Memorandums regarding Legg Mason's Application for Flexible Development Approval
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ZIMMET, UNICE & SALZMAN, P.A.
ATTORNEYS AT LAW
lEFFREYD.1ENSEN
FABIAN R. l.OKENAUTH
KEVIN M. MEKLER
HUONG T. NGUYEN
ANDREW J. SALZMAN
T.R. UNICE. JR."
ALAN S. ZIMMBT'/I
2570 CORAL LANDINGS BOULEVARD
SUlTE20I
PALM HARBoR, FLoRIDA 34684
Telephone: (721) 723-3772
Facsimile: (727) 723-1421
Spring Hill: (352) 683-5040
WEBSITE: www.zimmetunice.com
MAD.lNG ADDRESS:
P.O. BOX 15309
CLEARWATER, FL 33766
"Board Certified in City,
County and Local Government
""Board Certified Civil Trial Lawyer
# Certified Circuit Court Mediator
MEMORANDUM
Via electronic mail
TO:
Cynthia L. Remley, Esq.
Alan S. Zimmet, Es~. p
Legg Mason's Application for Flexible Development Approval
FROM:
RE:
DATE:
June 30, 2008
This memorandum will address a few legal issues raised by my review of the most recent
application submitted by Legg Mason to the City of Clearwater.
BeUeview Biltmore has no easement for the do.:ks.
Based on my review of the property records and the title searc~ Legg Mason does not have a
valid easement to use the docks which they propose to use for the benefit of the Belleview Biltmore.
In December 1978, R.C. Development granted an easement to Powell, Stevens, and the Peabody
Investment Company, which at that time owned the Belleview Biltmore Hotel, titled "Easement
created for the use of surface waters and submerged lands", which is recorded at O.R. 4804 page 1491
of the Pinellas County records.
Paragraph 1 of the Agreement states that the the Grantor in part, " hereby grants and conveys
personally unto the GRANTEES and their successors and assigns, (a) a perpetual and non-exclusive
easement over schedule "B" submerged lands". Paragraph 5 of the agreement also states that " it is the
intention of this grant of easement that the lands on Schedule "C" shall be exclusive and penonal
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unto the GRANTEE...and said easement shall not run with any land of the GRANTEE, but shall run
with the land of the GRANTOR and the easement granted unto the GRANTEE shall be personal unto
the GRANTEE." However, in 1990, Powell, Stevens and the Peabody Investment Company executed
an lIAssignment of Easementsll, attempting to transfer their personal easement interest to the Mido
Corporation. Paragraph 5 of the Assignment stated, "that the easements herein recited shall run as an
appurtenance to the real property."
In 1997, the Mido Corporation attempted to convey its easement interest by executing an
lIAssignment of Basements II to the Belleview Biltmore Resort, Ltd, which is recorded at O.R. 9672
page 995. In June 2007, the Belleview Biltmore Resort, Ltd conveyed several easements to the
BeUeview Biltmore Owner, LLC (a subsidiary ofLegg Mason) via a lISpecial Warranty Deed,
recorded at O.R. 15866 page 882. However, the Special Warranty Deed did not mention the dock
easement.
There are two types of easements discussed in the above mentioned agreements. To
determine the validity of the Mido Assignment, we :first need to explain the difference between an
"easement appurtenant" and an "easement in gross". An "easement appurtenant" is permanent,
runs with or is attached to the land and bas a dominant and servient estate. An "easement in gross"
is a personal privilege independent of ownership or possession of a separate tract of land, without a
dominant or servient estate, and does not run with the land.
Under Florida law, if the language in the easement agreement does not permit a specific act
to be done, the result will be either that the provision against transfer is ineffective or that the
easement is extinguished. In this situation, paragraphs (1) and (5) of the December 1978 Easement
clearly stated R.C. Development's intention that the easement was to be personally conveyed to
the grantees, thus creating an easement in gross. The Agreement does not contain any language
which permits the grantees to change the personal easement into a peI'J)1anent easement
appurtenant. Consequently, the 1990 Mido Corporation Assignment invalidly attempted to convert
the easement in gross to an easement appurtenant, or one that ran with the land. Therefore, the
Assignment is invalid and of no force and effect. It did not create any easement rights in Mido
Corporation. Furthermore, when Mido sold the Bellview Biltmore to the current owner, it therefore
could not have the effect of transferring the easement to the docks, since the original easement did
not run with the land. Finally, the Special Warranty Deed in favor of the present owner did
not mention the easement. Since the easement does not run with the land, the Special Warranty
Deed did not convey any easement rights to the dock. Accordingly, the present owner of the
Bellview Biltmore does not have an easement to the docks.
The proposed commercial use of the doeks.loeated on HDR zoned land. is not a leJal non-
conformine: use.
In its response to the City's inquiry to provide documentation that the existing boat slip
used to transport guests between the site and hotel was legally established, Legg Mason provided
aerial photographs and suggests that the dock was constructed sometime after 1957 and probably
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as late as 1965. It relies on the aerials to support its claim to legal non-conforming status of its
proposed commercial use of docks located on HDR zoned land.
Even if the dock was built as late as 1965, the Belleview Biltmore would not have had the
right to either build a dock or ferry guests across the property because the fIrst easement for the
property was not granted until 1978 by R.C. Development. Therefore, the earliest the Belleview
Biltmore could have had the legal right to use the property was 1978, well after the docks were
built according to Legg Mason. Accordingly, Legg Mason's claim that the docks were used legally
for commercial purposes back to 1965 is inaccurate. .
Legg Mason argues that the dock should be grandfathered-in and the City should allow the
Belleview Biltmore's continued use of the dock for commercial purposes. Since there is no permit
on fIle or evidence that the dock was permitted for commercial use when the Belleview Biltmore
began using it for commercial purposes, Legg Mason's aerial photographs do not establish that
their use of the dock is a legal non--conforming use. Even if the City agrees that Belleview
Biltmore's commercial use of the dock to transport its guests was grandfathered-in as a legal non-
conforming use, it lost that status because Belleview Biltmore has abandoned the commercial use
of the dock. Section 6-103(0) of the City's Community Development Code states that, "in the
event a nonconforming use is discontinued or abandoned for six consecutive months, then the use
shall not thereafter be re-established or resumed". The Belleview Biltmore has not used the dock
for commercial purposes for more than six months. Accordingly, the dock has lost its
grandfathered status as a commercial use and the City should not now allow the commercial use of
the dock located on property zoned HDR.
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RAHDERT, STEELE, BOLE & REYNOLDS, P.A.
ATfORNEYS AT LAW
THE ALEXANDER BUILDING
535 CENTRAL AVENUE
ST. PETERSBURG, FLORIDA 33701-3703
GEORGE K. RAHDERT
ALISON M. STEELE
BRADLEYM. BOLE
THOMAS E. REYNOLDS
LAYLA K. McDONALD
TELEPHONE:
(727) 823-4191
FACSIMILE:
(727) 823-6189
July 25,2008
ALAN S. ZIMMET, ESQ.
Zimmet, Unice & Salzman, P .A.
2570 Coral Landings Blvd., Suite 201
Palm Harbor, FL 34684
via E-MAIL ONLY:
azimmet(iiJ~immetunice. com
RE: BELLEVIEW BILTMORE HOTEL DOCK
Dear Mr. Zimmet:
As you know, this office represents Belleview Biltmore Owner, LLC, the new owner of
the Belleview Biltmore Hotel (hereinafter called the "Hotel") property, including the Cabana
Club parcel on Sand Key.
The Hotel has owned and used a dock abutting the Harbour Condominium property since
the late 1950's or early 1960's. During this time frame, the Hotel has operated a launch which
ferried guests to and from the subject dock. The guests would be dropped off at the dock, walk
to the Cabana Club Restaurant, and then walk back to the dock to be picked up for the return boat
trip to the Hotel.
The Hotel has not used this dock for approximately four (4) months or longer because it
needs repairs, including the replacement of some of the existing boards. Martin Smith, the
General Manager of the Hotel, has been ready to have these repairs completed. However, at the
request of Kenneth Protonentis (the "Commodore" ofthe "Marina"), he has delayed having this
work done.
Mr. Smith recently contacted Mr. Protonentis regarding the Hotel's desire to go forward
with the necessary repairs. During that conversation, he apparently informed Mr. Smith that the
Hotel supposedly had no right to utilize this dock. According to Mr. Smith, he was very vague
about the supposed reasons for this contention, and indicated that he should contact the Marina's
attorney. Presumably, he meant you. For that reason, I am directing this correspondence to you.
,>
ALAN S. ZIMMET, ESQ.
July 25, 2008
Page 2
RE: BELLEVIEW BILTMORE HOTEL DOCK
It is my position that the Hotel has every legal right to continue to utilize the dock. As
stated above, the Hotel has owned and used the dock for some forty (40) to fifty (50) years
without objection. In point of fact, your client has, for a substantial period of time, recognized
the Hotel's rights to the dock, and has not once objected thereto. It is only now that you have
undertaken the representation of the group that opposes the development of the Cabana Club site
that this has become an issue.
I have reviewed your "Memorandum" to Ms. Remley dated June 30, 2008, regarding the
Hotel's entitlement to use the dock. I could not more adamantly disagree with your conclusion
that the Hotel has no valid "easement" for the dock. In the first instance, your statement that the
Hotel derives its rights to the dock from the instrument recorded in O.R. Book 4804, page 1491,
of the Public Records of Pine lIas County, Florida, is totally erroneous. Accordingly, your entire
analysis is flawed.
Moreover, even assuming arguendo that the Hotel's rights in this regard are tied exclu-
sively to the above-described instrument, the result does not change. The document language
expressly authorizes the assignment of the easement granted thereby. Furthermore, such langu-
age does not restrict an assignee of the Grantee from making such easement an appurtenance to
the Cabana Club property. Since the easement in question was validly appurtenant, Belleview
Biltmore Owner, LLC acquired the rights thereto when it obtained title to the Cabana Club site.
Additionally, since Belleview Biltmore Owner, LLC and its predecessors in title have
used this dock continuously since the late 1950's or early 1960's, there is no doubt but that my
client has obtained, if nothing else, an easement by prescription. It certainly seems that everyone
concerned, including your client, has known or (given the open and obvious character ofthe dock
and the exclusive use thereof), certainly should have known, but never once until now raised a
question. Given these circumstances, it is clear that my client has a valid prescriptive easement.
You also raise the question as to whether the use of the dock constitutes a violation of
the City of Clearwater Code. It is my position that there is no such violation. The dock has
historically been and is currently provided only for the use of Hotel guests going from the Hotel
to the Cabana Club Restaurant and back. It is not rented out for other uses, and is not open to the
general public. Moreover, the Hotel guests are not required to pay for the use ofthe dock. It is
simply an amenity for the guests.
Furthermore, even assuming arguendo that the Hotel's use thereof would otherwise
constitute a Code violation, that use is grandfathered. As pointed out above, your assumption
that the entitlement to use the dock derives from the 1978 R.C. Development easement is
erroneous. In addition, even if that easement document were the sole source of entitlement, the
ALAN S. ZIMMET, ESQ.
July 25, 2008
Page 3
RE: BELLEVlEW BILTMORE HOTEL DOCK
use ofthe dock since 1978, as opposed to since 1965, does not affect the grandfathering. No
matter whether the dock has been in continuous use since 1965 or 1978, it is still grandfathered.
Finally, you contend that the Hotel's discontinuance of the use of the dock for more
than six (6) months has resulted in the loss of any grandfathered status which may have existed.
In the first instance, this is not the correct standard for determining whether grandfathered use
remains viable. Even if it were, the dock has been used within the last six (6) months. The
Hotel has not used the dock in approximately four (4) months because it has been in disrepair.
The necessary repairs were postponed at the request of Mr. Protonentis, who asked Mr. Smith to
wait until he made certain decisions regarding repairs to the entire Marina. It is now obvious that
this was nothing more than a bad faith ruse to delay the use of the dock in an attempt to cause a
forfeiture of the grandfathering. Frankly, that tactic is nothing short of unconscionable.
In any event, the Hotel intends to move forward with the repairs to the dock, and to
thereafter recommence the use thereof. Mr. Smith will immediately apply for the necessary
permits.
The use of the dock is an essential component ofthe anticipated Hotel operation.
Therefore, I am hereby making formal demand that your client cease and desist from any further
wrongful actions which impede permitting, repair, or use of the dock. I can assure you that,
should it not do so, my client will initiate the appropriate legal action to enjoin any such further
wrongful interference and to recover all damages, including attorney's fees, sustained as a result
of your client's actions.
Very truly yours,
/4,/ 7~ &, 'R~
Thomas E. Reynolds
TER/kms
xc (via e-mail): Joseph Penner
Richard Heisenbottle
Cynthia Tarapani
Amy Maguire
Martin Smith
(.
ZIMMET, UNICE & SALZMAN, P.A.
ATTORNEYS AT LAW
JEFFREY D. JENSEN
FABIAN R. LOKENAUTH
KEVIN M. MEKLER
HUONGT. NGUYEN
ANDREW J. SALZMAN
T.R. UNICE, JR.**
ALAN S. ZIMMET *#
2570 CORAL LANDINGS BOULEVARD
SUITE 201
PAIM HARBOR, FLORIDA 34684
Telephone: (727) 723-3772
Facsimile: (727) 723-1421
Spring Hill: (352) 683-5040
WEBSITE: www....juuuetunice.com
MAILING ADDRESS:
P.O. BOX 15309
CLEARWATER, FL 33766
*B oard Certified in City,
County and Local Government
**Board Certified Civil Trial Lawyer
**American Board of Trial Advocates
# Certified Circuit Court Mediator
August 8, 2008
Thomas E. Reynolds, Esquire
The Alexander Building
535 Central Avenue
St. Petersburg, FL 33701-3703
Re: Harbour Condominium Dock
Dear Mr. Reynolds:
I am in receipt of your letter dated July 25, 2008, wherein you claim that your client, the
Belleview Biltmore Owner, L.L.c., has a legal right to utilize the dock abutting the Harbour
Condominium. Your claim is unsubstantiated and serves only to exemplify the bullying tactics you
and your client have attempted to use to intimidate my clients. The threat of litigation will in no
way cause my client to bow down to your demands or change your client's ability to use the
Harbour Condominium dock. The fact of the matter is that your client does not have a legal right
to use the Harbour Condominium dock, and you have not presented one iota of credible evidence to
support your claim.
Your statement that Belleview and its predecessors have used the dock pursuant to some
legal right since the late 1950's or early 1960's is patently false. You have not presented any tangible
proof that prior to 1978 your client or its predecessors were permitted to use the dock. The only
facts in existence, the 1978 Easement Agreement (recorded at Pinellas County O.R. 4804 page
1491), clearly demonstrates that your client or its predecessors were never permitted to use the
dock before 1978. I invite you to present evidence to the contrary.
You also stated that the language of the easement agreement "does not restrict an assignee
of the Grantee from making such easement an appurtenance to the Cabana Club property." The idea
that your client or its predecessors could whimsically expand an interest in real property, in this case
an easement, is absurd. It is a basic tenet of property law that an easement in gross may be changed
into an easement appurtenant if and only if, the terms of the easement permit such a change. The
Thomas E. Reynolds, Esquire
Page 2
August 8, 2008
1978 Easement Agreement unequivocally stated that "the easement shall not run with any land of
the Grantee...and shall be personal unto the Grantee." The language in the agreement is crystal
clear-that your client's predecessors received a personal easement and could not receive an
easement appurtenant, which runs with the land. Your client and its predecessors in title cannot
arbitrarily expand their property interest in the dock simply by stating that the status of the
easement has changed.
In your letter, you claim that your client's rights to use the dock does not emanate from the
1978 Easement. However, you do not cite to any legal document that grants to your client a right
to use the dock. If such a document exists, please advise what document you rely on.
Moreover, the argument that your client has a prescriptive easement to use the dock is
outright illogical. A prescriptive easement is acquired when the use of the easement is "open,
notorious, and adverse" and for a period of twenty (20) years. Under Florida law, express
permission to use an easement is neither adverse nor hostile. Pursuant to the executed and recorded
Easement Agreements in the Pinellas County records, between 1978 and 1990, your client and its
predecessor were expressly permitted to use the dock. Accordingly, your client and its
predecessor's use of the dock were not adverse. Therefore, no valid prescriptive easement exists.
Even if your client or its predecessors in title held a prescriptive easement, the easement was
abandoned. In 1998, your client's predecessor vacated the restaurant, and the dock's use was
discontinued for nearly four (4) years. Again, between March 2006 and March 2007, the dock's
usage was abandoned while repairs were being made to the sidewalk. Later, in 2007 your client
refused to acknowledge responsibility to repair the dock and sidewalk, actions which are normally
associated with the rights to own or use a piece of property. Thus, there are three separate and
documented instances in which your client or its predecessors physically abandoned the use of the
dock. This seriously discredits your argument that the "Belleview Biltmore Owner, LLC and its
predecessors in title have used this dock continuously since the late 1950's or early as 1960's." Your
client's 2007 refusal to pay for repairs to the dock is written proof of its intent to abandon the dock
easement. In 2007, your client conveniently distanced itself from the dock and now it is claiming a
legal right to use the dock. These actions are antithetical in establishing prescriptive rights. No
matter how you twist the facts, your client does not have a prescriptive easement to use the dock.
Additionally, you totally ignore the zoning issue raised in my letter. The property where the
dock is located now is zoned residential. Your client's proposed use of the dock is commercial
use, whether you charge for use of the boat shuttle or not. The use relates to the Belleview
Biltmore Hotel, which clearly is a commercial use. Section 6-103(D) of the City of Clearwater
Community Development Code states that. "In the event a non-conforming use is discontinued or
abandoned for six consecutive months, then the use shall not thereafter be re-established or
resumed." Assuming the dock's commercial use was grandfathered-in, the grandfathered use was
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..
Thomas E. Reynolds, Esquire
Page 3
August 8, 2008
lost because your client's predecessor discontinued using the dock as early as 1998 for almost four
years, which under Clearwater's Code constitutes abandonment. In addition, we have several
credible eyewitnesses prepared to testify that your client or its predecessors discontinued use of the
dock for more than six (6) months on several other occasions.
Furthermore, your assertion that Mr. Protonentis acted in "bad faith" and "delayed" your
client repairing the dock as to cause forfeiture of the dock's grandfathered status is meritless.
Furthermore, since the use already had been abandoned, the delay of four months is of no import to
my client's position.
Despite your allegations in your letter as to how my client's alleged actions have affected
your client's intended use of the dock, your client has advised the City that the use of the dock is no
longer part of their application and your client is reconsidering the idea of a boat shuttle. Indeed,
you wrote another letter more recently threatening other clients of mine because they allegedly are
representing that your client intends to use a boat shuttle when in fact you have withdrawn that
proposal. So, which is it?
Please be advised that my client will continue to object to any repairs or actions undertaken
by your client which interferes with my client's property rights or which are inconsistent with the
City's land use regulations. Lastly, be forewarned that any litigation initiated by your client will
result in my client responding accordingly and filing a 57 -105 action for attorneys' fees against your
client and your law firm for bringing these frivolous and unsupported claims.
Govern yourself accordingly.
Very truly yours,
ZIMMET, UNICE & SALZMAN, P.A.
/s/
Alan S. Zimmet
ASZ/kjc
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