordreguester(cDgmai l.com Kelly Avery From: Matias, Sally <SMatias@jonesfoster.com> Sent: Tuesday, February 07, 2012 3:16 PM To: Bill Thrasher Cc: 'Marty Minor (MMinor@udkstudios.com)' Subject: Bert J. Harris, Jr. Private Property Rights Protection Act Attachments: 1CG4092-thrasher re bert harris act.pdf; 1CG4094-private property rights protection article excerpt re bert harris.pdf; 1CG4099-chapter 70 florida stautes.pdf Please see attached correspondence from John C. Randolph Sally Matias Secretary to John C. Randolph Matthew T. Ramenda H. Michael Easley Direct: 561.650.0458 Fax: 561.650.5300 smatias(a)ionesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Flagler Center Tower 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401 Telephone: 561.659.3000 Website U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. JON- J 'SIROSTE - -— "-- "--- 1OIINti I"ON&SI U1111s. P 1. February 7, 2012 John C. Randolph Attorney (561)650-0458 Fax: (561)650-5300 jandolph@jonesfoster com VIA EMAIL: bthrasher(cDclulf-stream.org Mr. William H. Thrasher, Town Manager Town of Gulf Stream 100 Sea Road Gulf Stream, Florida 33483 Re. Bert J. Harris, Jr. Private Property Rights Protection Act Our File No. 13147.1 I_�2:�Ti71IA The Architectural Review and Planning Board has requested my advice in regard to the effect of the Bert J. Harris, Jr. Private Property Rights Protection Act in regard to any legislation passed by the Town which might be more restrictive than that which presently exists in regard to land use, including legislation concerning subdivisions or zoning ordinances As I indicated at the last meeting of the ARPB, the Board and the Town Commission should keep in mind the effects of this Act when recommending for adoption and when finally adopting a provision which may be determined to "inordinately burden" an existing property as that term is defined within the Act. The term "inordinately burdened" means that: "An action of one or more governmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment -backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large." Since 192.11 West Palm Beach 1 Jupiter .. .. 19aglcr Cenicr' linccr illi suwl, I hgler I )1 ivc. suit, 1100 \Ci'.+t Palm 11cach. l lurida ii i01 m m.lonesfuster.com Mr. William H. Thrasher, Town Manager February 7, 2012 Page 2 Inordinate burdens do not include temporary impacts to real property occasioned by governmental abatement. However, a temporary impact on development that is in effect for longer than one year may, depending upon the circumstances, constitute an "inordinate burden." The ARPB has also inquired as to when an action can be commenced under this law. The Act provides that: "A cause of action may not be commenced under this section if the claim is presented more than one year after a law or regulation is first applied by the governmental entity to the property at issue." This one year claim period accrues from the date a law or regulation is first applied upon enactment and notice. To effectuate this one year period, notice must be provided by mail to the affected property owner or registered agent at the address referenced in the jurisdiction's most recent ad valorem records. Otherwise, the law or regulation is first applied to the property when there is a formal denial of a written request for development or variance which, of course, may extend well beyond a year. There are, of course, specific procedures which must be undertaken by a person affected by the action of the Town in amending its land use regulations which are set forth specifically in the Act. It is important to note that the Act does not apply to regulations which were already in effect in the Town prior the close of the 1995 legislative session on May 11, 1995. For the information of the members of the ARPB, I am providing a copy of Chapter 70, Florida Statutes, relating to the Bert J. Harris, Jr. Private Property Rights Protection Act. I am also providing an overview of the Act which is quite comprehensive and probably more than most want to read which is contained within an article titled "Private Property Rights Protection Legislation. Statutory Claims for Relief from Governmental Regulation — Updated 2010 Version." I am providing only the portion of this article which relates specifically to the Bert Harris Act. Bill, in addition to forwarding this letter to the members of the ARPB, I feel it would be beneficial that you send copies of this to each member of the Town Commission so they can be advised of the potential effect of amendments to the Town's land use regulations, specifically those which might impose more strict requirements on subdivisions and those zoning ordinances which may reduce density. Mr. William H. Thrasher, Town Manager February 7, 2012 Page 3 Please do not hesitate to contact me if you have any comments or questions. Sincerely, JONES, FOSTER, JOHNSTON & STUBBS, P.A. John C. Randolph JCR/ssm Enclosures cc: Marty R. A. Minor, AICP — Via email — Mminor(a-)udkstudios.com p9dow%1314710000 I11tr11cg4090 dote Statutes & Constitution :View Statutes : Online Sunshine Page I of 14 Select Year: 2011: " Go The 20n Florida Statutes Title VI Chapter 70 View Entire CIVIL PRACTICE AND RELIEF FROM BURDENS ON REAL Chapter PROCEDURE PROPERTY RIGHTS CHAPTER 70 RELIEF FROM BURDENS ON REAL PROPERTY RIGHTS 70.001 Private property rights protection. 70.20 Balancing of interests. 70.51 Land use and environmental dispute resolution. 70.80 Construction of ss. 70.001 and 70.51. '70.001 Private property rights protection.— (1) This act may be cited as the "Bert J. Harris, Jr., Private Property Rights Protection Act." The Legislature recognizes that some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution. The Legislature determines that there is an important state interest in protecting the interests of private property owners from such inordinate burdens. Therefore, it is the intent of the Legislature that, as a separate and distinct cause of action from the law of takings, the Legislature herein provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property. (2) When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief, which may include compensation for the actual loss to the fair market value of the real property caused by the action of government, as provided in this section. (3) For purposes of this section: (a) The existence of a "vested right" is to be determined by applying the principles of equitable estoppel or substantive due process under the common law or by applying the statutory law of this state. (b) The term "existing use" means: 1. An actual, present use or activity on the real property, including periods of inactivity which are normally associated with, or are incidental to, the nature or type of use; or 2. Activity or such reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property. http://www.leg.state.fl.us/Statuteslindex.cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes : Online Sunshine Page 2 of 14 (c) The term "governmental entity" includes an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipality, or any other entity that independently exercises governmental authority. The term does not include the United States or any of its agencies, or an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipality, or any other entity that independently exercises governmental authority, when exercising the powers of the United States or any of its agencies through a formal delegation of federal authority. (d) The term "action of a governmental entity" means a specific action of a governmental entity which affects real property, including action on an application or permit. (e) The terms "inordinate burden" and "inordinately burdened": 1. Mean that an action of one or more governmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment -backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large. 2. Do not include temporary impacts to real property; impacts to real property occasioned by governmental abatement, prohibition, prevention, or remediation of a public nuisance at common law or a noxious use of private property; or impacts to real property caused by an action of a governmental entity taken to grant relief to a property owner under this section. However, a temporary impact on development, as defined in s. 380.04, that is in effect for longer than 1 year may, depending upon the circumstances, constitute an 'inordinate burden" as provided in this paragraph. In determining whether reasonable, investment -backed expectations are inordinately burdened, consideration may be given to the factual circumstances leading to the time elapsed between enactment of the law or regulation and its first application to the subject property. (f) The term "property owner" means the person who holds legal title to the real property at issue. The term does not include a governmental entity. (g) The term "real property" means land and includes any appurtenances and improvements to the land, including any other relevant real property in which the property owner had a relevant interest. (4)(a) Not less than 150 days prior to filing an action under this section against a governmental entity, a property owner who seeks compensation under this section must present the claim in writing to the head of the governmental entity, except that if the property is classified as agricultural pursuant to s. 193.461, the notice period is 90 days. The property owner must submit, along with the claim, a bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property. If the action of government is the culmination of a process that involves more than one governmental entity, or if a complete resolution of all relevant issues, in the view of the property owner or in the view of a governmental entity to whom a claim is presented, requires the active participation of more than one governmental entity, the property owner shall present the claim as provided in this section to each of the governmental entities. (b) The governmental entity shall provide written notice of the claim to all parties to any administrative action that gave rise to the claim, and to owners of real property contiguous to the owner's property at the addresses listed on the most recent county tax rolls. Within 15 days after the claim being presented, the governmental entity shall report the claim in writing to the Department of htip://www..leg.state.fl,us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes : Online Sunshine Page 3 of 14 Legal Affairs, and shall provide the department with the name, address, and telephone number of the employee of the governmental entity from whom additional information may be obtained about the claim during the pendency of the claim and any subsequent judicial action. (c) During the 90 -day -notice period or the 150 -day -notice period, unless extended by agreement of the parties, the governmental entity shall make a written settlement offer to effectuate: 1. An adjustment of land development or permit standards or other provisions controlling the development or use of land. 2. Increases or modifications in the density, intensity, or use of areas of development. 3. The transfer of developmental rights. 4. Land swaps or exchanges. 5. Mitigation, including payments in lieu of onsite mitigation. 6. Location on the least sensitive portion of the property. 7. Conditioning the amount of development or use permitted. 8. A requirement that issues be addressed on a more comprehensive basis than a single proposed use or development. 9. Issuance of the development order, a variance, special exception, or other extraordinary relief. 10. Purchase of the real property, or an interest therein, by an appropriate governmental entity or payment of compensation. 11. No changes to the action of the governmental entity. If the property owner accepts the settlement offer, the governmental entity may implement the settlement offer by appropriate development agreement; by issuing a variance, special exception, or other extraordinary relief; or by other appropriate method, subject to paragraph (d). (d)1. Whenever a governmental entity enters into a settlement agreement under this section which would have the effect of a modification, variance, or a special exception to the application of a rule, regulation, or ordinance as it would otherwise apply to the subject real property, the relief granted shall protect the public interest served by the regulations at issue and be the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property. 2. Whenever a governmental entity enters into a settlement agreement under this section which would have the effect of contravening the application of a statute as it would otherwise apply to the subject real property, the governmental entity and the property owner shall jointly file an action in the circuit court where the real property is located for approval of the settlement agreement by the court to ensure that the relief granted protects the public interest served by the statute at issue and is the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property. (5)(a) During the 90 -day -notice period or the 150 -day -notice period, unless a settlement offer is accepted by the property owner, each of the governmental entities provided notice pursuant to paragraph (4)(a) shall issue a written statement of allowable uses identifying the allowable uses to which the subject property may be put. The failure of the governmental entity to issue a statement of allowable uses during the applicable 90 -day -notice period or 150 -day -notice period shalt be deemed a denial for purposes of allowing a property owner to file an action in the circuit court under this section. If a written statement of allowable uses is issued, it constitutes the last prerequisite to judicial review for the purposes of the judicial proceeding created by this section, notwithstanding the availability of other administrative remedies. http://www.leg.state.fl.us/Statuteslindex.cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes: Online Sunshine Page 4 of 14 (b) If the property owner rejects the settlement offer and the statement of allowable uses of the governmental entity or entities, the property owner may file a claim for compensation in the circuit court, a copy of which shall be served contemporaneously on the head of each of the governmental entities that made a settlement offer and a statement of allowable uses that was rejected by the property owner. Actions under this section shall be brought only in the county where the real property is located. (6)(a) The circuit court shall determine whether an existing use of the real property or a vested right to a specific use of the real property existed and, if so, whether, considering the settlement offer and statement of allowable uses, the governmental entity or entities have inordinately burdened the real property. If the actions of more than one governmental entity, considering any settlement offers and statement of allowable uses, are responsible for the action that imposed the inordinate burden on the real property of the property owner, the court shall determine the percentage of responsibility each such governmental entity bears with respect to the inordinate burden. A governmental entity may take an interlocutory appeal of the court's determination that the action of the governmental entity has resulted in an inordinate burden. An interlocutory appeal does not automatically stay the proceedings; however, the court may stay the proceedings during the pendency of the Interlocutory appeal. If the governmental entity does not prevail In the interlocutory appeal, the court shall award to the prevailing property owner the costs and a reasonable attorney fee incurred by the property owner in the interlocutory appeal. (b) Following its determination of the percentage of responsibility of each governmental entity, and following the resolution of any interlocutory appeal, the court shall impanel a jury to determine the total amount of compensation to the property owner for the loss in value due to the inordinate burden to the real property. The award of compensation shall be determined by calculating the difference in the fair market value of the real property, as it existed at the time of the governmental action at issue, as though the owner had the ability to attain the reasonable investment -backed expectation or was not left with uses that are unreasonable, whichever the case may be, and the fair market value of the real property, as it existed at the time of the governmental action at issue, as inordinately burdened, considering the settlement offer together with the statement of allowable uses, of the governmental entity or entities. In determining the award of compensation, consideration may not be given to business damages relative to any development, activity, or use that the action of the governmental entity or entities, considering the settlement offer together with the statement of allowable uses has restricted, limited, or prohibited. The award of compensation shall include a reasonable award of prejudgment interest from the date the claim was presented to the governmental entity or entities as provided in subsection (4). (c)1. In any action filed pursuant to this section, the property owner is entitled to recover reasonable costs and attorney fees incurred by the property owner, from the governmental entity or entities, according to their proportionate share as determined by the court, from the date of the filing of the circuit court action, if the property owner prevails in the action and the court determines that the settlement offer, including the statement of allowable uses, of the governmental entity or entities did not constitute a bona fide offer to the property owner which reasonably would have resolved the claim, based upon the knowledge available to the governmental entity or entities and the property owner during the 90 -day -notice period or the 150 -day -notice period. 2. In any action filed pursuant to this section, the governmental entity or entities are entitled to recover reasonable costs and attorney fees incurred by the governmental entity or entities from the date of the filing of the circuit court action, if the governmental entity or entities prevail in the action http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes : Online Sunshine Page 5 of 14 and the court determines that the property owner did not accept a bona fide settlement offer, including the statement of allowable uses, which reasonably would have resolved the claim fairly to the property owner if the settlement offer had been accepted by the property owner, based upon the knowledge available to the governmental entity or entities and the property owner during the 90 -day -notice period or the 150 -day -notice period. 3. The determination of total reasonable costs and attorney fees pursuant to this paragraph shall be made by the court and not by the jury. Any proposed settlement offer or any proposed decision, except for the final written settlement offer or the final written statement of allowable uses, and any negotiations or rejections in regard to the formulation either of the settlement offer or the statement of allowable uses, are inadmissible in the subsequent proceeding established by this section except for the purposes of the determination pursuant to this paragraph. (d) Within 15 days after the execution of any settlement pursuant to this section, or the issuance of any judgment pursuant to this section, the governmental entity shall provide a copy of the settlement or judgment to the Department of Legal Affairs. (7)(a) The circuit court may enter any orders necessary to effectuate the purposes of this section and to make final determinations to effectuate relief available under this section. (b) An award or payment of compensation pursuant to this section shall operate to grant to and vest in any governmental entity by whom compensation is paid the right, title, and interest in rights of use for which the compensation has been paid, which rights may become transferable development rights to be held, sold, or otherwise disposed of by the governmental entity. When there is an award of compensation, the court shall determine the farm and the recipient of the right, title, and interest, as well as the terms of their acquisition. (8) This section does not supplant methods agreed to by the parties and lawfully available for arbitration, mediation, or other forms of alternative dispute resolution, and governmental entities are encouraged to utilize such methods to augment or facilitate the processes and actions contemplated by this section. (9) This section provides a cause of action for governmental actions that may not rise to the level of a taking under the State Constitution or the United States Constitution. This section may not necessarily be construed under the case law regarding takings if the governmental action does not rise to the level of a taking. The provisions of this section are cumulative, and do not abrogate any other remedy lawfully available, including any remedy lawfully available for governmental actions that rise to the level of a taking. However, a governmental entity shall not be liable for compensation for an action of a governmental entity applicable to, or for the loss in value to, a subject real property more than once. (10) This section does not apply to any actions taken by a governmental entity which relate to the operation, maintenance, or expansion of transportation facilities, and this section does not affect existing law regarding eminent domain relating to transportation. (11) A cause of action may not be commenced under this section if the claim is presented more than 1 year after a law or regulation is first applied by the governmental entity to the property at issue. (a) For purposes of determining when this 1 -year claim period accrues: 1. A law or regulation is first applied upon enactment and notice as provided for in this subparagraph if the impact of the law or regulation on the real property is clear and unequivocal in its terms and notice is provided by mail to the affected property owner or registered agent at the address referenced in the jurisdiction's most current ad valorem tax records. The fact that the law or regulation could be modified, varied, or altered under any other process or procedure does not preclude the impact of the law or regulation on a property from being clear or unequivocal pursuant to this http://www.leg.state.fl.us/Statutes/index,cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes : Online Sunshine Page 6 of 14 subparagraph. Any notice under this subparagraph shall be provided after the enactment of the law or regulation and shall inform the property owner or registered agent that the law or regulation may impact the property owner's existing property rights and that the property owner may have only 1 year from receipt of the notice to pursue any rights established under this section. 2. Otherwise, the law or regulation is first applied to the property when there is a formal denial of a written request for development or variance. (b) If an owner seeks relief from the governmental action through lawfully available administrative or judicial proceedings, the time for bringing an action under this section is tolled until the conclusion of such proceedings. (12) No cause of action exists under this section as to the application of any law enacted on or before May 11, 1995, or as to the application of any rule, regulation, or ordinance adopted, or formally noticed for adoption, on or before that date. A subsequent amendment to any such taw, rule, regulation, or ordinance gives rise to a cause of action under this section only to the extent that the application of the amendatory language imposes an inordinate burden apart from the law, rule, regulation, or ordinance being amended. (13) In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or political subdivisions, waives sovereign immunity for causes of action based upon the application of any law, regulation, or ordinance subject to this section, but only to the extent specified in this section. History.—s. t, ch. 95.181; s. 1, ch. 2006-255; s. 1, ch. 2011.191. 'Note,—Section 2, ch. 2011.191, provides that "[t]he amendments to s. 70.001, Florida Statutes, made by this act apply prospectively only and do not apply to any claim or action filed under s. 70.001, Florida Statutes, which Is pending on the effective date of this act." 70.20 Balancing of interests.—It is a policy of this state to encourage municipalities, counties, and other governmental entities and sign owners to enter into relocation and reconstruction agreements that allow governmental entities to undertake public projects and accomplish public goals without the expenditure of public funds while allowing the continued maintenance of private investment in signage as a medium of commercial and noncommercial communication. (1) Municipalities, counties, and all other governmental entities are specifically empowered to enter into relocation and reconstruction agreements on whatever terms are agreeable to the sign owner and the municipality, county, or other governmental entity involved and to provide for relocation and reconstruction of signs by agreement, ordinance, or resolution. As used in this section, a "relocation and reconstruction agreement" means a consensual, contractual agreement between a sign owner and a municipality, county, or other governmental entity for either the reconstruction of an existing sign or the removal of a sign and construction of a new sign to substitute for the sign removed. (Z) Except as otherwise provided in this section, no municipality, county, or other governmental entity may remove, or cause to be removed, any lawfully erected sign located along any portion of the interstate, federal -aid primary or other highway system, or any other road without first paying just compensation for such removal as determined by agreement between the parties or through eminent domain proceedings. Except as otherwise provided in this section, no municipality, county, or other governmental entity may cause in any way the alteration of any lawfully erected sign located along any portion of the interstate, federal -aid primary or other highway system, or any other road without first paying just compensation for such alteration as determined by agreement between the parties or through eminent domain proceedings. The provisions of this section shall not apply to any ordinance the http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes : Online Sunshine Page 7 of 14 validity, constitutionality, and enforceability of which the owner has by written agreement waived all right to challenge. (3) In the event that a municipality, county, or other governmental entity undertakes a public project or public goal requiring alteration or removal of any lawfully erected sign, the municipality, county, or other governmental entity shall notify the owner of the affected sign in writing of the public project or goal and of the intention of the municipality, county, or other governmental entity to seek such alteration or removal. Within 30 days after receipt of the notice, the owner of the sign and the municipality, county, or other governmental entity shall attempt to meet for purposes of negotiating and executing a relocation and reconstruction agreement as provided for in subsection (1). (4) If the parties fail to enter into a relocation and reconstruction agreement within 120 days after the initial notification by the municipality, county, or other governmental entity, either party may request mandatory nonbinding arbitration to resolve the disagreements between the parties. Each party shall select an arbitrator, and the individuals so selected shall choose a third arbitrator. The three arbitrators shall constitute the panel that shall arbitrate the dispute between the parties and, at the conclusion of the proceedings, shall present to the parties a proposed relocation and reconstruction agreement that the panel believes equitably balances the rights, interests, obligations, and reasonable expectations of the parties. If the municipality, county, or other governmental entity and the sign owner accept the proposed relocation and reconstruction agreement, the municipality, county, or other governmental entity and the sign owner shall each pay its respective costs of arbitration and shall pay one-half of the costs of the arbitration panel, unless the parties otherwise agree. (5) If the parties do not enter into a relocation and reconstruction agreement, the municipality, county, or other governmental entity may proceed with the public project or purpose and the alteration or removal of the sign only after first paying just compensation for such alteration or removal as determined by agreement between the parties or through eminent domain proceedings. (6) The requirement by a municipality, county, or other governmental entity that a lawfully erected sign be removed or altered as a condition precedent to the issuance or continued effectiveness of a development order constitutes a compelled removal that is prohibited without prior payment of just compensation under subsection (2). This subsection shalt not apply when the owner of the land on which the sign is located is seeking to have the property redesignated on the future land use map of the applicable comprehensive plan for exclusively single-family residential use. (7) The requirement by a municipality, county, or other governmental entity that a lawfully erected sign be altered or removed from the premises upon which it is located incident to the voluntary acquisition of such property by a municipality, county, or other governmental entity constitutes a compelled removal that is prohibited without payment of just compensation under subsection (2). (B) Nothing in this section shall prevent a municipality, county, or other governmental entity from acquiring a lawfully erected sign through eminent domain or from prospectively regulating the placement, size, height, or other aspects of new signs within such entity's jurisdiction, including the prohibition of new signs, unless otherwise authorized pursuant to this section. Nothing in this section shall impair any ordinance or provision of any ordinance not inconsistent with this section, including a provision that creates a ban or partial ban on new signs, nor shall this section create any new rights for any party other than the owner of a sign, the owner of the land upon which it is located, or a municipality, county, or other governmental entity as expressed in this section. (9) This section applies only to a lawfully erected sign the subject matter of which relates to premises other than the premises on which it is located or to merchandise, services, activities, or http://www.leg.state.fl.usIStatutes/index.cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes : Online Sunshine Page 8 of 14 entertainment not said, produced, manufactured, or furnished on the premises on which the sign is located. (10) This section shall not apply to any actions taken by the Department of Transportation that relate to the operation, maintenance, or expansion of transportation facilities, and this section shall not affect existing law regarding eminent domain relating to the Department of Transportation. (11) Nothing in this section shall impair or affect any written agreement existing prior to the effective date of this act, including, but not limited to, any settlement agreements reliant upon the legality or enforceability of local ordinances. The provisions of this section shall not apply to any signs that are required to be removed by a date certain in areas designated by local ordinance as view corridors if the local ordinance creating the view corridors was enacted in part to effectuate a consensual agreement between the local government and two or more sign owners prior to the effective date of this act, nor shall the provisions of this section apply to any signs that are the subject of an ordinance providing an amortization period, which period has expired, and which ordinance is the subject of judicial proceedings that were commenced on or before January 1, 2001, nor shall this section apply to any municipality with an ordinance that prohibits billboards and has two or fewer billboards located within its current boundaries or its future annexed properties. (12) Subsection (6) shall not apply when the development order permits construction of a replacement sign that cannot be erected without the removal of the lawfully erected sign being replaced. History.—s. 1, ch. 200213; s. 10, ch, 2005-2 70.51 Land use and environmental dispute resolution.— (1) This section may be cited as the "Florida Land Use and Environmental Dispute Resolution Act." (2) As used in this section, the term: (a) "Development order" means any order, or notice of proposed state or regional governmental agency action, which is or will have the effect of granting, denying, or granting with conditions an application for a development permit, and includes the rezoning of a specific parcel. Actions by the state or a local government on comprehensive plan amendments are not development orders. (b) "Development permit" means any building permit, zoning permit, subdivision approval, certification, special exception, variance, or any other similar action of local government, as well as any permit authorized to be issued under state law by state, regional, or local government which has the effect of authorizing the development of real property including, but not limited to, programs implementing chapters 125, 161, 163, 166, 187, 258, 372, 373, 378, 380, and 403. (c) "Special magistrate" means a person selected by the parties to perform the duties prescribed in this section. The special magistrate must be a resident of the state and possess experience and expertise in mediation and at least one of the following disciplines and a working familiarity with the others: land use and environmental permitting, land planning, land economics, local and state government organization and powers, and the law governing the same. (d) "Owner' means a person with a legal or equitable interest in real property who filed an application for a development permit for the property at the state, regional, or local level and who received a development order, or who holds legal title to real property that is subject to an enforcement action of a governmental entity. (e) "Proposed use of the property" means the proposal filed by the owner to develop his or her real property. littp://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes : Online Sunshine Page 9 of 14 (f) "Governmental entity" includes an agency of the state, a regional or a local government created by the State Constitution or by general or special act, any county or municipatity, or any other entity that independently exercises governmental authority. The term does not include the United States or any of its agencies. (g) "Land" or "real property" means land and includes any appurtenances and improvements to the land, including any other relevant real property in which the owner had a relevant interest. (3) Any owner who believes that a development order, either separately or in conjunction with other development orders, or an enforcement action of a governmental entity, is unreasonable or unfairly burdens the use of the owner's real property, may apply within 30 days after receipt of the order or notice of the governmental action for relief under this section. (4) To initiate a proceeding under this section, an owner must file a request for relief with the elected or appointed head of the governmental entity that issued the development order or orders, or that initiated the enforcement action. The head of the governmental entity may not charge the owner for the request for relief and must forward the request for relief to the special magistrate who is mutually agreed upon by the owner and the governmental entity within 10 days after receipt of the request. (5) The governmental entity with whom a request has been filed shall also serve a copy of the request for relief by United States mail or by hand delivery to: (a) Owners of real property contiguous to the owner's property at the address on the latest county tax roll. (b) Any substantially affected party who submitted oral or written testimony, sworn or unsworn, of a substantive nature which stated with particularity objections to or support for any development order at issue or enforcement action at issue. Notice under this paragraph is required only if that party indicated a desire to receive notice of any subsequent special magistrate proceedings occurring on the development order or enforcement action. Each governmental entity must maintain in its files relating to particular development orders a mailing list of persons who have presented oral or written testimony and who have requested notice. (6) The request for relief must contain: (a) A brief statement of the owner's proposed use of the property. (b) A summary of the development order or description of the enforcement action. A copy of the development order or the documentation of an enforcement action at issue must be attached to the request. (c) A brief statement of the impact of the development order or enforcement action on the ability of the owner to achieve the proposed use of the property. (d) A certificate of service showing the parties, including the governmental entity, served. (7) The special magistrate may require other information in the interest of gaining a complete understanding of the request for relief. (8) The special magistrate may conduct a hearing on whether the request for relief should be dismissed for failing to include the information required in subsection (6). If the special magistrate dismisses the case, the special magistrate shall allow the owner to amend the request and refile. Failure to file an adequate amended request within the time specified shall result in a dismissal with prejudice as to this proceeding. (9) By requesting relief under this section, the owner consents to grant the special magistrate and the parties reasonable access to the real property with advance notice at a time and in a manner acceptable to the owner of the real property. http://www,leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes : Online Sunshine Page 10 of 14 (10)(a) Before initiating a special magistrate proceeding to review a local development order or local enforcement action, the owner must exhaust all nonjudicial local government administrative appeals if the appeals take no longer than 4 months. Once nonjudicial local administrative appeals are exhausted and the development order or enforcement action is final, or within 4 months after issuance of the development order or notice of the enforcement action if the owner has pursued local administrative appeals even if the appeals have not been concluded, the owner may initiate a proceeding under this section. Initiation of a proceeding tolls the time for seeking judicial review of a local government development order or enforcement action until the special magistrate's recommendation is acted upon by the local government. Election by the owner to file for judicial review of a local government development order or enforcement action prior to initiating a proceeding under this section waives any right to a special magistrate proceeding. (b) If an owner requests special magistrate relief from a development order or enforcement action Issued by a state or regional agency, the time for challenging agency action under ss. 120.569 and 120.57 is tolled. If an owner chooses to bring a proceeding under ss. 120.569 and 120.57 before initiating a special magistrate proceeding, then the owner waives any right to a special magistrate proceeding unless all parties consent to proceeding to mediation. (11) The initial party to the proceeding is the governmental entity that issues the development order to the owner or that is taking the enforcement action. In those instances when the development order or enforcement action is the culmination of a process involving more than one governmental entity or when a complete resolution of all relevant issues would require the active participation of more than one governmental entity, the special magistrate may, upon application of a party, join those governmental entities as parties to the proceeding if it will assist in effecting the purposes of this section, and those governmental entities so joined shall actively participate in the procedure. (12) Within 21 days after receipt of the request for relief, any owner of land contiguous to the owner's property and any substantially affected person who submitted oral or written testimony, sworn or unsworn, of a substantive nature which stated with particularity objections to or support for the development order or enforcement action at issue may request to participate in the proceeding. Those persons may be permitted to participate in the hearing but shall not be granted party or intervenor status. The participation of such persons is limited to addressing issues raised regarding alternatives, variances, and other types of adjustment to the development order or enforcement action which may impact their substantial interests, including denial of the development order or application of an enforcement action. (13) Each party must make efforts to assure that those persons qualified by training or experience necessary to address issues raised by the request or by the special magistrate and further qualified to address alternatives, variances, and other types of modifications to the development order or enforcement action are present at the hearing. (14) The special magistrate may subpoena any nonparty witnesses in the state whom the special magistrate believes will aid in the disposition of the matter. (15)(a) The special magistrate shall hold a hearing within 45 days after his or her receipt of the request for relief unless a different date is agreed to by all the parties. The hearing must be held in the county in which the property is located. (b) The special magistrate must provide notice of the place, date, and time of the hearing to all parties and any other persons who have requested such notice at least 40 days prior to the hearing. (16)(a) Fifteen days following the filing of a request for relief, the governmental entity that issued the development order or that is taking the enforcement action shall file a response to the request for hftp://www.leg.state.fl.us/Statutes/index.cfm?App_Mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes : Online Sunshine Page 11 of 14 relief with the special magistrate together with a copy to the owner. The response must set forth in reasonable detail the position of the governmental entity regarding the matters alleged by the owner. The response must include a brief statement explaining the public purpose of the regulations on which the development order or enforcement action is based. (b) Any governmental entity that is added by the special magistrate as a party must file a response to the request for relief prior to the hearing but not later than 15 days following its admission. (c) Any party may incorporate in the response to the request for relief a request to be dropped from the proceeding. The request to be dropped must set forth facts and circumstances relevant to aid the special magistrate in ruling on the request. Alt requests to be dropped must be disposed of prior to conducting any hearings on the merits of the request for relief. (17) In all respects, the hearing must be informal and open to the public and does not require the use of an attorney. The hearing must operate at the direction and under the supervision of the special magistrate. The object of the hearing is to focus attention on the impact of the governmental action giving rise to the request for relief and to explore alternatives to the development order or enforcement action and other regulatory efforts by the governmental entities in order to recommend relief, when appropriate, to the owner. (a) The first responsibility of the special magistrate is to facilitate a resolution of the conflict between the owner and governmental entities to the end that some modification of the owner's proposed use of the property or adjustment in the development order or enforcement action or regulatory efforts by one or more of the governmental parties may be reached. Accordingly, the special magistrate shall act as a facilitator or mediator between the parties in an effort to effect a mutually acceptable solution. The parties shall be represented at the mediation by persons with authority to bind their respective parties to a solution, or by persons with authority to recommend a solution directly to the persons with authority to bind their respective parties to a solution. (b) If an acceptable solution is not reached by the parties after the special magistrate's attempt at mediation, the special magistrate shall consider the facts and circumstances set forth in the request for relief and any responses and any other information produced at the hearing in order to determine whether the action by the governmental entity or entities is unreasonable or unfairly burdens the real property. (c) In conducting the hearing, the special magistrate may hear from all parties and witnesses that are necessary to an understanding of the matter. The special magistrate shall weigh all information offered at the hearing. (18) The circumstances to be examined in determining whether the development order or enforcement action, or the development order or enforcement action in conjunction with regulatory efforts of other governmental parties, is unreasonable or unfairly burdens use of the property may include, but are not limited to: (a) The history of the real property, including when it was purchased, how much was purchased, where it is located, the nature of the title, the composition of the property, and how it was initially used. (b) The history or development and use of the real property, including what was developed on the property and by whom, if it was subdivided and how and to whom it was sold, whether plats were filed or recorded, and whether infrastructure and other public services or improvements may have been dedicated to the public. http://www.leg,state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes : Online Sunshine Page 12 of 14 (c) The history of environmental protection and land use controls and other regulations, including how and when the land was classified, how use was proscribed, and what changes in classifications occurred. (d) The present nature and extent of the real property, including its natural and altered characteristics. (e) The reasonable expectations of the owner at the time of acquisition, or immediately prior to the Implementation of the regulation at issue, whichever is later, under the regulations then in effect and under common law. (f) The public purpose sought to be achieved by the development order or enforcement action, Including the nature and magnitude of the problem addressed by the underlying regulations on which the development order or enforcement action is based; whether the development order or enforcement action is necessary to the achievement of the public purpose; and whether there are alternative development orders or enforcement action conditions that would achieve the public purpose and allow for reduced restrictions on the use of the property. (g) Uses authorized for and restrictions placed on similar property. (h) Any other information determined relevant by the special magistrate. (19) Within 14 days after the conclusion of the hearing, the special magistrate shall prepare and file with all parties a written recommendation, (a) If the special magistrate finds that the development order at issue, or the development order or enforcement action in combination with the actions or regulations of other governmental entities, is not unreasonable or does not unfairly burden the use of the owner's property, the special magistrate must recommend that the development order or enforcement action remain undisturbed and the proceeding shall end, subject to the owner's retention of all other available remedies. (b) If the special magistrate finds that the development order or enforcement action, or the development order or enforcement action in combination with the actions or regulations of other governmental entities, is unreasonable or unfairly burdens use of the owner's property, the special magistrate, with the owner's consent to proceed, may recommend one or more alternatives that protect the public interest served by the development order or enforcement action and regulations at issue but allow for reduced restraints on the use of the owner's real property, including, but not limited to: 1. An adjustment of land development or permit standards or other provisions controlling the development or use of land. 2. Increases or modifications in the density, intensity, or use of areas of development. 3. The transfer of development rights. 4. Land swaps or exchanges. 5. Mitigation, including payments in lieu of onsite mitigation. 6. Location on the least sensitive portion of the property. 7. Conditioning the amount of development or use permitted. B. A requirement that issues be addressed on a more comprehensive basis than a single proposed use or development. 9. Issuance of the development order, a variance, special exception, or other extraordinary relief, including withdrawal of the enforcement action. 10. Purchase of the real property, or an interest therein, by an appropriate governmental entity. (c) This subsection does not prohibit the owner and governmental entity from entering into an agreement as to the permissible use of the property prior to the special magistrate entering a http://www.leg.state. flus/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes: Online Sunshine Page 13 of 14 recommendation. An agreement for a permissible use must be incorporated in the special magistrate's recommendation. (20) The special magistrate's recommendation is a public record under chapter 119. However, actions or statements of all participants to the special magistrate proceeding are evidence of an offer to compromise and inadmissible in any proceeding, judicial or administrative. (21) Within 45 days after receipt of the special magistrate's recommendation, the governmental entity responsible for the development order or enforcement action and other governmental entities participating in the proceeding must consult among themselves and each governmental entity must: (a) Accept the recommendation of the special magistrate as submitted and proceed to implement it by development agreement, when appropriate, or by other method, in the ordinary course and consistent with the rules and procedures of that governmental entity. However, the decision of the governmental entity to accept the recommendation of the special magistrate with respect to granting a modification, variance, or special exception to the application of statutes, rules, regulations, or ordinances as they would otherwise apply to the subject property does not require an owner to duplicate previous processes in which the owner has participated in order to effectuate the granting of the modification, variance, or special exception; (b) Modify the recommendation as submitted by the special magistrate and proceed to implement it by development agreement, when appropriate, or by other method, in the ordinary course and consistent with the rules and procedures of that governmental entity; or (c) Reject the recommendation as submitted by the special magistrate. Failure to act within 45 days is a rejection unless the period is extended by agreement of the owner and issuer of the development order or enforcement action. (22) If a governmental entity accepts the special magistrate's recommendation or modifies it and the owner rejects the acceptance or modification, or if a governmental entity rejects the special magistrate's recommendation, the governmental entity must issue a written decision within 30 days that describes as specifically as possible the use or uses available to the subject real property. (23) The procedure established by this section may not continue longer than 165 days, unless the period is extended by agreement of the parties. A decision describing available uses constitutes the last prerequisite to judicial action and the matter is ripe or final for subsequent judicial proceedings unless the owner initiates a proceeding under ss. 120.569 and 120.57. If the owner brings a proceeding under ss. 120.569 and 120.57, the matter is ripe when the proceeding culminates in a final order whether further appeal is available or not. (24) The procedure created by this section is not itself, nor does it create, a judicial cause of action. Once the governmental entity acts on the special magistrate's recommendation, the owner may elect to file suit in a court of competent jurisdiction. Invoking the procedures of this section is not a condition precedent to filing a civil action. (25) Regardless of the action the governmental entity takes on the special magistrate's recommendation, a recommendation that the development order or enforcement action, or the development order or enforcement action in combination with other governmental regulatory actions, is unreasonable or unfairly burdens use of the owner's real property may serve as an indication of sufficient hardship to support modification, variances, or special exceptions to the application of statutes, rules, regulations, or ordinances to the subject property. (26) A special magistrate's recommendation under this section constitutes data in support of, and a support document for, a comprehensive plan or comprehensive plan amendment, but is not, in and of itself, dispositive of a determination of compliance with chapter 163. http://Www.leg.state.fl.us/Statuteslindex.cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Statutes & Constitution :View Statutes: Online Sunshine Page 14 of 14 (27) The special magistrate shall send a copy of the recommendation in each case to the Department of Legal Affairs. Each governmental entity, within 15 days after its action on the special magistrate's recommendation, shall notify the Department of Legal Affairs in writing as to what action the governmental entity took on the special magistrate's recommendation. (28) Each governmental entity may establish procedural guidelines to govern the conduct of proceedings authorized by this section, which must include, but are not limited to, payment of special magistrate fees and expenses, including the costs of providing notice and effecting service of the request for relief under this section, which shall be borne equally by the governmental entities and the owner. (29) This section shall be liberally construed to effect fully its obvious purposes and intent, and governmental entities shall direct all available resources and authorities to effect fully the obvious purposes and intent of this section in resolving disputes. Governmental entities are encouraged to expedite notice and time -related provisions to implement resolution of disputes under this section. The procedure established by this section may be used to resolve disputes in pending judicial proceedings, with the agreement of the parties to the judicial proceedings, and subject to the approval of the court in which the judicial proceedings are pending. The provisions of this section are cumulative, and do not supplant other methods agreed to by the parties and lawfully available for arbitration, mediation, or other forms of alternative dispute resolution. (30) This section applies only to development orders issued, modified, or amended, or to enforcement actions issued, on or after October 1, 1995. History.—s. 2, ch. 95.161; s. 7, ch. 96.410; s. 25, ch. 97.96; s. 59, ch. 2004.11; s. 1, ch. 2011.139. 70.80 Construction of ss. 70.001 and 70.51.—It is the express declaration of the Legislature that ss. 70.001 and 70.51 have separate and distinct bases, objectives, applications, and processes. It is therefore the intent of the Legislature that ss. 70.001 and 70.51 are not to be construed in pari materia. History.—s. 3, ch. 95.181. Copyright ®1995-2012 The Florida Legislature • Privacy Statement • Contact littp://www.leg.state.fl.us/Statutes/index cfm?App_mode=Display_Statute&URL=0000-009... 2/7/2012 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation I Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation - Updated 2010 Version Ronald' L. Weaver Stearns Weaver Miller Weissler Alhadeff & Sitterson, Tampa, Florida; J D , Harvard University, 1974; B.A , University of North Carolina—Chapel Ell, 1971. Joni Armstrong Coffey Miarni-Dade County Attorney's Office, Miami, Florida; J.D., University of Florida, 1979; B A., Florida State University, 1976. June 2010 Florida Environmental and Land Use Law June 2010 Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation for nonbinding arbitration to identify new sites for such signs (§ 70.20(4)); and prohibits imposing a requirement to remove an outdoor advertising sign as a condition of a development order (§ 70.20(6)). A 2006 amendment shortened the mandatory pre -suit period from 180 to 90 days for claims by owners of property assessed as agricultural for ad valorem tax purposes. § 70.001(4)(x), Fla. Stat. (2006). M. Bert J. Harris, Jr., Private Property Rights Protection Act. A. Overview. The Bert J. Hams, .Jr., Private Property Rights Protection Act, § 70.001, Fla. Stat. (2006), creates a new cause of action for an aggrieved property owner who demonstrates that a government action occurring after the close of the 1995 legislative session (May 11, 1995) "inordinately burdens" the owner's property. The Act provides a formal process for addressing and resolving differences between landowners and governments, beginning with a dispute resolution period and culminating in a circuit court action if the dispute is not resolved. Claims brought under the Act are expressly not required to meet the stringent case law standards for a finding of a "taking." The Act provides statutory relief that is supplemental to, but separate from, private property protections under the Florida and U.S. Constitutions, other legislation and case law. § 70.001(1), Fla. Stat. (2006). Under the Act, which took effect on October 1, 1995, a landowner must show, with an appraisal in hand, that a specific action of a state, regional or local government has caused a permanent and "inordinate burden" on the owner's property. The owner may demonstrate such an "inordinate burden" by showing either (1) that the property has been unfairly singled out to bear a "disproportionate" share of the regulatory burden imposed to meet a legitimate governmental end, or (2) that the owner is now permanently unable to attain reasonable, investment -backed expectations for use of the property. Those expectations may include expectations for the continued present use of the property, or for a vested right to a specific future use of the real property, or, within prescribed limitations, for reasonably anticipated future uses. If the owner establishes that such an inordinate burden has been caused by the government action at issue, the owner is entitled to relief, "which may include compensation for the actual loss to the fair market value of the real property caused by the action of government... § 70.001(2), Fla. Stat. (2006). One court has upheld the Act against due process, separation of powers and unlawful delegation challenges. In Brevard County v. Stack, 932 So. 2d 1258 (Fla. 5th DCA 2006), the court ruled against the county's arguments that: (1) the Act unconstitutionally authorizes governments to contract away police powers and then buy them back in the form of compensation to claimants under the Act; (2) the Act expands the judicial interpretation of constitutional takings theory; and (3) the Act delegates legislative power over land use to the Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-4 Florida Environmental and Land Use Law June 2010 Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation courts, with insufficient criteria to inform the courts' decision-making process in applying the Act. In what might be interpreted as a possibly less sanguine view of the Act, the court in Royal World Metropolitan, Inc. v. City of Mianti Beach, 863 So. 2d 320 at n. 1 (Fla. 3d DCA 2003), stated succinctly and enigmatically: 'The constitutionality of the Harris Act was not raised as an issue in this case and we express no views thereon." In a similar voice, the court in M & H Profit, Inc. v. City of Panama City, 28 S. 3d 71 (Fla. 2010), noting the constitutional constraints of municipal home rule, declined to construe the Act broadly, so as to cover facial challenges to newly adopted regulations of general applicability. The case on appeal was decided on a procedural issue and the City conceded at oral argument that the dismissal was without prejudice to a subsequent as -applied challenge, after exhausting administrative remedies. In that case, M & H, the property owner, purchased property zoned commercial, with no height or setback restrictions. Thereafter, the city modified its zoning regulations for commercial districts, imposing both height and setback restrictions. After negative indications from senior staff, but without filing any application for a development permit and obtaining an official rejection under the new regulations or a denial of variance from those new restrictions, M & H filed its claim for compensation under the Act. The trial court dismissed the claim, concluding that the Act applies only to as -applied claims, not facial ones, On appeal, the district court affirmed, relying not only on the Act's express terms, but also on the constitutional grant of broad municipal home rule powers under Article VIII, section 2 of the Florida Constitution. The court stated that "an interpretation of state statutes which would impede the ability of local government to protect the health and welfare of its citizens should be rejected unless the Legislature has clearly expressed the intent to limit or constrain local government action." Id at 77. Lacking such an expression of intent, the Act was construed in this case to cover parcel -specific applications of regulations and not the adoption ofjurisdiction- wide regulations of general applicability. To initiate a claim under the Act, a property owner presents a claim, supported by an appraisal demonstrating the adverse impact on fair market value, to each governmental entity about whose action the owner complains. The claim must be presented to the head of the governmental entity within one year after the government action is applied to the claimant. The governmental entity or entities involved must notify all parties to the action giving rise to the claim and to contiguous property owners. The government must then make a written settlement offer to the property owner, which the owner may accept or reject. The government may offer, among other things, full or partial relief from the action complained of, monetary or non - monetary compensation, or no relief at all. If the owner does not accept the government's offer, the government issues a "ripeness decision identifying the allowable uses to which the subject property may be put." § 70..001(5)(a), Fla. Stat. (2006). If the owner does not accept the settlement offer and ripeness decision, the property owner may file suit in circuit court for compensation. Copyright 2007 The Florida Bar, Tallahassee, Florida 303-5 Florida Environmental and Land Use Law June 2010 Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation In the litigation phase of the claim, a circuit judge determines whether the property has been "inordinately burdened" by the government action. If that finding is made, a jury will be impaneled to determine compensation. The Act entitles the property owner to recover the loss in fair market value of the property occasioned by the government action. The Act further allows attorneys' fees and costs if the ,judge determines that the settlement offer and the ripeness decision did not constitute a bona fide offer that reasonably would have resolved the claim. The government may recover its attorneys' fees and costs if it prevails in the action and the judge determines that the settlement offer and the ripeness decision were reasonable. The Act specifically excludes from its scope any government actions taken prior to May 11, 1995; government actions to abate a nuisance or noxious use; temporary impacts of government actions; impacts on neighboring properties caused by government actions granting relief under the Act; government actions relating to operation, maintenance or expansion of transportation facilities, or any eminent domain action relating to transportation; federal government actions or state, regional or local government actions pursuant to delegated federal authority; and repetitive claims for loss in value to the same property. The Act expressly provides that it "does not affect the sovereign immunity of government. § 70.001(13), Fla. Stat. (2006). Reversing a summary judgment for the city, the Third District Court ruled in Royal World Metropolitan, Inc. v. City of Miami Beach, 863 So. 2d 320 (Fla. 3d DCA 2003), that the statutory provision on sovereign immunity could not be read to prohibit the award of monetary compensation to a property owner. Such a reading would undermine the stated purpose of the Act, which was to create a new cause of action for compensation for property owners experiencing a diminution of property value as a result of government regulation. Id. at 322. B. Substantive Requirements of a Claim. A claimant has the burden of establishing the essential elements of a Private Property Rights Act claim. The statute spells out each of the elements and provides definitions, but leaves to judicial interpretation a significant range of unresolved issues. In interpreting the Act's requirements, it will be useful to bear in mind the legislative intent expressed in the Act: ... [I]t is the intent of the Legislature that, as a separate and distinct cause of action from the law of takings, the Legislature herein provides for relief, or payment of compensation, when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property. § 70.001(1), Fla. Stat. (2006). Copyright 2007 The Florida Bar, Tallahassee, Florida 303.6 Florida Environmental and Lund Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation The heart of the Act is contained in a single paragraph, which provides as follows: When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief, which may include compensation for the actual loss to the fair market value of the real property caused by the action of government, as provided in this section. § 70.001(2), Fla. Stat. (2006). June 2010 Together with the definitional provisions that follow in the statute, that paragraph provides an outline of the matters that must be alleged and proved to sustain a claim under the Act. The following discussion of the elements of the claim relies on the express terms in the Act, judicial and Attorney General interpretations to date, commentary by land use law scholars and practitioners, and positions in litigation taken by practitioners on both sides of the claim. 1, OWNERSHIP OF THE REAL PROPERTY.. Only a real property owner has standing to bring a claim. The Act defines the "property owner" as "the person who holds legal title to the real property at issue." § 70.001 (3)(0, Fla. Stat. (2006). By its express terms, the Act thus excludes holders of other interests in the property, including beneficial owners, leaseholders, mortgagees and others with no legal title interest.. See, e.g., Abtuaid v.. Hillsborough County, 2009 WL 1515626 (M.D. Fla. 2009)(relief not available under the Act to the tenant). The statute does not indicate whether ownership of less than a fee simple interest, such as a reversionary interest or a life estate, would qualify as real property ownership, but it does not seem to exclude such a lesser interest from bringing a claim, so long as the interest appears in the chain of title. The statute does not anticipate or provide for the event that only one of a group of titleholders to a particular piece of property chooses to bring an action under the Act. Whether a partial owner would be able to recover for nonparticipating owners is therefore not addressed. The court in City of Tarpon Springs v. Planes, 2010 WL 1135905 (Fla. 2D DCA 2010), addressed the required element of ownership under the Act. In that case, three cemetery lots were purchased pursuant to an agreement providing that the city would maintain ownership and control of the lots, but the purchasers would have a contractual right of interment. Relying on a "plain reading of the definition of'owner"' under the Act, the court concluded in that case that the contractual right of interment was insufficient to allow the purchasers to bring a claim as "owners" under the Act.. Cop)Tight 2007 The Florida Bar, Tallahassee, Florida 303-7 Florida Environmental and Land Use Law June 2010 Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation The Act expressly excludes all governmental entities from bringing a claim under the Act, regardless of legal title. § 70.001(3)(f), Fla. Stat. (2006), The framers' intent to provide relief only to "private" property owners is thetefore clear. 2. REAL PROPERTY ONLY. The Act contemplates recovery for impact on real property only.. "Real property" is defined as "land and ... appurtenances and improvements to the land.... " § 70.001(3)(g), Fla. Stat. (2006). The definition also includes "any other relevant real property in which the property owner had a relevant interest." Id. There is no express requirement that such "other relevant property" have physical contiguity or simultaneous impact. The definition is clear in its exclusion of personal property and intangibles. Less clear is the extent of the real property interest intended to be protected. The terms of the Act, however, do indicate that the real property that is the subject of a claim must fall somewhere in the realm of property impacted by the government action at issue, by limiting the claim to "relevant" property. In opinion 95-78, the Florida Attorney General reasoned that "[t]he plain language of the statute indicates that only real property that is directly affected by a governmental regulation is covered by the provisions of the act." 95-78 Fla. Op. Att'y Gen 1 (1995). The attorney general reasons further that an act of the Legislature that creates an obligation against the state in favor of a grantee "must be strictly construed in favor of the state and against the grantee." Id. The opinion concludes that the Act "operates to provide a cause of action only for owners of real property that is directly affected by a governmental regulation and does not provide for recovery of damages to property that is not the subject of governmental action or regulation, but which may have incidentally suffered a diminution in value or other loss as a result of the regulation of the subject property." Id. By the express terms of the Act, a claim may be brought only when an "inordinate burden" accrues to the real property "as a whole." § 70.001(3)(e), Fla. Stat. (2006). As in takings case law, a burden imposed on less than the whole property is not actionable. If the property as a whole retains the reasonable, investment -backed expectation for its existing use, or the ability to use the property for a vested right to a specific use, no claim accrues. Thus, in Palm Beach Polo, Inc. v. Village of Wellington, 918 So. 2d 988 (Fla. 4th DCA 2006), the court rejected a developer's claim for compensation under the Act where the developer was required under a 1972 development order to "restore, enhance and preserve" 92 acres of wetland and cypress forest. Although in 1999 the more recently incorporated Village of Wellington adopted a "conservation" designation on its comprehensive plan future land use map, the court found no viable claim under the Act. The court reasoned that the original developer had bargained for increased density on the rest of the 7400 -acre tract in exchange for not developing the 92 -acre preserve, and that analysis of a claim under the Act requires considering the subject property "in its entirety." 918 So. 2d at 997. Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-8 Florida Environmental and Land Use Law June 2010 Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation 3. SPECIFIC ACTION OF GOVERNMENT DIRECTLY RESTRICTING THE REAL PROPERTY. The Act contemplates recovery for a "specific action" of government that inordinately burdens real property. § 70.001(2), Fla. Stat. (2006). Two statutory provisions serve to further define the kinds of government actions within the scope of the Act. The definition of "action of a governmental entity" is "a specific action of a governmental entity which affects real property, including action on an application or permit. § 70.001(3)(d), Fla. Stat. (2006). The legislative intent provision of the Act further refines the term as "a new law, rule, regulation, or ordinance" as applied to a property. § 70.001(1), Fla. Stat. (2006), These two guideposts indicate that actionable events under the Act are limited to "laws, rules, regulations, and ordinances" that have been applied specifically to a particular piece of real property. Thereby excluded from the Act's scope are nonregulatory actions of government, such as a decision to place a governmental facility at a particular location. Properties affected by such nonregulatory actions may have other means of redress, but none under the Act. Further, the Act does not provide for relief from incidental impacts even when the government action at issue is a regulatory one. Actionable government conduct must directly impact the property involved. See also § 70.001(3)(e), Fla. Stat. (2006) (requiting a showing that the government action "has directly restricted or limited the use of real property"). The requirement that the government action be specifically applied to a particular piece of real property has been viewed by some as a ripeness requirement. Under that view, a jurisdiction -wide piece of legislation would not become actionable under the Act until a property owner has applied for development approval and been denied under the provisions of the legislation. Support is found in the Act for that interpretation where the Act expressly defines an actionable event to include "action on an application or permit." § 70.001(3)(d), Fla. Stat. (2006). Even under this interpretation, however, the issue of when a government action has been specifically applied to a particular piece of property will require case-by-case analysis, just as ripeness issues in the takings context require. The Attorney General of Florida has opined that a municipal charter change resulting from an initiated petition drive constitutes "an action of a governmental entity" within the meaning of the Act. 2006-31 Fla. Op. Att'y Gen. 1 (2006) (concerning a 44 -foot building height limit on new construction in a recently annexed area of Town of Lauderdale By The Sea). Further, any new regulations adopted to implement the charter change would constitute actions of government subject to the Act. Id. The circuit court in West Palm Beach considered what is required to constitute "government action in three cases filed against the City of West Palm Beach: Fidelity Fed. Savings Bank v. West Palm Beach, Case No. CL -97 -1470 -AE (Fla. 15th Cir, Ct. 1997); Holy Trinity Church v. West Patin Beach, Case No. CL -97 -4711 -AE (Fla. 15th Cr. Ct. 1997); and Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-9 Florida Environmental and Land Use Law June 2010 Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation First Church of Christ Scientist v, West Palin Beach, Case No. CL -97 -4710 -AE (Fla. 15th Cir. Ct. 1997). In these cases, the plaintiffs challenged the impact of an amendment to the city's zoning code that decreased the maximum building height at the city's waterfront. The city's original zoning code had maintained an allowable building height of fifteen stories for the subject waterfront area. In January of 1996, citizens petitioned the city to enact an ordinance mandating the reduction of the allowable height to five stories The City Commission declined to pass the requested ordinance, but, pursuant to its local rules, called a special referendum election on the issue. On March 12, 1996, voters elected to decrease the allowed building height on certain downtown waterfront parcels from fifteen stories to five. Fidelity Federal Savings Bank (Fidelity), anticipating the referendum election, filed a site plan application on March 11, 1996, requesting permission to construct two fifteen -story buildings and a six -story parking garage. Pursuant to local regulation, applications pertaining to the referendum were not processed when the citizen petition was pending. Therefore, Fidelity's claim was in effect frozen until the election. After the referendum, the city denied Fidelity's request to construct the fifteen -story buildings. In January 1997, Fidelity filed its claim under the Act, alleging the referendum constituted an "inordinate burden" on its property. In response, the city claimed the Act was inapplicable, because there had been no action by a "government entity," since the city itself had not changed the zoning laws. Rather, the citizens, in a referendum election initiated by petition, voted to enact the height restriction. The circuit court judge rejected this argument, and denied the city's motion for rehearing stating that "[i]t does not matter if the city enacts the ordinance at the request of some of its citizens or if the idea springs from the minds of city commissioners. All that matters is whether it inordinately burdens private property rights." The City Commission voted not to appeal the judge's order and the parties settled the matter, allowing Fidelity to construct two fifteen -story buildings, but not the six -story parking structure.. In March 1997, Holy Trinity Church (Trinity) and First Church of Christ Scientist (Christ Scientist) submitted claims under the Act, also arising from the newly enacted height restriction. Like Fidelity, they professed the restriction "inordinately burdened" their private property. However, unlike Fidelity, neither Trinity nor Christ Scientist had submitted site plan applications. The city presented a number of arguments in its complaint for declaratory relief from liability. First, the city reasserted its contention that there was no government action. Second, the city argued that because Trinity and Christ Scientist did not submit site plans for construction of structures over five stories, their claims failed to meet the "as applied" language of the Act. The city maintained that the Act could not apply until an application to construct a building that exceeds five stories in height had been filed and also denied. The city also alleged that the Act violated the Florida Constitution in that it usurped the power granted to Florida municipalities, regarding zoning and other governmental duties. Moreover, the city asserted the Act was unconstitutionally vague and ambiguous, and conflicted directly with the Florida Constitution by lowering the standard for obtaining just compensation, from a "taking" to an Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-10 Florida Environmental and Land Use Law lune 2010 Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation "inordinate burden," thereby amending the Constitution without following the requisite due process procedure. Ultimately ruling for the city in these two cases, the circuit court judge held that mere enactment of an ordinance, without application, does not constitute an "action of a governmental entity" as contemplated by the Act. However, the court again rejected the city's argument that action by a "governmental entity" did not encompass a citizen's initiative. Although both patties appealed, the appeal and cross-appeal were dismissed. As to what kinds of action are within the scope of "government" action, it is noteworthy that the circuit court in the West Pads: Beach litigation did interpret the Act broadly enough to encompass land use ordinances adopted pursuant to citizen initiative as "government action" subject to the Act. Further, because the Act applies to "government" action only, no claim may be brought challenging a private, nongovernmental action undertaken pursuant to law, even where the action results in an adverse impact due to the government requirement. 4. APPLICABILITYTO "NEW" LAWS, RULES, REGULATIONS, OR ORDINANCES. By its express terms, the Act is applicable only to "new" laws, rules, regulations and ordinances enacted after the end of the Legislative session in 1995. The Act provides: "No cause of action exists under this section as to the application of any law enacted on or before May 11, 1995, or as to the application of any rule, regulation, or ordinance adopted, or formally noticed for adoption, on or before that date." § 70.001(12), Fla. Stat. (2006). Thus, regulations already in place or formally noticed for adoption at the time the Act was adopted are grandfathered in. Those preexisting regulations may be enforced without regard to the impacts that would otherwise be actionable under the Act. Further, "new" amendments to preexisting regulations do not void the protection extended to the preexisting regulation, but are actionable only to the extent that application of the amendment itself gives rise to a claim. Id. Although the exemption appears clear on its face, questions may arise in the application of this section. For example, if a local government denies a variance under a preexisting zoning code provision, is that decision a "new" regulation, or just enforcement of the preexisting code? As another example, will governmental action be subject to challenge when implementing regulations are adopted pursuant to a mandatory preexisting law? Will the Act's exemption apply to "new" comprehensive plan provisions adopted pursuant to state comprehensive planning law requirements, or to implementing land use regulations adopted pursuant to requirements of a preexisting comprehensive plan provision? Answers to these questions still await full judicial interpretation. Copyright 2007 The Florida Bar, Tallahassee, Florida 303-11 Florida Environmental and Land Use Law tune 2010 Private Property Rights Protection Legislation: Statutory Claims for Relief from Govemmental Regulation 5. CAUSATION. A claimant under the Act must establish that the governmental action at issue actually caused the adverse impact complained of The "inordinate burden" from which the property owner seeks to be relieved must be shown to be the direct result of the government action challenged by the real property owner. § 70.001(2), § 70.001(3)(e), Fla. Stat. (2006). Consider a new governmental regulation enacted at the outset of a real estate recession. Will reduced property value and simultaneous government action be sufficient to satisfy the Act's requirements? This battle will likely be waged through the use of property appraisal experts who will seek to demonstrate the impact, or lack of impact, deriving fiom enactment and application of a new regulation. 6. STATUTORYIN.fURY INORDINATE BURDEN ON THE PROPERTY, The remediable injury under the Act is the placing of an "inordinate burden" on the subject property. The injury to the property must be permanent, and must exist in relation to the property as a whole. Temporary impacts are not remediable, and loss of use of a portion of the property is not remediable where the property as a whole retains its value as a developable property. § 70.001(3)(e), Fla. Stat. (2006). See Palm Beach Polo, Inc. v. Village of Wellington, 918 So. 2d 988 (Fla 4th DCA 2006). The statute's description of the requisite showing of injury is perhaps the most complex provision in the Act. The Act provides: The terms "inordinate burden" or "inordinately burdened" mean that an action of one or more govemmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment -backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large. § 70.001(3)(e), Fla. Stat. (2006), Broken out into parts, the injury element is best understood as a pair of independent, alternative means of demonstrating "unfairness" in the governmental action at issue. One altemative deals with specific uses that are presently existing or proposed for the property, and for which the property owner can demonstrate some degree of reasonable expectation of present or future development. Under this alternative, the owner must show that he or she has been Copyright 2007 The Florida Bar, Tallahassee, Florida 303-12 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 deprived by the offending regulation of either a specific existing use of the property (defined to include both present and certain foreseeable uses) or a vested right to a specific use. The second method of proving injury looks not at the regulation's impact on specific proposed uses, but instead at the uses remaining after the governmental regulation takes effect. It considers whether the remaining uses for the property represent a reasonable range of potential uses. Under this option, a property owner must show that the property has such limited remaining uses that it is unfairly bearing the brunt of a regulatory burden that should properly be imposed not upon an individual property owner, but instead upon the public as a whole, which benefits from the regulation. In a claim under the Act, a property owner could advance either or both theories, depending on the facts of the case at hand. Here they are discussed separately. a. Inordinate Burden on Existing or Vested Property Uses The statutory injury requirement is sufficiently demonstrated if the claimant establishes: (1) that he or she is permanently unable (2) to attain the reasonable, investment -backed expectation for (3) the existing use of the property, or (4) a vested right to a specific future use of the property (5) with respect to the property as a whole. Thus, temporary impacts are not remediable, consistent with the express provision appearing later in the subsection; the damage to the property's use must be permanent. The Act does not define at what point an injury is no longer temporary, but instead has become permanent. That inquiry will turn on the facts of each individual case. "Reasonable, investment -backed expectations" is a phrase drawn from takings law. Although the Private Property Rights Act is expressly intended to be supplemental to, and not duplicative of, takings law, litigants and the courts may choose to draw upon precedent in the takings sphere when confronted with terms of art distinctive to the takings context. Clearly, however, they are not required to do so. In the takings context, "reasonable, investment -backed expectations" is a term employed by both the federal and state courts in their listing of ad hoc factual inquiries necessary to reach a proper regulatory takings analysis. See, e.g., Williamson County v. Hamilton Bank, 473 U.S. 172, 192 (1985); Ruckelshaus v. Monsanto, 467 U.S. 986 (1984); Kaiser Aetna v. United States, 444 U.S. 164 (1979); Penn Central Transp. v. New York City, 438 U.S. 104, 124 (1978); Graham v. Estuary Properties, 399 So. 2d 1374, 1380 (Fla. 1981); Namon v. DER, 558 So. 2d 504 (Fla. 3rd DCA 1990). Under the takings cases, the inquiry is whether a property owner has an objectively reasonable expectation for Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-13 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 developing his or her property in a certain way, based on the owner's substantial expenses or obligations reasonably incurred to attain such development. Under a takings analysis, an owner's "unilateral expectation or an abstract need" is not sufficient to demonstrate governmental interference tantamount to a taking. Webb's Fabulous Pharmacies, Inc v. Beckwith, 449 U.S. 155, 161 (1980). Courts interpreting the Act may employ that standard or modify it in view of the Act's express dictate that takings law is not binding. In Palm Beach Polo, Inc. v. Village of Wellington, 918 So. 2d 988 (Fla. 4th DCA, 2006). the court found no reasonable investment -backed expectation assuring a right to develop 92 acres of wetland and cypress forest preserve. The preserve had been set aside as part of a prior development order for a 7400 -acres development that shifted residential density from the preserve to developable areas. The court in Osceola County v. Best Diversified, Inc., 936 So, 2d 55, 60 n. 5 (Fla. 5th DCA 2006), expressly found that the Act would not "apply to the impact on real property occasioned by governmental abatement, prohibition, prevention or remediation of a public nuisance at common law or a noxious use of private property..." The court observed that the abatement of a nuisance was the precise character of the county's action in disallowing the continued operation of a landfill with a long history of violations and uncontrolled odor. "Existing use" similarly is a term with roots in zoning and land use law. Generally, existing uses are understood to be uses presently upon the property. Besides uses that are lawful under current regulations, existing uses in zoning law also include uses instituted lawfully under prior regulations, but which are now lawfully nonconforming after a change in applicable regulations. The Private Property Rights Act also recognizes that presently existing uses include uses that are intermittent. Section 70.001(3)(b) provides that existing uses include uses with "periods of inactivity which are normally associated with, or are incidental to, the nature or type of use or activity." § 70,001(3)b), Fla.. Stat. (2006). This part of the term "existing use" therefore is readily understandable in light of the term's conventional understanding in land use law. The Act, however, does not end its definition of "existing use" at that point. The single significant change made by the Legislature to the working group's draft legislation, discussed above, was a change to the definition of the term "existing use." The definition ultimately adopted by the Legislature includes not only present uses, but also potential future uses. Those potential future uses include 'reasonably foreseeable, nonspeculative land uses which [11 are suitable for the subject real property, [21 [are] compatible with adjacent land uses and [3] Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-14 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property," § 70.001(3)(b), Fla. Stat. (2006). This statutory expansion of the term "existing use" is likely the most controversial term in the Act. Added to the compromise bill on the floor of the House of Representatives at the last moment, without discussion, the provision purports to open the door to claims for compensation for uses that the government has never approved and to which the owner lacks a vested right under case law in Florida. The expanded version of the term is designed to compensate owners for whose property the market has recognized a value based on an anticipated future use, even where there is no guarantee that the requisite government approvals would ever be obtained to actually allow the anticipated development of the property. Whether such an anticipated use could ever be proved to be nonspeculative is open to future consideration and debate. See generally City Nat'l Bank v. Dade County, 715 So. 2d 350 (Fla. 3d DCA 1998) (holding that unapproved site plan was too speculative to be admitted as evidence of damages in eminent domain proceeding). But see Patel v. Broward County, 641 So. 2d 40 (Fla. 1994) (variances probably obtainable and thus cognizable by the court). The provision, if applied successfully, will likely benefit those property owners who can establish that similarly situated neighboring properties enjoy development approvals similar to that sought by the owner. The uses on those other properties will help demonstrate, as required by the Act, what uses might have been suitable for the subject property and compatible with the adjacent land uses. They may also be probative of the subject property's fair market value. The term "vested right" has a more precise statutory definition than "existing use." The Act provides that the "existence of a vested right is to be determined by applying the principles of equitable estoppel or substantive due process under the common law or by applying the statutory law of this state." § 70.001(3)(a), Fla. Stat. (2006). Florida case law has long established the elements of equitable estoppel. To establish a right to relief against the government under that equitable doctrine, a claimant must prove that (1) he or she has made a substantial change in position or incurred substantial obligations or expenses (2) relying in good faith (3) on some act or omission of government (4) such that it would be highly inequitable and unjust to deprive the owner of the interest sought to be protected. See Hollywood v.. Hollywood Beach Hotel, 283 So. 2d 867 (Fla. 4th DCA 1973), rev'd in part, 329 So. 2d 10 (Fla. 1976). The court in Citrus County v. Halls River Development, Inc., 8 So. 3d 413 (Fla. 5a' DCA 2009), applied traditional elements of vested rights and estoppel in reviewing the claims of developer Halls River. Based on advice by county staff Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3.15 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 (later determined by the District court to be erroneous), Halls River purchased the property and even obtained county commission approval for multi -family residential development. However, notwithstanding county staffs interpretation of the comprehensive plan, the county commission approval of Halls River's application, and a trial court ruling in favor of Halls River, the district court on appeal construed the comprehensive plan to limit development to one dwelling unit per 20 acres.. The district court held that Halls River could not, under the circumstances, establish that multi -family residential use was a "reasonably foreseeable and nonspeculative" use amounting to an "existing use" under the Act, because, even though misinformed by county staff, Halls River "should have known" that the comprehensive plan designation would not allow its proposed use. For the same reason, and because "the doctrine of estoppel does not generally apply to transactions that are forbidden by law or contrary to public policy," estoppel would not lie to require approval of Halls River's proposed development. Similarly, in City of Jacksonville Y. Cofeld, 18 So.3d 589 (Fla. 1°t DCA 2009), city staff issued a concurrency reservation certificate and other positive indications of at least lower level staff, the developer began "clearing the property and hiring surveyors and engineers to prepare surveys and plans." Upon application by nearby homeowners, the city thereafter closed the only roadway access to the property, rendering it undevelopable for Coffreld's intended use. Crucially, the homeowners' application to close the exclusive access was known to the developer prior to closing of the purchase of the property For that reason, the court concluded that no "reasonably foreseeable, nonspeculative" use of the property was in existence. The developer therefore lacked an existing use or vested right that would entitle him to relief under the Act, when the District court overturned the trial court judgment for the owner. In another one of the few cases with a potentially favorable outcome for a property owner, the federal district court in Bloomingdale Development, LLC v. Hernando Cottnty, 2009 WL 347786 (M.D. Fla. 2009), denied the county's summary judgment motion, finding material issues of disputed fact concerning the property owner's claim for vested rights to develop one phase of a previously approved master development plan approved years earlier by the county. In that case, Bloomingdale submitted revised plans for Phase 3 of a large, master - planned residential development project in Hernando County. The master plan for the three-phase development was first approved by the county in 1997, then subsequently amended in 1994 and 2002. The county denied Bloomingdale's 2005 application for approval of a revised plan for Phase 3, concluding that (1) the 2002 master plan expired under its own terms, and (2) the Bloomingdale application failed to meet new roadway access requirements imposed county -wide Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-16 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 at some point after Bloomingdale filed its application for the revised plan. After an unsuccessful petition for certiorari, Bloomingdale timely filed its claim and suit under the Act, and, along with other claims, the matter was removed to federal district court. The federal district court denied Hernando County's motion for summary judgment, leaving for trial the question of whether Bloomingdale enjoyed vested rights to develop Phase 3 under the previously approved master plan, and to develop without meeting the roadway access requirements imposed after it filed its application for revised plans. In reaching its decision on the motion, the court relied on traditional, familiar standards in considering Bloomingdale's claims for vested rights and existing uses under the Act, as well as the inordinate burden provision. Aquaport v. Collier County, Case No. 03 -1609 -CA (20th Jud. Ca. 2004), provides insight into how one court applied the Act's vested rights provisions. In that case, Aquaport applied and obtained site plan approvals and permits for a 10 - story, 68 -room hotel. After receiving complaints from neighboring condominium associations, the county revoked the approvals and permits and amended its land use regulations to limit hotel density to 26 rooms per acre. Aquaport filed suit under the Act, alleging that the County's actions permanently deprived it of its reasonable, investment -backed expectations for a specific use of its real property. The trial court found that Aquaport had a vested right to the site plan and building permit approvals for the 10 -story hotel, that the county's revocation of the approvals and adoption of new land use regulations created an inordinate burden within the meaning of the Act, and that Aquaport was entitled to compensation. The case settled when the county paid $ 2.75 million to Aquaport and Aquaport dropped its parallel federal court suit Besides showing a deprivation of vested rights, an owner may seek to establish a protectable interest under the Act by showing that deprivation of a right would violate constitutional substantive due process rights or statutory guarantees under another state statute. § 70.001(3)(a), Fla. Stat. (2006). A showing that substantive due process rights have been infringed will require proof of a property interest protected by the U.S, or Florida Constitution, arbitrary and capricious legislative action by the governmental entity involved, and an infringement of a fundamental right sufficient to warrant judicial interference. See generally Villas of Lake Jackson v. Leon County, 121 F.3d 610 (11th Cir. 1997); McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994). Proof of a vested right by reference to other statutory guarantees will entail establishing that the property's proposed use is within the scope of the statute under which a vested right is claimed, proof of satisfaction of the statute's substantive requirements and proof that implementation of the statute would allow the development sought. Whether a claimant will employ such a statutory claim to seek recovery under the Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-17 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 Act remains to be seen. It may be just as logical for the property owner to travel under the enforcement provisions of the statute that forms the basis for the claim under the Act. b. Bearing a Disproportionate Regulatory Burden As an alternative to proving an inordinate burden on a specific existing use or vested right to a specific use, an owner may seek to establish that the remaining uses on the property are unreasonable. Unreasonableness in this scenario may be determined by deciding whether, in light of the restricted uses left on the property, the property owner is being singled out from similarly situated property owners to serve an otherwise legitimate government interest or meet a public need. Again, in the takings context, the concept of a disproportionate share of the regulatory burden is not new. The United States Supreme Court fust recognized this general idea in Annstrong v. United States, 364 U.S. 40, 49 (1960), when the Court stated: The Fifth Amendment guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. Often cited as an axiom in subsequent cases, this concept has received little amplification as a basis for establishing a taking. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1990; First English Evangelical Lutheran Church v, Los Angeles County, 482 U.S. 304, 318-19 (1987). Two opinions of Supreme Court justices, one a majority opinion and one a dissent, imply that evidence of unlawful regulatory burden may be found in a combination of disparate treatment of the subject property and significant restriction on the remaining uses of the property. In Nollan v. California Coastal Comm'n, 483 U.S. 825, 835 note 4 (1987), and Penn Central Transp., supra, at 140 (Rehnquist, 1., dissenting), the discussions suggest that if a government regulation "singles out" a property owner to bear a regulatory burden in a manner unjustifiably different from other similarly situated property owners, a takings claim or an equal protection claim may arise. The claim may arise even when the goal of the governmental regulation is sound and in the public interest. Whether the courts interpreting the Act will adopt any of these takings analyses remains to be seen. The Act itself expressly provides that it "may not necessarily be construed under the case law regarding takings if the governmental action does not rise to the level of a taking." § 70.001(9), Fla. Stat. (2006). A court looking at a claim is therefore not bound by any of the takings cases' interpretation of the terms. The court may analyze the Act's provisions in Copyright 2007 The Florida Bar, Tallahassee, Florida 303-18 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 accordance with the commonly understood meaning, or may find that the Act calls for a fresh approach disassociated with a field of law that the Act is expressly designed to supplement, not replicate. DAMAGES. The recovery intended under the Act for an injured property owner is monetary compensation for the loss in fair market value of the real property, plus prejudgment interest from the date the claim was presented to the governmental entity. § 70.001(6)(b), Fla. Stat. (2006). Equitable relief is not provided for, and recovery for business damages is expressly disallowed. Attomeys' fees and costs are recoverable by either the property owner or the governmental entity if the court finds that the nonprevailing party failed to accept a reasonable settlement offer. § 70.001(6)(c), Fla. Stat. (2006). See generally Gallagher v. Manatee County, 927 So. 2d 918 (Fla 2d DCA 2006)(attorney's fees awardable under the Act). C. Procedures Under the Act. The Act prescribes detailed procedures for the filing and disposition of a claim, and if the claim is not amicably resolved, for a circuit court action by the aggrieved property owner for compensation. Details addressed here describe how a claim must be filed, how the governmental agency is required to respond, what occurs during the negotiation period, procedures if settlement is reached, procedures if settlement is not reached, and litigation procedural requirements for the circuit court action. INVOKING A CLAIM. A property owner aggrieved by a governmental action who wishes to claim compensation or seek other relief under the Act mast file a claim in accordance with the procedural requirements of the Act. If a property owner fails to follow the prescribed procedures, the court will not entertain a claim for relief under the Act, particularly if it is raised for the first time on appeal.. Frye v. Miami -Dade County, 2 So. 3d 1063 (Fla. 3d DCA 2009). The requirements for a claim are as follows: a. Time for Filing. The claim must be presented to the governmental entity no later than one year after the regulation is fust applied to the property at issue. The one-year deadline is tolled during the period that the property owner seeks other available administrative or judicial relief. § 70.001(11), Fla. Stat. (2006). The claim must also be presented to the governmental entity not less than 180 days prior to filing an action in circuit court under the Act, although the 180 -day period may be Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-19 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 extended by mutual agreement of the parties to the proceedings. § 70.001(4)(c), Fla. Stat. (2006). In Russo Associates, Inc, v. City of Dania Beach Code Enforcement Board, 920 So. 2d 716 (Fla. 4th DCA 2006), the court held that the time for bringing a claim under the Act was tolled during the period of administrative and judicial challenges to the government action, and that the general four-year statute of limitations in § 95.11(3), Fla. Stat., applied. Thus, where a new city zoning regulation rendered plaintiffs present use illegal, plaintiffs claim was properly brought two years after the action complained of, but after the conclusion of the judicial proceedings challenging the application of the regulation to plaintiffs property, and well within the four-year statute of limitations. In Citrus County v. Halls River Development, Inc, 8 So.3d 413 (Fla. 5a' DCA 2009), the court ruled, under the circumstances, that the redesignation of a particular parcel of land under the county's comprehensive plan use map in that case constituted "sufficient application" of the regulation to start the one-year claims period under the Act, even without the filing of a development application. b. Written Claim and Bona Fide Appraisal. The property owner must present a written claim describing the nature of the claim. A "bona fide, valid appraisal" must be presented with the claim that both supports the claim and demonstrates the loss in fair market value to the property at issue. The failure to provide an appraisal will result in dismissal of any complaint subsequently filed in the circuit court under the Act. In Sosa v. West Palm Beach, 762 So. 2d 981 (Fla. 4th DCA 2000), the City of West Palm Beach condemned a structure on Sosa's property, declaring it to be unsafe for human habitation and a public nuisance. After several opportunities, Sosa failed to obtain proper permits and certifications to remodel the structure, and the city ultimately ordered its demolition. Sosa sued under the Act, claiming that the city had imposed an "inordinate burden" by refusing him the permits to complete repair. The Fourth District Court dismissed Sosa's claim, affirming a trial court finding that he had failed to comply with the statutory prerequisites to suit. Sosa had improperly filed suit less than 180 days after first presenting his claim to the city, and had further failed to provide a bona fide appraisal demonstrating the loss in the property's fair market value. Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-20 Florida Environmental and Land Use Law June 2010 Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation c. Where Presented. The claim must be presented to the head of each governmental entity whose action gave rise to the claim. The Act further provides that the owner must present the claim not only to each entity whose action culminated in the alleged loss, but also to each entity whose active participation is required to reach a "complete resolution of all relevant issues," whether it is the owner or a governmental entity that believes the participation of such additional governmental entities is needed. § 70.001(4)(a), Fla. Stat. (2006) 2. GOVERNMENT'S RESPONSE TO THE CLAIM. The Act prescribes how the governmental entity must respond. Requirements are designed to give notice of the pendency of the claim to interested parties besides the claimant, and also to the Florida Department of Legal Affairs to allow the state to keep track of claims under the new cause of action. a. Written Notice to Interested Parties. The governmental entity must provide written notice of the claim to all parties to any administrative proceeding giving rise to the claim, and also to owners of real property contiguous to the property that is the subject of the claim, as reflected on the most current tax rolls. No deadline is prescribed for providing this notice. § 70.001(4)(b), Fla. Stat. (2006). b. Written Notice to Florida Department of Legal Affairs. The Act requires that the governmental entity to whom the claim has been presented give written notice of the claim to the Department of Legal Affairs (Attorney General's Office). The notice must be provided within 15 days after the claim is presented, and must provide the name, address, and telephone number of the employee from whom additional information may be obtained during the proceedings under the Act. Later in the process, the Act also requires the governmental entity to provide notice to the Department of Legal Affairs within 15 days after execution of a settlement agreement or issuance of a circuit court judgment. Copyright 2007 The Florida Bar, Tallahassee, Florida 303-21 Florida Environmental and Land Use Law lune 2010 Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation 3. THE NEGOTIATION PERIOD, THE SETTLEMENT OFFER, AND THE RIPENESS DECISION The Act contemplates a negotiation period of 180 days prior to filing suit for damages. The negotiation period may be extended past the minimum 180 -day negotiation period by agreement of the parties, although the Act does not provide that the one-year deadline for filing suit is thereby tolled, A lawsuit filed before the expiration of the 180 -day negotiation period will be dismissed by the court as untimely. See Sosa, supra. During the negotiation period, the Act provides that the parties shall discuss settlement of the property owner's claim. At the end of negotiations, the governmental entity is required to issue a written settlement offer to the claimant. a. Statutory Bases for Settlement. The Act expressly details a list of options for settlement of a claim. § 70.001(4)(c), Fla. Stat, (2006). The Act does not indicate whether the list is exclusive, but does not contain any express language allowing a government to settle on any basis other than the bases set forth in the Act. The Act provides, however, that governmental entities are encouraged to use other methods of dispute resolution to augment or facilitate the processes provided for in the Act. § 70.001(8), Fla. Stat. (2006). The bases for settlement expressly listed in the Act are as follows: L An adjustment of land development or permit standards or other provisions controlling the development or use of land. 2. Increases or modifications in the density, intensity, or uses of areas of development. 3. The transfer of development rights. 4.. Land swaps or exchanges. 5. Mitigation, including payments in lieu of onsite mitigation 6. Location on the least sensitive portion of the property. 7. Conditioning the amount of development or use permitted. 8. A requirement that issues be addressed on a more comprehensive basis than a single proposed use or development.. 9. Issuance of the development order, a variance, special exception or other extraordinary relief. 10. Purchase of the real property or an interest therein, by an appropriate governmental entity. 11, No changes to the action of the govemmental entity. Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-22 Florida Environmental and Land Use Law June 2010 Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation § 70.001(4)(c)l: 11., Fla. Stat. (2006). b. Negotiation Process. The Act does not set forth any procedural requirements for negotiation activities, but there are potential pitfalls in conducting negotiations that the practitioner should bear in mind when advising participants. For example, the Act does not indicate whether the negotiations must be conducted or even approved by the same governmental agency that first applied the challenged regulation, or whether a negotiated settlement must employ that agency's regular procedures to effectuate a settlement that modifies the original decision. The Act does not indicate whether negotiations must. be undertaken consistent with Government in the Sunshine laws, section 286.011, Fla. Stat. (2006), where the challenged governmental action was taken in a public forum. Further, the Act does not indicate whether the other parties to prior administrative proceedings giving rise to the challenged action must, or even may, participate in the negotiations. The same is true for owners of contiguous property, whose interests may especially be at stake. The Act expressly disallows claims by property owners who suffer adverse impacts from implementation of a settlement agreement under the Act. § 70.,001(3)(e), Fla. SaL (2006). Although the Act requires that these interested parties be notified of the claim, it does not indicate what role, if any, these interested parties would have in the negotiation process. If they are allowed to participate as parties, they will have a say in whether settlements are approved. If they are not allowed to participate as parties, a practitioner may be well advised to consider whether they might litigate over a settlement reached without their consent. At a minimum, the Act requires careful regard for impact on the public interest. Any settlement agreement that requires modification to the way a regulation is applied to the subject property must "protect the public interest." § 70.001(4)(d)l., Fla. Stat. (2006). Parties to settlement negotiations under the Act will be well advised to consider City of Miami Beach v. Chisolm Properties South Beach, Inc., 830 So. 2d 842 (Fla. 3d DCA 2002), affirming Chisolm Properties South Beach, Inc. v. City of Miami Beach, 8 Fla. L. Weekly Supp. 689 (Fla. 11th Jud. Cir. 2001). in Chisolm, the city enacted new 5 -story height restrictions during the pendency of a hotel's application for a 15 -story structure. Unable to obtain permits for the planned structure, the hotel filed a claim under the Act. The city and the hotel reached a settlement agreement under which the hotel reduced its request to 7 stories and city staff recommended approval of variances of the 5 -story limit to the city's Board of Adjustment. After the Board granted the variances, a neighboring condominium association sought certiorari review. The circuit court quashed the variances, for lack of record evidence showing the requisite hardship. Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-23 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 Significantly, the court further found that the city had effectively granted the variances to the hotel at the time of the settlement agreement, thereby rendering the Board of Adjustment public hearing a meaningless exercise. The Third District Court affirmed, and in a concurring opinion, Chief Judge Swartz strongly condemned the settlement agreement as "an attempt by a hotel owner and the City of Miami Beach to grant totally unjustified and illegal variances through the device of a sweetheart 'settlement'.. under the [Act]." 830 So. 2d at 842. Thus, governments settling claims under the Act are well advised to ensure that any action required to be taken under a settlement agreement be subject to all the same hearings and protections afforded the public in land use decision-making where there is no settlement agreement. All these and other issues have been left for future determination as property owners and governmental entities choose to employ the provisions of the Act. C. Written Settlement Offer by Governmental Entity. At the conclusion of the negotiation period, the governmental entity is required by the Act to extend a written settlement offer detailing its proposal to resolve the matter before litigation. The settlement offer may be no more than the government's conclusion that no change should be made in the challenged regulation applied to the property. § 70.001(4)(c), Fla. Stat.. (2006). The written offer may also extend a proposal to which the property owner has not agreed. The reasonableness of the offer will be significant later in litigation, since the circuit court will review the settlement offer in deciding whether to award attorneys' fees and costs to the prevailing side. § 70.001(6)(b), Fla. Stat. (2006). d. Written Ripeness Decision. Before or at the conclusion of the 180 -day negotiation period, the governmental entity is also required to issue to the property owner a written "ripeness" decision "identifying the allowable uses to which the property may be put." § 70.001(4)(d), Fla. Stat (2006). The govemment's decision not to issue a ripeness decision during the negotiation period, under the Act, is deemed to make the claim ripe for suit, and the property owner is deemed to have rejected the ripeness decision for subsequent purposes in litigation. § 70.001(5)(a), Fla. Stat.. (2006). (An unreasonable rejection of a settlement offer and ripeness decision by a property owner may serve as a basis for the subsequent award of attomeys' fees and costs, pursuant to § 70.001(6)(c), Fla. Stat. (2006)). Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-24 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 Issuance of the ripeness decision, "as a matter of law, constitutes the last prerequisite to judicial review ... notwithstanding the availability of other administrative remedies." § 70.001(5)(a), Fla. Stat (2006). 4. PROCEDURES IF SETTLEMENT IS REACHED The Act prescribes certain procedures for implementing a settlement between the owner and the governmental entity. It does not indicate whether settlements may be implemented exclusively through these procedures, or should also include the regular procedures used by the governmental entity to reach the kinds of land use and other decisions intended to be achieved by the settlement, What becomes of other statutory or local regulatory obligations that mandate public notice and hearing, including requirements under Chapters 125, 163 and 166, Florida Statutes? The Act does not expressly override these processes. See Chung v. Sarasota County, 686 So. 2d 1358 (Fla. 2d DCA 1996) (government may not contract away its due process obligations to conduct an impartial hearing with full notice and opportunity to be heard for all potential interested parties). Certain procedures, however, are unique to the Act and should be studied carefully before undertaking. Implementation Procedures. The Act provides that a governmental entity "may" implement the settlement agreement by development agreement, zoning action, "or other extraordinary relief." § 70.001(4)(c), Fla Stat. (2006). No other implementation mechanism is suggested, perhaps leaving to the individual case the decision about the most appropriate route. b. Public Interest to be Protected When Regulation is Varied. Every settlement agreement under the Act that modifies "the application of a rule, regulation, or ordinance" is required to achieve the dual objectives of "protect[ing] the public interest served by the regulations at issue and be[ing) the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property." § 70.001(4)(d) I., Fla. Stat. (2006). One court has made it clear, however, that binding settlement can be reached short of litigation. In Charlotte County Park of Commerce, LLC v. Charlotte County, 927 So. 2d 236 (Fla 2d DCA 2006), a developer sued to enforce a settlement agreement with the county. The county argued that no enforceable agreement had been reached because, in the absence of litigation, there was no court -approved binding settlement. The Second District Court Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-25 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 reversed the trial court's dismissal of the enforcement action, remanding for a factual determination of whether a binding settlement of the claims under the Act had been reached prior to litigation, and noting that one of the Act's goals is to promote settlement prior to litigation. C. Public Interest to be Protected by Circuit Court Order When Settlement "Contravenes" Statute.. In a section that has provoked considerable comment, the Act by its express terms allows settlement agreements that do not comply with state statutes, so long as a circuit court reviews the planned settlement and decides that it "protects the public interest served by the statute at issue and is the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property." § 70.001(4)(d)2., Fla. Stat.. (2006). At issue is whether a circuit court is empowered to override a state law when no superseding constitutional issue requires such an act. While the Legislature itself could clearly have provided a legislative override of a specific statutory provision, does this provision impermissibly go further? Is there sufficient specificity to allow circuit judges on a case-by-case basis to decide whether a state statute should be disregarded on an isolated basis? 5. PROCEDURE IF A SETTLEMENT AGREEMENT IS NOT REACHED. If a settlement is not reached by the close of negotiations, the governmental entity is required to issue a ripeness decision that details the allowable uses on the property. That ripeness decision, under the Act, constitutes the last act necessary before the property owner can file suit. If the governmental entity does not issue the ripeness decision by the close of the negotiation period, the Act presumes that the matter is ripe and that the ripeness decision, along with the implicit negative settlement offer, has been rejected by the owner. § 70.001(5)(a), Fla. Stat. (2006). This statutory ripeness determination would also excuse the property owner from exhausting any additional administrative remedies available. Because the doctrines of ripeness and exhaustion of administrative remedies are judicial ones, it will be left to future litigation to determine how the courts will handle these provisions. D. Circuit Court Litigation Under the Act. If settlement efforts fail, the property owner may file suit in the circuit court seeking compensation for the loss in fair market value that he or she believes has been caused by the challenged governmental regulation. The Act outlines notice of suit requirements, prescribes the parties to the action, establishes rules of venue, prescribes the decision-making responsibilities of judge and jury, prescribes the relief available, provides for attorneys' fees and costs, and allows for certain interlocutory appeals. Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-26 Florida Environmental and Land Use Law June 2010 Private Property Rights Protection Legislation, Statutory Claims for Relief from Governmental Regulation NOTICE REQUIREMENTS. The Act requires a property owner filing suit to serve a copy of the complaint simultaneously on the head of each governmental entity that has made a settlement offer and ripeness decision regarding the subject property and the challenged governmental action. § 70.001(5)(b), Fla. Stat. (2006). 2. PARTIES. The party plaintiff to the suit is the property owner claiming loss in fair market value. Prior provisions of the Act define the owner to include the legal titleholder only. § 70.001(3)(f), Fla. Stat. (2006). The defendant parties include each governmental entity whose action is claimed to have caused the loss in market value. The Act does not expressly require the owner to sue every government that had a role in the injury alleged, but in view of the circuit judge's later duty to apportion responsibility for any inordinate burden among governments contributing to the injury, a plaintiff may be wise to include all potentially liable parties. § 70,001(6)(c)1., Fla. Stat. (2006). Noticeably absent as parties in the litigation proceedings are the persons who were given notice of the proceedings at the negotiation phase. The participants in the administrative proceedings that gave rise to the claim, as well as the owners of contiguous property, were required to be notified of those earlier proceedings. § 70.001(4)(b), Fla. Stat. (2006). Presumably these persons are not made parties to the court proceedings because the only relief that the circuit court is authorized to provide is monetary. The court is not authorized to impose any of the options listed as potential settlement grounds during the negotiation phase. However, the Act does not prohibit settlement even in the litigation phase. As a result, the question arises whether these persons who formerly had recognized interests can be excluded from a settlement at this latter phase. While prudent litigants might not proceed with a settlement without at least considering the interests of these other persons, the Act does not expressly require their approval of settlement agreements at the litigation phase. 3, VENUE. The Act expressly provides that an action under its provisions "shall be brought only in the county where the real property is located." § 70.001(5)(b), Fla. Stat. (2006). 4. ROLE OF THE CIRCUIT COURT JUDGE. a. Initial Phase of the Litigation. Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-27 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 Litigation under the Act is divided into two distinct parts. The fust phase is conducted solely before the circuit judge and not before the jury. The judge decides whether the property owner had an "existing use" or a vested right to an "existing use" on the real property, and if so, whether the governmental entity or entities have "inordinately burdened" the property. § 70.001(6)(a), Fla. Stat. (2006). One court has found the trial court findings required under the Act to be essential to a sustainable decision for the property owner. In Brevard County v. Stack, 932 So. 2d 1258 (Fla. 5th DCA 2006), the court reversed an award to a property owner seeking relief under the Act. In the absence of express factual findings regarding existing uses, vested rights and inordinate burden, the appellate court would not sustain the decision in the property owner's favor and remanded for those determinations to be made. In reaching a decision under the Act, the judge must consider, among other things, the settlement offer and the ripeness decision. Thus, contrary to rules of evidence operating in other contexts, the settlement offer of the defendant government is admissible. Both the settlement offer and the government's ripeness decision are evidence relating to the degree to which the property is "inordinately burdened." They are also evidence of the parties' reasonableness in negotiations in the later assessment of attorneys' fees and costs. § 70.001(6)(c), Fla. Stat. (2006). However, nonftnal settlement offers and ripeness decisions, and the negotiations leading up to them, are not admissible. § 70..001(6)(c)3., Fla. Stat. (2006). The circuit judge also determines the "percentage of responsibility" that should be borne by each government whose action has been challenged. § 70.001(6)(a), Fla. Stat. (2006). The Act does not indicate that there is joint and several liability among governmental entities. b. Interlocutory Appeal of Liability. The Act states that a governmental entity may take an interlocutory appeal of the judge's determination that the government's action has inordinately burdened the property. § 70.001(6)(a), Fla. Stat. (2006). Such an appeal was designed to allow final resolution of the government's liability prior to reaching the jury question of damages. Under the terms of the Act providing for this interlocutory appeal, no automatic stay would result from the filing of the appeal. However, a subsequent portion of the Act makes it clear that the Legislature intended that the jury phase of the trial should not proceed until the interlocutory appeal has been resolved. Copyright 2007 The Florida Bar, Tallahassee, Florida 303-28 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 § 70.001(6)(b), Fla. Stat. (2006). If the government does not prevail on the appeal, it must pay the property owner's reasonable attorney's fees for the appeal. The Act does not explicitly allow an interlocutory appeal of the allocation of liability among multiple governmental entities. That issue will likely be required to await the outcome of the damages portion of the trial, unless, of course, a governmental entity believes that the other governments involved are exclusively responsible for the damages to the property owner, and that it should bear no burden at all. The property owner who does not receive a favorable ruling from the judge needs no right to an interlocutory appeal because the entire controversy is ripe for full appeal at that point. Notwithstanding these statutory provisions, the court in Osceola County v. Best Diversified, Inc., 830 So. 2d 139 (Fla. 5th DCA 2002) ("Best P'), held that the Supreme Court of Florida must incorporate statutory language into the appellate rules to give effect to the Act's provisions regarding interlocutory appeals. In Best I, the County denied Best's zoning application to allow continued operation of a landfill. The State of Florida Department of Environmental Protection (DEP) also refused to issue Best a general permit to allow the landfrlL The trial court agreed with Best that the denials by the County and DEP "inordinately burdened" Best's property and determined that Best was entitled to compensation under the Act. On interlocutory appeal of the liability determination by the trial court, the appellate court sua sponte ordered the county and DEP to show cause why the appeal should not be dismissed for lack of jurisdiction. Rejecting the response provided, the court noted that Fla. R. App. P. 9.130(a)(3)(C)(ii), which allowed interlocutory appeals in inverse condemnation actions, had been repealed. The court also rejected the Act's purported grant of authority to hear interlocutory appeals of liability determinations under the Act, in the absence of Supreme Court rule. Subsequently, the Supreme Court adopted Fla. R. App. P. 9.130(a)(3)(c) allowing such interlocutory appeals on trial court determinations of liability. See Amendments to the Florida Rules of Appellate Procedure, 894 So. 2d 202 (Fla. 2005); see also St. Johns River Water Management District V. Koontz, 908 So. 2d 518, n.I (Fla. 5th DCA 2005). 5. ROLE OF THE JURY—SECOND PHASE OF THE LITIGATION If the circuit judge finds that the government action at issue has inordinately burdened the property, and after all interlocutory appeals are resolved, the circuit judge must impanel a jury to determine the total compensation to be paid to the property owner. As described in greater detail Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-29 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 below, compensation must be determined by the decrease in fair market value of the property caused by the government action at issue. The Act again provides that the settlement offer and ripeness decision issued by the government are evidence that must be taken into account in determining the amount of compensation to be paid. § 70.001(6)(b), Fla. Stat. (2006). 6. RELIEFAVAILABLE UNDER THEACT. a. Compensation for Loss in Fair Market Value Caused by Governmental Action. The standard by which the jury must assess the compensation due the property owner is ... the difference in the fair market value of the real property, as it existed at the time of the governmental action at issue, as though the owner had the ability to attain the reasonable investment -backed expectation or was not left with uses that are unreasonable, whichever the case may be, and the fair market value of the real property, as it existed at the time of the governmental action at issue, as inordinately burdened .. . § 70.001(6)(6), Fla Stat. (2006). In short, the measure of damages is the change in fair market value of the property caused by the government action. The measure is taken at the moment the governmental action took effect. b. Prejudgment Interest. The Act mandates "reasonable" prejudgment interest from the date the claim was presented to the governmental entity. § 70.001(6)(b), Fla. Stat. (2006). C. Business Damages. The Act does not allow the award of business damages arising from an activity, development or use that the governmental regulation limited, restricted, or prohibited. § 70.001(6)(b), Fla. Stat. (2006). These include, for example, lost profits. d. Attorneys' Fees and Costs. The Act provides for the award of attorneys' fees and costs upon a finding by the circuit judge that the nonprevailing party failed to offer or accept a reasonable Copyright 2007 The Florida Bar, Tallahassee, Florida 303-30 Florida Environmental and Land Use Law Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation June 2010 settlement during the negotiation period. Specifically, a prevailing property owner is entitled to reasonable attorneys' fees and costs from the date of the filing of the circuit court action if the governmental entity failed to extend a bona fide settlement offer that "reasonably would have resolved the claim, based upon the knowledge available" to the parties during the negotiation period. § 70.001(6)(c)1., Fla. Stat. (2006). Thus, fees and costs are collectible only from the date the court action is filed, after the negotiation process contemplated by the statute is over, and at least 180 days after the claim was first presented to the local government. This is in contrast to prejudgment interest, which is calculated from the date the claim is first presented to the government. A prevailing governmental entity is entitled to an award of reasonable attorneys' fees and costs if the property owner did not accept a bona fide settlement offer "which reasonably would have resolved the claim," based on the information available to the parties during the negotiation period. § 70.001(6)(c)2., Fla. Stat. (2006). Preliminary settlement offers and ripeness decisions preceding the final ones are not admissible in this determination. EFFECT OF GRANT OF RELIEF. If the property owner obtains relief under the Act, the award of relief automatically vests in the governmental entity "the right, title, and interest in rights of use for which the compensation has been paid... " § 70.001(7)(b), Fla. Stat. (2006). The circuit judge determines the type of right, title, or interest to be vested in the governmental entity when the award of compensation is made. The governmental entity may thereafter hold, sell, transfer or otherwise dispose of the rights. F. Effect of the Act. Some years have now passed since the Act was adopted. Many commentators expected that the number of claims filed under the Act would be far greater than has been seen to date. Some suggest that the Act has had a chilling effect on new regulations, in part because governments fear large compensatory awards. Others note that, although some landowners have had success under the Act, the expense and length of litigation can be prohibitive, Despite several trial court rulings for property owners, one court noted that, as late as 2009, "We have found no case in which an appellate court has affirmed relief granted pursuant to the Act." (case citations omitted). See City of Jacksonville v. Coffielet 18 So. 3d 589 n.4 (Fla. 1st DCA 2009). Thus far, the Act has had little effect on Florida's economy. Further, many of the statutory definitions contained in the Act are unique. Gaining an understanding of these unique definitions and how courts will define and refine their meanings will be a key to predicting how the Act will continue to be implemented, as well as what its ultimate economic effect will be. As case law evolves under the Act, constitutional takings law continues to be developed in the courts. Developments in takings law may also affect the impact of the Act, either by making it unnecessary, or Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-31 Florida Environmental and Land Use Law June 2010 Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation alternatively by malting it an important avenue by which landowners seek relief from the impact of government regulation. N. Florida Land Use and Environmental Dispute Resolution Act. A. Overview. Chapter 70, Florida Statutes, Part Il, is entitled the "Florida Land Use and Environmental Dispute Resolution Act" (the Mediation Act), and is intended to provide an informal, nonjudicial avenue of relief whereby a landowner may, through a special master, seek review of a development order. Under the Mediation Act, a property owner may seek to establish that a development order or enforcement action of a governmental entity is "unreasonable" or "unfairly burdens" the use of his or her real property. § 70.51(3), Fla. Stat. (2006). This standard differs from the standard under the Private Property Rights Act, which requires a showing of "inordinate burden" on real property use. Development orders issued, amended or modified on or after October 1, 1995, are subject to the Mediation Act. § 70.51(30), Fla. Stat. (2006). This date is six months later than the comparable effective date of the Private Property Rights Act. To institute a proceeding under the Mediation Act, the affected landowner must file a request for relief within 30 days after receiving the development order or enforcement action.. § 70.51(3), Fla Stat. (2006). The claim must be filed with the head of the governmental entity that issued the order. § 70.51(4), Fla. Stet. (2006). Within ten days after receipt of the property owner's request, the governmental entity must forward the request to a special master mutually selected by the parties, Id. The request must also be served upon contiguous property owners or any substantially affected party who submitted substantive testimony regarding the development order and expressly requested notice of any related special master proceedings. § 70.51(5), Fla. Stat. (2006). Within 15 days after the request is filed, the governmental entity that issued the development order must file a response to the landowner's allegations, setting forth the public purpose of the regulations on which the order is based.. § 70.51(16)(a), Fla. Stat. (2006). A property owner must exhaust all local administrative appeals prior to initiating a proceeding under this section, provided the appeals do not exceed four months. § 70.51(10)(a), Fla. Stat. (2006). Once the proceeding is initiated, the property owner and governmental entity or entities responsible for issuing the development order are the initial parties. § 70.51(1 1), Fla. Stat. (2006). Upon request, the aforementioned contiguous property owners or other substantially affected persons may be permitted to participate in the proceeding at the discretion of the special master, but are not granted party or intervenor status- § 70.51(12), Fla. Stat. (2006). The special master must convene the hearing within 45 days of his or her receipt of the request for relief, in the county where the subject property is located. § 70.51(15)(a), Fla. Stat.. (2006). The special master must provide the requisite notice to all parties and persons who have requested notice at least 40 days prior to the hearing. § 70.51(15)(6), Fla. Stat. (2006). The Copyright 2007 The Florida Bar, Tallahassee, Florida 30.3-32 jONE k- OS C1� f ,, - -- -- - .10] INS ION&S I L'616. P 1. John C. Randolph Attorney (561)650-0458 Fax: (561) 650-5300 jandolph@jonesfoster corn February 7, 2012 VIA EMAIL: bthrasher(c gulf-stream.org Mr. William H. Thrasher, Town Manager Town of Gulf Stream 100 Sea Road Gulf Stream, Florida 33483 Re. Bert J. Harris, Jr. Private Property Rights Protection Act Our File No. 13147.1 The Architectural Review and Planning Board has requested my advice in regard to the effect of the Bert J. Harris, Jr. Private Property Rights Protection Act in regard to any legislation passed by the Town which might be more restrictive than that which presently exists in regard to land use, including legislation concerning subdivisions or zoning ordinances As I indicated at the last meeting of the ARPB, the Board and the Town Commission should keep in mind the effects of this Act when recommending for adoption and when finally adopting a provision which may be determined to "inordinately burden" an existing property as that term is defined within the Act. The term "inordinately burdened" means that: "An action of one or more governmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment -backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large." Since 19211 VILm Palm Bradt 1lnphe, I laglcr Lento Imccr 565S.,mh 1 hgler DN,-,-5ui,c 1166 \Woo Pdm Kul). I lurida ii illi www.jonesrnstceeom Mr William H. Thrasher, Town Manager February 7, 2012 Page 2 Inordinate burdens do not include temporary impacts to real property occasioned by governmental abatement. However, a temporary impact on development that is in effect for longer than one year may, depending upon the circumstances, constitute an "inordinate burden." The ARPB has also inquired as to when an action can be commenced under this law. The Act provides that: "A cause of action may not be commenced under this section if the claim is presented more than one year after a law or regulation is first applied by the governmental entity to the property at issue." This one year claim period accrues from the date a law or regulation is first applied upon enactment and notice. To effectuate this one year period, notice must be provided by mail to the affected property owner or registered agent at the address referenced in the jurisdiction's most recent ad valorem records. Otherwise, the law or regulation is first applied to the property when there is a formal denial of a written request for development or variance which, of course, may extend well beyond a year. There are, of course, specific procedures which must be undertaken by a person affected by the action of the Town in amending its land use regulations which are set forth specifically in the Act. It is important to note that the Act does not apply to regulations which were already in effect in the Town prior the close of the 1995 legislative session on May 11, 1995. For the information of the members of the ARPB, I am providing a copy of Chapter 70, Florida Statutes, relating to the Bert J Harris, Jr. Private Property Rights Protection Act. I am also providing an overview of the Act which is quite comprehensive and probably more than most want to read which is contained within an article titled "Private Property Rights Protection Legislation. Statutory Claims for Relief from Governmental Regulation — Updated 2010 Version." I am providing only the portion of this article which relates specifically to the Bert Harris Act. Bill, in addition to forwarding this letter to the members of the ARPB, I feel it would be beneficial that you send copies of this to each member of the Town Commission so they can be advised of the potential effect of amendments to the Town's land use regulations, specifically those which might impose more strict requirements on subdivisions and those zoning ordinances which may reduce density. Mr. William H. Thrasher, Town Manager February 7, 2012 Page 3 Please do not hesitate to contact me if you have any comments or questions. Sincerely, JONES, FOSTER, JOHNSTON & STUBBS, P.A John C. Randolph JCR/ssm Enclosures cc: Marty R. A. Minor, AICP — Via email — Mminor(o)udkstudios.com p;ldocs\1314710000 IVtA1 cg4090 do= Kelly Avery From: Randolph, John C. <JRandolph@jonesfoster.com> Sent: Tuesday, February 07, 2012 4:44 PM To: 'Marty Minor (MMinor@udkstudios.com)' Cc: Bill Thrasher Subject: Town of Gulf Stream - 4001 North Ocean Boulevard Attachments: SDOC4721.pdf Marty, It is my understanding that the proposals you are considering for the land use of the above referenced property would allow for five multi -family units on the property. Please correct me if I am wrong. The property owner, of course, is taking the position that it is vested for seven units. They contend that under the Bert J. Harris, Jr. Private Property Rights Protection Act any action taken by the Town to reduce the units from seven, which they claim are vested, to five, will cause their property to be inordinately burdened as defined under the Bert Harris Act. In the spirit of compromise, the owner has indicated it will be willing to apply a majority of the setback and design criteria currently being considered by the Town to the development and may be willing to reduce the density by one unit, from seven to six, if they could be assured of prompt review and approval so the owner can move forward with development of the western parcel. You and I should talk in more detail about this. In the meantime, I am attaching copies of documents which I understand were considered by Palm Beach County in vesting the entire property for 41 units, including vested rights to develop seven town home units on the western portion of the property. It is further contended by owner that even If the owner did not already have existing vested rights to the seven multi -family units, that the owner's pending application at the time of annexation would give rise to the same vested rights. Once you have had an opportunity to review this letter and the attached materials, please give me a call so we can discuss this further. Thank you. JOHN C. RANDOLPH John C. Randolph Attorney Direct: 561.650.0458 Fax: 561.650.5300 irandolohl@.ionesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Flagler Center Tower 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401 Telephone: 561.659.3000 Website U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to be and cannot be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. Depnrtmerc of Planning, Zoning B Building 7300 North Jog Road West Patin neach. FL 3341 1 7741 (501) 3335000 Planning Division 233.53D0 Zoning Division 233.52110 anilding Division 233.5100 Cndc nnfomennent 213•5500 Contractors Ccrdncartun 333.5525 ffihnblGllaliun omcc 233-5001 LWaeu:we Omcu 233 5228 nrevpbcguvcorn1Pxb 71 Patin Beach Country Board of County Commissioners, Dun Aaronson Chair Karen T. Marcus Vice Chair Jnr mons Shelley Vann Sieven f Abrams Jess R. Sintamaria Priscilla A. loyhu County dall.lstmtar nnnen 41'cisnnan :rn rgual ejyami'do. Aff#. fllVOaten anpbjW 05 pMtod on ncyrrodpsper January 7, 2010 Seahorse Bath and Tennis Club 4001 N Ocean Blvd Delray Beach FL 33483-7526 Zoning Confirmation Letter 2009-4795 Sea Horse Bath and Tennis Club 4001 N. Ocean Blvd., Delray Beach, FL 33483 Control No: 2006.00527 Dear Mr. Brophy: We have reviewed your request for a Zoning Confirmation Lollar regarding whether a proposed minor site redesign and building modification to the above referenced site plan could be npproved through the Development Review Officer IDRO) wllhoul any public hearing In addition. you asked that II this was permissible. would the 12 units per acre remain vested without necessitating a ruzoning to Planned Unit Development (PUD) Zoning District. We have prepared [his response based on the Information you submitted to Us and the Information available in our records. Should any of Ilio information we roiled on be incorrect. this response may not be valid and it would be the property owner's responsibility to develop the site In accordance with the proper previsions and most recent code changes In the Palm Beach County Unified Lend Development Code (ULDC) As we discussed In our meeting on December 23, 2009, you may submit a site plan with minor site redesign and building modilknlion to URO for review and approval Your question regarding whether the proposed density or 12 units per acre will not require a rezoning to Hie PUD Zoning District, Is correct. It was confirmed at the meeting by Pat Rutter. Chief planner. The current Land Use Designation or High Residential 12 (HR -12) and Zoning District or Residenllal Medium (RW will allow [or Ilia development of the 3 5 acre site at the maximum density of 12 units per acre. Your proposed redesigned site plan will, therefore. be vested for a total of 42 total units on silo. This proposal Is in compliance with the ULDC and Comprehensive Plan requirements The site, however, will need to comply with all applicable Property Development Regulations of the ULDC for the RM Zoning District. Ie., setbacks landscaping. etc. Also at our meeting, the Planning Division confirmed the number or units per the underlying land use al 12 units par acre. They also advised you that if the new Workforce Housing amendments are approved by the Board of County Commission (BCC) yoq will be required„lo designate Iwo Workforce Housing (WFH) units II you have arly)quostions fpiesse contact me at 561.233-5234 .2nd III�S �AStA "t :, E .f Can aniasereir Abrams, DisK-14 veronnia eaMnr, Deputy Cau* Aeminhualor Barbara Menton. Exenl0ve Dlredor Lorenm Aglnino. Dimclor cl Planning Pal nulkr. Crrel Planner Wendy Fernandez Zoning Manager Alan Seamon. PlinClau Site Mnnmsr ZC-:00927950 Zesip bliceaur File Exhibit 1 LAND Planning Landscape Architecture DESIGN Environmental Services SOUTH Transportation JUSTIFICATION STATEMENT 4001 North Ocean Blvd. Control# 2006-527 DRO FINAL Site Plan Revision May 19, 2010 Resubmitted June 21, 2010 Resubmitted July 16, 2010 Request The purpose of this application is to request a Development Review Officer (DRO) FINAL site plan approval for 4001 North Ocean Blvd, Project No. 2006-527. (FKA Seahorse Bath Club). This proposed Site Plan will be to replace the previously approved Site Plan dated March 14w, 2007. On behalf of the Petitioner, Land Design South of Florida, Inc. is requesting the DRO approval of a 2 phase Site Plan on the 3.49 acre site. Phase I. which is the subject of this request is for a multi -family building located on the 95,880 square foot (so section of the property located between SR AIA and Old Ocean Blvd. Right of Way (ROW). Phase II will be labeled "Future Development, Subject to a future DRO Site Plan Approval and Concurrency Approval' and is located on the west side of Al A, on the 42,282 sf section. The remaining 13,883 sf area is an un -developable section located east of Phase I. Phase I will contain 34 mutt -family units. The density of Phase I compared to the 3.49 acre overall project acreage is 9.74 du/ac. The site is located approximately 1 mile south of Woolbright Road. Property History & Site Characteristics A site plan for this property was approved on March 14, 2007 for 42 multifamily units on- site, and an additional 3 workforce housing units to be purchased off-site. This plan consisted of 24 units in a 3 -story structure on the east side of AIIA (on the 95,880 sf main section) and 18 units in a 4 -story structure on the west side of AIA (on the 42,282 sf section). The site currently has a land use of HR -12 (Residential High, 12 -units per acre) and a zoning of RH (Residential High). Because the ULDC has removed RH as a zoning designation, the site plan uses RM (Residential Medium) as a basis for property development regulations. Per the HR -12 land use and the latest updated survey which shows the site area as 3.49 acres, the property can have a maximum of 41 units. In order to verify the allowed number of units and required Work -Force Housing, a Zoning Confirmation Letter was requested. A January 10� , 2010 confirmation letter (attached in application) from Jan MacGillis verifies the density is allowed at 12 dwelling units per acre. Patrick Rutter of the Planning Department also verified that the total 4001 N. Ocean Blvd. Page 1 of 11 7/16/10 Exhibit 2 number of required Work -Force Housing units would be two (2), and could be bought out, off-site over and above the 41 units on site. The proposed Phase I plan is a request for 34 multi -family units. The maximum allowed units for Phase If will be 7 units, for a total density of 11.75 du/ac. This density is under the allowed maximum of 12 du/ac. Phase II is subject to a future Site Plan Approval and Concurrency Approval. Consistent with the Unified Land Development Code UDLC This site is unique in the fact that there are many surrounding properties with different development conditions, within different municipalities. Because of their proximity to the ocean and effects on the Coastal Construction Control Lines (CCCL), development of the surrounding properties largely depend on the relationship between the parking, the structures and their effect on the environment. Adjacent to this property on the north, the Ballantrae development has a similar condition (Photo 11), where the parking was developed under the first floor of the buildings. What this allows is more open space around the buildings due to the location of parking under the structure. The positive is that more open space is allowed with very little effect on building height. The Bellamar House development to the south (Photo 2) of the proposed site was developed in a different manner, with surface parking around a taller building. While this lowers the finished floor elevation slightly, it requires the open space around the building to be taken up in asphalt for parking. There are even some conditions near this site where not only has the building been elevated, but surface parking provided as well (Photo 3,4,5). This obviously is not ideal in that it does not allow for as much open space as what is being proposed in this application. All developments around the proposed site do have one thing in common (Photo 6,7), and that is that structures on the ocean side of AM are required to conform to the requirements of the State Department of Environmental Protection (DEP), where current standards require existing soil east of the CCCL to be kept on site, keeping the sites slightly elevated. Even those located landward of the CCCL lines on the west side of AIA have been elevated based on development requirements and historical elevations. 4001 N Ocean Blvd Page 2 of 11 7/16/10 parking 4001 N Ocean Blvd, Page 3 of 11 7/16/10 Building is elevated, in addition to only having surface parking Evidence of similar project where soil is retained on site through retaining walls 4001 N Ocean Blvd Page 4 of 11 7/16/10 Elevation of neighboring building can be seen based on proximity to AIA ROW Neighboring Condo project, West side of AIA, elevated building 4001 N. Ocean Blvd. Page 5 of 11 7/16/10 Neighboring Condo project, West side of AIA, elevated building 4001 N. Ocean Blvd Page 6 of 11 7/16110 While this proposal respects the character of the other developments around it, this proposed Site Plan is also consistent with all requirements of the ULDC and Comprehensive Plan of Palm Beach County as outlined below: DENSITY: Based on Planning Confirmation Letters dated January 30ei, 2006, and again on January 7h, 2010, the entire 3.49 acre site has the potential to develop at its full 12 units per acre Land Use (HR12), for a total of 41 units. Under the regulations of the ULDC and its current Zoning District, the site can utilize its standard density of 6 du/ac. However, in addition to the standard density the site can also utilize Policy 1.2.2-a of the Comprehensive Plan which allows the site to be developed as an infill parcel, and that it Is consistent with the density of surrounding properties. The properties of comparable size that were noted were Ballantrae, Bellamar House, Gulfstream Manor and L'Hermitage. These developments had density calculations of 10.36, 12.90, 18.55 and 11.11 du/ac respectively. Based on a total acreage of 3.49, the maximum number of allowed units on site is 41, giving a density of 11.75 dulac, since allowed number of units are rounded down. This is a maximum development potential factoring in both Phase I and Phase IL Phase I calculated alone has 34 units, therefore over 3.49 acres it has a density of 9.74 dulac. Phase 1, which will contain 34 multi -family units, is well below the 41 unit maximum allowed for the entire project. While Phase II on the West side of AIA has not been planned for development at this time, the maximum allowed units on this parcel would be the remaining 7 units. A note on the Phase II portion has been placed on the proposed Site Plan to ensure that the development of the western parcel must be limited to 7 units, must receive additional DRO Site Plan and concurrency approval. The applicant will also notify the surrounding municipalities of the amendment to have another layer of review before moving forward with any proposed application. The 34 units of Phase I and the 7 maximum units of Phase II equate to the total density allowed of 41 for the entire project To further ensure that the development does not exceed the 41 units (11.75 dulac), the 2006 Confirmation Letter, the Comprehensive Plan (Policy 2.3-a) as well as Article 18 of the ULDC does not allow properties located in a coastal high hazard area to increase density past the total Land Use density (12 du/ac) by use of bonus programs such as the Transfer of Development Rights or on-site Work Force Housing. Therefore there is no request to increase more than what is allowed by the HR12 Land Use. the ULDC or the Comprehensive Plan. CONCURRNECY: In terms of Traffic Concurrency, the site is vested for a total of 42 mutli-family units as per the letter from the Monitoring Section of PBC dated December 1 Bu', 2009. The Monitoring Section requires the development to have commenced prior to March 10, 2013. An equivalency study has been submitted with this application showing that even under today's standards and without any vesting, the proposed 34 unit structure meets all Transportation Performance Standards. The site is also vested for Water and Sewer Concurrency for the proposed Phase I portion of this development located on the east side of AIA. An existing 4001 N. Ocean Blvd. Page 7 of 11 7/16/10 Developer's Agreement dated September 31d, 2001 allows for water and sewer capacity for 35 units, on the east parcel only. The proposed 34 units is therefore in conformance with this existing agreement. Any proposed increase in units over the 35 as shown in the agreement, or any units proposed on the west side of AIA within Phase If of this Site Plan will require an additional Developer's Agreement from the City of Boynton Beach. For additional confirmation, a letter from the City of Boynton Beach dated June 16ui, 2010 confirms the existing capacity and Developer's Agreement for the proposed 34 unit building. BUILDING HEIGHT: Building height for the 34 unit structure was established using the definition as listed in Article 1 of the ULDC: ARTICLE 1,, Chapter I, DEFINITIONS B-59 Building Height •• the vertical distance measured in feet from finished grade to the highest point of the roof for flat roofs; to the deck line for mansard roofs; and to the average height between eaves and the ridge for gable, hip and gambrel roofs. To establish finished grade, several factors were taken into account. The first is that this proposal wanted to be consistent with the previously approved site plan in terms of its established finished grade. The 2007 site plan approval established finished grade at elevation 19.00. In order to be consistent with this, the proposed building was developed around a finished grade of elevation 19.00. Based on the submitted site plan exhibits and cross sections, it can be seen that elevation 19.00 is consistent around all four sides of the proposed building, This is also in character with the surrounding developments and also conforms to the DEP requirements for CCCL permitting.. The proposed building has a mansard roof system. Therefore the height was measured to the deck line as established by the ULDC definition. The height of the building between finished grade and the deck line of the mansard roof is 677". SETBACKS: The property has a Zoning District of RH. Because this District has been removed from the current ULDC, the Property Development Regulations divert to the RM District Based on the RM District, setbacks for the first 35' of building height for Phase I are 15' on the north, east and south property lines and 25' from the west property line (AIIA ROW). For every foot over 35' in height, an extra foot of setback is required. Using the ULDC we have established the height as 67'2", therefore the north, east and south property lines have a setback requirement of 47'2", and the west property line has a setback requirement of 577'. This proposal meets or exceeds these setbacks as shown on the Site Plan submitted. It should be noted that while the proposed structure is within complete compliance of the ULDC for height and setbacks, the existing buildings to the north and south (both of which are also within Unincorporated PBC) of this property do not meet setbacks for the current ULDC as shown in the submitted exhibits. 4001 N. Ocean Blvd. Page 8 of 11 7/16/10 COMAPTIBILITY: As mentioned previously, this proposed Site Plan and structure have been developed in the same manner as those surrounding the site that have been developed across different jurisdictions. The density, height, setbacks and character of the proposed structure are designed to meet or exceed the requirements of the ULDC. The same cannot be said for the adjacent properties which do not meet current ULDC, Comprehensive Pian or permitting requirements. This proposal will enhance the character of the surrounding community, while also being more sensitive to open space and ocean views and comes under much more strict review than previous developments. Compared to the previously approved Site Plan, the proposed plan allows for much more open space while respecting ocean views from A1A, as well as the existing developments to the North and South. The building has been staggered in width to be at its most narrow on the eastern side of the property. This is to respect existing site lines from the adjacent communities. These views can be compared as seen in the graphics on the following page: 4001 N. Ocean Blvd. Page 9 of 11 7116/10 F*147 BUFFERS: The properties to the north and south are also considered multi -family in use and therefore are considered compatible. To further the comparison, the north property, Ballantrae, has a density of 10.36 dufac and is 5 stories in height The south property, Beliamar House, has a density of 12.90 du/ac and is 7 stories in height Therefore, as per the ULDC a 5' compatibility buffer will be required, as shown on the proposed Site Plan. To the west is the AIA ROW, where a 15' ROW buffer is required and proposed, and to the east is the Atlantic Ocean where no buffer is required, however the natural dunes and native plantings that currently exist will remain. While ULDC minimums for buffer size and plant counts will be met, there is no doubt that this development, due to its location and proposed unit cost, will be expected to far exceed normal landscape design. RECREATION AREA: The total required recreational area for the property is .25 acres. That is based on the maximum 41 units allowed in both Phase I and Phase II. The total provided recreation area is .25 acres and includes an open lawn area and pool with shade structure and spa. In addition, the site will have additional walkways, seating areas and access to the beach for all proposed units. This proposal will far exceed minimum spending requirements for private recreational areas. VEHICULAR CIRCULATION: Residents of the proposed development on the east side of Al will use the one-way drive to access the private underground garage, lobby drop-off area as well as guest parking area. Conceptual FDOT approval has been obtained for the access points. ADDITIONAL DESIGN FEATURES: • Mail will be accessible through a central area within the lobby of the building; • Garbage will be collected in the garage and rolled out on pick up days by staff. Private garbage removal may be a choice for collection services; • Lighting will be designed to be in compliance with all Sea Turtle Lighting Permit requirements; • While there are no development plans, approvals (Site Plan, Concurrency or otherwise) for Phase Il, the recreation area has been designed to accommodate this parcel as well. Access across the main parcel's walkway system, gates, etc. will be allowed for the Phase II units when they are developed. This will include access to the recreation area and beach access; • Access to the beach from the main parcel will be limited to the residents of the 4001 project, in both Phase I and Phase Il. It should be noted that this Is private property, and not a public beach access. While not verified per the submitted survey or through records searches, there is purportedly a pedestrian access easement along the southern property line of the Ballantrae property to the north which offers beach access for some residents in the area. Based on the above information, the Petitioner respectfully requests the DRO approval of the Final Site Plan as submitted. 4001 N. Ocean Blvd Page 11 of 11 7/16/10 U IV !E_ b 9 f � t1Yme-. 1 pyRc pp€ fca B€8S3egg f� p5a1R:p dF I€Ela ?ggi 1 �� i�aE �#�g1•�• 1l1lI1tF nI9�e3il iiREMIT B E =Y3 pEHfEl 'F€'�as-1i[[ais@6@> Q1•=a•' @ IN7.er€°>,11,1 5 01 fig laa of € 33� - 9 5 pp 1 1pea6[ 6 a FpHIM G a ! fEill € a E a �d3 Ill' � 3 tEfl F g 1 i esii si•+�4 A FFc a= E.9 1€:� ll oa o d3aa 1 i I 4001 N. OCEAN BLVD. LAND DESIGN -M PREPARED FOR KOLTER SOUTH it 3 I I BOm�m : I 0O0 , m2f0 , H14 A0 �— . 4a" B - a d Ei S 4001 N. OCEAN BLVD. N PREPARED FOR KOLTER I DESIGN U 1,,.i* I 4001 N. OCEAN BLVD. PREPARED FOR KOLTER P 0 �I 4001 N. OCEAN BLVD PREPARED FOR KOLTER LAN IDESIG SOUL John C. Randolph Attorney (561)650-0458 Fax: (561) 650-5300 irandolph@jonesfoster.com April 26, 2016 VIA EMAIL: bthrasherftulf-stream.orq Mr. William H. Thrasher, Town Manager Town of Gulf Stream 100 Sea Road Gulf Stream, Florida 33483 Re: Bert J. Harris, Jr. Private Property Rights Protection Act Our File No. 13147.1 Dear Bill: The Architectural Review and Planning Board has requested my advice in regard to the effect of the Bert J. Harris, Jr. Private Property Rights Protection Act in regard to any legislation passed by the Town which might be more restrictive than that which presently exists in regard to land use, including legislation concerning subdivisions or zoning ordinances. As I indicated at the last meeting of the ARPB, the Board and the Town Commission should keep in mind the effects of this Act when recommending for adoption and when finally adopting a provision which may be determined to "inordinately burden" an existing property as that term is defined within the Act. The term "inordinately burdened" means that: "An action of one or more governmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment -backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large." Mr. William H. Thrasher, Town Manager April 26, 2016 Page 2 Inordinate burdens do not include temporary impacts to real property occasioned by governmental abatement. However, a temporary impact on development that is in effect for longer than one year may, depending upon the circumstances, constitute an "inordinate burden." The ARPB has also inquired as to when an action can be commenced under this law. The Act provides that: "A cause of action may not be commenced under this section if the claim is presented more than one year after a law or regulation is first applied by the governmental entity to the property at issue." This one year claim period accrues from the date a law or regulation is first applied upon enactment and notice. To effectuate this one year period, notice must be provided by mail to the affected property owner or registered agent at the address referenced in the jurisdiction's most recent ad valorem records. Otherwise, the law or regulation is first applied to the property when there is a formal denial of a written request for development or variance which, of course, may extend well beyond a year. There are, of course, specific procedures which must be undertaken by a person affected by the action of the Town in amending its land use regulations which are set forth specifically in the Act. It is important to note that the Act does not apply to regulations which were already in effect in the Town prior the close of the 1995 legislative session on May 11, 1995. For the information of the members of the ARPB, I am providing a copy of Chapter 70, Florida Statutes, relating to the Bert J. Harris, Jr. Private Property Rights Protection Act. I am also providing an overview of the Act which is quite comprehensive and probably more than most want to read which is contained within an article titled "Private Property Rights Protection Legislation: Statutory Claims for Relief from Governmental Regulation — Updated 2010 Version." I am providing only the portion of this article which relates specifically to the Bert Harris Act. Bill, in addition to forwarding this letter to the members of the ARPB, I feel it would be beneficial that you send copies of this to each member of the Town Commission so they can be advised of the potential effect of amendments to the Town's land use regulations, specifically those which might impose more strict requirements on subdivisions and those zoning ordinances which may reduce density. Mr. William H. Thrasher, Town Manager April 26, 2016 Page 3 Please do not hesitate to contact me if you have any comments or questions. Sincerely, JONES, FOSTER, JOHNSTON & STUBBS, P.A. John C. Randolph JCR/ssm Enclosures cc: Marty R. A. Minor, AICP — Via email — Mminor(ciludkstudios.com p:\docs\13147\00001 \Itr\1 cg4090.docx TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA April 26, 2016 Record Requestor [mail to: publicrecordrequester@gmail.com] Re: GS #2158 (bert harris - baird — TUGS) Any public record as defined above which is in the custody of your firm and which is wholly or partly concerning any part of the Bert J. Harris, Jr. Private Property Rights Protection Act. Dear Record Requestor [mail to: nublicrecordreauester(a,email.coml, This letter provides you with the partial responsive production of public records requested on April 20, 2016. The original request can be found at the following link: hft://www2.gulf- stream.org/weblink/O/doc/89150/Pagel.aspx. The responsive records can be found at the same above link. We estimate that we will have final production within the next few days. Regards, Town Clerk Custodian of the Record TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via e-mail April 27, 2016 Record Requestor [mail to: publicrecordrequester@gmail.com] Re: GS # 2158 (bert harris - baird - TofGS) Any public record as defined above which is in the custody of your firm and which is wholly or partly concerning any part of the Bert J. Harris, Jr. Private Property Rights Protection Act. Dear Record Requestor [mail to: publicrecordreauestert7a.email.coml, The Town of Gulf Stream has received your original record request dated April 20, 2016. Your original public records request can be found at the following link httv://www2.gulf- stream.org/weblink/O/doc/89945/Pagel.a§px. Please refer to the referenced number above with any future correspondence. After farther searching, it has been determined that there are no more records than the ones that were given on April 26, 2016. We consider this matter closed. Sincerely, Town Clerk, Custodian of the Records TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via e-mail April 22, 2016 Record Requestor [mail to: publicrecordrequester@gmail.com] Re: GS 92158 (bert harris - baird — TofGS) Any public record as defined above which is in the custody ofyour firm and which is wholly or partly concerning any part of the Bert J. Harris, Jr. Private Property Rights Protection Act. Dear Record Requestor [mail to: publicrecordreauesteaemail.com], The Town of Gulf Stream has received your public records requests dated April 20, 2016. The original public record request can be found at the following links htti)://www2.gulf- strearn.org/weblink/O/doc/89150/Pagel.ast)x Please be advised that the Town of Gulf Stream is currently working on a large number of incoming public records requests. The Town will use its very best efforts to respond to you in a reasonable amount of time with the appropriate response or an estimated cost to respond. Sincerely, Town Clerk, Custodian of the Records