CLEARWATER – The outcome of a pending lawsuit will hinge on the court’s definition of the term “substantial improvement.”
On Sept. 5, the Clearwater City Council authorized the expenditure of “the initial amount of $40,000” to hire an attorney whose job will be to persuade the court to define those two words the same way the city defines them.
The dispute began in April 2001, when homeowners David and Aileen Bair submitted an application to the city’s Planning and Development Department for a permit to remodel their home in the city’s Island Estates neighborhood.
“Because the property is below the 100-year flood elevation and is located in a ‘V’ flood zone, the Community Development Code requires any ‘substantial improvements’ to existing structures to comply with the flood damage-resistance provisions, including that the structure is elevated,” a staff memo from the city’s legal department to the city council explains. “‘Substantial Improvement’ is defined as the ‘reconstruction, rehabilitation, addition or other improvement of a structure during a one-year-period, the cost of which equals or exceeds 50 percent of the market value of the structure before the construction of the improvement.”
A building official from the city required the Bairs to submit a “non-substantial improvement application” and related materials sufficient to demonstrate that the planned modifications would not constitute a “substantial improvement” according to the city’s definition of that term.
Initially, in July 2011, the city issued a building permit, and the Bairs began the remodeling in the following month, including completing a lot of demolition.
But the city placed a stop work order against the Bairs when a building inspector from the city determined that “in fact the work constituted a substantial improvement,” according to the staff memo. The Bairs then appealed that ruling to the building/flood board of adjustment and appeals, which ruled in favor of the city.
“The plaintiffs did not further appeal the board’s decision to circuit court, but instead began the process which resulted in the filing of this lawsuit,” the staff memo says.
The Bairs’ lawsuit has two counts. One claims that their rights under the Bert J. Harris, Jr. Property Rights Act were violated, and the other seeks to invoke the legal principal of “Equitable Estoppel” to let them finish the modifications that were begun before the city issued its Stop Work Order.
“The plaintiffs claim that they have lost market value on their property due to their partial demolition of the structure in alleged reliance on the issuance of the permit and due to their alleged inability to complete the renovations,” the staff memo says. “The city has pleaded a number of defenses to the action.”
“We have actually been handling this case in-house since its initial filing, but would like to get some outside assistance at this point,” City Attorney Akin told the council at a recent work session.
“What you’re telling us is that we’re trying to come up with an agreement?” Mayor George Cretekos asked Akin.
“Yes, sir,” Akin replied. “(But) it does not look like we will be able (to come up with one.) Actually, there is an outstanding mediation coming up and it might be helpful to have some help at the mediation.”
Akin asked the council for permission to spend “an initial amount” of $40,000 from her professional services budget to hire Attorney Jeffry Hinds from the law firm of Smolker, Bartlett, Schlosser, Loeb and Hinds, P.A. to represent the city for the remainder of this case.
Legal fees for the case will be billed at the rate of $250 an hour for Hinds himself and $90 an hour for any paralegals who assist Hinds with the case.
At its Sept. 5 meeting, the council unanimously approved that expenditure.