LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Statute of Limitations in Bert Harris Claims: 4th Gets it Half Right

In Russo Associates v. City of Dania Beach Code Enforcement Board, here's the opinion, the 4th DCA correctly rejected the City's attempt to read in a ridiculous 1 year statue of limitation on the filing of a Bert Harris claim that would relate not to the "ripeness" event provided by the statute, but to 1 year after the ordinance or statute were applied.

The court unfortunately went on to seemingly hold that the statute of limitations is 4 years from the application of the offending statute, ordinance, rule or policy rather than from the ripeness determination - which is the clear and only purpose of having a ripeness determination.

So, on August 31, 2000, the City issues a citation for code violation. The landowner goes through the administrative appeal process (as required by Bert Harris), and appeals that decision to circuit court. The circuit court affirms, ending the administrative appeal process, and -- in any reasonable interpretation -- establishing the date on which the ordinance is actually applied to the property.

We don't get the date that the circuit court decision is handed down, but on October 10, 2002, the landowner files a Bert Harris notice will the Mayor. Subsequently, it files the actual Bert Harris complaint on February 6, 2004.

While the Act is confusing on this point, it requires that the "claim" be "presented" within 1 year of the application of the law or regulation to the property. The Act requires a "notice" to be presented to the government agency, which then has 180 days to issue a ripeness determination. If it issues within 180 days, the matter is ripe upon issuance, if the it fails to do so, the claim is ripe after the 180 days.

The court correctly rejected the City's truly frivolous claim that the landowner had to present the claim within 1 year of the "application of the ordinance to the property." Unfortunately the trial court bought that argument and dismissed the case with prejudice, thus wasting a huge amount of time, taxpayer and landowner dollars.

Unfortunately, the 4th viewed the presentation requirement as a "pre suit" requirement. While it correctly applied the statutory 4 year statute of limitations, it interprets that as going to the time that the claim is presented to the local government (the notice, which must be w/in 1 year of the application of the ordinance/statute), instead of to the date that the claim became ripe.

It make no sense at all to tell someone that their claim doesn't become ripe for filing until after 180 days from when you present notice of your injury, but then to state that the statute of limitations runs from the notice. Ripe means ready for adjudication. The statute clearly intends to create a certain point in the review process and a certain point in time to measure actionability. It make no sense to start the clock ticking before the claim is ripe.

SO PRACTITIONERS: if you're on the landowner side, be sure to mark the date you file the notice, rather than the date you get your ripeness determination; that's the beginning of the running of your 4 years; if you're on the government side, watch the dates, too.

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.