Agenda - Planning Commission - 06/01/2006

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g.B. May 25, 2006 -- Page 7 abused its discretion by denying the variance. While a hardship had been caused to Vanesko by the erroneous issuance of a building permit, the appeals court noted that the hardship was personal ih nature because it arose out of the way that Vanesko designed his home as opposed to something inherent to the prop- erty and that the board was not required to consider this in reaching its decision. see also: Currey v. Kimple, 577 S.W. 2d 508 (1978). Limitations Period -- Business owner files suit after zoning change renders existing use illegal City claims one-year statute of limitations bars claim Citation) R~tsso Associates InC~ V. City-of Dania Beach Code Enforcement Board, Court of Appeal of Florida, Fourth District, No. 4d04-4759920 (2006) FLORIDA (02/08/06) -- Russo Associates Inc. owned property in the city of Dania Beach that was used for commercial purposes allowed by the city's zoning ordinance. After the zoning code was amended in 2000, Russo s e~stm, use of the property was prohibited. On Aug. 31, 2000, Russo was issued a citation for its unlawful use of the property. After a hearing, the city enforcement board found that Russo violated the ordinance. On Oct. 10, 2002, Russo filed a claim with the city appealing that decision under the Harris Private Property Protection Act (Act). The. city denied the claim, but it subsequently filed a settlement offer. Russo rejected the offer, choosing instead to have the matter go to trial, and filed suit on Feb. 26, 2002[. At trial, the city argued that Russo's claim was barred by the statute of limitations, which was one year under the Act. The trial court a~eed with the city and dismissed Russo's. claim. Russo appealed. DECISION: Reversed. Under the Act, a written claim had to be filed within one year, and the parties were required to explore administrative remedies and settlement options before proceeding to trial. In addition, the city was required to issue a "ripeness deci- sion,'' which would identify allowable uses of the property. The court expressly denied the city's contention that the statute of limitations required that an action be commenced within one year. Instead, the court ruled that the general statute of limitations for civil actions, which was four years, should be applied. The court reasoned that a statute designed to protect a property owner from government action, which fell short of an actual taking, should not be more restz/ctive than generally was allowed for an ag~m'/eved Party seeking a remedy, Here, the statute required that Russo wait 180 days after serving written notice of a claim to file suit. During that 180-day period, the city had some statutory obligations, including the requirement that it make a settlement offer -- which it did, just days before the 180-day period tolled. Russo elected to reject the settlement offer and to litigate the matter, as was his right. Since Russo filed his action under the Act within the four-year statute of © 2006 Quintan Publist~ing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 87