FL Dist. Court of Appeals, 5th Dist., No. 5D12-2563, March 15, 2013: Compensation for Florida city’s denial of demolition is based on date of denial, not date of ordinance.
Between 1998 and 2006, the Wendlers bought real property located in a National Register of Historic Places District in St. Augustine, Florida. At the time of their purchases, all structures were subject to historic preservation demolition review ordinances, and by 2005, the ordinance authorized the City’s Historic Architectural Review Board 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 applied to demolish seven structures and all seven demolition permit requests were denied.
After the Wendlers lost challenges to the permit denial, they sought compensation from the City under Florida’s Harris Act. § 70.001, Fla. Stat. (2010). That state law allows property owners to be compensated by a governmental entity if a government regulation “inordinately burdens” an existing or vested property right. The Wendlers rejected a settlement offer from the City and brought suit under the Harris Act. The court had previously decided in another case, Citrus County v. Halls River Development, 8 So. 3d 413 (2009), that the Harris Act clock starts running when the impact of a governmental regulation can be determined; sometimes that occurs only with government action on a particular development plan, and sometimes that occurs regardless of the owner’s specific development plans.
The main question in this appeal was when the effect of the City demolition control ordinance was first applied to the Wendlers’ structures so as to make the damage ascertainable.
The court concluded, “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. … As such, we conclude that the impact of the Ordinance was not readily ascertainable until the Wendlers’ demolition applications were denied….”
The next question was whether the Wendlers’ court challenge was brought in time. A different Florida appeals court district decision, Russo Associates, Inc. v. City of Dania Beach Code Enforcement Board, 920 So. 2d 716 (Fla. 4th DCA 2006), previously held that the statute of limitations to file suit under the Harris Act was four years, beginning from the date of the government action complained of. This state appeals court agreed with that federal decision and therefore, taking the facts in this case into consideration, and held the Wendlers had timely filed their Harris Act well before the four-year period ended.
Decision available at http://www.5dca.org/Opinions/Opin2013/031113/5D12-2563.op.pdf.