Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CITY OF HOLMES BEACH, Appellant, v. CORAL ESCAPES OF HOLMES BEACH, LLC, Appellee. No. 2D20-2004 August 18, 2021 Appeal from the Circuit Court for Manatee County; Edward Nicholas, Judge. Jay Daigneault of Trask Daigneault, LLP, Clearwater, for Appellant. Louis Najmy of Najmy Thompson, P.L., Bradenton, for Appellee. KELLY, Judge. At issue in this appeal is whether the City of Holmes Beach, a prevailing defendant in an action brought under the Bert J. Harris, Jr., Private Property Rights Protection Act, section 70.001, Florida Statutes (2019), is entitled to an award of attorney's fees. Section 70.001(6)(c)(2) governs attorney's fee awards and states: In any action filed pursuant to this section, the governmental entity or entities are entitled to recover reasonable costs and attorney fees incurred by the governmental entity or entities from the date of the filing of the circuit court action, if the governmental entity or entities prevail in the action and the court determines that the property owner did not accept a bona fide settlement offer, including the statement of allowable uses, which reasonably would have resolved the claim fairly to the property owner if the settlement offer had been accepted by the property owner, based upon the knowledge available to the governmental entity or entities and the property owner during the 90-day- notice period or the 150-day-notice period. Thus, to be entitled to fees the governmental entity not only must prevail in the action, but the court must also find that the property owner did not accept a "bona fide settlement offer" which reasonably and fairly would have resolved the claim. At issue here is whether the circuit court correctly found that the City did not make a bona fide settlement offer and therefore was not entitled to attorney's fees. The answer to the question of whether a governmental entity has made a bona fide settlement offer can be found in the plain language of section 70.001(4)(c), which sets forth what the 2 governmental entity must do after a property owner presents a claim under the statute. Section 70.001(4)(c) states: (c) During the 90-day-notice period or the 150-day- notice period, unless extended by agreement of the parties, the governmental entity shall make a written settlement offer to effectuate: 1. An adjustment of land development or permit standards or other provisions controlling the development or use of land. 2. Increases or modifications in the density, intensity, or use of areas of development. 3. The transfer of developmental rights. 4. Land swaps or exchanges. 5. Mitigation, including payments in lieu of onsite mitigation. 6. Location on the least sensitive portion of the property. 7. Conditioning the amount of development or use permitted. 8. A requirement that issues be addressed on a more comprehensive basis than a single proposed use or development. 9. Issuance of the development order, a variance, special exception, or other extraordinary relief. 10. Purchase of the real property, or an interest therein, by an appropriate governmental entity or payment of compensation. 3 11. No changes to the action of the governmental entity. (Emphasis added.) The City responded to the notice of claim with this written statement: Pursuant to Section 70.001(4)(c), F.S., the City of Holmes Beach is required to respond within 150 days to the Bert Harris claim which you filed with the City on March 6, 2017, on behalf of Coral Escape of Holmes Beach, LLC. Please be advised that I have been authorized to advise you that the City of Holmes Beach proposes no changes to its prior action. (Emphasis added.) In opposing the City's claim for attorney's fees, the property owner argued that the City was not entitled to fees and costs because its written response did not constitute a "bona fide offer" to settle the case by offering a compromise. Instead, the City proposed no changes to its prior action. The circuit court denied the City's motion for fees reasoning that to constitute a bona fide settlement offer, the City had an obligation to change its position and it had not done so. Thus, the court concluded that "no offer was made which would entitle the City of Holmes Beach to recover costs and reasonable attorney's fees." As the City argues, the circuit court's holding is contrary to the plain language of the statute. Section 70.001(4)(c) explicitly 4 permits a settlement offer that effectuates "[n]o changes to the action of the governmental entity." § 70.001(4)(c)(11). The City chose that option. Because such an offer is permitted by the statute, it constituted a bona fide settlement offer. The circuit court's contrary conclusion imposes an obligation on governmental entities not found in the statute. Although we reverse the order denying the City's motion for attorney's fees, the question of whether the City is entitled to its fees is not resolved by this appeal. Because the circuit court found that the City had not made a bona fide settlement offer, it never reached the question of whether the offer "reasonably would have resolved the claim fairly to the property owner if the settlement offer had been accepted by the property owner." § 70.001(6)(c)(2). On remand the circuit court must make this determination to resolve the City's motion for attorney's fees. Reversed and remanded for further proceedings consistent with this opinion. VILLANTI and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication. 5