Merriam-Webster’s on-line dictionary defines “ripe” in several ways. One example is “fully grown,” as in the case of ripe fruit. The Black’s Law Dictionary, 7th edition, on my credenza defines “ripeness” as:
[t]he circumstance existing when a case has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made.”
That’s a lot of fruit in one bite.
According to a recent decision of Florida’s Fourth District Court of Appeal in GSK Hollywood Development Group, LLC v. The City of Hollywood, Florida, in order to bring a claim under the Bert J. Harris, Jr., Private Property Rights Protection Act, the claim must be ripe.
What Does “Ripe” Mean Under the Bert Harris Act?
Followers of this blog will recognize a pattern to the facts in the GSK Hollywood decision. A developer, GSK, purchased two parcels of real estate on Hollywood Beach in order to build a 15 story condominium. After GSK announced its plans for building the condominium, the Mayor of Hollywood advised GSK that a neighboring condominium association opposed GSK’s project.
The Mayor of Hollywood then proposed a building height restriction of 65 feet. After some “legal wrangling” (as they say on television), the 65 foot height restriction was codified as a City of Hollywood ordinance.
Faced with the new height restriction, GSK filed suit against the City of Hollywood seeking relief under the 2010 version of the Bert Harris Act, along with a claim for a violation substantive due process rights. After a trial, GSK prevailed on its Bert Harris Act claim, while the City defeated GSK’s substantive due process claim. Both parties appealed.
Decision on Appeal
On appeal, the Fourth District ruled that the property owner, GSK, had no basis for a Bert Harris Act claim because GSK had never formally applied to develop its property. As a result, the City of Hollywood never applied the 65 foot height restriction ordinance to GSK’s property. The Fourth District noted that the Bert Harris Act contains several sections specifying that the offending law, rule, regulation, or ordinance must be applied to real property.
As the Fourth District put it, “Because GSK failed to make a formal application to develop the property, the City did not apply the ordinance to the property at issue. Thus, the claim under the Harris Act [sic] was not ripe.” While at least one exception to the “must be applied” rule exists, the circumstances in the case did not allow for the exception to apply.
Take-Away
If you’re developing property, hire an attorney competent in land use and Bert Harris Act claims in case local government tries to change relevant local laws, rules, regulations, or ordinances. Just like you don’t want to bite into an apple that’s not ripe, you don’t want to make a claim under the Bert Harris Act that’s not ripe—as your claim will bear no fruit (ouch).