A
decision by the Third District Court over a Miami-Dade
County zoning issue that found for the protection of
private development rights last week caught the
attention of county officials and land-use attorneys.
The case involved a Miami Beach ordinance that
restricts high-rise developments to six floors.
The
ordinance, passed by the city in 1998, thwarted the
plans of Royal World Metropolitan to develop a
2.5-acre parcel with a 24-story building. The company
sued, claiming the Bert Harris Act, which protects
property wners from actions taken by the government
that lower private property values or interfere with
the use of the property. The act was passed by the
state Legislature in 1995. A circuit court judge ruled
in favor of the city, saying that while the act
protects property rights, another portion of the act
states the local government cannot be held liable for
damages.
The
district court overturned the lower court's ruling,
saying that the Legislature intended to preserve
property rights. And, when one portion of a law
conflicts with another portion, the original intent of
the law must prevail, the court said.
The
building owner can now sue the city for $7 million in
damages. That case could have implications for a case
in Monroe County, but it all depends whom you ask. The
Monroe County case, called the Ambrose case, seems to
parallel the Miami-Beach case in that similar
contradictory language exists.
The
Third District Court of Appeals has been weighing this
case for the past five months. This potentially
landmark case involves 90 plaintiffs whose lots were
platted prior to 1972. And, it has the potential to
dismantle the county's Rate of Growth Ordinance and
similar ordinances in all areas of critical state
concern, according to the plaintiffs' attorney, Jim
Mattson.
This
case revolves around whether the state's Area of
Critical State Concern label applies to those lots
platted prior to the law's enactment in 1979.
Mattson
said another 500 plaintiffs are waiting in the wings
as a class-action suit should he prevail.
This
is another case where legislative intent comes into
play. Ed Guediss, with Weiss Serota, served as lead
attorney for the county and Islamorada in this case.
He argued that the Legislature intended to limit
growth by imposing the Area of Critical State Concern
because of environmental and other concerns.
But
Mattson said that the law also contains a
vested-rights clause to protect property owners from
changes or modifications in land use.
And
since there is ambiguity, the resolution must be in
the favor of the property owner, he said.
Guediss
argued that other legalities also come into play
&endash; namely, that the lots were not platted
according to a local subdivision plat law because
there was none prior to 1972. He said all platting
does is allow completion of infrastructure.
Former
county attorney Hendrick believes that the other
specific provisions and rules override the vested
rights. "There was a movement to protect platted lots
in subdivisions under water," he said. "Platting
doesn't necessary trump vesting. This is a very
complicated case and the outcome should be
interesting."
Mattson
said that District Court is the highest level of
appeal. The losing side could ask for a rehearing or
petition the U.S. Supreme Court.
TYPES
OF TAKINGS
Eminent
domain or condemnation is the power of the government
to take private property for a public purpose, with
the payment of fair compensation for the property
taken against the will of the owner.
Inverse
condemnation or takings claim allows a property owner
to be compensated for a government action that
deprives the owner of all use of the property either
by seizure or through excessive regulation.
Bert
Harris Act allows property owners to sue the
government for compensation as a result of
governmental actions taken that reduce the value of
the property or interfere with owner's use of the
property. The owner retains the property. The act was
created by the state Legislature and can be amended.
