Between 1998 and 2006, the Wendlers purchased eight parcels in St. Augustine; including seven structures built between 1910 and 1930 located in a National Register of Historic Places District. The parcels are subject to city ordinance, section 28-89, City of St Augustine Municipal Code, which regulates the demolition or relocation of certain historic structures—the Wendlers say that they were aware of the ordinance at the time they purchased the property.
But, 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 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”. On December 5, 2007, St Augustine’s Historic Architectural Review Board first applied the twice-amended ordinance to the Wendler property and denied the demolition permits.
In a press release I received by email from the Coalition for Property Rights, the attorney representing the property owners explains in more detail:
In 2007, the Wendlers applied for “Certificates of Demolition” regarding seven buildings located on their private property. The buildings, originally built between 1910 and 1930, have been used as apartments rented primarily to Flagler College students. With the passage of time, the buildings have become uneconomic due to the extraordinary costs of upkeep and Flagler College’s recent construction of student dormitories
The Wendlers wanted to demolish or relocate the old buildings to make way for a new Henry Flagler-styled hotel they wished to develop at the gateway of the City along King Street. The City denied the Wendlers’ request on historic preservation grounds, on a general finding that removal of buildings would be detrimental to the historic and architectural character of the City.
This was surprising given that the City had earlier approved the demolition of houses next door for Flagler College’s construction of lighted tennis courts and also designated the King Street “entry corridor” as “blighted” and in need of redevelopment by private enterprise. The City showed little concern that the Wendlers were losing money on their property when left with the present use of the old buildings as apartments. For the public good, the City expected the Wendlers to continue with their economic hardship as part of historic preservation.
To understand the case, one has to look through the City’s smokescreen to really see what is going on. Of 162 applications for demolition made in a 10-year period, the City of St. Augustine denied only 7 of those applications indefinitely – those 7 applications were the ones made by the Wendlers. Incredible as it may sound, the City argued that the Wendlers should have known that their applications would be denied when the City approved all of the other 152 applications.
The trial court judge threw out the Wendler's suit, reasoning they had not presented their claim in a timely manner to the local government before suing. The 5th DCA reversed, with two important holdings concerning when a suit is properly brought under the Bert Harris Act.
First, the 5th DCA upheld Citrus County v. Halls River Development, Inc., 8 So.3d 413 (Fla. 5th DCA 2009). That case held that the impact of governmental regulations can sometimes be determined when a government simply adopts the changes to its laws and regulations, rather than when they are specifically applied to the property owner. The 5th DCA implied that its decision conflicts with the 1st DCA, which has held to the contrary that “until an actual development plan is submitted, a court cannot determine whether the government action has ‘inordinately burdened’ property." M & H Profit, Inc. v. Panama City, 28 So. 3d 71, 76 (Fla. 1st DCA 2009). This holding probably only applies to the pre-2011 Bert Harris Act. In 2011, it was amended to provide that a law or regulation is only applied upon enactment if notice is provided to affected property owners.
Second, the 5th DCA held that the statute of limitations for filing a Bert Harris Act claim in court is within 4 years of the government’s act. Section 70.001(11), it held, is a pre-suit condition merely requiring that a claim be presented to a local government within 1 year of its act. The court also agreed with Russo Assocs., Inc. v. Dania Beach Code Enforcement Bd., 920 So. 2d 716 (Fla. 4th DCA 2006), that the law's tolling provision for other legal relief applies to both the pre-suit notice condition and to the filing of the claim in court. The 5th DCA implied that its decision conflicts with the 2d DCA, which held to the contrary that the Bert Harris Act "provides that the action must be filed within one year of the application of the ordinance to the subject property." Turkali v. Safety Harbor, 93 So.3d 493, 494 (Fla. 2d DCA 2012). I posted previously on the Turkali decision. This holding is important because it applies to cases both before and after the 2011 amendments to the Bert Harris Act.
With the 5th DCA recognizing that its decision conflicts with two other district courts of appeal, I wouldn't be surprised to see this one show up at the Florida Supreme Court. Until then, the safe thing to do is the present claims to government entities within 1 year of the government's action, period.