Sunday, September 25, 2005

Will You Sue?

It’s sued if you do and sued if you don’t.

City commissioners recently caved in to that threat and blindsided Laurel Park residents by allowing 10-story buildings in the supposed buffer zone between the residential community and commercial buildings in the Burns Court area.

So says the editorial on this week's Pelican. The Pelican has also noted:

When Sarasota’s City Commission caved in to threats of lawsuits last week and rezoned Burns Square to allow new 10-story buildings, it may have whittled away the last layer of that human scale tourists and locals alike most relish downtown.

After years of public hearings, further studies and meetings, meetings and more meetings, the city commission finally made a second – and final – vote on the new Downtown Master Plan. Commissioners had made every effort to hear from residents, business people, developers and anyone else who chose to appear.

Then, in an abrupt about face, the commission decided that the Burns Court area, previously to be zoned as lower density Downtown Edge, would move “up” to Downtown Core, allowing buildings up to 10 stories, twice the height proposed for the historic area abutting the residential neighborhood of Laurel Park.

Of course, that could be considered a victory in a way. Some of the property owners in that charming historic area wanted 20-story buildings – and were threatening to sue to get them.

Some commissioners indicated that threats of lawsuits swayed their thinking and pushed them toward siding with the small property owners' group. What is the truth here? While we all know about the threats of being sued, but how realistic were those threats in the face of the overhelming community support for the recommended zoning. Maybe City Attorney Fournier can enlighten us. We will ask.

Meanwhile, the material below is from a pamphlet "A Citizen's Guide to the Nuts and Bolts of Florida's Growth Management Process", published by 1000 Friends of Florida. This is enlightening.

Private Property Rights

The protection of private property rights is assured in the U.S. and Florida Constitutions. If government regulations (including those from Florida’s Growth Management Act) restrict private property to such an extent that all reasonable use has been removed, the regulation may be deemed a "taking."

However, the state has always retained the ability to limit property use when that use comes into conflict with the public welfare or harms the property of others. From a number of court decisions we know that government can usually keep owners from building in wetlands, impose zoning regulations, protect endangered species habitat, require exactions (such as requiring impact fees or land to mitigate impacts) and apply building codes without having to pay compensation.

The cases also show that government can impose temporary building moratoria for a good public reason, such as to develop plans or new regulations.

In 1995 the Florida Legislature passed the Bert J. Harris, Jr. Private Property Rights Protection Act, which states that the actions of government:

"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."

The courts have not had enough time to interpret its provisions and the words of the Act are not very clear on their face. The Act has made local governments more cautious when making changes to their local comprehensive plans or land development regulations. However, it is the best interpretation of the Act that, while it does provide some increment of additional protection to landowners beyond that afforded by the Constitution, it clearly does not preclude a local government’s ability to strengthen its land use regulations or even "down-plan" or "down-zone" land for a valid planning reason.

Note the bold text [editor's emphasis] above, this seems to indicate that when valid planning reasons exist, a local government can strengthen land use regulations.

5 comments:

Anonymous said...

Thank you. Reference to the Bert Harris Act is made way too indiscriminately. It in no way guarantees a slam dunk for developers.

Burns Square Property Owners Assoc. said...

I am not a lawyer therefor I can only pass information that I have learned from lawyers and ultimately I suggest whoever is interested should speak to them firsthand before speaking legal authority.

I had a meeting with the city attorney Robert Fournier before the Burns Square CCBD property owners hired an attorney to see if we could figure out a way to get through this tough issue and I could be wrong but it appeared to me that he was very concerned for the city and felt the property owners had the upper hand if it became a legal issue.

The attorney we hired, Bill Moore, is a partner in one of Florida's leading eminent domain law firms and he is located here in Sarasota. And while I think there are few things that are black and white, Mr. Moore spoke of this case as, "It's black and white." He gave an interview with Gulf Coast Business Review in the September 2nd issue.

There were at least two other attorneys representing other land owner in the Burns Square area that you could contact.

I feel that I learned a lot in this process and I am happy it did not end up in our legal system and I say that as a property owner and a taxpayer.

Burns Square Property Owners Assoc. said...

Oh, the Bert Harris Act protects property owners not developers.

Sarasota Secret Society Blogger said...

I have property on Siesta Key; therefore, I am more familiar with that zoning issue, as discussed in the Pelican Press. It is my opinion that the Commissioners simply make an "economic" calculation based upon advise from their legal counsel. For example, in the Siesta Key zoning issue, they tried to find a middle ground hoping no one would sue them, but they fully admitted what they had been doing for these many years is wrong. I believe they simply decided the developers had deeper pockets and would be more persistent in their legal challenge than the Siesta Key Association would be. Furthermore, if the developers challenge the compromise, it is likely the Commissioners will fold on it as well.

Anonymous said...

I agree, I think that most of us know the difference between perceived rights versus actual rights. Most of these property owners rely on the City to provide parking in order for them to develop. If they had opted to sue they would have been required to prove what could be build and then the City could have negotiated, instead of giving away the farm.