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County appeals again in industrial property rights saga

STORY BY GEORGE ANDREASSI (Week of December 17, 2020)

Indian River County appears poised to appeal a marathon property rights case involving a controversial industrial project all the way to the Florida Supreme Court for a second time.

The outcome of the case will influence how Florida’s 67 counties and 400-plus municipalities handle property rights claims in the future, the county argued in a legal motion filed in the 4th District Court of Appeals.

The motion filed last Thursday seeks to overturn a 4th DCA ruling issued in November that upheld a $3.3 million final judgment in favor Ocean Concrete Inc. and the company’s owner, George Maib.

The case is important statewide because “there is no other reported decision on the calculation of damages” under the Bert J. Harris Private Property Rights Protection Act of 1995, the motion says.

The county requested a rehearing before the three-judge panel that ruled for Ocean Concrete, or a rehearing before the full 12-judge appeals court in West Palm Beach.

The county also asked the 4th DCA to certify the key question in the appeal as “an issue of great public importance” for review by the state Supreme Court.

“Are damages under the Bert J. Harris Act determined by using the generally accepted analysis of ‘fair market value,’ or does the language of the statute modify that analysis to require focus on the value of a specific ‘reasonable investment-backed expectation’ instead of the actual ‘highest and best use’ of the real property?”

The dispute arose in 2006 after Maib proposed to build a concrete batch plant on a 8.5-acre light industrial tract at 11085 Old Dixie Highway, south of Sebastian, an allowed use under zoning regulations.

Nearby residents and Sebastian City Council came out against the project and Indian River County commissioners changed the zoning rules for light industrial properties in July 2007, removing 6 of the 92 allowed uses, including concrete batch plants.

Maib and Ocean Concrete filed suit in November 2007 claiming the county changed the zoning rules to block his project, which devalued the property.

The jury and judge in the first trial in November 2015 ruled against Maib and Ocean Concrete, but he won in the appellate and supreme courts.

It was the second trial, which concluded in September 2019, that resulted in the $3.3 million final judgment for Maib and Ocean Concrete. The 4th DCA upheld that judgment on Nov. 25, 2020.

Indian River County’s appeal argues the second trial judge should have allowed the county to present expert witnesses to testify the change in zoning rules did not reduce the “fair market value” of the property because a concrete batch plant was not the “best and highest use.”

The county’s appeal also argues the second trial judge should have excluded Maib’s testimony placing the value of a high-tech concrete batch plant on the site at nearly $10 million as his “reasonable investment-backed expectation.”

“In this case, to require valuation of the property as if a concrete batch plant was the highest and best use of the property, disregards the statute’s intent,” wrote County Attorney Dylan Reingold and Paul Berg, a private attorney assisting with the appeal.

“The intent is not to value Ocean Concrete’s damages spent on developing a concrete batch plant or their lost profits, but to determine if the value of the dirt changed by removal of all 6 of the uses from the 92 allowed,” motion says. “The focus should not be on the reasonable investment-backed expectation but the real property. The dirt.”

The attorney representing Maib and Ocean Concrete could not be reached Monday for comment on the county's legal motion.