2025-06RESOLUTION NO. 2025-06
A RESOLUTION OF THE VILLAGE COUNCIL OF MIAMI
SHORES VILLAGE, FLORIDA, APPROVING THE STATEMENT
OF ALLOWABLE USES, RESPONSE, AND SETTLEMENT
OFFER IN RESPONSE TO THE CLAIM FILED BY BLUENEST
HOMES, INC. UNDER THE BERT J. HARRIS, JR., PRIVATE
PROPERTY RIGHTS PROTECTION ACT; AND PROVIDING
FOR FINDINGS, APPROVAL, AUTHORIZATION, AND
AN EFFECTIVE DATE.
WHEREAS, Miami Shores Village (the "Village") Council acknowledges the
receipt of a notice of claim filed under the Bert J. Harris, Jr., Private Property Rights
Protection Act, Section 70.001, Florida Statutes (the "Act); and
WHEREAS, the claim was submitted by Bluenest Homes, Inc. on November 27,
2024 concerning properties located at 9305 NE 91' Avenue (RSP-24-37) and 78 NE 981h
Street (RSP-24-48) (collectively referred to as "the Subject Properties"); and
WHEREAS, the claim alleges that governmental action has inordinately burdened
the Subject Properties, and the claimant seeks relief pursuant to the Act; and
WHEREAS, the Village has reviewed and evaluated the claim, and obtained legal
and professional analyses regarding the claim; and
WHEREAS, pursuant to Section 70.001(4)-(5), Florida Statutes, within ninety (90)
days of receipt of a notice of claim under the Act, the Village must make a written
settlement offer and issue a written statement of allowable uses to the property owner
that submitted the claim; and
WHEREAS, after due consideration, the Village finds it appropriate to respond to
the claim submitted by Bluenest Homes, Inc., as provided in the response attached as
EExhibit A;❑and
WHEREAS, the Village Council finds that this Resolution is in the best interest and
welfare of the residents of the Village.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF
MIAMI SHORES VILLAGE, FLORIDA, AS FOLLOWS:
Section 1. Recitals Adopted., The foregoing recitals are true and correct.
Section 2. Approval. The Village Council approves the response to the Bert J.
Harris Act claim, as outlined in the attached document (Exhibit A), including the
Settlement Offer contained therein.
Section 3. Authorization and Implementation. The Village Attorney Office is
authorized to execute and deliver the approved response on behalf of the Village and take all
necessary actions to implement the intent of this Resolution.
Section 4. Effective Date. This Resolution shall take effect immediately upon
the adoption hereof.
PASSED AND ADOPTED this 18 day of February, 2025.
Mayor George Burch,
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
A/
illage Attor
Weiss Serota Helfman Cole & Bierman P.L.
EXHIBIT A
yz _ SEROTA
HELFMAN COLE + BIERMAN
ALICIA GONZALEZ, PARTNER
agonzalez@wish-Law.com 1954-763-4242
February 10, 2025
Via FedEx-Next Day Delivery: US Airbill: 772177695925
& Email: martin.alexandernhklaw.com
Bluenest Homes, Inc.
c/o Martin J. Alexander, Esq.
Holland & Knight, LLP
515 E. Las Olas Blvd. Suite 1200
Fort Lauderdale, FL 33301
Email: martin.alexander@hklaw.com
RE: Section 70.001, Florida Statutes ("Bert Harris Act" or "Act") Claim by
Bluenest Homes, Inc. ("Bluenest") related to the real property located at 9305
NE 911 Avenue, Miami Shores Village ("9305 Property") and 78 NE 9811 Street,
Miami Shores Village ("78 Property"), collectively "Subject Properties"
Dear Mr. Alexander:
This letter is in response to the Bluenest's November 27, 2024, Bert Harris Act Claim,
which is premised on Miami Shores Village's ("Village") change of the land development
regulations applicable to the Subject Properties (referred to in the claim letter as the "New Zoning
Ordinance"). As provided in section 70.001(5)(a), Florida Statutes, the Village hereby identifies
the "allowable uses to which the [Subject Properties] may be put." This letter is also intended to
act as the Village's settlement offer to the Bluenest pursuant to section 70.001(4)(c), Florida
Statutes.
The uses set forth in this letter are subject to all applicable development regulations,
development approvals, and all related procedures. The uses stated in the letter are the "by right"
uses permissible on the Subject Properties, and this letter does not in any way limit Bluenest's
ability or right to pursue variances, waivers, and or land use and zoning changes as permitted under
the code by proper application. This letter does not operate to, and is not intended to, vest any
rights to develop the Subject Properties or to put the Subject Properties to a particular use. Further,
by issuing this letter, the Village does not acknowledge or concede that Bluenest's claim is valid
or gives rise to a cause of action which would entitle Bluenest to relief under the Bert Harris Act
or any other applicable law. This letter is based on the Village's good faith review and
consideration of Bluenest's claim. The Village expressly reserves the right to raise or elaborate on
any further arguments or grounds in favor of its, position in the future.
Statement of Allowable Uses
The 9305 Property is legally described as follows:
LOT 8, MARILYN HEIGHTS A SUBDIVISION, ACCORDING TO THE MAP OR PLAT
THEREOF, IN PLAT BOOK 41, AT PAGE 8, OF THE PUBLIC RECORDS OF MIAMI-DADE
COUNTY, FLORIDA.
PARCEL IDENTIFICATION NUMBER: 11-3206-001-0080
The 78 Property is legally described as follows:
LOTS 3, 4 AND THE EAST HALF OF LOT 5,
SHORES SECTION NO. 1, ACCORDING T
RECORDED IN PLAT BOOK 10, PAGE 70,
COUNTY, FLORIDA
O
BLOCK 7, AMENDED PLAT OF MAIMI
THE MAP OR PLAT THEREOF AS
PUBLIC RECORDS OF MIAMI-DADE
PARCEL IDENTIFICATION NUMBER: 11-3206-013-0900
The 9305 Property consists of approximately 9,600 square feet of land that is currently
improved with a single-family home. The 78 Property consists of approximately 14,375 square
feet of land that is currently improved with a single-family home. The Subject Properties have the
same future land use designation, which is Single Family Residential. The Single -Family
Residential FLU designation permits the following uses:
The residential densities allowed in this category shall not exceed 2.5
dwelling units per gross acre. This density category is characterized solely
by detached single family homes on relatively large lots.
The 9305 Property has a zoning designation of One -family residential district (R16.5), and the 78
Property has a zoning designation of One -family residential districts (RI 8.5). The permitted uses
are listed in the attached Exhibit "A." Permitted uses are limited by the requirements in Art. V,
Div. 7 §523 and Art. VI §604, of the Village Code of Ordinances ("Village Code"), which gives
the Village discretion to require that any new development be harmonious with existing
development in the neighborhood. Specifically, Section 523 requires "[a]ll buildings ... be
generally harmonious in character and appearance ... with existing buildings in the neighborhood
and ... be appropriate to their surroundings." Section 604 similarly provides that "[i]n acting on
a site plan, the planning and zoning board shall ... [m]ake such requirements with respect to the
following matters: (a) Building design and location, including setbacks if deemed advisable... as
will assure harmonious relation between the uses to which the site plan applies and existing and
prospective residential and other development in the vicinity."
2
Development on the Subject Properties is also required to be consistent with the Village
Comprehensive Plan and the Village's Land Development Regulations for particular
developments (including setbacks, parking, landscaping, etc.). The development must also comply
with any restrictions of other government entities having jurisdiction over the Subject Properties.
Response to the Bert Harris Act Claim
Bluenest alleges that the Village's enactment of the New Zoning Ordinance has reduced
the fair market value of the 9305 Property by $2,050,000 and has reduced the fair market value of
the 78 Property by $600,000. Bluenest contends that prior to the enactment of the New Zoning
Ordinance, the 9305 Property could be developed with the 5,045 square foot residence proposed
in its May 10, 2024 Application ("9305 Property Application"), and after the enactment of the
New Zoning Ordinance, the 9305 Property could be developed only with a 4,036 square foot
residence. Bluenest contends that the alleged 739 SF reduction results in a $2,050,000 reduction
in the value of the 9305 Property.
Bluenest further contends that, prior to enactment of the New Zoning Ordinance, the 78
Property could be developed with a 6,404 square foot residence proposed in its June 3, 2024
application ("78 Property Application"), and after the enactment of the New Zoning Ordinance the
78 Property could be developed only with a 5,688 square foot residence. Bluenest contends that
the alleged 716 SF reduction results in a $600,000 reduction in property value.
The Village's Position Regarding Bluenest's Bert Harris Act Claim
The following is offered without limitation in response to Bluenest's Bert Harris Act
Claim, and the Village expressly reserves the right to raise additional arguments and defenses
related to the Bluenest's claim:
1. BLUENEST HAS MISREPRESENTED FACTS IN ITS CLAIM LETTER.
Clarification is warranted on Bluenest's misrepresentations of facts in its claim letter. The
claim letter contends that the Village Planning & Zoning Board ("Board") did not apply the
Previous Code to the 9305 Property Application when it decided to table the application but rather
applied the New Zoning Ordinance, which had not yet been enacted. Claim Ltr. P. 5. This is
incorrect. The 9305 Property Application was evaluated under the Previous Code as it stood at the
time that the application was considered - not the New Zoning Code. However, the Board found
that the proposed development in the 9305 Property Application was inharmonious with the
existing neighborhood for several reasons and decided to table the application. Tabling would
permit Bluenest to modify the application to make it harmonious before resubmitting the
application for reconsideration. Bluenest agreed to have the application tabled to make the
suggested adjustments, rather than requesting denial to immediately trigger its right to appeal the
"Previous Code" refers to the Village Code, including its zoning code and land development
regulations, as it existed before the New Zoning Ordinance that is the subject of Bluenest's claim was
enacted.
Board's decision.2 A denial would have permitted immediate appeal to the Village Council. If
Bluenest truly believed that its application should have been approved, it would have pursued this
avenue, but it did not. Had it chosen to appeal the denial, the review would have been under the
Previous Code; not the New Zoning Ordinance. Because it instead elected to table the item,
consideration was postponed such that the New Zoning Ordinance came into effect and was then
applicable to the revised 9305 Property Application. As such, Bluenest chose this avenue.
The claim letter implies that the 78 Property Application was tabled at the July 25, 2024
meeting because the New Zoning Ordinance was being applied to restrict the size of the
development and/or so that the New Zoning Ordinance would apply upon the required
resubmission of the 78 Property Application. This, again, is inaccurate. The Board asked Bluenest
whether it would like the application to tabled or denied because the application, as submitted, was
deemed inharmonious with the neighborhood under the Previous Code. Bluenest requested and
was granted five minutes to confer and decide what it wanted to do. Bluenest requested that the
application be tabled rather than denied. A denial would have given Bluenest immediate appeal
rights under the provisions of the Previous Code. If Bluenest truly believed that it was entitled to
approval by right under the Previous Code and that the Board was acting illegally, then it should
have taken the denial and appealed. In fact, Bluenest knew that the Board had the authority under
the Previous Code to deny the application as inharmonious, thus it elected to have the application
tabled.
Finally, Bluenest claims that at the September 19, 2024 meeting, it requested for a "third
time" that both site plan applications be untabled. This, again, is inaccurate. Bluenest's
representative appeared to request for the second time that the 9305 Property Application be
untabled, and for the first time that the 78 Property Application be untabled. At that meeting, the
Board explained that applications are tabled to allow the applicant to address Board comments and
avoid denial of the application. Upon tabling, applicants generally address the Board's comments
by revising their plans and proceed to resubmit a revised application with the revisions for
consideration by the Board. Thus, the item is untabled upon resubmission of a revised application.
However, because of the timing on Bluenest's resubmission, the New Zoning Ordinance had taken
effect, and Bluenest would be subject to the New Zoning Ordinance upon resubmission. Bluenest
could have avoided this result had it requested a denial of its application. Instead, while represented
by attorneys, Bluenest chose to have its application tabled.
When the Board denies a site plan application, an applicant can appeal the decision to the Village
Council within thirty days of the denial. Village Code, Art. VIII §800. If the Village Council agrees with
the appealing party, it can overturn the Board's decision. Id. If the Village Council were to affirm the
Board's decision, Bluenest could file a Petition for Writ of Certiorari, in which a circuit court would review
the Village Council's decision to determine whether procedural due process was accorded, whether the
essential requirements of the law were observed, and whether the Council's findings were supported by
substantial and competent evidence. Parker Family Tr. I v. City ofdacksonville, 804 So. 2d 493, 497 (Fla.
1st DCA 2001). If, in fact, Bluenest believed that its application should have been approved under the
Existing Code, it should have elected this option as it would have been guaranteed success (assuming it was
correct in its assumption that it was guaranteed approval under the Existing Code, which it is not). Instead,
it delayed its application such that, ultimately, the Village had no choice but to apply the New Zoning
Ordinance to its applications.
4
2. BLUENEST DID NOT HAVE AN EXISTING USE TO DEVELOP THE 9305
PROPERTY WITH A 5,045 SQUARE FOOT RESIDENCE AND TO DEVELOP 78
PROPERTY WITH A 6,404 SQUARE FOOT RESIDENCE.
Bluenest did not have an "existing use" to develop the 9305 Property with a 6,404 square
foot residence and to develop the 78 Property with a 5,054 square foot residence ("Proposed
Development") because the permissible uses in the zoning code are all subject to the requirement
that development be harmonious with the neighborhood. The Proposed Development is not
harmonious with the Subject Properties' respective neighborhoods. An "existing use" can be an
"[a]ctivity or such reasonably foreseeable, nonspeculative land uses which are suitable for the
subject real property and compatible with adjacent land uses and which have created an existing
fair market value in the property greater than the fair market value of the actual, present use or
activity on the real property." Although prior to enactment of the New Zoning Ordinance, the
Subject Properties were not subject to any specific floor area ratio or lot coverage restrictions in
the zoning code, the requirement that any development be harmonious with the neighborhood still
existed and was consistently applied to restrict floor area ration ("FAR") and lot coverage for
residential development.3 The proposed designs for the Subject Properties were inconsistent and
inharmonious with the houses in the Subject Properties' respective neighborhoods. As such,
Bluenest did not have an existing use in the proposed developments because the larger residences
that Bluenest proposed to construct on the Subject Properties were not harmonious with existing
development in their respective neighborhoods. The Code, as it existed before the New Zoning
Ordinance was enacted, restricted such development, but also, the Harris Act does not recognize
such development as an "existing use" because, to constitute an existing use, the development must
be "reasonably foreseeable," nonspeculative, and compatible with adjacent land uses. The
proposed residences on the Subject Properties are much more expansive than any existing
development in the neighborhoods, and therefore were not reasonably foreseeable or
nonspeculative as they cannot be considered harmonious with their respective neighborhoods. For
the same reasons, the Proposed Development cannot be considered compatible with adjacent land
uses, and as a result, cannot be considered an "existing use" under the Act. As such, Bluenest's
Bert Harris Act claim must fail.
3. THE NEW ZONING ORDINANCE DID NOT INORDINATELY BURDEN
THE SUBJECT PROPERTIES.
3 Specifically, Art. VI §604 of the Village Code, requires the Board, when acting on a site plan, to,
among other things, make requirements with respect to building design "including setbacks ... as will
assure a harmonious relation between the uses to which the site plan applies and the existing and prospective
residential and other developments in the vicinity." The requirement that development be harmonious is
also contained in Div. 7, § 523, of the Village Code, which provides that "buildings shall generally be
harmonious in character and appearance ... with existing buildings in the neighborhood and shall be
appropriate to their surroundings." Proposed buildings that are "inharmonious or inappropriate" will not be
issued a building permit. Id. Additionally, an explicit purpose of the Village Zoning Code is "[t]o protect
property values and the enjoyment of property rights by minimizing and reducing conflicts among various
land uses through the application of regulation designed to assure harmonious relationships among land
uses...." Art. I,§100, Village Code. Applications to the Village Council are also subject to a harmony
evaluation. The Village Council must consider "the appearance of the proposed building and the
development of the site with respect to its harmony with existing and prospective development in the
neighborhood....'" Art. VI §603, Village Code.
6
The New Zoning Ordinance did not inordinately burden the Subject Properties because the
proposed development on the Subject Properties was always (and still is) restricted by the
requirement that it be harmonious with existing development in the neighborhoods even before
the New Zoning Ordinance was enacted. A government action "inordinately burdens" real property
if it
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.
§70.001(3)(e), Fla. Stat.
A. Bluenest Did Not Have A Reasonable Expectation That The Subject
Properties Could Be Developed As Proposed.
For an `'investment -backed expectation" to be "reasonable," generally, it must be
objectively reasonable. Brevard Cnty. v. Waters Mark Dev. Enterprises, LC, 350 So. 3d 395, 399
(Fla. 5th DCA 2022). Where restrictions other than the zoning code prohibit a landowner's
proposed development, an owner does not have "reasonable" investment -backed expectation in
the proposed development. Id. As discussed in more detail in Section 1 above, because the
Proposed Development on the Subject Properties were not harmonious with the respective
properties' neighborhoods, Bluenest did not have a reasonable expectation in the Proposed
Development, and its Bert Harris Act claim must fail.
B. Bluenest Did Not Have A Vested Right To The Proposed Use Of The
Subject Properties.
A vested right, as defined in the Act, can be established by applying principles of equitable
estoppel or substantive due process. §70.001(3)(a), Fla. Stat. Equitable estoppel should be applied
against a government entity "only in rare instances and under exceptional circumstances." Monroe
County v. Hemisphere Equity Realty, Inc., 634 So. 2d 745, 747 (Fla. 3d DCA 1994). To show
equitable estoppel that would create a vested right, the Claimant must show that it "(1) in good
faith, (2) [relying] on some act or omission of the government, (3) has made such a substantial
change in position or has incurred such extensive obligations and expenses, so that it would be
highly inequitable and unjust to destroy the right he acquired." City of Hollywood Beach Hotel
Co. v. City of Hollywood, 329 So. 2d 10, 17 (Fla. 1976). Bluenest has not provided any facts that
would establish a vested right. To the contrary, its architects proclaim to have worked extensively
in the Village and were well aware of the requirement that the Proposed Development be
harmonious with the respective existing neighborhoods. Their plans included an analysis of the
character of neighboring properties. Bluenest cannot claim to have relied on any act or omission
by the Village to incur expenses for the Proposed Development where their own professionals
acknowledged the need for harmony with neighboring properties, and the Previous Code was
explicit about this requirement. Accordingly, Bluenest fails to establish a vested right in the
Proposed Development.
C. Bluenest Is Left With Reasonable And Valuable Uses Of The Subject
Properties.
Bluenest cannot show that the Subject Properties are inordinately burdened by claiming
that the remaining uses after enactment of the New Zoning Ordinance are "unreasonable such that
the [Bluenest] 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." §70.001(3)(e), Fla. Stat. After
enactment of the New Zoning Ordinance, Bluenest is still entitled to develop its property with a
two-story, single family residence, exactly as before the enactment of the New Zoning Ordinance.
Moreover, Bluenest's own appraiser concludes that after the enactment of the New Zoning
Ordinance, the 9305 Property is still worth a substantial amount of money once developed -
$3,950,000. Similarly, Bluenest's appraiser concludes that after enactment of the New Zoning
Ordinance, the 78 Property is worth $6.6 million. Given the substantial remaining value that both
properties have, Bluenest cannot claim that the New Zoning Ordinance inordinately burdened the
Subject Properties.
4. BLUENEST HAS NOT PROVIDED THE REQUIRED APPRAISAL THAT
SUPPORTS ITS CLAIM AND DEMONSTRATES THE LOSS IN FAIR MARKET VALUE
TO THE REAL PROPERTY.
Failure to comply with the procedural requirements of the Bert Harris Act will require
dismissal of any claim filed in court. Wendler v. Village of St. Augustine, 108 So. 3d 1141, 1144-
45 (Fla. 5th DCA 2013). The Act waives sovereign immunity, thus its provisions, including the
presuit requirements, must be strictly constructed in favor of the government. Maynard v. State,
Dept. of Corr., 864 So. 2d 1232, 1234 (Fla. 1st DCA 2004) (requiring strict construction and
application of the presuit notice requirements in section 768.28, Florida Statutes, which waives
sovereign immunity).
The Bert Harris Act requires a property owner, prior to filing suit, to provide a notice of
claim to the government accompanied by "a written appraisal report ... that supports the claim
and demonstrates the loss in fair market value to the real property." Failure to comply with the
appraisal requirement will bar any action under the Act. Osceola County v. Best Diversified, 936
So. 2d 55, 59 n.5 (Fla. 5th DCA 2006) (concluding that an "appraisal" attached to a claim letter
which was not a "bona fide, valid appraisal" prevented a finding of liability against a County);
Sosa v. West Palm Beach, 762 So. 2d 981, 981 (Fla. 4th DCA 2000) (dismissing suit where plaintiff
failed to present any appraisal supporting his claim prior to bringing suit).
The purpose of the Act's appraisal requirements is to provide the governmental entity a
"means by which to evaluate the potential claim for the purpose of making a settlement offer."
Turkali v. City of Safety Harbor, 93 So. 3d 493, 495 (Fla. 2d DCA 2012). Without a credible and
proper appraisal, this essential and legally required presuit evaluation cannot occur.
Bluenest provided four appraisals in support of its claim:
l . An appraisal of the purported value of the 9305 Property before the enactment of
the New Zoning Ordinance ("9305 Pre -Ordinance Appraisal");
2. An appraisal of the purported value of the 9305 Property after the enactment of the
New Zoning Ordinance ("9305 Post -Ordinance Appraisal");
3. An appraisal of the purported value of the 78 Property before the enactment of the
New Zoning Ordinance (" 78 Pre -Ordinance Appraisal");
4. An appraisal of the purported value of the 78 Property after the enactment of the
New Zoning Ordinance ("78 Post -Ordinance Appraisal");
The difference between the pre -ordinance appraisal and the post -ordinance appraisal is meant to
demonstrates the "loss in fair market value" caused by the enactment of the New Zoning
Ordinance. Here, Bluenest claims that the New Zoning Ordinance limited the square footage of
the residence that could be constructed on each property (on the 9350 Property by 739 square feet,
and on the 78 Property by 716 square feet).
The four appraisals do not meet the requirements of the Act for a number of reasons. First,
the appraisals fail to show the loss in fair market value of either property because they value the
Subject Properties as if they had already been developed with new residences. But the Subject
Properties are not developed as of the date of the claim. Second, the appraisals are so arbitrary and
flawed, that they cannot be said to "support the claim" or "demonstrate the loss in fair market
value" of the Subject Properties. Third, the appraisals violate USPAP calling into question their
usefulness in supporting the Bert Harris Act claim and their validity. Finaly, the appraiser fails to
do a highest and best use analysis, thus appraisal does not support the Bert Harris Act claim as
required by the Act.
A. The Appraisals Fail To Show The Loss In Fair Market Value Of The
Subject Properties Because They Do Not Analyze The Value Of The Properties Prior
To Enactment Of The New Zoning Ordinance And After Enactment.
An appraisal provided with a presuit notice under the Act is required to "demonstrate[ ] the
loss in fair market value to the real property." §70.001(4)(a), Fla. The loss in fair market value is
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 if the owner had the ability to attain the
reasonable investment backed expectation ...[and] the fair market value of the real property, as it
existed at the time of the governmental action at issue, as inordinately burdened. . . ."
§70.001(6)(b), Fla. Stat. (emphasis added); see also DHBHAtl. L.L.C. v. City of Delray Beach,
334 So. 3d 332, 337 (Fla. 4th DCA 2022) ("Harris Act's plain language establishes that the
determination of the fair market value of the property must be measured at the time when the
governmental action first affected the property.... No claim for compensation under the Harris
Act could have been accurately determined using an appraisal value from 2015 —three years before
the governmental action was in effect."); Turkali, 93 So. 3d at 495 (finding that the presuit notice
was deficient because the appraise failed to provide an opinion of value of the property as it existed
before and after enactment of the new use restrictions).
The government action at issue is the enactment of the New Zoning Ordinance. At the time
of the enactment of the New Zoning Ordinance, the 9305 Property was improved with a 2,499 SF
single family residence built in the 1940's that Bluenest intended to demolish in order to construct
a new, larger single-family residence. Yet, the appraiser values the 9305 Property before the New
Zoning Ordinance is enacted as if it was improved with a 5,054 SF new, single-family home. The
appraiser values the 9305 Property after the enactment of the New Zoning Ordinance as if it was
improved with a 4,036 SF new, single-family home. The appraisals, therefore, unequivocally fail
to show the loss in fair market value as of the date of the governmental action — i.e. the enactment
of the New Zoning Ordinance. This is particularly egregious in this case because the higher the
property values, the greater the damage figure. Thus, assessing the damage as if future, valuable
improvements are already in place improperly inflates the damage figure.
For example, Bluenest purchased the 9305 Property for $950,000 in October 2023. If
Bluenest's damage figure is assumed to be correct, the New Zoning Ordinance reduced the 9305
Property value by 34%. As improved with a new residence (which the 9305 Property was not
improved with a new residence as of the date of the New Zoning Ordinance or even as of the date
of this claim), the 34% reduction leads to a $2,050,000 damage. If the property were instead
assessed based on its value for which it was purchased ($950,000), a 34% reduction in value would
result in a $324,583 damage.
The appraisal, therefore, fails to show the loss in fair market value of the actual property
that exists as of the date of the government action. As a result, it does not meet the requirements
of the Act as it provides a grossly and improperly inflated damage figure. The damage claim is so
exorbitant and out of line with reality that it would entirely compensate the property owner for the
purchase price of the property. In other words, the Village could essentially outrightly purchase
the property for less than the purported damage caused by the New Zoning Ordinance. This is not
proper or credible.
Moreover, it fails to consider that with a smaller residence come reduced construction
costs, which may ultimately make the difference between the before value and the after value
smaller. Given that the appraisal does not meet the requirements of the Act, Bluenest cannot
proceed with its claim as presented.
A similar error is present with the appraisals for the 78 Property. At the time of the
enactment of the New Zoning Ordinance, the 78 Property was improved with a 2,155 SF single
family residence that was built in the 1940's with additions in 1978. Bluenest intended to demolish
the existing residence in order to construct a new, larger single-family residence. Yet, the appraiser
values the 78 Property before the New Zoning Ordinance is enacted as if it was already improved
with a 6,404 SF new, single-family home. The appraiser values the 78 Property after the enactment
of the New Zoning Ordinance as if it was already improved with a 5,688 SF new, single-family
home. The appraisals, therefore, unequivocally fails to show the loss in fair market value as of the
date of the governmental action — i.e. the enactment of the New Zoning Ordinance.
This error in the appraisal cannot be corrected after a lawsuit is filed and would lead to
automatic dismissal of any claim filed by Bluenest in Court. See DHBH Atlantic, 334 So. 3d at
338.
N
B. The Appraisals Are So Arbitrary And Flawed That They Do Not
Support The Claim Or Demonstrate The Loss In Fair Market Value.
Bluenest's appraiser uses a comparable sales approach to value the property with future
hypothetical improvements in place (i.e. large, new residences). In the comparable sales approach,
the appraiser finds similar properties that bought and sold in the market and may adjust the sales
for differences that make the sales more or less valuable than the property being appraised.
Quantitative adjustment (meaning adjustments of a particular dollar amount) require market
support to be credible. See Walters v. State Road Dept., 239 So. 2d 878, 881 (Fla. 1 st DCA 1970).
Bluenest's appraiser makes a number of quantitative adjustment to the comparable sales
used in all four appraisals, for which he provides no market support (or even a credible
explanation). The unsupported, unexplained adjustments make the appraisal arbitrary, unreliable,
and wholly inadequate to demonstrate the loss in fair market value to the Subject Properties:
a. The only adjustment that is consistently made to the comparable sale values
throughout all four appraisals is a $250 per square foot of building size adjustment. Sales
containing larger residences than the hypothetical residences on the Subject Properties
were adjusted downward (as they are considered more valuable) by $250 per square foot.
Sales that contain smaller residences than the hypothetical residences on the Subject
Properties are adjusted upward by $250 per square foot. Although this is the most benign
of the appraiser's adjustment because it is at least consistently applied, the appraiser still
provides no market support to justify this adjustment.
b. The appraiser makes adjustments for properties that are listings as opposed
to sales because the listings are not a completed market transaction (in other words, it is
unclear what the final sale price will be). However, he does not make the adjustments
consistently. By way of example, the listing for 1202 NE 93rd Street (used in the Pre -
Ordinance Appraisals for both of the Subject Properties) is adjusted downward by
$349,000 for being a listing. The appraiser provides no market support for the adjustment.
Similarly, the listing for 441 Grand Concourse (Comp. No. 4 in the 9305 Post -Ordinance
Appraisal) is adjusted downward $282,500 without any explanation or market support. The
adjustments are different percentages of the listed sale price, so it is unclear how the
appraiser arrived at these numbers. On the other hand, the appraiser makes no adjustment
for the listing at 1275 NE 93`d Street (used in both the 78 Pre- and Post- Ordinance
Appraisals), thus, he does not account for this property being a listing.
C. The appraiser only sometimes adjusts for differences in land size. By way
of example, the appraiser adjusts 1071 NE 95th Street (Comp. No. 3 in the 9305 Pre -
Ordinance Appraisal) downward by $50,000 because the land size is larger than that of the
9305 Property by 7,525 square feet. In other words, in the adjustment, the appraiser
communicates his belief that the comparable sale is less valuable because it has more land
than the 9305 Property. Yet, the appraiser makes no upward adjustment to 1208 NE 99"'
Street (Comp. No. 2 in the 9305 Post -Ordinance Appraisal), which is 1,425 square feet
smaller than the 9305 Property. If the same principle were applied to 1208 NE 991h Street
as was applied to 1071 NE 951h Street, then a $7 per square foot upward adjustment would
In
be warranted. None is made, which depresses the range of sales conveniently in favor of
diminishing the post -ordinance value of the 9305 Property. While the Village looked for a
plausible explanation regarding this discrepancy none was found. Comparable properties
used to value the 78 Property were adjusted for a similar difference in square footage as
the aforementioned. Specifically, the appraiser negatively adjusted 1275 NE 93rd Street
(Comp. No. 2 in the 78 Pre -Ordinance Appraisal and Comp. No. 3 in the 78 Post -Ordinance
Appraisal) by $250,000 for being 1,400 SF smaller than the subject (the opposite of what
was done with Comp. Sale No. 3 in the 9305 Post -Ordinance Condition Appraisal, which
was adjusted downward for being larger than the subject). There is no rhyme, reason, or
explanation for such arbitrary decisions that ultimately affect the Village's range of
exposure.
d. In addition to the lack of consistency in making adjustments for land size,
the appraiser's unit amounts for the price adjustments for land size are similarly scattered,
arbitrary, and unexplained. When viewing all the comparable sales used throughout all four
appraisals, the unit adjustments for land size ranged from $0 per square foot ("PSF") to
$179 PSF without explanation. Even when considering the appraisals for each of the
Subject Properties separately, the ranges are inexplicable and arbitrary. For the 9305
Appraisals, the adjustments range from $0 PSF to $52 PSF, and for the 78 Appraisals, the
adjustments range from $0 PSF (with an up to 5,000 SF difference in size) to $179 PSF.
There is no possible logical or market -based explanation for this lack of consistency.
e. The appraiser's adjustments for differences in the number of rooms and
bathrooms are similarly scattered and arbitrary. As no explanation is provided, the Village
has no way to assess the credibility of the adjustments or normalize the impact on the sales.
By way of example, the appraiser makes adjustments for number of rooms and number of
bathrooms in the 78 Appraisals but does not adjust for similar differences in the 9305
Appraisals. Even within the 78 Appraisals, the adjustments are anything but consistent. For
example, for the 78 Appraisals, the appraiser uses 1202 NE 93`d Court as a comparable for
both the before and after condition. In the pre -ordinance condition, the appraiser adjusts
the sale upward for the number of bathrooms, even though the number only exceeds the
subject by one, half -bathroom. The adjustment amounts to $12,500 per half bathroom. A
similar adjustment is not made in the post -ordinance condition even though the differential
in bathrooms is the same.
f. The appraiser adjusts the comparable sales for differences in the square
footage of the residences, number of rooms and bathrooms, and lot sizes. Larger residences
result in an increased price per square foot (as the appraiser deems them more valuable). A
greater number of rooms and/or bathrooms result in an increased price. Larger lots,
however, result in a decreased price. These adjustments are not supported by his own
comparable sales, which instead contradict the conclusion that any adjustments should be
made. By way of example, in the 9305 Appraisals one of the second highest sales (Post -
Ordinance Comp. Sale No. 3), is also one of the smallest residences with the fewest rooms
and the largest lot size. Similarly, with the 78 Appraisals, the larger buildings sold for some
of the lowest prices, and the larger lots fell somewhere in the middle or upper end of the
11
range. Given the contradiction to the proposed adjustments that are shown by the
appraiser's owns sales, there is no market support for the adjustments.
g. The appraiser adjusts the comparable sales for smaller residences and for
having fewer rooms. However, there is no logical explanation for the appraiser's
adjustments for both as logic dictates that there is likely overlap between the two. This
duplicative negative adjustment clearly falsely inflates the damage figure since Bluenest's
claim is entirely based on the fact that the residences it can build on the Subject Properties
are smaller because of the New Zoning Ordinance.
h. The adjustments for building conditions are similarly arbitrary and
inconsistent. By way of example, the comparable sale located at 489 NE 95`h Street is used
in the 78 Post -Ordinance Appraisal (Comp. Sale No. 2) and in the 9305 Pre -Ordinance
Appraisal (Comp. Sale No. 2). In the former, the appraiser adjusts the sale upward by
$250,000 for the building condition. In the latter, he does not although the same condition
exists. While this particular lack of adjustment may work against the property owner, it is
the overall lack of consistency and explanation that makes the adjustments overwhelmingly
unreliable thus causing the appraisal to lack reliability and usefulness.
There are also blatant errors in the appraisals. By way of example, for the pre -ordinance
value of the 78 Property, the appraiser uses 1202 NE 93`d Street as Comparable Sale No. 3. For
the post -ordinance value of the 78 Property, the appraiser uses the same sale as Comp. Sale No. 4
yet misreports the square footage of the building such that in the before value the price per square
foot before adjustments is reported as nearly $100 more than in the post -ordinance scenario. This
error skews the range of sales such that it conveniently diminishes the potential price per square
foot of the property after the New Zoning Ordinance was enacted with no market support.
The appraiser also concludes outside (and of course below) his own adjusted and
unadjusted ranges for the post -ordinance value of the 9305 Property, making it clear that the 9305
Property Post -Ordinance Appraisal conclusion does not reflect market value. The range of sales in
the post -ordinance appraisal, as adjusted by the appraiser, is $939 - $1,424. Yet, the appraiser
concludes the property is only worth $917 per square foot. Had the appraiser used the lowest end
of his own market range, the damage figure would be $700,000 less. The non -market conclusion
of value creates a greater gap between the pre -ordinance and post -ordinance value of the 9305
Property than cannot be justified by the market even if one were to give any credence to the
appraisers unsupported adjustments.
Finally, and most egregiously, the appraiser comes to a different and, again, unsupported
conclusion of the per square foot value of the Subject Properties in the pre -ordinance condition
versus the Subject Properties in the post -ordinance condition, which seems to be only for purposes
of increasing the damage claim as no other support is provided for the value conclusion. Each
property will be addressed in turn:
9305 NE 9 Avenue Appraisals
Before New Zoning Ordinance
PSF/ Building
Pre -Adjustment Comp. Sales Range:
$1,223 - $1,481
Post -Adjustment Comp. Sales Range:
$1,167 - $1,424
Conclusion of Unit Price:
$1,189
12
TOTAL VALUE BASED ON UNIT PRICE 1 $6,000,000
After New Zoning Ordinance
PSF/ Building
Pre -Adjustment Comp. Sales Range:
$994 - $1,318
Post -Adjustment Comp. Sales Range:
$939 - $1,424
Conclusion of Unit Price:
$917
TOTAL VALUE BASED ON UNIT PRICE
$3,950,000
Based on the foregoing, the appraiser has concluded that the same land in the same location,
due to a loss of 739 square feet residential building, (which he only adjusts for in the comparable
sale adjustments at $250 per square foot) results in a $2 million plus reduction in value. Based on
the appraiser's own adjustments, this cannot be true. The appraiser adjusts the comparable sales
downward at a rate of $250 per square foot. If applied to the reduction is square footage in the
post -ordinance condition, this should only result in a $184,750 reduction in value for the 9305
Property. Similarly, if we were to account for the loss in bathrooms and rooms due to the reduction
in the square footage (which likely is not warranted given the loss in square footage has already
been valued), at a rate of $50,000 per room and $50,000 per bathroom, that would only result in
an additional $200,000 in damages. If added to the reduction for square footage (assuming
arguendo this double counting is appropriate), the total damage would be $384,750 — not $2
million. The very appraisal upon which Bluenest is relying belies the appraiser's unwarranted and
unsupportable over -statement of damages. The appraisal is so flawed and the appraiser is clearly
compromised to such a degree that the appraisal cannot be said to demonstrate the loss in fair
market value to the property if there even is a market -based, measurable loss.
78 NE 98" Street
Before New Zoning Ordinance
PSF/ Building
Pre -Adjustment Comp. Sales Range:
$1,018 - $1,481
Post -Adjustment Comp. Sales Range:
$932 - $1,498
Conclusion of Unit Price:
$1,124
TOTAL VALUE BASED ON UNIT PRICE
$7,200,000
After New Zoning Ordinance
PSF/ Building
Pre -Adjustment Comp. Sales Range:
$1,018 - $1,481
Post -Adjustment Comp. Sales Range:
$909 - $1,440
Conclusion of Unit Price:
$1,160
TOTAL VALUE BASED ON UNIT PRICE
$6,600,000
Again, the appraiser would have us believe that 716 square foot reduction in building and
no reduction in rooms or bathrooms will result in a $600,000 difference in value. This is not
credible based on the appraiser's own adjustments. Applying the appraiser's own adjustments, the
reduction in square footage would only lead to a mere $179,000 damage — not a $600,000 damage.
Due to the appraiser's complete lack of market support and credibility and his biased and
contradictory opinions, Bluenest has entirely failed to provide the requisite presuit appraisal that
demonstrates the true loss in fair market value to the 78 Property.
13
For all the aforementioned reasons, the appraisal fails to comply with the clear statutory
requirement in the Act that it "support the claim" and "demonstrate the loss in fair market value to
the real property." §70.001(4)(a), Fla. Stat.
C. The Appraisals Violate the Uniform Standards of Professional
Appraisal Practice ("USPAP") Calling Into Question Their Usefulness In Supporting
The Bert Harris Act Claim And Their Validity.
The written appraisals provided in support of the Bert Harris Act claim violate USPAP
because they are restricted appraisals that are not intended solely for the client's use. The appraiser
identifies his client as Bluenest Development, which is not even the property owner. The appraisal
explicitly says that it is a "Restricted Appraisal" "for the use of the client only." This restriction is
explicitly imposed because any other use of a Restricted Appraisal violates USPAP, which the
appraiser is bound to follow. USPAP Standard 2-2 states that all appraisal reports must either be
an "Appraisal Report" or a "Restricted Appraisal Report," as those terms are defined in USPAP.
The comment for Standard 2-2 requires that "[w]hen the intended users include parties other than
the client, an Appraisal Report must be provided." Whereas, a "Restricted Appraisal Report" may
be provided if the intended user is limited to the client. Because the appraisal was intended to
support a Bert Harris Act claim, which necessarily includes use by a third -party that is not the
client, the appraisal violates USPAP. In fact, it seems that the use was not disclosed to the appraiser
at all. The appraiser reports that the Intended Use for each appraisal "is for the lender/client to
evaluate the property that is the subject of this appraisal for a mortgage finance transaction."
D. Bluenest's Appraisals Do Not Support Its Claim Because They Fail To
Analyze Whether The Proposed Development Is A Legally Permissible Use Prior To
The Enactment Of The New Zoning Ordinance.
In order to seek compensation under the Act, Bluenest must show that the Proposed
Development was an "existing use" as defined by the Act (see § 1 above) prior to the enactment
of the New Zoning Ordinance. The Act's definition of "existing use" is based on the concept of
highest and best use of land that is used in appraisals. See David L. Powell et. al., A Measured Step
to Protect Private Property Rights, 23 Fla. St. U.L. Rev. 255, 267 (1995). In Florida, all appraisers
must comply with the USPAP, Fla. Admin. Code R. 61J1-9.001 (2017), and USPAP requires that
an appraiser develop a highest and best use opinion when such an opinion is "necessary for credible
assignment results." USPAP, Standards Rule 1-3(b). Therefore, it stands to reason that the Act
requires an appraisal in part to "support the claim" because an appraisal should analyze highest
and best use and, as a result, the validity of a claim of "existing use." Bluenest's appraisal entirely
fails to provide a highest and best use analysis and, therefore, does not "support the claim."
A highest and best use analysis identifies the "reasonably probable and legal use of
[property] that is legally permissible, physically possible, appropriately supported, financially
feasible, and that results in the highest value." S.-W. City Sch. Bd of'Educ. v. Franklin Cnty. Bd.
of Revision, 128 N.E.3d 757, 770 (Ohio Ct. App. 2018). For a use to constitute a highest and best
use it must be legally permissible. To analyze the value of the Subject Properties before the New
Zoning Ordinance was enacted, Bluenest's appraiser assumes, without explanation that the
Proposed Development was legally permissible because it complies with the minimum defined
standards in the Previous Code. The appraiser entirely ignores the fact that the Previous Code also
14
required developments to be harmonious with the surrounding neighborhood, providing that the
Board, when acting on a site plan shall make requirements with respect to building design
"including setbacks ... as will assure a harmonious relation between the uses to which the site
plan applies and the existing and prospective residential and other developments in the vicinity,"
Village Code, App. A, Art. VI §604. The plain language of this provision shows that mere
compliance with the defined minimum requirements in the Previous Code is not sufficient to obtain
approval of the Proposed Development. The appraiser entirely ignores this provision and fails to
analyze whether the Proposed Development is legally permissible under this provision of the
Previous Code. Rather he assumes, without explanation, that it is.
Because the appraiser fails to conduct a highest and best use analysis, the appraisal fails to
"support the claim" as required by the Act.
5. THE NEW ZONING ORDINANCE HAS NOT BEEN APPLIED TO THE
SUBJECT PROPERTIES AS DEFINED BY THE ACT.
The Act "provides relief... when a new law, rule, regulation, or ordinance of the state or
political entity in the state, as applied, unfairly affects real property." §70.001(1), Fla. Stat. A law
or regulation under the Act is "first applied" when one of the following three things occurs, none
of which have occurred here:
1. Upon enactment of the law the government entity sends notice to the affected
property owners that the law or regulation may impact the property owner's existing property
rights, and that the property owner may have only 1 year after receipt of the notice to pursue any
rights established in this section;
2. If the property owner notifies the head of the governmental entity in writing via
certified mail or email that the property owner deems the impact of the law or regulation on the
property owner's real property to be clear and unequivocal in its terms and, as such, restrictive of
uses allowed on the property before the enactment, and the government entity is given 45 days
after receipt of the notice to respond in writing to describe the limitations imposed on the property
by the law or regulation; or
3. Where there is a formal denial of a written request for development or variance.
§70.001 (1 1)(a), Fla. Stat. As such, Bluenest cannot make a claim under the Act because the New
Zoning Ordinance has not been applied, and the Act only provides relief when a new law is applied.
The Act is strictly construed in favor of the government because it waives sovereign immunity.
See generally Bair v. City of Clearwater, 196 So. 3d 577, 582 (Fla. 2d DCA 2016) ("[S]tatutory
waivers of sovereign immunity, such as the waiver in the [Harris] Act, must be strictly construed,
with any ambiguity concerning the scope of the Act resolved in favor of the government against
the claimant."). As such, Bluenest cannot make a claim until it follows the proper procedure.
SETTLEMENT OFFER
Section 70.001(4)(c), Florida Statutes, requires the Village to make a written settlement
offer during the 90-day notice period. That period began on November 27, 2024 and expires on
February 25, 2025. Subsections (1)-(11) of the Act provide eleven options for settlement. Pursuant
to subsection (11), the Village hereby offers to take the following action:
15
No changes to its actions, except that Bluenest's application fees for the 9305 Property
Application and the 78 Property Application will be refunded for a total refund of $3,000.
Bluenest must provide written notice to the Village of the option it will elect by sending
the notice via electronic mail to Alicia Gonzalez, Esq., Weiss Serota Helfman Cole & Bierman,
P.L., 200 E. Broward Blvd., Suite 1900, Fort Lauderdale, FL 33301. The Village expressly
reserves the right to revisit the issue of settlement in the future.
AG:tj
Enclosures
16
Sincerely,
/4�
Alicia Gonzalez, Esq.
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