HomeMy WebLinkAbout2005 11 14 Consent 212
COMMISSION AGENDA
ITEM 212
Consent X
Informational
Public Hearing
Regular
November 14.2005
Meeting
~ ''I'/uS-
Mgr. / Att. / Dept.
REQUEST:
The City Attorney's office requests that the City Commission approve the Settlement Offer and
Ripeness Decision relevant to Reverend Neil Backus' Harris Act Claim against the City.
PURPOSE:
To approve Settlement Offer and render a Ripeness Decision regarding Reverend Backus' Harris Act
claim as requested under the Harris Act. See Chapter 70, Fla. Stat.
BACKGROUND:
Reverend Neil R. Backus owns property located at 415 S. Moss Road that is zoned RC-l. On
August 13, 1990, at Reverend Backus' request, the City Commission approved a resolution allowing
Reverend Backus to divide his originally platted lot. Subsequent to approval of the lot split,
Reverend Backus sought approval of a conditional use for a church. His request was denied by the
Board of Adjustment on November 3, 1994. The City Commission also denied this request upon
appeal on January 9, 1995.
On October 7, 2004, Reverend Backus appeared before the Board of Adjustment seeking a variance
from Section 9-3, Dividing Platted Property, of the City Code. The BOA denied the variance request
to further divide the property based on the provision in section 9-3 that an originally platted single
lot may only be subdivided once into no more than two (2) parcels or lots. Further, staff explained
to the BOA that since Reverend Backus chose to split his lot into its current configuration, the
unique characteristics of the parcel were not beyond the control of the owner. The City Commission
also denied the variance request upon appeal on October 25, 2004.
Page 1 of 2
On May 22, 2005, Reverend Backus wrote the City seeking mediation under the "Bert 1. Harris Jr.
Private Property Rights Protection Act," codified at section 70.001, Florida Statutes. In some cases,
the Harris Act provides private property owners relief 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. Such relief may include compensation for the actual loss to the fair market value
of the real property caused by the action of the government.
The Harris Act does not require the City to mediate, as requested by Reverend Backus. It does
require the City to respond within 180 days of the date of the claim with a Settlement Offer, if any,
and a Ripeness Decision explaining the permitted uses of the subject property under the City Code.
APPLICABLE LAW AND PUBLIC POLICY:
1. Bert J. Harris Jr. Private Property Rights Protection Act, ~ 70.001, Florida Statutes.
2. City of Winter Springs Ordinance 2005-23, amending Chapter 9 of the City Code.
3. Municipal Home Rule Powers.
CONSIDERATIONS:
For the reasons stated in the Settlement Offer, Backus' Harris Act claim is deficient. As such, the
Settlement Offer provides that no changes to the action of the City be made with regard to Backus'
property .
STAFF RECOMMENDATION:
The City Attorney recommends approval of the Settlement Offer and Ripeness Decision.
A TT ACHMENT:
1. Backus' Harris Act Claim Letter, dated May 22, 2005
2. Settlement Offer
3. Ripeness Decision
COMMISSION ACTION:
No previous action with regard to Harris Act claim. As previously noted, the City Commission
denied Backus' variance request on October 25,2004.
Page 2 of 2
EXHIBIT
I ,
r. O. Box ]:15':1';
WinlC! Sprl!l}l.s. Florida
:~271()...';21(,
REV. NEIL R. BACKUS, D.D.
............................................................................................................................................................................................................................................
RECEIVED
MAY 232005
-407-U'9--I22.'
Nci! D:ld~llS'fi CS ";OI1l
n.t:\r 22. ino:;
Mr. Ronald W. Mclemore
City Manager
City of Winter Springs
1126 East S.R 434
Winter Springs. Florida 32708-2799
Re.: Land Use for 415 S. Moss Road (3.6 acres) zoned RC-l (Rustic Residential)
( purchased 08-28-72 for church site) B.O.A conditional use denied 11-03-94,
City Commission Appeal denied 01-09-95; N.O.C.E. Sewtz Extention designed
and built on City Property at cost of $ 36,363.13-Bill of Sale given to City on
01-07-98. D.E.P. approved for use 04-17-98; Sewer Extention was to meet new
requirements of City Comp. Plan for Subdivision Application ( city water, sewer,
and paved roads) B.O.A denied Subdivision 10-07-04 ,City Commission Appeal
of Subdivision denied 10-25-04.
Dear Mr. Mclemore:
After spending thirty three years in W'mter Springs and paying over $ 43,516.00 in
real estate taxes plus other usage taxes on utilities, storm water, etc., and having not been
able thru writing letters to City Officials which were never answered, and attending City
meetings did not produce any results; we have decided to request a Mediator under the
Private Property Rights Protection Act CS I HB 863 (copy inclosed ).We win furnish a
sealed information pack to the Mediator.
If there are any further questions please ca)) or o-mail me. The bill was passed after the
church conditional use was dcmed, but before the subdivision was denied; ifoecessBIY we
wi)) re-apply for the church conditional use even though we have wasted our time here.
Thank you.
Yours sincerely,
&..~R. ~/J>.tJ,
Rev. Neil R Backus, D.O.
ce.: File
ce.:( see sh. 2 for distribution )
Q.\'f'f 0" WINTER SPRINGS
Cl~MMager
'-
EXHIBIT
I 2.
BROWN, GARGANESE, WEISS & D'AGRESTA, P.A.
Attorneys at Law
Debra S. Babb-Nutcher"
Usher L. Brown ·
Suzanne D'AgrestaO
Anthony A. GarganeseO
Jeffrey S. Weiss
Offices in Orlando, Kissimmee,
Cocoa & Viera
Joseph E. Blitch
Victoria L. Cecil
Scott J. Dornstein
Andrew M. Fisher
Katherine W. Latorre
Amy J. Pitsch
'Board Certified Civil Trial Lawyer
oBoard Certified City, County & Local Government Law
Erin J. O'Leary
J. W. Taylor
Of Counsel
November 9, 2005
Via Certified Mail
Return Receipt Requested
. .,~1..
Q~~
Reverend Neil R. Backus, D.O.
P.O. Box 195216
Winter Springs, FL
32719-5216
Re: Bert J. Harris, Jr. Private Property Rights Protection Act Claim
"Settlement Offer"
(Backus v. City of Winter Springs 315-038)
Dear Reverend Backus:
This correspondence is in furtherance of your letter dated May 22, 2005, in which you
sought mediation under "Private Property Rights Protection Act CS I HB 863," which is codified
at Section 70.001, Florida Statutes, and in its entirety, is called the "Bert J. Harris, Jr., Private
Property Rights Protection Act" ("the Harris Act").
Although it is difficult for the City to discern the true intent and purpose of your letter
because of its vagueness and legal deficiencies, the City will consider your May 22, 2005
correspondence as a Harris Act claim letter given that you attached CS I HB 863 and
mentioned the Harris Act. As such, pursuant to Section 70.001 (4)(c) , Florida Statutes, the City
of Winter Springs ("City") hereby provides its written settlement offer regarding the property
located at 415 S. Moss Road in Winter Springs, Florida ("the Property"). Simultaneously
herewith, the City is also submitting, pursuant to Section 70.001 (5)(a), its ripeness decision as
to the allowable uses of the Property. Said ripeness decision is adopted and incorporated into
this letter as if fully set forth herein.
225 East Robinson Street, Suite 660. P.O. Box 2873. Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596. Kissimmee (321) 402-0144. Cocoa & Viera (866) 425-9566
Website: www.orlandolaw.net . Email: firm@orlandolaw.net
Reverend Neil R. Backus, D.O.
November 9, 2005
Page 2
I. Background
While your claim letter does not explicitly set forth which action of the City has
inordinately burdened the Property entitling you to relief under the Harris Act, the following is
a brief synopsis of your various applications to the City mentioned in your letter and the official
responsive decisions made by the various City boards.
Initially, the City Commission approved the division of the Property pursuant to your
request on August 13, 1990 through adoption of Resolution 647, which provided for the division
of an originally platted lot. You later applied for a conditional use permit to locate a church on
the Property. On November 3, 1994, the Board of Adjustment denied your request for the
conditional use permit. Upon appeal to the City Commission on January 9, 1995, the
Commission also denied the conditional use request.
Last year, you sought a variance from Section 9-3 of the City Code related to the
division of platted property. Because the Property had previously been divided in 1990, the
Board of Adjustment denied your variance request to further divide the property at its October
7, 2004 meeting based on the provision in section 9-3 that an originally platted single lot may
only be subdivided once into no more than two (2) parcels or lots. On October 25, 2004, the
City Commission also denied the variance request on appeal. On May 22, 2005, you submitted
your Harris Act claim to the City Manager seeking mediation.
II. Harris Act Prereaulsltes Not Met
First, your claim under the Harris Act may not proceed because you failed to provide to
the City a bona fide, valid appraisal with your claim. Pursuant to Section 70.001 (4)(a) , Florida
Statutes,
a property owner who seeks compensation under this section
must present the claim in writing to the head of the governmental
entity. The property owner must submit, along with the claim, a
bonafide, valid appraisal that supports the claim and
demonstrates the loss in fair market value to the real property.
(Emphasis added.)
Given that you did not submit an appraisal to the City at the time of submitting your
Harris Act claim, your claim fails. See So sa v. City of West Palm Beach, 762 So. 2d 981, 982
(Fla. 4th DCA 2000)(finding that dismissal of complaint was warranted where property owner
did not meet prerequisites for bringing suit under Harris Act because he failed to present to the
city any appraisal supporting the claim).
III. No Claim of Inordinate Burden to the Property
In some cases, the Harris Act may provide relief to private property owners 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. See 9 70.001 (2), Fla. Stat. This
relief may include compensation for the actual loss to the fair market value of the real property
caused by the action of the governmental entity as further provided by the Harris Act. Id.
Reverend Neil R. Backus, D.O.
November 9, 2005
Page 3
Nowhere in your May 22, 2005 correspondence do you claim that any specific action of the City
inordinately burdened the Property. More importantly, you did not present to the City an
appraisal or any other evidence demonstrating any loss in the fair market value of the Property
as required by the Harris Act. As such, any such claim is purely speculative and the City
denies that any action of the City inordinately burdened the Property.
IV. Claim is Ambiauous and Vaaue
The instant claim is vague and ambiguous in that it does not clearly set forth a specific
action or regulation of the City that inordinately burdens the Property. If a complaint is so
vague, indefinite and ambiguous as to wholly fail to state a cause of action, it is subject to
dismissal. Frisch v. Kelly, 137 So. 2d 252, 253 (Fla. 1 st DCA 1962). Aside from the general
list of dates of various applications made to the City over the years regarding the Property and
a reference to the Harris Act, the claim letter is totally lacking any details as to what the instant
Harris Act claim is actually based on. Therefore, your claim absolutely lacks merit and it is not
appropriate for the City to directly respond to such vague, indefinite, and ambiguous claims.
V. Claim is Barred
Although the City cannot discern from the claim letter what specific action, rule,
ordinance, or regulation is the basis of the instant claim, to the extent the instant claim
addresses a law or regulation applied to the Property more than one (1) year before the date
of the instant claim letter, the action is barred. See 9 70.001 (11), Fla. Stat. Further, to the
extent the instant claim addresses the application of any law enacted on or before May 11,
1995 or to the application of any rule, regulation or ordinance adopted or formally noticed for
adoption, on or before May 11, 1995, the claim is barred. See 9 70.001 (12), Fla. Stat.
Specifically, the applicable provisions of the Harris Act provide as follows:
(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.
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 law, 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.
~~ 70.001 (11) - (12), Fla. Stat.
Reverend Neil R. Backus, D.O.
November 9,2005
Page 4
Hence, any aspect of the instant claim regarding a decision or application of law by the
City falling under these subsections of the Harris Act is completely barred.
VI. Amendment to Winter Sprinas Code of Ordinances
Further, section 9-3 of the City of Winter Springs Code, which regulates the dividing of
platted property, has been significantly amended since the denial of your variance request by
the Board of Adjustment in October of 2004. The amendments to section 9-3, implemented
by Ordinance 2005-23 on September 12, 2005, removed the limitation that originally platted
single lots may only be divided once into no more than two (2) lots. Under amended section
9-3,
[a]n owner of a single lot or parcel of sufficient size that satisfies
zoning bulk regulations, except in a platted area of a planned unit
development, may, with prior approval of the city commission,
divide an originally platted single lot or parcel by dividing the lot or
parcel under the replatting, lot split, and town center development
agreement requirements set forth in [chapter 9].
Specifically, section 9-11 provides for the criteria and procedure relevant to splitting a
previously platted lot.
The addition of section 9-11 to the City Code, which was also part of the City
Commission's adoption of Ordinance 2005-23, was, in part, a response to a proposal submitted
to the City by Paul Rosu, who indicated that he was in negotiations with you to purchase the
Property. Mr. Rosu submitted ideas and recommendations to the City on February 18, 2005
regarding amending the City Code relevant to lot splits and replatting procedures. Moreover,
you were in attendance at several City Commission meetings where the Commission
considered amending Chapter 9 of the City Code.
The City's Community Development Department, as well as the City Commission, took
Mr. Rosu's suggestions under consideration and moved forward with the amendments to
Chapter 9. To date, neither you or Mr. Rosu has submitted an application to the City's
Community Development Department seeking a lot split or replat of the Property.
Therefore, to the extent that the instant claim addresses the impact that the previous
section 9-3 had on subdividing or splitting the Property again, the amendments to Chapter 9
of the City Code may afford you some relief should a proper lot split or replat application be
filed with the City and approved by the City Commission.
VII. Sovereian Immunitv
Even if the instant claim could present a compensable claim under the Harris Act, the
recovery would be limited. All claims under the Harris Act are governed by the notice
requirements and monetary restrictions for recovery under Florida's sovereign immunity statute.
See S 768.28, Fla. Stat. As the Harris Act states, "this section does not affect the sovereign
immunity of government." S 70.001 (13), Fla. Stat. Thus, the City of Winter Springs is immune
Reverend Neil R. Backus, D.O.
November 9,2005
Page 5
from any monetary claim under the Harris Act which exceeds the statutory limit prescribed in
section 768.28(5), Florida Statutes, except by further act of the Florida Legislature.
VIII. Mediation
For the foregoing reasons, the City finds that with respect to the request for a mediator
regarding the instant claim, the Harris Act does not require that the instant claim be mediated.
See 9 70.001 (8), Fla. Stat. Moreover, given the deficiencies in the instant claim, as explained
above, the City finds that mediation would not be appropriate and in the public's best interest.
IX. Reservation of Riahts
Notwithstanding the aforesaid, the City expressly reserves the right to challenge the
constitutionality and lawfulness of the Harris Act. Further, the City expressly reserves the right
to revisit the issue of a settlement proposal in the future.
X. Settlement Offer
Under Section 70.001 (4)(c) , Florida Statutes, the government entity presented with a
Harris Act claim "shall make a written settlement offer" during the 180 day notice period. In
Sections 70.001 (4)(c)(1 )-(11), Florida Statutes, eleven options are provided for the
government's settlement offer. Based upon the reasons set forth herein and pursuant to
Section 70.001 (4 )(c)(11), Florida Statutes, the City offers that "[n]o changes to the action of the
government entity" be made. Specifically, it is proposed that no change be made to the action
of the City with regard to the Property.
Very Truly-Yours,
DRAFT
Anthony A. Garganese
City Attorney
Cc: Mayor and City Commission
Ronald W. McLemore, City Manager
EXHIBIT
I :5
BROWN, GARGANESE, WEISS & D'AGRESTA, P.A.
Attorneys at Law
Debra S. Babb-Nutcher"
Usher L. Brown ·
Suzanne D'AgrestaO
Anthony A. GarganeseO
Jeffrey S. Weiss
Offices in Orlando, Kissimmee,
Cocoa & Viera
Joseph E. Blitch
Victoria L. Cecil
Scott J. Dornstein
Andrew M. Fisher
Katherine W. Latorre
Amy J. Pitsch
.Board Certified Civil Trial Lawyer
cBoard Certified City, County & Local Government Law
Erin J. O'Leary
J. W. Taylor
Of Counsel
November 9. 2005
Via Certified Mail
Return Receipt Requested
Q\t~~~
Reverend Neil R. Backus, D.O.
P.O. Box 195216
Winter Springs, FL
32719-5216
Re: Bert J. Harris, Jr. Private Property Rights Protection Act Claim
"Ripeness Decision"
(Backus v. City of Winter Springs 315-038)
Dear Reverend Backus:
This correspondence is in furtherance of the Bert J. Harris, Jr., Private Property Rights
Protection Act ("Harris Act") claim submitted on May 22, 2005 regarding the property located
at 415 S. Moss Road in Winter Springs, Florida ("the Property"). As provided by Section
70.001 (5)(a), Florida Statutes. the City of Winter Springs ("the City") hereby identifies the
"allowable uses to which the subject property may be put." In addition. the uses set forth herein
are subject to all applicable development regulations, development approvals, and all
procedures relative thereto. Further, this letter does not operate and is not intended to vest any
rights with regard to development at the Property herein referenced.
By issuing this letter, the City of Winter Springs does not acknowledge or concede that
your Harris Act claim is ripe or is valid, or that the challenged action of the City gives rise to a
cause of action which would entitle you to relief under Section 70.001, Florida Statutes, or that
Section 70.001 is constitutional. Simultaneous herewith. the City is also submitting its
settlement offer pursuant to Section 70.001 (4)(c), Florida Statutes, which is adopted and
incorporated herein by this reference as if fully set forth herein.
225 East Robinson Street, Suite 660. P.O. Box 2873. Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596. Kissimmee (321) 402-0144 . Cocoa & Viera (866) 425-9566
Website: www.orlandolaw.net . Email: firm@orlandolaw.net
Reverend Neil R. Backus, D.O.
November 9, 2005
Page 2
The Property is zoned R-C1 (Single-Family Dwelling District). See Sections 20-141
through 20-148, Winter Springs Code. The main permitted uses in the R-C 1 district are single-
family dwellings and their customary accessory uses, and horses and ponies, allowing three-
fourths of an acre per animal not to exceed ten (10) animals per lot. The conditional uses
permitted within the R-C1 district include churches, schools, and public recreational areas and
facilities. No building or structure in the R-C1 district may exceed 35 feet in height and each
single-family dwelling shall be located on a lot of at least one (1) acre in size. Such lot shall
have a minimum width of 120 feet at the building line. A maximum of twenty percent (20%) of
the lot area may be covered by the principal and accessory structures.
The foregoing information is based upon the Winter Springs City Code as of the date
of this letter.
vei5~Y}\rr
Anthony A. Garganese
City Attorney
Cc: Mayor and City Commission
Ronald W. McLemore, City Manager