City Nat'l Bank of Fla. v. City of Tampa

• Decision Date: 06 April 2011
• Docket Number: No. 2D10–332.,2D10–332.
• Parties: CITY NATIONAL BANK OF FLORIDA and Citivest Construction Corporation, Appellants,v.CITY OF TAMPA, a Florida municipal corporation, Appellee.
• Court: Florida District Court of Appeals

67 So.3d 293

CITY NATIONAL BANK OF FLORIDA and Citivest Construction Corporation, Appellants,

v.CITY OF TAMPA, a Florida municipal corporation, Appellee.

No. 2D10–332.

District Court of Appeal of Florida, Second District.

April 6, 2011.

Scott A. McLaren of Hill, Ward & Henderson, P.A., Tampa, and Thomas A. Burns of Hill, Ward & Henderson, P.A., Tampa (withdrew after briefing), for Appellants.Chip Fletcher, City Attorney, Jerry M. Gewirtz, Chief Assistant City Attorney, and Melvia B. Green, Assistant City Attorney, Tampa, and John A. Schifino and Allyson L. Lazzara of Williams, Schifino, Mangione & Steady, Tampa, for Appellee City of Tampa.MORRIS, Judge.

City National Bank of Florida and Citivest Construction Corporation (the property owners) appeal a final judgment entered in favor of the City of Tampa (the City). This case involves the property owners' application for a certificate of appropriateness (COA) on a proposed condominium development which—after protracted litigation—was eventually granted by the City. The basis for the litigation was a claim that the property owners' equal protections rights were violated because the City treated other similarly situated property owners more favorably during the zoning process and, as a result, the property owners here suffered damages. The City filed a motion to dismiss the property owners' third amended complaint which the circuit court granted with prejudice. In doing so, the circuit court held, in relevant part, first that “section 1983 claims are barred as the interpretation of a zoning code will not support an action pursuant to 42 U.S.C. section 1983” and second that “there is no federally protected interest in a zoning decision.” For the reasons set forth herein, we disagree with the circuit court and we therefore reverse and remand.

I. Background

The property owners purchased a 1.76 acre vacant parcel located at the corner of Bayshore Boulevard and DeSoto Avenue in Tampa (the property), with the intent to construct a high-rise condominium project. Since 1987, the property has been classified as RM–75 high-rise zoning allowing for seventy-five condominiums per acre. This particular zoning classification is the most intense high-rise zoning available within the city and would allow for up to eighty-eight units on the property.

At the time the property was zoned RM–75, the City also chose to include it within the Hyde Park Historic District which meant the property would be subject to the Architectural Review Commission (ARC). Before a construction project can proceed on property which is subject to the ARC's control, the ARC must issue a COA determining that the proposed construction project meets specified aesthetic guidelines. The process of obtaining a COA is a separate and distinct process from zoning classifications.

The “building envelope” within which a structure can be erected on property zoned as RM–75 is determined by using a specified height/setback ratio which is explained in the City's zoning code. Here, the City approved the property owners' initial plan to build a condominium which was twenty-eight stories in height, but the property owners voluntarily scaled the project back to twenty-four stories in an effort to appease opposition from the Historic Hyde Park Neighborhood Association (the Association).

When the property owners sought the COA necessary to begin building, the ARC administrator informed them that as a condition precedent to applying for a COA, they were required to obtain certification from the City's zoning administrator that the proposed project complied with the requirements for RM–75 zoning. However, the ARC administrator also told the property owners that the criteria for obtaining a COA was based only on the appearance of the building and that it was not in any way based on the confirmation regarding compliance with the zoning ordinances. And the property owners were not informed that the ARC administrator was a dues-paying member of the Association.

In over 10,000 similar situations in the past—before the property owners submitted their plans to the City's zoning administrator—the City had interpreted the zoning ordinances for a corner property like the one at issue here to require setbacks of twenty-five feet in the front yard, twenty feet in the rear yard, and seven feet in the side yard. However, apparently in response to pressure from the Association which had become openly opposed to the proposed project, the City zoning administrator—for the first time ever—interpreted the applicable zoning ordinances to require two twenty-five-foot front-yard setbacks. Based on this change in interpretation in conjunction with the height/setback ratio, the permissible height of the proposed project was reduced.

Seeking to remedy the situation, the City's planning staff recommended to the planning commission that the double front-yard setback interpretation be eliminated by an amendment to the zoning ordinances. The planning commission voted unanimously to approve such an amendment, and it was presented to the Tampa City Council for final approval and implementation. At the required first reading of the proposed amendment, no Association members were present and the Tampa City Council voted unanimously to proceed, without revisions, to the second reading. The meeting at which the second reading was conducted was different. Many Association members and area residents attended and voiced their overwhelming opposition to the proposed amendment. Consequently, no vote was taken and the meeting was continued until another day.

At a third meeting, the Association suggested a different amendment which would impose the double front-yard setback only to the property in question but which would not impose the double front-yard setback on any other property thereafter. The city council voted to pass the amendment as proposed by the Association.

The property owners subsequently redesigned their condominium project in light of the double front-yard setback requirement and resubmitted their plans to the zoning administrator. The zoning administrator confirmed the property owners were in compliance with RM–75 zoning so the property owners filed their application for a COA.

Prior to the ARC's final hearing on the COA application, the property owners met with ARC representatives on at least nine occasions to review the proposed project. Although some concerns were raised by ARC representatives (and addressed by the property owners), no one raised the height of the proposed condominiums as a concern.

At the final hearing on the COA application, many Association members were present and voiced their objections to the height of the condominiums. After listening to the objections, one ARC board member moved to deny the COA application. Although it was unknown by the property owners at the time, this same board member was a member and former president of the Association. ¹ The board member's motion passed, and the COA application was denied.

Following the denial of their COA application, the property owners once again redesigned their project, reducing the height of the condominiums to twenty stories. But the ARC rejected the property owners' COA application a second time on the basis that the redesign was not significantly different. The property owners then appealed the ARC's denial of their COA application to the city council. But at the meeting to address their appeal, Association members attended and again voiced their opposition. The appeal was unanimously denied by the city council.

The property owners then sought relief in the courts, and notably, during the litigation, the property owners learned that the City—while denying the property owners' application to build a 246–foot–high structure on the property—had approved other high-rise projects within the Hyde Park Historic District which were 235, 290, and 310 feet tall. The history of this litigation is protracted and complex, but it ultimately resulted in the property owners' third amended complaint. In that complaint, the property owners sought damages and attorneys' fees, in part, for violations of their equal protection rights pursuant to 42 U.S.C. section 1983. Although the circuit court dismissed the entire third amended complaint with prejudice, this appeal is limited to the dismissal of count II, dealing with the equal protection issue.

II. Analysis

We review de novo a circuit court's order on a motion to dismiss. See Holden v. Bober, 39 So.3d 396, 400 (Fla. 2d DCA 2010).

a. A claim that a party's equal protection rights have been violated during the zoning process is cognizable pursuant to section 1983.

In dismissing count II, the circuit court determined that 42 U.S.C. section 1983 does not permit a plaintiff to bring an action based on the interpretation of a zoning code. In so holding, the circuit court cited to Paedae v. Escambia County, 709 So.2d 575 (Fla. 1st DCA 1998), and Jacobi v. City of Miami, 678 So.2d 1365 (Fla. 3d DCA 1996). However, those cases dealt with substantive due process claims rather than equal protection claims and, therefore, reliance on these decisions was in error. Federal courts have acknowledged that a property owner may raise an equal protection claim based on the application of a land use regulation. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295 (11th Cir.2006); Eide v. Sarasota County, 908 F.2d 716, 722 (11th Cir.1990); Fry v. City of Hayward, 701 F.Supp. 179, 181 (N.D.Cal.1988). Federal courts also acknowledge that a plaintiff may allege that it is a “class of one,” that is, that it “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073...