Smith v. City of Clearwater

• Decision Date: 16 April 1980
• Docket Number: No. 78-1501,78-1501
• Citation: 383 So.2d 681
• Parties: Derwin B. SMITH, II, Individually, etc., et al., Appellants, v. CITY OF CLEARWATER, Florida, et al., Appellees.
• Court: Florida District Court of Appeals

Page 681

383 So.2d 681

19 A.L.R.4th 745

Derwin B. SMITH, II, Individually, etc., et al., Appellants, v. CITY OF CLEARWATER, Florida, et al., Appellees.

No. 78-1501.

District Court of Appeal of Florida, Second District.

April 16, 1980.

Rehearing Denied May 21, 1980.

Joseph P. McNulty of McNulty, Moritz & Dickey, Largo, and John T. Allen, Jr., P. A., St. Petersburg, for appellants.

Tom R. Moore, Clearwater, for appellee City of Clearwater.

Andrew J. Rodnite, Asst. County Atty., Clearwater, for appellee Pinellas County Planning Council.

GRIMES, Chief Judge.

This is an appeal from a judgment rejecting an attack by three property owners on certain amendments to the zoning ordinances of the City of Clearwater.

Appellants each own one of three contiguous parcels on a low-lying peninsula in upper Tampa Bay known as Cooper's Point. The property lies on the eastern shore of the City of Clearwater and just north of the Courtney Campbell Causeway (State Road 60). Appellants or their families have owned the three parcels for many years. Prior to the amendments at issue in this case, the city had placed all of the land in a CG zone (general business district). ¹ This classification permitted single family or multiple dwelling uses with a density restriction which limited residential development to thirty-four units per acre.

During 1973 appellants combined their resources in order to develop the three parcels under a unified plan. ² They employed an architect and planner, Robert C. Wielage, to design the project, and on December 5, 1973, he first contacted city officials to advise them of the plan he had developed. He testified that he talked with City Planning Director Paul Bergman and had several discussions with him over the next two months during which they pledged each other full cooperation in the protection of the ecology and the interest of the landowners. Mr. Wielage said that these discussions gave him no reason to believe that the city would oppose the development provided there was adequate protection for the environment.

On April 11, 1974, Mr. Wielage submitted an initial site plan to the city's planning department. Further meetings ensued between Mr. Wielage and representatives of the planning department concerning certain mangrove areas and the precise locations of the high water mark since the city's regulations required that developments be no less than thirty feet away from mangroves and begin at an elevation of not less than 1.65 feet above the mean high water mark. On June 19, 1974, Mr. Wielage tentatively submitted final plans to the city's planning department which told him that he should make application to the state for a determination that the plan was not a "development of regional impact" (DRI). Mr. Wielage acceded to the city's request and made an application to the Division of State Planning. The Division of State Planning initially determined that the proposal was a DRI and that this would require the property owners to formally comply with the provisions of Chapter 380, Florida Statutes (1973), relating to approval for such a development.

Appellants amended their proposal but the state advised them that the project continued to have DRI status. Appellants then made further changes to the proposal, and on January 9, 1975, the Division of State Planning ruled that the proposal as then constituted was not a development of regional impact.

In the meantime, the city had not processed the first applications for the development submitted on November 6, 1974, because of the position taken by the Division of State Planning. Also some of the personnel of the planning department were interested in stopping the project altogether. In fact, they encouraged the Division of State Planning to continue to declare the project to be a DRI. On December 9, 1974, the planning department recommended in writing to the city manager that the city commission downzone Cooper's Point so that all upland area except the frontage on State Road 60 would fall in an RS-200 (single family residential) zone and that all non-upland areas would be classified as aquatic land. On January 6, 1975, the city commission expressed its approval of these recommendations and directed that the appropriate officials prepare ordinances to this effect.

On April 21, 1975, the city commission adopted ordinance 1561 which made its existing "aquatic lands" zoning applicable to four new wetlands areas around the city, including approximately ninety acres of Cooper's Point or more than fifty percent of appellants' property. The aquatic lands designation essentially limited use of the property placed in that zone to recreational pursuits. Then, on May 19, 1975, the commission enacted ordinance 1566 which directly affected only appellants' property. This ordinance rezoned eight and one half acres near State Road 60 from CG to CP (Parkway Business District) which was a more restricted use than CG. ³ It also rezoned the balance of the property from CG to RS-100 which restricted use of the land to single family residences with lots of not less than 10,000 square feet. The RS-100 zone was a less restrictive classification than the RS-200 zone which the planning department had earlier recommended. However, it should be noted that while up to 4.3 units per acre were permissible under RS-100, because of the peculiar geographic configuration of Cooper's Point, not more than 2.2 units per acre were physically possible. Appellant's problems were exacerbated by the fact that the Cooper's Point area is in a "Flood Plain" so that federal regulations require all residences to have their first floor of living area not less than eleven feet above mean high water. The net effect of the two ordinances was that appellants could no longer build highrise units with parking below but could only construct a limited number of single family structures on stilts.

Appellants submit that Cooper's Point is now, for all practical purposes, undevelopable. Thus, they contend that the downzoning of their property to RS-100 was void as being capricious, arbitrary, unreasonable and confiscatory. The trial court ruled against appellants on this issue, and we find no reason to disturb its decision. There was sufficient evidence from which the court could find that the disputed ordinance did not have the effect of denying appellants the beneficial use of their property in violation of the state and federal constitutions. Cf. Estuary Properties, Inc. v. Askew, 381 So.2d 1126 (Fla.1st DCA 1979), in which the property owner lost essentially all practical use of his property. Moreover, we cannot say that the decision to subject Cooper's Point to RS-100 zoning was not "fairly debatable" within the well-established rules for amendments to zoning ordinances. See e. g. Central Bank & Trust Co. v. Board of County Commissioners, 340 So.2d 503 (Fla.3d DCA 1976); Town of North Redington Beach v. Williams, 220 So.2d 22 (Fla.2d DCA 1969). In this connection it should be observed that the land on the mainland to the west of Cooper's Point carried a residential zoning classification. The fact that Cooper's Point is so low that the flood plain and setback requirements work against the economies of residential development does not mean that the City of Clearwater cannot zone the property for residential use. As a practical matter, municipalities cannot be required to adjust their ordinary residential zoning classifications to take into account every peculiar land elevation and configuration.

Appellants also argue that the ordinance which rezoned their wetlands as aquatic lands constituted a "taking" for public use, requiring an inverse condemnation remedy. Once again we believe the record supports the trial court's conclusion. While there is no doubt that appellants will not be able to do much with their wetlands in the face of aquatic zoning, there wasn't very much they could have done with this land without such zoning. Except for a thirty foot strip above the high water mark, all of the property involved was submerged land. There were no bulkhead lines, and the record reflects that it was most unlikely that appellants would have been able to obtain permission to fill the land. Also, as the trial court pointed out, there were serious environmental considerations which justified the placing of appellants' wetlands within the aquatic lands zone.

Appellants' third point requires more elaboration. ⁴ They argue that because of the manner in which city officials dealt with them, the doctrine of equitable estoppel should prevent the city from applying the amendments to its zoning ordinance to their property. In rejecting this claim, the trial court said:

From the outset the plaintiffs have complained that the city was estopped to deny to them the development of the peninsula to which they aspire. The plaintiffs complained that the old zoning, Commercial-General, would have allowed the full development of Cooper's Point in accordance with their plans subject only to the final determination of the aquatic land boundaries. The plaintiffs also complained that throughout their official negotiations with the city they were lulled into a sense of security by the words and actions of the agents and employees of the city, who seemed to indicate acceptance of their plans subject only to a determination by the state that their plans did not constitute a "development of regional impact." The plaintiffs complained that as a direct result of the prior zoning of the peninsula and of the apparent tentative approval by the city of their proposed development, they materially changed their position, to their detriment, in reliance thereon. However, at the end of the plaintiffs' case in chief, this court granted the defendant city's motion for directed verdict with regard to the plaintiffs' allegations that the defendant should be estopped to deny to them the zoning which previously existed upon the...