CLEARWATER – Normally, determining the meaning of a two-word phrase is as simple as looking it up in a dictionary or on the Internet. But when lawyers are involved, things aren’t that easy.
The taxpayers of Clearwater have already spent $40,000 trying to nail down the definition of the term “substantial improvement.” And at the Dec. 5 meeting, the Clearwater City Council gave City Attorney Pam Akin the go-ahead to spend $160,000 more.
The dispute has been dragging on since April 2001, when David and Aileen Bair decided to remodel their Island Estates home and they filed a request for the required permit with the city’s Planning and Development Department.
“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 drainage-resistance provisions, including that the structure is elevated,” a memo from the city’s legal department to the city council explained. “‘Substantial improvement’ is defined as the ‘reconstruction, rehabilitation, addition or other improvement of a structure during a one-year period, the cost of which 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 backup material to prove that the work was not a “substantial improvement.” A building permit was issued in July 2011, although the legal department memo does not explain the reason for the decade-long delay between the filing of the application and the issuance of the permit.
Work began in August 2011 but was halted when a city inspector determined that the changes were a “substantial improvement” of the property and issued a Stop Work Order. The Bairs then appealed to the Building/Flood Board of Adjustment and Appeals, but it ruled in favor of the city.
The Bairs subsequently lawyered up and filed a lawsuit in circuit court using a two-prong approach. One says that the city had violated their rights under the Bert J. Harris, Jr., Private Property Rights Protection Act. The other uses the legal doctrine of “Equitable Estoppel” to claim that the market value of their home has been diminished because they started the renovations believing that by issuing the permit, the city had approved their plans, but the Stop Work Order prevents them from finishing the job.
At first, the city’s legal department defended the lawsuit using its staff attorneys. But on Sept. 5, 2013, City Attorney Akin sought and received City Council approval to spend $40,000 to hire Attorney Jeffrey Hinds from the law firm of Smolker, Bartlett, Schlosser, Loeb and Hinds, P.A., to represent the city in the upcoming mediation.
“We were unsuccessful in mediating and the trial is set for (next) April,” Akin told the council at its December 2 work session.
She requested the council’s permission to spend another $160,000 from her Professional Services Budget to have the same law firm represent the city at the trial. On Dec. 5 the council unanimously voted to approve that expendure.