TOWN OF LAUDERDALE-BY-THE-SEA v. Meretsky

• Decision Date: 13 December 2000
• Docket Number: No. 4D99-4194.,4D99-4194.
• Citation: 773 So.2d 1245
• Parties: TOWN OF LAUDERDALE-BY-THE-SEA, Florida, a Florida municipal corporation, Appellant, v. Warren MERETSKY and Anne Meretsky, his wife, Appellees.
• Court: Florida District Court of Appeals

773 So.2d 1245

TOWN OF LAUDERDALE-BY-THE-SEA, Florida, a Florida municipal corporation, Appellant, v. Warren MERETSKY and Anne Meretsky, his wife, Appellees.

No. 4D99-4194.

District Court of Appeal of Florida, Fourth District.

December 13, 2000.

Rehearing Denied January 17, 2001.

James A. Cherof, Town Attorney, and Michael D. Cirullo, Jr., Assistant Town Attorney, of Josias, Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for appellant.

Robert A. Eisen of Law Office of Robert A. Eisen, Boca Raton, for appellees.

HAZOURI, J.

This is an appeal from a final summary judgment rendered by the trial court holding that the appellant, Town of Lauderdale-by-the-Sea (Town), did not abandon, vacate or otherwise convey any portion of a public right-of-way to the appellees, Warren and Anne Meretsky, but also holding that the Town granted the Meretskys a "permissive use" of a portion of the Town's public right-of-way. The Town also appeals from the denial of its motion for summary judgment on its counterclaim. We affirm in part and reverse in part.

The Meretskys own their residence at 4560 Tradewinds Avenue in the Town. It is on a corner lot and the cross street along the side of their house is Lombardy Avenue. Prior to February 1998, Anne Meretsky consulted with Town Code Officer Daniel Stallone regarding how the Town's zoning regulations would affect the placement of a swimming pool and wall enclosure they wished to build. Based upon these consultations, Anne Meretsky filed an Application for Zoning Variance which was reviewed by Stallone and corrected by him. The application requested permission "[t]o construct an enclosure around a pool on the south side of property 35 feet into south side set back [sic] and 10 feet into front set back [sic] west side."¹ In the application, the Meretskys only make reference to wanting to reduce the setback requirement so that they can build the wall and leave some room around the pool. There is no mention in the application that the Meretskys want to intrude into the public right-of-way; however, the survey map of the property attached to the application shows that the requested wall enclosure on the south side of the lot encroaches 10 feet into the Lombardy Avenue right-of-way.

Anne Meretsky submitted the application. On February 17, 1998, the Town Board of Adjustment held a hearing on the application and recommended denying the variance. On February 24, 1998, the Town Commission considered the Meretsky's application. The records of that meeting indicate that the discussion was limited to setbacks and not rights-of-ways. The Town Commission approved the variance request. The Meretskys contend that the Town Commission understood that the wall would be constructed outside of the property line of the residence and on the Lombardy Avenue swale. A building permit was issued to the Meretskys for the wall's construction and it was built on the grassy swale on the Town's right-of-way five feet from the pavement on Lombardy Avenue. As constructed, it presented a sight hazard at the intersection of Lombardy and Tradewind Avenues.

On September 9, 1998, the Town Commission directed the Town administration to take action to prevent further construction of the wall. The Town Municipal Services Director hand delivered a cease and desist order to the Meretsky's residence ordering work to stop on the wall immediately. At that point, all the cement block portions of the wall had been completed. Despite the issuance of the cease and desist order, the wall was completed. The Meretskys' amended complaint sought a declaratory judgment finding their building permit valid and that the portion of Lombardy Avenue inside their wall was vacated and abandoned by the Town to the Meretskys. The Town answered the Meretskys' amended complaint and included a number of affirmative defenses and a counterclaim seeking injunctive relief and declaratory relief in order to have the wall removed from the Town's right-of-way.

The Town filed a motion for summary judgment as to Meretskys' amended complaint and the Town's counterclaim. At the summary judgment hearing, the Meretskys admitted that the property was not vacated or abandoned; however, in an affidavit Anne Meretsky stated that she relied on the variance and the building permit to build the pool and wall. She further stated that she would not have built the pool if she was not permitted to build the wall ten feet from the edge of the pool. She and her husband spent $39,662.80 on the wall and $74,662.80 on the entire project.

At the summary judgment hearing, the trial judge determined that the Town had granted the Meretskys a "permissive use" of the property. The amended final summary judgment states that there was no genuine issue of material fact. The trial court denied the Town's motion for summary judgment on its counterclaim, but granted final summary judgment on the amended complaint to the extent that it found that the Town did not abandon or vacate the right-of-way or grant a fee interest to the Meretskys. The trial court then concluded:

4. A request for Summary Judgment permits the Court to grant Summary Judgment to either party should the facts and law so dictate.² Accordingly, Summary Judgment is granted to Meretsky on Meretsky's Amended Complaint to the extent only that Meretsky is granted a permissive use of the Lombardy Avenue Right-of-way upon which the Wall sits and which is enclosed by the Wall. The Town, by virtue of the granting of the variance and the subsequent granting of building permits, did in fact grant to Meretsky a permissive use of that portion of the Lombardy Avenue Right-of-way upon which the Wall was constructed and which is enclosed by the Wall.

The Town argues that the Town Commission was without authority to grant the Meretsky's application to build the wall on the public right-of-way as its construction violates the Town's Code of Ordinances and state law. The Town also disagrees with the trial court's finding that the permission to build, i.e., the variance granted, is equivalent to an ordinance. The Meretskys respond that the Town Commission did have the authority to grant a permissive use of the grassy swale within its right-of-way and the town code does not prohibit the granting of it.

"[T]he general rule [is] that a `building permit issued in violation of law or under mistake of fact' may be rescinded although construction may have been commenced." Godson v. Town of Surfside, 150 Fla. 614, 8 So.2d 497, 498 (1942). The issuance of a building permit will not estop the government authority from enforcing its ordinances and revoking a permit which has been obtained in violation of its ordinance. See Corona Properties of Florida, Inc. v. Monroe County, 485 So.2d 1314 (Fla. 3d DCA 1986); Dade County v. Gayer, 388 So.2d 1292 (Fla. 3d DCA 1980). The Town asserts that Gayer is dispositive. We agree. The Gayers began to construct a coral rock wall around their home without a building permit from the Dade County Building and Zoning Department. Someone made a complaint and the Gayers then applied for a permit to build a wall containing a setback of ten feet inside the property line and the sketch submitted confirmed this. A permit was issued but when construction resumed, the wall was erected into the public right-of-way. Construction was halted due to the violation.

The Gayers then applied to the Zoning Appeals Board for a "non-use variance of zoning regulations, set-back requirements and variance of subdivision regulations with requirements that no structures shall be permitted in a mapped street." The Zoning Board approved the application but required a flashing light be put...