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Memorandums regarding Legg Mason's Application for Flexible Development Approval C- Df!J m e:rt'1 q II ~ /O! /~fLD ~Og ->-0:200 ~ fwm h fl8-oItY}fl/1t.S to 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 001l3099.WPD 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 OOl13099.WPD 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. OOl13099.WPD 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 {00114677.DOC}00114677.DOC .. 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 {OOl14677.DOC}00114677.DOC