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Carlos focuses his practice on real estate disputes (sales and purchase disputes, foreclosures, title insurance litigation, commercial and residential evictions, and other real estate related claims) and business claims (fraud and contract lawsuits, shareholder disputes, and other claims between business partners). A major part of his real estate litigation practice involves eminent domain/condemnation matters, which have included inverse condemnation and Bert J. Harris, Jr., Private Property Rights Protection Act claims.

In addition to being admitted to all Florida state courts, Carlos is admitted to practice in the U.S. District Court for the Middle and Southern Districts of Florida.

Carlos speaks and writes for a variety of audiences, including the firm's Legal Scoop on Southwest Florida Real Estate blog. The Florida Bar’s Eminent Domain Committee, The Florida Bar's City, County & Local Government Section, and the Florida Association of County Engineers & Road Superintendents have featured Carlos as a lecturer on eminent domain topics, and the West Coast Florida Chapter of the Appraisal Institute has featured Carlos as a panel speaker on witness preparation in eminent domain cases. The American Bar Association published an article Carlos wrote about the use of eminent domain to condemn underwater mortgages (December 10, 2012 web post). The Florida Bar Journal has published several of Carlos's articles, including two that he wrote about eminent domain topics.  The Supreme Court of Florida cited his article, “Eminent Domain: Identifying Issues in Damages for the General Practitioner,” in System Components Corp. v. Florida Dept. of Transportation, 14 So.3d 967 (Fla. 2009). Carlos is AV rated by Martindale-Hubbell

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?

Continue Reading Fruit Should be Ripe; Your Bert Harris Act Claim Must be Ripe, Too!

In something of a rarity, an appellate court has written an opinion in favor of a property owner bringing a claim under The Bert J. Harris, Jr., Private Property Rights Protection Act.

In Ocean Concrete, Inc. v. Indian River County, Board of County Commissioners, the Fourth District Court of Appeal reversed a trial court order denying relief to a property owner under the Bert Harris Act. As the Fourth District explained, in order to obtain relief under the Bert Harris Act, a plaintiff has to show

a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property.”

Bert Harris Act in a Nutshell

Continue Reading Appellate Court Rules in Favor of Florida Property Owner Under Bert Harris Act

Last year, the Florida Supreme Court issued an important opinion on property rights that you need to know about if you own real estate in Florida. I had written a blog post right after the decision, but a case I was handling at the time involved some issues related to the post, so I delayed the post until after my case resolved. In any event, the Florida Supreme Court opinion updates my blog posts of July 8, 2015 and August 20, 2015 about the Bert J. Harris, Jr., Private Property Rights Protection Act topic.

Land Use Designations in Hardee County

As mentioned in my earlier post, this case originates from a land purchase in Hardee County in 1996. The purchaser, FINR, bought land that held an “agriculture and public institutional purpose” future land use designation. In 2007, FINR successfully applied to amend the Hardee County Comprehensive Plan and change FINR’s future land use designation to rural center. The “rural center” designation provided FINR with a quarter-mile setback that applied to the adjacent properties and prohibited phosphate mining activities in the setback.

Continue Reading Not Your Property? Then You’ve Got No Claim Under the Bert Harris Act

If you’re a regular reader of this blog (and I hope you are, or will become one!), you will know that many of my posts, over the years, have to do with property rights. An important component of property rights is valuation of the property right taken, or at stake. Today, as part of my series with local appraisers, I am interviewing Matt Simmons, an appraiser and principal with the firm of Maxwell, Hendry & Simmons, LLC.

Carlos: What do appraisers do?

Matt: At the core, we value the bundle of rights inherent in real property. We typically determine the value through application of one or more commonly accepted approaches to value: the Sales Comparison, Cost, or Income approach. But within each approach the nuance of the overall rights remains the value driver. The acronym DUE encompasses the fundamental rights most fee simple real property possesses. These are the rights of disposition, use, and exclusion. When an action (governmental or otherwise) impacts one of these rights, the value of the property is almost always impacted.

Carlos: What made you want to become an appraiser?

Matt: Like many professionals, I was introduced to the profession through a friend. I began working in appraisal data entry when I was 19 and gained my initial trainees license the following year. I’ve always had an interest in real estate and the opportunity to analyze properties, solve complex valuation issues, and build a real estate centered business is incredibly rewarding.

Carlos: How do you work with attorneys in property rights cases?

Continue Reading Meet the Appraiser: Matt Simmons

What do they have in common? Nothing…except that when I was getting a new set of tires put on my car, I had time to read Murr v. Wisconsin, the recent U.S. Supreme Court 40-page decision in a property rights case involving a regulatory takings analysis.

Facts

The facts of the case are pretty simple. The Murrs purchased Lots E and F separately in the 1960s, transferring Lot F to a family plumbing business, but keeping ownership of Lot E in their own names. The Murrs transferred Lot F to their kids in 1994 and Lot E to the kids in 1995. The lots each had less than one acre available for development. The Murr kids brought the lots under common ownership (in other words, the kids owned both lots, unlike the parents, who owned one lot through a company and the other lot as individuals).

Once under common ownership, state and local rules forbidding separate sale or development of the lots came in to play. The Murr kids wanted to sell Lot E as part of an improvement plan for both lots, and requested variances from the local zoning authority. The zoning authority denied the variance request, and the state courts affirmed the denial of the variance request.

Continue Reading A New Set of Tires and the Latest Supreme Court Case on Property Rights

It’s an old saying, but it’s true in life and in court, as illustrated in a recent takings decision, Town of Ponce Inlet v. Pacetta, LLC, et al. The Town appealed “a multi-million-dollar” judgment on an inverse condemnation claim. Like most takings cases, this one has a long and confusing history.

The property owners had purchased ten adjoining parcels, seeking to develop a waterfront project. The Town, however, amended its comprehensive land use plan, leaving the property owners unable to develop the ten parcels as contemplated.

First Lawsuit

The property owners sued the Town, challenging the amended comprehensive land use plan. The property owners successfully argued, at both trial and on appeal, that the ten parcels should be treated as a single 16 acre parcel.

Second Lawsuit

Continue Reading Actions Speak Louder Than Words

According to The American Heritage Dictionary, Second College Edition, the word “fight” has several meanings, including

[t]o stand up against something or assert oneself.”

Recently, as a nation, we celebrated the 241st anniversary of the Declaration of Independence. We are justly proud of that independence. The signers, and other heroes, stood against tyranny and asserted themselves for liberty.

It took a fight to achieve that independence.  It has taken many other fights since then to preserve it.

Continue Reading Fight for Your Rights

IMG_0642I need to let you know how my Saturday project went. In my last post, I told you about a home improvement project that I needed my dad’s help on. And I told you about the concept of “highest and best use.”

I asked my dad to come by at 9 am. He brought a low wattage, high illumination fluorescent shop light that gave off way more light at a lower heat than the work light I had. He also brought a ten inch sliding compound miter saw, saw horses, and a saw table, plus a whole lot more.

The work went pretty quickly, and it had to. It gets hot fast in an attic in Florida this time of year. It was very cramped and hard to get enough room for a good hammer swing on the mend plates. No such problem installing the construction screws. My dad pre-drilled the 2 by 6 splice lumber. (“Son, this drill is practically a family heirloom.  It was my Uncle Bob’s. It’s a 3-way drill, so it can hammer, drill, and do both at the same time. Works great on concrete. They don’t make ‘em like this anymore.”) The power screwdriver made the rest easy.

Continue Reading What is Highest and Best Use – Part II

Did you have a home improvement project last weekend? I did.

But this one was beyond my limited skills (and limited tools), so I got my dad involved.  He can fix anything.  And he’s got the ultimate set of tools.

After he looked at the situation, he specified the fix. He liked my suggestion of using a vertical beam in conjunction with the splice that he specified. (Below is the before picture.)

IMG_0613I guess I did learn something helping out here and there as a kid in the driveway and later on in the shop.

My dad gave me very specific instructions on the materials.  “You need a 2 by 6 eight feet long. Make sure it’s pressure treated. Pick out a good piece of lumber. You want a good straight grain. Get No. 8 construction screws three inches long.  Square drive, not a hex drive.  They get chewed up too easily.  You could use Phillips head if you have to.”

Couldn’t find the right screws, so I got two sets of what came the closest. And two 2 by 6’s eight feet long. Just in case.

IMG_0640What does this have to do with property rights? We Americans love our property. Just check out Home Depot or Lowe’s some weekend. Jam-packed with do-it-yourselfers.

Now, I wasn’t thinking “highest and best use” when I was getting the materials that my dad specified–I was just getting the stuff I needed for my project. But as I thought back on it, I remembered the concept. In determining value of a property that’s being taken,

the highest and most profitable use for which the property is adaptable and needed, or is likely to be needed in the near future, is to be considered….”

This definition comes from an older case, but remains a great way to capture all that goes into the concept of “highest and best use.” In my neighborhood, the highest and best use is residential (even though the zoning would allow for more). So I want to keep my house looking right.

I know your property is as important to you as mine is to me. If the government, or someone else, wants to take yours, make sure you know about highest and best use.

Recently, I attended the 65th running of the Twelve Hours of Sebring, the world-famous endurance race for sports cars. Past winners include Mario Andretti and A.J. Foyt, among other giants of auto racing.

This was my first time to the Twelve Hours of Sebring race. WOW!! The sound of that many high-performance motors was incredible and incredibly loud, even with my noise-canceling headphones.

Four classes of sports cars ran in the Twelve Hours of Sebring 2017, but I watched the GT Le Mans class the closest because the cars were very recognizable:  two Corvettes, two BMW M6s, a Ferrari 488, three Ford GTs, and two Porsche 911s. The Hairpin, the most famous turn at Sebring, appeared to be the most challenging spot for the drivers: hard braking, followed by hard acceleration, with drivers trying to pass and avoid getting passed. Here are the two Porsches dueling:

The No. 66 Ford GT held the lead in the GT Le Mans class for a portion of the race, and was leading when my dad and I left the race just after sundown. I made it home in time to watch the last ten minutes of the race. Much to my surprise, the No. 3 Corvette won the GT Le Mans class. WOW!!

Now, how does this apply to your property rights? The answer: Never Give Up.

The government wants your property? Never Give Up. The government isn’t offering what your property is worth? Never Give Up. The government has taken your property? Never Give Up.

P.S. If you go to the next Twelve Hours of Sebring race, you’ll need tickets, a big hat, sunblock, lots of water, snacks, headphones, sunglasses, beach chairs, shoes you can walk long distances in, hand sanitizer, and your smartphone (so you can take pictures and watch the race on TV to see what’s happening on other portions of the track),