Wendler v. City of St. Augustine

• Citation: 108 So.3d 1141
• Decision Date: 15 March 2013
• Docket Number: No. 5D12–2563.,5D12–2563.
• Parties: Donna R. WENDLER, et al., Appellant, v. CITY OF ST. AUGUSTINE, Florida, Appellee.
• Court: Florida District Court of Appeals

108 So.3d 1141

Donna R. WENDLER, et al., Appellant,

v.CITY OF ST. AUGUSTINE, Florida, Appellee.

No. 5D12–2563.

District Court of Appeal of Florida, Fifth District.

March 15, 2013.

Andrew Prince Brigham, of Brigham Property Rights Law Firm PLLC, Jacksonville, for Appellant.

Isabelle C. Lopez, Office of the City Attorney, St. Augustine, for Appellee.

ORFINGER, C.J.

Donna R. Wendler, Scott Wendler, and Wendler Properties III, Inc. (collectively, “the Wendlers”), brought this action against the City of St. Augustine under the Bert J. Harris, Jr., Private Property Rights Protection Act, section 70.001, Florida Statutes (2010) (“Harris Act”).¹ The trial court found the action was untimely and dismissed the complaint with prejudice. We reverse.

Between 1998 and 2006, the Wendlers purchased eight parcels of real property in St. Augustine, Florida (the “Wendler Property”). The Wendler Property contains seven structures built between 1910 and 1930, and is located in a National Register of Historic Places District. When purchasing the property, the Wendlers knew that the parcels were subject to city ordinance, section 28–89, City of St. Augustine Municipal Code (“the Ordinance”), which regulates the demolition or relocation of certain historic structures. In 2002, the City revised the Ordinance by expanding the list of regulated structures to include homes at least 50 years old. The amendment also extended the waiting period for a demolition permit from six months to one year. In 2005, the City again amended the Ordinance, authorizing the City's Historic Architectural Review Board (“HARB”) to deny demolition or relocation requests indefinitely for three types of structures, including those considered “contributing property to a National Register of Historic Places District.”

The Wendlers used the structures on their property as residential rentals, but based on their view of changing market conditions, decided to convert the properties to a commercial use.² To that end, on September 28, 2007, the Wendlers submitted applications to demolish the seven structures pursuant to the Ordinance and to rezone all eight parcels to allow for a commercial use. On December 5, 2007, HARB denied all seven demolition permit requests, finding that six of the seven structures were contributing historic structures to the National Register Historic Places District, that the removal of the structures would be detrimental to the historic and architectural character of the City, and that the Wendlers had not proven undue economic hardship or adequate justification for the demolition, as required by the Ordinance. The Wendlers timely appealed the denial orders to the City Commission. After a hearing, the City Commission entered its order affirming HARB's orders and denying the Wendlers' rezoning application. The Wendlers challenged the City's denial by filing a timely petition for a writ of certiorari and a complaint for declaratory and injunctive relief, but voluntarily dismissed the action on April 5, 2010.

The following month, the Wendlers submitted a Harris Act claim to the City. The Harris Act allows property owners to be compensated by a governmental entity if a government regulation inordinately burdens an existing or vested property right. § 70.001, Fla. Stat. (2010). On October 26, 2010, the City responded with its written offer of settlement and a ripeness decision. The Wendlers rejected that offer, and instead, on July 14, 2011, filed their action in the circuit court under the Harris Act. Relying on our decision in Citrus County v. Halls River Development, Inc., 8 So.3d 413 (Fla. 5th DCA 2009), the trial court found the Wendlers' complaint was untimely and dismissed their case with prejudice. The Court reasoned that the impact of the 2005 amendment to the Ordinance was readily ascertainable to owners of structures within the scope of the Ordinance, including the Wendlers. As a result, the court determined that the Wendlers had one year from the date of the enactment of the 2005 amendment to the Ordinance to file their Harris Act claim against the City, which they did not do. This appeal followed.

We review de novo a trial court's order dismissing a complaint with prejudice. GLK, L.P. v. Four Seasons Hotel Ltd., 22 So.3d 635, 636 (Fla. 3d DCA 2009); Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So.3d 400, 402 (Fla. 3d DCA 2009); see Airey v. Wal–Mart/Sedgwick, 24 So.3d 1264, 1265 (Fla. 1st DCA 2009) (reiterating that where pertinent facts are undisputed, issue is one purely of law, subject to de novo review).³

The Harris Act, enacted in 1995, created a new cause of action allowing property owners who suffer inordinate regulatory burdens to existing or reasonably foreseeable land uses to be compensated by the governmental entity creating the burden. § 70.001(1), (2), (5)(a), Fla. Stat. (2010). The law focuses on protecting real property owners' rights to existing uses and vested rights to specific uses of their property. Halls River, 8 So.3d at 419. The terms “inordinate burden” or “inordinately burdened” are defined in the Harris Act to mean a specific action by a governmental entity that directly restricts or limits the use of real property. Id. at 421.

A Harris Act claim must be presented within one year from the time the law or regulation is first applied by the governmental entity to the subject property. § 70.001(11), Fla. Stat. (2010) (emphasis added). At least 180 days prior to filing a lawsuit, the owner must submit a presuit notice to the appropriate governmental entity. § 70.001(4)(a), Fla. Stat. (2010). Following receipt of the presuit notice, the government has 180 days to consider its options, which include retracting or modifying its action, taking no action, or granting relief in a variety of ways and making an offer to settle. § 70.001(4)(c), Fla. Stat. (2010). Before this 180–day period expires, unless a settlement offer is accepted by the property owner, the governmental entity is required to issue a written “ripeness” decision, identifying the allowable uses for the property. § 70.001(4)(a), (5)(a), Fla. Stat. (2010). “The ripeness decision, as a matter of law, constitutes the last prerequisite to judicial review, and the matter shall be deemed ripe or final for the purposes of the judicial proceeding created by this section, notwithstanding the availability of other administrative remedies.” § 70.001(5)(a), Fla. Stat. (2010); Halls River, 8 So.3d at 420. After receiving the ripeness decision, the property owner may file an action for damages. § 70.001(5)(b), Fla. Stat. (2010). Failure to comply with these procedural requirements will result in a dismissal of the lawsuit. See Sosa v. City of West Palm Beach, 762 So.2d 981 (Fla. 4th DCA 2000) (holding that complaint must be dismissed where property owner failed to comply with prerequisites for bringing suit under Harris Act). Provided that the procedural requirements of the Harris Act are satisfied, the court then determines whether an existing or vested use exists and whether the regulation has “inordinately burdened” the real property. If the court so finds, a jury determines the amount of damages suffered by the property owner. § 70.001(6), Fla. Stat. (2010). The question we must answer is when did the clock begin to run on the Wendlers' ability to file the Harris Act claim with the City and the action with the court.

In Halls River, a property owner was advised by Citrus County staff that a condominium project could be developed on the owner's land, even though the project was inconsistent with the county's comprehensive plan which limited the property to one housing unit per twenty acres of land. When the county ultimately rejected the project, the owner brought a Harris Act action against the county in court. The county contended that the suit was untimely. 8 So.3d at 415–19. The owner argued that since the Harris Act only allows as-applied challenges, the mere enactment of a statute, ordinance or plan of general application, could not trigger the accrual of a Harris Act claim. The owner contended that until a development plan was submitted and rejected, the impact of the governmental regulation could not be determined. Id. at 422.

In that case, we agreed that there are some instances when the impact of a governmental regulation cannot be determined prior to the submission of an actual development plan. For example, the impact of a generally applicable development standard discouraging urban sprawl may not be readily apparent. On the other hand, we observed that if a comprehensive plan was a clear height or density limitation, the impact on a given parcel of property can immediately be determined. Id. at 422–23. Consequently, we held that if the impact of a new law or regulation is “readily ascertainable” to the property owner, a claim must be made against the local government within one year of that new regulation's enactment in order to preserve the right to timely file an action in court founded in the Harris Act. Id. at 423.⁴

Applying the holding of Halls River here, we conclude the impact of the 2005 amendment to the Ordinance was not readily ascertainable to the Wendlers in 2005. The Ordinance, as amended, put property owners on notice of the procedure they must follow when applying for a permit for demolition or relocation of any of the three building types newly designated in the amendment and sets forth the general standards for the demolition or relocation of historic structures. However, these provisions constituted only general restrictions that applied to the Wendlers' structures, just as they potentially applied to other structures in the historic district. Given the significant discretion retained by the City to grant or deny a demolition or relocation request, the impact of the Ordinance, as amended, was not reasonably ascertainable to property owners, including the Wendlers at the time of enactment. The...