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Here’s The Scoop…Knock…Knock…Who’s There ?…

IT’S BERT J. HARRIS….ABOUT THOSE HEIGHTS…..THEY’RE AN “INORDINATE BURDEN”…

BERT J.HARRIS?…..

‘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 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 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.

Full text link below….

http://www.flsenate.gov/statutes/index.cfm?App_Mode=Display_Statute&Search_String=&URL=Ch0070/Sec001.htm&StatuteYear=2004

SOME BACKGROUND……THE BERT J. HARRIS “JOURNEY”…..

On February 10,2009 the LBTS  Commissioners were provided in their backup materials…the “historical” materials for heights.. the past ordinances…referendums…petitions…court case…..memos.. …in order to discuss the new referendum for heights that will be coming your way yet again in March 2010…

IT CONTAINED THE FOLLOWING….

HEIGHT…3B….

Planning and Zoning …heights….

Previous Referendum…

A True Copy ….Court Case- Jerome McIntee and the LBTS-CIC VS Town of LBTS Case 05 18390 (Caca) 11 Goldstein…

The  CIC petition to amend the Town Charter….

Excerpt….

A CHARTER AMENDMENT REFINING AND STRENGTHENING THE 3-OVER-1-STORY HEIGHT LIMIT, EXTENDING THAT PROTECTION TOWN-WIDE, AND PROVIDING
FOR VOTER CONTROL OVER BUILDING HEIGHT LIMITS IN RESIDENTIAL AREAS
WHEREAS, Chapter 166, Florida Statutes., as amended, provides a methodology of charter amendments supplementary to and not in conflict with the Charter of the Town of Lauderdale-by-the-Sea (“Town”); and,
WHEREAS, Chapter 166, F.S., as amended, provides that such charter amendment may be submitted by electors of a municipality, by a petition signed by 10 percent of the registered electors as of the last preceding municipal general election; to referendum at the next general election held in the municipality or at a special election; and
WHEREAS, the present Town Charter was amended by popular referendum in 1998 to provide a “3-over-1-story” height limit for new building construction within the boundaries of the Town at that time; and
WHEREAS, voters of the Town were assured by an elected official of the Town prior to that referendum that its “primary purpose” was “taking away the power the Town Commission presently has to regulate building heights and giving that power directly to the Town’s residents” and;
WHEREAS, voters of the Town were assured by the same elected official, prior to that referendum, that “if [the] Charter Amendment passes, the Town Commission will no longer have the power to raise building height limits in Town without first obtaining voter approval in a town-wide referendum”; and
WHEREAS, the 1998 charter amendment has proven inadequate in that it fails to provide for construction of simple 3-story buildings (as well as 3-over-1-story buildings) in coastal construction zones, and also in that, according subsequently to the same elected official, by virtue of that very charter amendment, the Town Commission was actually granted the power, to raise the height limit in the Town’s key seaside zoning district, without voter approval, overturning an existing 3-story height limit established under a long-standing “electoral” zoning ordinance, also passed by popular referendum following a citizens initiative in 1973; and
WHEREAS, Section 70.001, Florida Statutes, makes no reference to relief from actions by citizen voters themselves, through amendments of their municipal charter (as separate and distinct from “laws, regulations and ordinances of the state and political entities of the state” or “specific actions of a governmental entity,”) and does not, therefore, appear to constrain citizen voters from acting to protect their environment and prevent barrier-island overpopulation, traffic congestion, etc., through land-use provisions of their municipal charter; and
WHEREAS, registered voters of the annexed area have evidenced a desire – and many have expressly confirmed that desire by their signatures below – to enjoy the same building height-limit protection currently enjoyed by residents of the Town within its pre-annexation borders; and
WHEREAS, there is no apparent legal impediment to charter amendment by voters, as provided in Section 166, Florida Statutes, in lieu of an enabling ordinance as specified in Chapter 99-465 of the Laws of Florida, or to the subsequent extension, to the area annexed to the Town in 2001, of the 3-over-1-story town-wide height limit established in 1998, and as amended by the following proposed amendment; and
WHEREAS, voters residing in residential areas in both parts of the Town have evidenced a desire – and many have expressly confirmed that desire by their signatures below – for protection, in addition to that provided by the 1998 amendment, against any increases in the zoned height limits in their respective residential (R-5, RS-4, RS-5, RD-10, RM-15, RM-16, RM-25 and PUD) zoning districts without prior approval by the voters; and
WHEREAS the undersigned registered voters of the Town have reviewed this proposed amendment, agree that they should do everything possible to insure enactment of a further Charter amendment to guarantee effective height limits on new construction throughout the Town in order to preserve the unique low-profile, non-commercialized, small-town charm that has motivated so many over the years to make Lauderdale-by-the-Sea their home; and therefore that the proposed charter amendment be submitted to registered voters of the Town by referendum at the next municipal general election following verification of required signatures to this Petition;
NOW, THEREFORE, AFFIRMING THE FOREGOING WHEREAS CLAUSES AS TRUE AND CORRECT, BE IT AGREED, PROPOSED AND SUBMITTED BY THE UNDERSIGNED REGISTERED ELECTORS (VOTERS) OF THE TOWN OF LAUDERDALE-BY-THE-SEA, FLORIDA, (TOWN) THAT THE FOLLOWING PROPOSED AMENDMENT TO THE TOWN CHARTER BE SUBMITTED TO A VOTE OF THE ELECTORS OF THE TOWN AT THE NEXT GENERAL ELECTION HELD WITHIN THE MUNICIPALITY:

Ordinance 399

Ordinance 2005-20

Minutes 2005-20…

Memo explaining Referendum Atty. Jim Cherof

Full text link below….

http://www.lauderdalebythesea-fl.gov/Agendas_Minutes/a3b.pdf.

THE SIDES….FOR AND AGAINST….TO WIN THE VOTES….

March 6, 2006 Town Topics….excerpts…

Town voters face important
issue in March over height
THE HEIGHT ISSUE Town officials urge voters to defeat the proposed height-limit charter
amendment on the March 14 ballot, fearing it could spark costly lawsuits.
Voters must make a very important decision in March about what has
been an emotional issue in this community for decades: the height
of buildings in Town.

When the Town annexed the unincorporated North Beach Area in
October 2001, it promised property owners in that area — in a written
agreement — not to lower their 15-story height limit. The buildings in North
Beach, in fact, range from 2 to 23 stories.
A Town Charter referendum question placed on the March ballot by the
Citizens Initiative Committee, if adopted, would reduce the 15-story
height limit to four stories. While this would make the Town’s height limit
consistent, the Town Commission and Town Attorney each believe that
taking away the property rights of residents in that area would expose the
Town to serious legal liability in court. If so, the Town Manager is concerned
the financial ramifications would be extremely damaging to the Town’s budget.
Under Florida law, the property rights of individuals are protected under
the Bert J. Harris, Jr., Private Property Rights Protection Act, which

allows any aggrieved property owner who demonstrates that governmental

action “inordinately burdens” their property rights to sue the Town for monetary damages.

Town Attorney James Cherof has told the Commission
he believes the Bert J. Harris Act would apply to
ordinances adopted by charter referendum, exposing the
Town to liability. It is estimated that the Town’s cost to
defend a lawsuit brought by one North Beach plaintiff
would exceed $100,000, which could double if the Town
were required to pay the plaintiff’s legal fees and court
costs. A Florida court could also award a plaintiff
millions in lost property value damages.
In a letter to the Town, the Coastal Arms, a North
Beach co-op, stated its intention to take whatever
means are necessary to protect its legal rights.
In a 1997 case out of West Palm Beach (City of
West Palm Beach vs. Fidelity Federal Savings Bank of
Florida), a Palm Beach Circuit Court judge, referring to
the Florida Constitution, ruled a referendum question
initiated by residents did not absolve the city from legal
liability under the Bert J. Harris Act. The case is not
legally binding on the Town, but the judge’s reasoning in
the ruling is very clear.
“All political power is inherent in the people,” the
ruling stated. “Our theory of government is that the
power flows from the people and in our form of government,
the way in which laws are enacted, whether it be
in a town meeting or whether it be by referendum or in
some representative form of government doesn’t change
the fact that the legislation is state action (or in this
case), city action.”
November referendum
The Town has placed its own height referendum on
the ballot for voters to decide in November. The Town’s
referendum is intended to keep the Town out of court by
preserving the legal rights of property owners in the
North Beach Area while giving the Town much more
authority to control setbacks, landscaping and public
access to the beach.

TOPICS BALLOT ISSUE
Barring an appeal, the Town of
Lauderdale-By-The-Sea has
already lost one lawsuit related to
the issue of height restrictions in
the North Beach Area.
The Town Commission last
May 10th adopted a motion
“declaring a zoning in progress”
and asked its Town Attorney to
draft an ordinance imposing a six month
moratorium on buildings
that exceeded the Town’s 44-foot
height limit.
The Sea Colony Condominium,
1400 S. Ocean Blvd.,
submitted a site review plan to
construct a 15-story, high-rise
residential condominium on May
23, the day before the Town
Commission formally adopted a
resolution establishing the moratorium.
The Town believed its earlier
motion declaring zoning in
progress was sufficient cause not
to process Sea Colony’s site
review application, but a judge
disagreed.
Broward Circuit Court Judge
Robert Andrews ordered the
Town on Jan. 31 to process the
application, ruling that the Sea
Colony’s site
review plan was
submitted on
May 23, a day
before the Town
formally established
its building moratorium.
The Sea Colony, which is
represented by Ruden,
McClosky, Smith, Schuster &
Russell, a Fort Lauderdale law
firm, filed suit against the Town on
Sept. 22nd.
“While the Town makes a
strong argument for zoning in
progress, and that the Town
Commission adopted a motion on
May 10, 2005 declaring a zoning
in progress, it fails to address the
fact that Resolution 2005-08
specifically provides that “no
application for development or
redevelopment activity within the
study area shall be accepted or
processed by the Town following
the date of adoption of this
Resolution during the study
period, unless the application
was filed prior to the adoption
date of this resolution,” Judge
Andrews stated in his order.
In the litigation, Sea Colony
attorneys seized on a letter
submitted to Judge Andrews by
CIC leader Jerry McIntee in
which McIntee criticized the
Town’s efforts to declare zoning in
progress.
While difficult to gauge the
effect on the outcome of the case,
the Town Attorney earlier advised
the Town Manager that “by
attacking the Town, the CIC
played right into the hands of the
developer. The judge could easily
conclude from the CIC letter that
citizens of the Town agreed with
the Plaintiff” .

full text link below…

March 2006…Town Topics..

http://www.lauderdalebythesea-fl.gov/town/town-topics/TT-Mar-06.pdf.

February  2006…Town Topics

http://www.lauderdalebythesea-fl.gov/town/town-topics/TT-Feb-06.pdf.

STATE OF FLORIDA WEIGHS IN…..

July  2006…Atty General opinion

Excerpt…

In sum, it is my opinion that an amendment to a town charter proposed and approved pursuant to section 166.031(1), Florida Statutes, does constitute “action of a governmental entity” as that term is defined and used in the Bert J. Harris, Jr., Private Property Rights Protection Act. In addition, any new rules, regulations, or ordinances adopted by the town to effectuate the terms of the amendment to the charter would also constitute “action of a governmental entity” as that term is defined and used in the act. I note that the authority to determine whether such action gives rise to a claim under the act is expressly vested in the judicial branch.[8]

Sincerely,

Charlie Crist
Attorney General
full text link below….

http://myfloridalegal.com/ago.nsf/Opinions/6D6C72F94F019E07852571B1006A8F28

GETTING THE WORD OUT…….

Sept. 2006……Royal Coast Newsletter

http://www.myroyalcoast.com/PDF/RC-NBCA-REF.pdf.

John Thompson wrote on Oct. 16 2006….countering the SBCA claims……’ THE GREAT SBCA-BOD/PROFITEER/DEVELOPER SCAM EXPOSED! ‘

including this excerpt

‘So attorney Delegal got busy and, as she later told the LBTS Commission, helped to draft a bill that the Florida Legislature eventually passed as Special Law 99-465, saying that the “Intracoastal/beach area,” following annexation, would keep their 15-story height limit on new construction “until further amended by ordinance of the Town.”’

Mr. Thompson pointed out the above inclusion …” following annexation, would keep their 15-story height limit on new construction “until further amended by ordinance of the Town.”’ as a pivotal point to bring out…along with the inordinate burden being claimed……He used  the following examples (he has done so many times throughout the years)…If a condominium owner bought at $40,000 and now is able to sell at $200,000-500,000. is that really an inordinate burden?…Also he has often pointed out the the profit of what could be made building lower using Minto in a comparison that he said shows no loss ….in fact just the opposite…

Look for the competing local newspapers representing each side…. for and against …height limitations/ and position on Bert J. Harris & sewers in the Palm Club….to continue in 2009-10  with front page coverage and editorials….as they did in the past…..

This will be discussed at the 5/26/09 Regular Commission meeting by the Town Attorney…with a “shade session” for the Commissioners either to follow or to be agreed upon at a future date….

more to come…much more…..

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