Bert Harris Case from the 4th - Further thoughts

I posted a link a couple of weeks ago to the opinion in Russo v. City of Dania Code Enforcement Board - here's the opinion, again - and wanted to share some further thoughts.

The case started when, after the zoning ordinance had been amended in such a way to prohibit Russo's use of the property in question (though we never find out what the use was). A citation was issued for the violation on August 30, 2000. This citation was later the subject of a code enforcement hearing, which confirmed the violation. That decision was appealed and confirmed by the circuit court - all prior to Russo's filing the Bert Harris Claim. It should be noted that all adminstrative remedies must be pursued before one can file.

In determining when the statute began to run, the court found that the "application of the regulation" for the purpose of the ordinance and the statute of limitation was the date of the issuance of the citation.

What it correct here, that the court did not find that the regulation was applied on the date that the rezoning was adopted. But let's be clear that a citation is issued by an admininstrative officer BEFORE any due process hearing by the city's code enforcement board. By finding that this was the city's "application of the regulation" to the property, the court elevated the role of the code enforcement officer to a policymaker for the city. If we were talking about a takings case or another civil rights type of claim, the city would claim that the code enforcement officer wasn't authorized to establish policy; the code enforcment board's supervisory and enforcement role in determining that a violation did or did not occur before a fine can actually be levied makes it the final administrative arbiter of whether and how the regulation is actually applied. Given that you must file your "notice of claim" and appraisals within 1 year of the regulation being applied, it seems wrong to run it from an act that might still be under appeal at the 1 year time.

Therefore, it seems to me that the "regulation is applied" to property for the purpose of running the 1 year time when any administrative appeal is exhausted, and the 4th got his wrong. I also think that the 4 year statute should be calculated from the date that the ripeness letter is issued - the last required event that allows the claim to be filed in court.

Anyway, the 4th has ruled, this is the rule, however unfortunately construed, and at least the court didn't take the city up on its interpretation - which would make it functionally impossible to bring these claims if the local government dragged appeal or related issues out.