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
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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."
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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.
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(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
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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.
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(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
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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
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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
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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
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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.
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(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.
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(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
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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.
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(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
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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.
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(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
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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
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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.
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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).
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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).
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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..
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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.
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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
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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
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"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.
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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
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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
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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]
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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
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(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
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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
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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
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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
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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.
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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.
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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.
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§ 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.
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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)).
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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
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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.
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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.
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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
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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
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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,
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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
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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
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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