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Quick Fact – Is the Financial Risk to Wakulla County Real?

Quick Fact – Is the Financial Risk to Wakulla County Real?

By now, you may have heard me say that the Wakulla Wetlands Ordinance put our county at a financial risk of lawsuits.  This risk, along with my desire to protect property rights was the basis for my support of repealing the local ordinance.  My opponents, on this issue, do not posses the same commitment to property rights and they appear to be unconcerned about the financial risk they are inviting on Wakulla County Tax Payers.  I want you to know that the risk is REAL!  Below, you will find excerpts from the Florida Statute know as the “Private Property Rights Protection Act”.  I have included the most relevant sections for brevity and to communicate the basic idea.  To ensure that I am not accused of taking any part out of context, at the bottom of this article I have included a link to the entire statute.  All of my comments are in blue text.  The remainder is directly out of the Florida Statute.

Section 70.001 of Florida Statute is referred to 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.

(e) The terms “inordinate burden” and “inordinately burdened”:

1. Mean that an action of one or more governmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large.  Please note that last sentence.  Those who support adopting a new Wetlands Ordinance say it is for the good of the public.  Florida statute is clear.  If it is for the good of the public, the cost should be borne by the public.

(d)1. Whenever a governmental entity enters into a settlement agreement under this section which would have the effect of a modification, variance, or a special exception to the application of a rule, regulation, or ordinance as it would otherwise apply to the subject real property, the relief granted shall protect the public interest served by the regulations at issue and be the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property.  The proposed Wakulla Wetlands Ordinance forbids issuing a variance within the first 35 feet of wetlands buffer.  If the new ordinance is adopted by Wakulla Voters, you will be tying the hands of your County Commissioners.  The governmental entity will not be able to enter into a settlement agreement to avoid inordinately burdening a land owner.  The land owner will have no other recourse, but to take legal action against the County.  Wakulla Tax Payers will be responsible for the cost to defend such action.  If the property owner prevails, tax payers will also be responsible for the property owner’s legal fees and the cost of compensating the property owner for the loss of value caused by the ordinance.

2. Whenever a governmental entity enters into a settlement agreement under this section which would have the effect of contravening the application of a statute as it would otherwise apply to the subject real property, the governmental entity and the property owner shall jointly file an action in the circuit court where the real property is located for approval of the settlement agreement by the court to ensure that the relief granted protects the public interest served by the statute at issue and is the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property.

(b) If the property owner rejects the settlement offer and the statement of allowable uses of the governmental entity or entities, the property owner may file a claim for compensation in the circuit court, a copy of which shall be served contemporaneously on the head of each of the governmental entities that made a settlement offer and a statement of allowable uses that was rejected by the property owner. Actions under this section shall be brought only in the county where the real property is located.
(6)(a) The circuit court shall determine whether an existing use of the real property or a vested right to a specific use of the real property existed and, if so, whether, considering the settlement offer and statement of allowable uses, the governmental entity or entities have inordinately burdened the real property. If the actions of more than one governmental entity, considering any settlement offers and statement of allowable uses, are responsible for the action that imposed the inordinate burden on the real property of the property owner, the court shall determine the percentage of responsibility each such governmental entity bears with respect to the inordinate burden. A governmental entity may take an interlocutory appeal of the court’s determination that the action of the governmental entity has resulted in an inordinate burden. An interlocutory appeal does not automatically stay the proceedings; however, the court may stay the proceedings during the pendency of the interlocutory appeal. If the governmental entity does not prevail in the interlocutory appeal, the court shall award to the prevailing property owner the costs and a reasonable attorney fee incurred by the property owner in the interlocutory appeal.
(b) Following its determination of the percentage of responsibility of each governmental entity, and following the resolution of any interlocutory appeal, the court shall impanel a jury to determine the total amount of compensation to the property owner for the loss in value due to the inordinate burden to the real property. The award of compensation shall be determined by calculating the difference in the fair market value of the real property, as it existed at the time of the governmental action at issue, as though the owner had the ability to attain the reasonable investment-backed expectation or was not left with uses that are unreasonable, whichever the case may be, and the fair market value of the real property, as it existed at the time of the governmental action at issue, as inordinately burdened, considering the settlement offer together with the statement of allowable uses, of the governmental entity or entities. In determining the award of compensation, consideration may not be given to business damages relative to any development, activity, or use that the action of the governmental entity or entities, considering the settlement offer together with the statement of allowable uses has restricted, limited, or prohibited. The award of compensation shall include a reasonable award of prejudgment interest from the date the claim was presented to the governmental entity or entities as provided in subsection (4).
(c)1. In any action filed pursuant to this section, the property owner is entitled to recover reasonable costs and attorney fees incurred by the property owner, from the governmental entity or entities, according to their proportionate share as determined by the court, from the date of the filing of the circuit court action, if the property owner prevails in the action and the court determines that the settlement offer, including the statement of allowable uses, of the governmental entity or entities did not constitute a bona fide offer to the property owner which reasonably would have resolved the claim, based upon the knowledge available to the governmental entity or entities and the property owner during the 90-day-notice period or the 150-day-notice period.

The risk I have described above does not currently exist in Wakulla County.  We eliminated this risk when we repealed the Wakulla Wetlands Ordinance.  A yes vote on Referendum A will return this risk to Wakulla County Tax Payers.  If a Wakulla Wetlands Ordinance is adopted, it can only be changed by a unanimous vote of all County Commissions or by another referendum of Wakulla County Voters.

A NO vote on Referendum A will eliminate this risk!

You now know the truth. Your friends and family deserve to know the truth also. Please share with everyone you know, by Facebook, email, and personal conversations. Also leave a comment below and share your thoughts.

To view the entire Act, Click Here.

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2 Responses to “Quick Fact – Is the Financial Risk to Wakulla County Real?”

  1. Hugh Taylor says:

    QUICK REPLY

    Ralph Thomas, you and Randy Merritt and Jerry Moore and Richard Harden put the county at a terrible risk by not waiting until the citizens had a chance to weigh in on the ballot initiative on November 4th.

    Prior to your repeal of the wetlands ordinance, there were no lawsuits over the existing wetlands ordinance, just a procedural flub by Ron Mowrey, county attorney at the time, a guy you all (if you’re in the Property Rights for Wakulla organization) paid a retainer of $2,000 to.

    Gotta go. Good luck next election.

    The referendum will pass

    • ralph says:

      Mr. Taylor, thank you for taking the time to read my blog. If we had no wetlands ordinance at the time of the lawsuits you referred to, there would have been no grounds for the plaintiffs to sue the County. When the plaintiffs felt their rights were violated, they were forced to take legal action against the County to defend their rights. At the end of that process a lot of money was paid by the county and by the county’s legal defense insurance. Here is the breakdown of the hundreds of thousand of dollars that were paid out. http://forwakulla.com/2013/10/18/show-me-the-money/ You referred to this as a procedural flub. I invite you to use my blog to post some evidence that supports your procedural flub comment. I wouldn’t want anyone to think you were making an emotional comment without the evidence to support it. The people deserve to know the truth. The mere presence of the ordinance put the County at financial risk. The lawsuit you referred to, would not be possible today, because we have repealed the ordinance and eliminated the risk. Since there is no longer any legal basis for anyone to bring a wetlands suit against the County, your statement that we have put the County at risk, can not be accurate. If you and your friends convince the voters to adopt a new wetlands ordinance, you and your friends will be responsible for putting the County at a terrible risk. Your own comments confirm that you understand the county will face “terrible risk” if this new ordinance is adopted. We have already been down that road before. I hope the Wakulla voters are smart enough to avoid making the same mistake twice. The only way to avoid the terrible risk is to vote NO. If you advocate for anything else, you are ignoring the risk you already acknowledge is eminent.

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