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Wendler v. City of St. Augustine, No. 5D12-2563 (Fla. App. Mar. 15, 2013)

Wendler v. City of St. Augustine, No. 5D12-2563 (Fla. App. Mar. 15, 2013)

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Wendler v. City of St. Augustine, No. 5D12-2563 (Fla. App. Mar. 15, 2013)
Wendler v. City of St. Augustine, No. 5D12-2563 (Fla. App. Mar. 15, 2013)

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 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT JANUARY TERM 2013NOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARING ANDDISPOSITION THEREOF IF FILEDDONNA R. WENDLER, ET. AL.,Appellant,v. Case No. 5D12-2563CITY OF ST. AUGUSTINE, FLORIDA,Appellee. ________________________________/Opinion filed March 15, 2013Appeal from the Circuit Courtfor St. Johns County, J. Michael Traynor, Judge.Andrew Prince Brigham, of BrighamProperty Rights Law Firm PLLC, Jacksonville, for Appellant.Isabelle C. Lopez, Office of the CityAttorney, St. Augustine, for Appellee. ORFINGER, C.J.Donna R. Wendler, Scott Wendler, and Wendler Properties III, Inc. (collectively,the Wendlers”), brought this action against the City of St. Augustine under the Bert J.Harris, Jr., Private Property Rights Protection Act, section 70.001, Florida Statutes
 
2(2010) (“Harris Act”).
1
The trial court found the action was untimely and dismissed thecomplaint with prejudice. We reverse.Between 1998 and 2006, the Wendlers purchased eight parcels of real propertyin St. Augustine, Florida (the “Wendler Property”). The Wendler Property contains sevenstructures built between 1910 and 1930, and is located in a National Register of HistoricPlaces District. When purchasing the property, the Wendlers knew that the parcelswere subject to city ordinance, section 28-89, City of St. Augustine Municipal Code (“theOrdinance”), which regulates the demolition or relocation of certain historic structures.In 2002, the City revised the Ordinance by expanding the list of regulated structures toinclude homes at least 50 years old. The amendment also extended the waiting periodfor a demolition permit from six months to one year. In 2005, the City again amendedthe Ordinance, authorizing the City’s Historic Architectural Review Board (“HARB”) todeny demolition or relocation requests indefinitely for three types of structures, includingthose considered “contributing property to a National Register of Historic PlacesDistrict.” The Wendlers used the structures on their property as residential rentals, butbased on their view of changing market conditions, decided to convert the properties toa commercial use.
2
To that end, on September 28, 2007, the Wendlers submitted
1
The Legislature substantially amended section 70.001, effective July 1, 2011.See ch. 2011–191, §§ 1 & 3, Laws of Fla. The amendments “apply prospectively onlyand do not apply to any claim or action filed under s. 70.001, Florida Statutes, which ispending on the effective date of this act (July 1, 2011).” Ch. 2011–191, § 2, Laws of Fla.
2
The Wendlers hoped to rezone the property to a Planned Unit Development(“PUD”), allowing for an 80-room boutique hotel with a restaurant, an art gallery, and anunderground garage for parking. If unable to obtain a PUD zoning, the Wendlers
 
3applications to demolish the seven structures pursuant to the Ordinance and to rezoneall eight parcels to allow for a commercial use. On December 5, 2007, HARB denied allseven demolition permit requests, finding that six of the seven structures werecontributing historic structures to the National Register Historic Places District, that theremoval of the structures would be detrimental to the historic and architectural characterof the City, and that the Wendlers had not proven undue economic hardship oradequate justification for the demolition, as required by the Ordinance. The Wendlerstimely appealed the denial orders to the City Commission. After a hearing, the CityCommission entered its order affirming HARB’s orders and denying the Wendlers’rezoning application. The Wendlers challenged the City’s denial by filing a timelypetition for a writ of certiorari and a complaint for declaratory and injunctive relief, butvoluntarily dismissed the action on April 5, 2010. The following month, the Wendlers submitted a Harris Act claim to the City. TheHarris Act allows property owners to be compensated by a governmental entity if agovernment regulation inordinately burdens an existing or vested property right. §70.001, Fla. Stat. (2010). On October 26, 2010, the City responded with its written offerof settlement and a ripeness decision. The Wendlers rejected that offer, and instead,on July 14, 2011, filed their action in the circuit court under the Harris Act. Relying onour decision in Citrus County v. Halls River Development, Inc., 8 So. 3d 413 (Fla. 5thDCA 2009), the trial court found the Wendlers’ complaint was untimely and dismissedtheir case with prejudice. The Court reasoned that the impact of the 2005 amendmentproposed a multiple building cluster, comprising of an integrated 50-room hotel with arestaurant and bed-and-breakfast/guest homes, consistent with the parcels’ presentzoning.

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