City of Hollywood v. Hollywood Beach Hotel Co.

• Decision Date: 14 September 1973
• Docket Number: No. 72--997,72--997
• Citation: 283 So.2d 867
• Parties: CITY OF HOLLYWOOD, Appellant, v. The HOLLYWOOD BEACH HOTEL COMPANY, an Ohio corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 867

283 So.2d 867

CITY OF HOLLYWOOD, Appellant, v. The HOLLYWOOD BEACH HOTEL COMPANY, an Ohio corporation, et al., Appellees.

No. 72--997.

District Court of Appeal of Florida, Fourth District.

Sept. 14, 1973.

Rehearing Denied Nov. 2, 1973.

B. L. David, City Atty., and Myron H. Burnstein, Sp. Atty., Salter, Yeslow & Burnstein, Hollywood, for appellant.

Hugh S. Glickstein, Law Offices of Judson A. Samuels, and Hugh S. Glickstein, Hollywood, for appellees.

CROSS, Judge.

Appellant-defendant, City of Hollywood, appeals a final judgment entered by the circuit court permanently enjoining the application of two municipal zoning ordinances to property owned by the appellees-plaintiffs, The Hollywood Beach Hotel Company, The Hollywood Beach Hotel Development Co., and Ben Tobin, and mandatorily ordering the city to return the building permit fee paid by the plaintiffs. We reverse.

The plaintiffs, Ben Tobin and The Hollywood Beach Hotel, owned a 105-acre plot of real property in the City of Hollywood. The property was zoned RA-5 (golf course use) except for a small 400 400-foot portion in the southwest corner of the plot which was zoned RC-12 (multiple family). In late 1968 the plaintiffs decided to redevelop their land into a 6000-unit complete community and petitioned the Hollywood Planning and Zoning Board to zone the entire portion of the land RC-12 (multiple family). The Planning and Zoning Board recommended the change of zoning to the Hollywood City Commission. In April 1969, after numerous public hearings and conferences between the city and the plaintiffs, a comprehensive site plan was agreed upon and the entire plot of land was zoned RC-12 by Hollywood City Ordinance O--69--46. The plaintiffs, in reliance, spent a substantial amount of money for a model of the project, building permits, and architect's fees.

Approximately six months after the plaintiffs' land was zoned multiple family, the Hollywood City Commission, comprised of several newly elected members who were opposed to the plaintiffs' proposal for the use of the land, petitioned the Planning and Zoning Board to rezone the entire tract of land so that one-third of the land would be zoned multiple family and two-thirds of the land would be zoned single family. This petition was denied. An appeal was then taken to the city commission sitting as the Planning and Zoning Board of Appeals. The appeal was tabled by the city commissioners. After it became apparent to the city commission that the plaintiffs could not profitably carry out their project because of the prevalent poor economic conditions, the commission sitting as the Zoning Board of Appeals placed the appeal back on the agenda and affirmed the Planning and Zoning Board's decision to maintain the RC-12 zoning classification on the plaintiffs' land. The plaintiffs were then informed that they must commence construction on the property within ninety (90) days or forfeit their building permit and fee. Electing not to proceed with construction, the plaintiffs in March 1971 surrendered their permit and requested a refund of the building permit fee. The refund was denied.

Thereafter, in March 1972 the city commission approved a density ordinance, Hollywood City Ordinance O--72--26, which would limit the plaintiffs to approximately 2500 units on their property. In June 1972 the city commission approved a plan rezoning all of the plaintiffs' property, except the small plot originally zoned RC-12, as low-rise multiple family dwellings and single family dwellings, Hollywood City Ordinance O--72--124.

Prior to adoption of ordinances O--72--26 and O--72--124, plaintiffs had filed suit in early 1970 to enjoin the City of Hollywood from rezoning plaintiffs' land one-third multiple family dwelling and two-thirds single family as proposed by the newly elected city commission. Legal maneuvering and scrimmaging began to take place. In January 1972 plaintiffs amended their complaint, ¹ thereby seeking to enjoin the city from further applying a proposed density ordinance that was under consideration by the city that would establish a maximum of approximately 2500 units on plaintiffs' land. The amended complaint also continued to seek to enjoin the city from rezoning plaintiffs' land one-third multiple family dwelling and two-thirds single family, and concluded by demanding a return of the permit fees paid by the plaintiffs to the city.

The cause finally came on for trial, and at conclusion thereof a permanent injunction was entered in favor of the plaintiffs and against the city enjoining the city from applying its rezoning ordinance O--72--124 and density ordinance O--72--26 to the plaintiffs' property, and also ordered and directed a return of the permit fees. This appeal then followed.

The city contends that the trial court erred in its determination that the city was equitably estopped from rezoning plaintiffs' land to low-rise multiple family dwelling and single family dwelling by ordinance O--72--124 and from applying the density ordinance O--72--26 to the plaintiffs' land on the theory plaintiffs had obtained a building permit, spent a substantial amount of money for architect's fees, prepared displays and models of the proposed community at great cost, in reliance on ordinance O--69--46.

The doctrine of equitable estoppel is applicable to a local government exercising its zoning power when a property owner (1) in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right he acquired. Sakolsky v. City of Coral Gables, 151 So.2d 433 (Fla.1963).

The mere possession of a building permit does not create a vested property right and a permit may be revoked where the zoning law has been amended subsequent to the issuance of the permit. City of Boynton Beach v. Carroll, 272 So.2d 171 (Fla.App.1973). Only where the landowner possesses a building permit and where the circumstances that give rise to the doctrine of equitable estoppel are present (i.e., the landowner has in good faith made some substantial change in position or incurred extensive obligations in reliance of the zoning law) does the landowner have a vested property right and the permit may not be revoked by a change of zoning. Edelstein v. Dade County, 171 So.2d 611 (Fla.App.1965). In most cases the equitable estoppel doctrine has been applied to limit the municipality's power to revoke a building permit by a change of zoning when the landowner has actually begun physical construction on the property in reliance of the zoning law. See Texas Co. v. Town of Miami Springs, 44 So.2d 808 (Fla.1960); Hough v. Amato, 212 So.2d 662 (Fla.App.1968). ...