County Commission rejects settlement offer in Siesta property owner’s lawsuit

The Hub Baja Grill is one of the three Siesta Village properties at the center of the third lawsuit owner Chris Brown has filed against Sarasota County since 2007. Photo by Norman Schimmel

On a 3-2 vote Aug. 21, the Sarasota County commissioners rejected a $277, 219.22 settlement offer from Siesta Village property owner Chris Brown in a lawsuit alleging the county singled Brown out in charging excessive parking assessments on his 2010 tax bill.

However, the commissioners also voted unanimously to ask County Attorney Stephen DeMarsh to work with County Administrator Randall Reid on whether the ordinance governing those parking assessments should be revised, to prevent future lawsuits.

The second motion called for a report to the commission within 30 days on any options deemed appropriate.

Commissioners Joe Barbetta and Chairwoman Christine Robinson cast the “No” votes on the first motion.

Barbetta pointed out that some of the parking assessments for businesses in Siesta Village went down 15% to 30% while Brown’s assessments for The Hub Baja Grill and The Cottage doubled in 2010.

The assessment for the Avenida Messina parcel where Blu Que Island Grill stands went up about 1,500%, according to the lawsuit.

“If that isn’t singling somebody out — I think we have some incredible exposure here,” Barbetta added.

Moreover, Barbetta pointed to a March 2011 memo from Assistant County Attorney David M. Pearce, which said in part, “Although the parking provisions of the Zoning Regulations have changed over time, and the parking requirements for each parcel [in the taxing district] may have changed as changes in use or renovations [occurred], our office believes the amount of the assessment should not vary from year to year.”

“We acknowledge that memorandum, but we have been informed by Mr. Harriott, who was involved in the creation of the parking district, that that was not a correct interpretation, and that the assessments need to change on an annual basis,” DeMarsh replied.

James Harriott Jr. is the county’s director of public works.

DeMarsh added, “I’ll admit that there’s been inconsistent interpretation of the county ordinance, and that’s a negative factor” for the county in the lawsuit. “Whether it justifies a large award … I don’t know at this point.”

Regarding Harriott’s telling the county attorney how to interpret the ordinance, Barbetta said, “I’ve got a problem with that. … It’s pretty clear to me the assessments shouldn’t change. You have a set amount of money that it cost to build the [parking district], and you amortize it over years, and you divide it by the property owners in the district.”

“That would be one interpretation,” DeMarsh said.

Pearce’s memo explains that the total cost of the public parking lot in Siesta Village, between Avenida Madera and Canal Road, was $863,000. The expense was to be paid over 20 years.

As of the 2010 fiscal year, the memo continued, about $382,000 remained to be assessed to complete the payment, “which would be paid over the next seven years.”

Commissioner Nora Patterson pointed out that some businesses might have increased or decreased their parking needs over time, which could have had an effect on their assessments. Nonetheless, she said, “The problem is … [the ordinance] is too complex to administer …”

“We are suggesting the commission may want to evaluate this methodology [of determining individual assessments] and potentially change [the ordinance],” DeMarsh said.

“That would, frankly, to me, make sense,” Patterson said. “In the meantime, I don’t see the justification for the damages” Brown is seeking, she added.

Earlier, DeMarsh had recommended the commission reject the settlement offer, saying, “We don’t believe this case is at the point where damages can be determined properly. Discovery is ongoing, and, in fact, both parties have written discovery requests outstanding, which we believe would be helpful to evaluating this case …”

DeMarsh added that he would prefer Brown be deposed, to determine how he had arrived at the amount of damages.

In an Aug. 22 interview, Brown told The Sarasota News Leader, “I’ve been waiting for a year for them to depose me. … Just tell me when and where, and I’ll be there.”

He pointed out that three depositions have been held already in the case.

Patterson made the motion to reject the settlement offer; Commissioner Jon Thaxton seconded it.

“I think that the county does have some exposure on this issue, some exposure I’m not comfortable with,” Thaxton said. “I would like to see some sort of justification for the settlement offer that’s being proposed,” he added. “If it can be substantiated, it is what it is. If not, we need to look at a different number. … We need to get [the lawsuit] settled and get it behind us.”

Robinson proposed the county send a letter to Brown’s attorney, Morgan Bentley, of the Sarasota firm Bentley & Bruning, asking him to justify the amount of damages, adding she didn’t want to add to Brown’s legal fees by seeking a deposition and further discovery.

However, DeMarsh told her, “We’ve not really been successful with this just getting the information approach.”

Still, he said, he would call Bentley “and say, ‘Please provide us this information.’”

Brown told the News Leader that the county itself had not been forthcoming with information Bentley had sought in the case. “Getting information from the county is like pulling teeth.”

Asked for comment, Bentley told The Sarasota News Leader after the Aug. 20 discussion, “I am disappointed, of course, that we could not reach an agreement but am encouraged that discussions will continue.”

Bentley added, “I am also encouraged that the board recognizes that the parking ordinance needs to be revisited and corrections made if needed. Getting it right will be good for everyone in the long run.”

History of the lawsuits

As DeMarsh noted during his comments to the commission, this is the third lawsuit Brown has filed against the county. The first, in 2007, alleged that actions by then-Zoning Administrator Tina Brown, under pressure from various parties, resulted in Chris Brown’s being unable to open The Hub when it was completed, costing him about three months of revenue.

The county ended up settling with Brown over an amended lawsuit filed in that case in 2009. He received $35,000 in damages. Additionally, the county vacated a portion of the right of way along Ocean Boulevard adjacent to The Hub to resolve a pending code enforcement action. (Brown had been accused of allowing outside tables at The Hub to encroach upon the right of way.)

Finally, the county confirmed that a special exception Brown had for live entertainment on the property had not elapsed, allowing him to have music played from 9 p.m. to 1:30 a.m. seven days a week, with the noise level not to exceed 85 decibels from the property line.

On Jan. 31, 2011, Brown filed his second lawsuit against the county, alleging he had been charged an excessive amount for his parking assessments for The Hub, the Beach Club and Blu Que and contesting the special assessment charged businesses for upkeep of Siesta Village.

That lawsuit ultimately led to a revision of the ordinance governing that upkeep as well as to a year-long process to hire a new contractor to handle Village maintenance. (See the related story in today’s headlines.)

The portion of the suit dealing with the upkeep is pending in the 12th Judicial Circuit Court. However, the county reimbursed Brown $2,500 in parking assessments.

Brown has said that it was only about a month after he received the reimbursement that he also received the 2010 tax bill with the new set of high assessments.

The third lawsuit originally was filed on Oct. 4, 2011. The county had it moved to federal court because of Brown’s allegations that his constitutional rights had been violated, because his properties were the only ones in the district singled out for higher parking assessments. However, Bentley was successful in having the case remanded to the Circuit Court.

In his opening remarks to the County Commission Aug. 20, regarding Brown’s settlement offer in the third lawsuit, DeMarsh said the case alleged points that the County Attorney’s Office “thought were settled” in the first two cases.