Legal Report, January 2019

General Counsel, Jennifer G. Ashton

1.         Vale v. Palm Beach County, 2018 Fla. App. LEXIS 16682, 2018 WL 6132542 (4th DCA 2018). Bert J. Harris Act, Golf Course.
Appellants purchased homes in a planned unit development adjacent to a golf course that they do not legally own. After the golf course proved unsuccessful, its owner sought to rezone  the property for residential development. Palm Beach County (“County”) ultimately approved a development order amendment allowing redevelopment of the golf course. Appellants separately sued the County for damages under the Bert J. Harris Private Property Rights Protection Act (“Act”) alleging that the zoning approval inordinately burdened their properties in that it diminished their property values. The County moved to dismiss arguing that the Act did not apply because the County had taken no direct action against Appellants' properties. The trial court agreed and dismissed the lawsuits, reasoning that the Act did "not contemplate the government paying for devaluation that results from government actions directed towards adjacent properties." Appellants appealed. To prevail on a claim under the Act, a property owner must show that "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." In order for property to be considered "inordinately burdened," the Act provides that the government action must "directly restrict[ ] or limit[ ] the use of real property." In Hardee County v. FINR II, Inc., 221 So. 3d 1162, 1164 (Fla. 2017), the Florida Supreme Court held that the Act did not apply to claims arising from government action that regulated property adjacent to a claimant's property. On appeal here, Appellants argued that because their properties and the former golf course were part of the same planned unit development, their properties were "holistically" integrated with, and not merely adjacent to, the former golf course. The Fourth District Court of Appeals disagreed, noting that the Act specifically defines a "property owner" as "the person who holds legal title to the real property that is the subject of and directly impacted by the action of a governmental entity." Therefore, because Appellants do not hold legal title to the former golf course and are therefore not “property owners” under the Act, the trial court’s decision was affirmed.

2.         AGO 2018-06 (December 21, 2018). Municipalities, Vacation Rentals, Dwelling Units.
The Florida Attorney General addressed in part whether an accessory structure where people are permitted to sleep that is not a “dwelling unit” or “house” pursuant to local law, meets the definition of “vacation rental” under state law. The Attorney General opined that a “sleeping facility,” without more such as a permanent area for food preparation, is not a “house or dwelling unit” sufficient to constitute a “vacation rental” under §509.242(1)(c), F.S. Accordingly, an ordinance allowing an accessory structure located on the premises of a house or dwelling unit to be used only for sleeping, but prohibiting it from being independently rented out, would not be barred by §509.032(7), F.S. because that provision bars local governments from prohibiting “vacation rentals.”

3.         AGO INFORMAL (January 7, 2019). Sunshine Law, Open Meetings, Advisory Groups.
The Florida Attorney General addressed whether an advisory group formed by a Mayor is subject to the public meetings law (Sunshine Law). The advisory group at issue was created to “provide feedback to him [Mayor] regarding issues of importance to his constituents” and would be “volunteers from his Commission district.” Advisory groups appointed by a single public official are not immunized from the public meetings requirement. The nature of their functions, rather than the manner of their appointment, must be scrutinized to determine whether the Sunshine Law applies. The Attorney General noted the exception to the open-meetings requirement regarding strictly fact finding, but opined that all advisory committees by their nature are considered fact finding and indicated that the key determination would be the exact nature of the feedback being requested and provided. Governing case law demonstrates that the nature of the information the group is tasked to collect and provide will determine whether the group’s meetings with the Mayor must be held in the Sunshine. The conveyance of individual thoughts and concerns regarding constituent issues could fall within the scope of fact-finding, whereas meeting as a group and making recommendations to the Mayor on issues that might foreseeably come before the Commission would presumably require and open meeting under §286.011, F.S. The Attorney General noted that the Supreme Court has consistently stated that the Sunshine Law should be liberally construed and that doubts involving its applicability should be resolved in favor of the public.