Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
SAND KEY 1978-1980 SANDY KEY ISLE OF SAND KEY I APPEAL CITY OF CLEARWATER, US STEEL CORP SUMMARY JUDGMENT CITY OF CLEARWATER VS. US STEEL CORP
Sa ~~~ 1978-1980 Sandy Key Isle of Sand Key I Appeal City of Clearwater, US Steel Corp Summary Judgment City of Clearwater VS. US STEEL CORD Agenda No. h ~ MEMORANDUM TO : Meeting Dated-16-7A The City Commission of the City of Clearwater SUBJECT: C01`~Il~ItTNITY IMPACT STATEMENT RECOMMENDATION: Accept a report of the Resource Development Committee recommending approval of the CIS for Sand Key Shoppes (U,S.Steel)-only as such statement and report apply to Phase I of the proposed project. D And that the appropriate officials be authorized to execute same. BACKGROUND: Section 34.01 (3) of Appendix A, Zoning of the Code of Ordinances required submission of a position report by the Resource Development Committee relating to the preparation of Community Impact Statements (CIS). The above referenced matter was considered by the Resource Development Committee on October 10, 1977 as one of three items on that agenda. The recommendation of the Committee was to approve the Comm~ity Impact Statement submitted by U.S.Steel for its proposed commercial development to be known as Sand Key Shoppes. This report was inadvertently delayed in its submission to the Commission. In light of the discussion at the Committee meeting and the subsequent rezoning of a portion of the property in question, it is recommended the Commission recognize its previous action directing, the rezoning of Sand Y.ey and accept the report of the Committee with respect to Phase I, exclusively,of the project as set forth in the Community Impact .Statement. Commission Disposition: Follow-up Action: Submitted by: Advertised: DAffected Costs: DAttachments: o t,~, °'~ ~ Date: Parties Funding Source: ~ ~;~~~~~ Notified O Capital Improve- City Manager Pover: of Meeting ment Budget ting Budget ONot Required DNot Required 0 Other 1 ; ~~~~~'~ ~`~ artment: De i inatin O p g g r Oate aSequential Administration APPropriatio.n Code Reference ID None ~~~~~~ V(~.a~-eQ lei e~.~ 6a>-~A-e.~-,.~ ~--- ~,wv~~~-~ u 9=wX~ ~ S~ e-o-~-•_ • ' _ - - I` ~. -_ - ~~ '~. ~- ~, ~ ~~ _ _, r ~ _ - - -_ ~' ~- 7/ - ~ ~~ ~ ~~~~-~ --- __ -~ -.- - ~ -~ _. S - ~'~~ _ _ _ _ _ _._ _~; _ _ ~. { __ _. ,. ......_. .5~ ... ... _.__ .. _. _. .. _._.___..__..._... _-... ___ ..-.. _.._ _.~ Ii ~~ ~i - - i ;Y .~.. TO: FROM: COPIES: SUBJECT: DATE: • City Manager Anthony L. Shoemaker ~!. D. Renando, Planning Director Attached Memorandum re Sand Key April 4, 197$ C~Y OF CLEARWATER Interdepartment Correspondence Sheet I respectfully request that you forward the attacked iaformation re Sand Key to the members of the City Commission. WDR:bd Attachment ___. _ i _~ ~ -n, ~}~~;~ yi /~~~ J•3 too ~ M•TCM ~tNE __,. ____ _ _., 0 !~3 / CG O V }c ORD. 16~- 4•~5 v_ O r' V /=~ ~~ ' J -~ m ~'''`~ f ;1 . J C7 I Pr1~ 5 E ~~ N~o \ ~c,~. ~,0 ~F~ \g,~a AL ~~ P~' PAP L~ • 0f4 O~ ~N ~O -- ~e' i ~" ~~ •~ i~ i OF CIEARWATER interdepartment Correspondence Sheet To: Thomas :A. Bustin, City Attorney FROM: David P. Healey, Planning Director copiES: Lucille Williams, City Clerk suB~ECT: ®rdinance 1749 DATE: December 7, 1978 Ordinance 1749 which was adopted on April 6, 197$, should be amended to reflect the corrected legal descriptions as~ noted on the attached maps and{p/ag/e 3 of he ordinance. / / The properties were advertised correctly and the public hearings were in order. However, the ordinance in the noted two areas does not reflect the action taken by the City Commission at its meeting of November 3, 1977. Trunk you for your assistance in this matter. DPH/GL/cc Attachments. Ord. 1749 3 Map s ~ • ORDINANCE NO. 1749 AN ORDINANCE AMENDING THE ZONING ATLAS OF THE CITY OF CLEARWATER, FLORIDA, 1978, AS AMENDED, BY RECLASSIFYING AND ZONING CERTAIN PROPERTY AS DESCRIBED HEREIN; PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH TO THE EXTENT OF SUCH CONFLICT; PRO- VIDING FOR THE SEPARABILITY OF THE PROVISIONS HEREOF; PROVIDING PENALTIES FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR PROPER NOTICE OF PROPOSED ENACTMENT; AND PROVIDING FOR THE EFFECTIVE DATE OF THIS ORDINANCE. WHEREAS, on November 3, 1977; November 17, 1977; December 1, 1977; and December 15, 1977, the City Commission of the City of Clearwater, after proper public notices, held public hearings on certain proposed changes to the zoning atlas of the City of Clearwater in accordance with procedure as established; and WHEREAS, certain of the proposed changes and amendments to the zoning atlas were approved by the City Commission after its evaluation of all evidence presented at the said public hearings; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF CLEARWATER, FLORIDA: Section 1. That for the following reasons related to safety and welfare, it is hereby declared to be necessary to exercise the police power possessed by the City of Clearwater, and the property set forth in Section 2 of this Ordinance by reason of these factors should be rezoned: 1. That Chapter 163 of the Florida Statutes requires that zoning be used as a means of implementing a comprehensive plan; that both the plan and zoning on the land be consistent with each other; and that such zoning is required in furtherance of the implementation of such plan. , 2. That the City' of Clearwater finds that Sand Key because of its geographic configuration has only two entrance and exit points; the Nortlh entrance and exit point located at the Clearwater Pass Bridge is presently congested and that the establishment of a large County park adjacent to the Bridge will add to the congestion in the area; and that further expansion of commlercial uses in this area would create a potential safety hazard, -1- d • 3. That essential urban services to the residents of Sand Key are being provided by the City of Clearwater including police, fire, sewer and water, and that congestion in the area creates a potential threat to the delivery of such services, and in particular any service of an emergency character. 4. 'I'o promote and continue the existing residential character and quality of life already established on Sand Key. 5. To protect the property values. of those areas not properly zoned for their actual and intended uses. 6. To provide for essential commercial services to the residents of Sand Key in a manner consistent with proper consideration being given to all potential traffic safety probierns created by overcrowding. 7. To protect Sand Key and surrounding areas from over utilization of the limited land area, 8. That the area of Sand Key and Clearwater Beach constitutes a major asset to the citizens of the City of Clearwater and in such character is an economic mainstay of the community and as such must be protected from overcrowding and over utilization which if permitted to occur would result in erosion to the economic base of the community. 9. That the City of Clearwater has adopted a conservation management plan in accordance with the requirements of Chapter 163, Florida Statutes; that this plan among other parts calls for the protection of Sand .Key and its environmentally significant areas in accordance with the management practices outlined in such plan and that raid plan was adopted by the City of Clearwater on April 21, 1977, pursuant to Ordinance No. 1661. Section 2. The following described property in Clearwater, Florida, is hereby classified and zoned as hereinafter indicated, and "The Zoning Atlas of the City of Clearwater, Florida of 1978", as amended, is amended to indicate that fact as hereinafter set out: -2- • ~ ~ N~ G~ 5~J ~~ ~ ~ ti ~ ~ ~` ~~ ,~ a ~~~~~ Zoned as CTF-28 -High Density Commercial-Tourist Facilities Use District Begin at the SW corner of Section 17, Township 29 South, Range 15 East, run N 89 ° 10' 31" E, 843.48 ~~ feet to a point on the centerline of Gulf Boulevard; thence S 42 ° 13' 31" W, 26 3.93 feet to the P. O. B. ; thence N 47 °4b' 29" W, 590. 00 feet to the mean high water line; return to P. O. B. and proceed N 42 ° 13' 31" E, 1, 150.08 feet; thence N 47°4b'29" W, 944. 00 feet to the mean high water line; thence southerly along said mean high water line to a point that intersects a line running from the P. O. B. N 47°46'29" W, 590. 00 feet. r Zoned as RM-28 -High Density Multi-Famil~r Use District ~r~ Begin at the NW corner of Section 20, Township 29 South, ~'~ ~ ~ Range 15 East, run N 89 ° 10' 31" E, 843.48 feet to a ~, ~' ~; ~~~~ point on the centerline of Gulf Boulevard; thence S 42 ° 13' l ~~' ~~ 31" W, 2b 3.93 feet to the P. O, B. ; thence N 47 °4b'29" W, ~" 590.00 feet to the mean high water line; return to P. O. B. and proceed S 42 ° 13' 31" W, 1, 070, 2? feet; thence by a curve to the left, arc 971.05 feet, chord S 32 ° 32' OS" W, ~~ ~psp,,~ 966.41 feet; thence S 22 ° 50! 39" W„ 435. 12 feet; thence q5 oc~,,~a sty N 67 ° 12' 17" W, 3L5. 13 f eet to the mean high water line; ~ (~ ~~~~ ~,,, ~~`'`' thence northerly along said mean high water line to a point ~,~~'' that intersects a line running from the P. O. B. N 47°4b' ~~ ~~~ ~ 29" W, 590.00 feet. ,•• C ~ ,.~ Zoned as RM-28 -High Density Multi-Family Use District Begin at the SE corner of Section 19, Township 29 South, Range 15 East, run N 89°04'07" W, 2, 293.45 feet to a point on the centerline of Gulf Boulevard; thence N 31 °58' 20" E, 553.24 feet for a P. O. B. ; thence N 89 °04' 07" W, 328. 36 feet to the mean high water line; return to P. O. B. ; thence N 31°58'20" E, 273.71 feet; then by a curve to the ' (,~`~\ng' left, radius 1, 909. 86 feet, arc .304.28 feet, chord N 27 °24' ~`"~ ~~ 29" E, 303.95 feet; thence N 22 °50' 39" E, 1, 843. b6 feet; ~'~ thence N 67 ° 11' 55" W, 398. 7 i feet to the mean high water Sr~~`'~ 54'~~. line; thence Southerly along said mean high water line to a v 5~ ,~~point that intersects a line running from the P. O. B. Q _ ~~~ ` ~° N 89 ° 04' 07" W, 328.36 feet. ~'~y~ a~, ~. P Zoned as RM-28 -High Density Multi-Family Use District G~ Begin at the SE corner of Section 19, Township 29 South, ~~. <~~ ~" ~~~ ~ ~v v r' , s Range 15 East, run N 89°04'07" W, 2, 293. 45 feet to a point on the centerline of Gulf Boulevard; thence S 31 ° 58' 16" W, 116.71 feet to the P. O. B. ; thence S 89 ° 04' 07" E, 87. 54 feet; thence S 31°58'20" W, 134, 22 feet; thence S 89°04'07" E, 71. 11 feet; thence N 31°58'20" E, 108. 17 feet; thence by a ~ V ~ curve to the right, radius 35.00 feet, arc 45. 05 feet, chord P ~e M` ~ 1 w N 58°21'51" E, 42.00 feet; thence S 89°03'lI" E, 1, 055.9? feet; J~~ `~ ~ (_ ~c' ~ thence by a curve to the right, radius 170. 00 feet, arc' 346.92 feet, chord S 30 36 22 E, 289.78 feet; thence S 27 51 22 W, QO 658. 35 feet; thence by a curve to the right, radius 145. 00 feet, ~ arc 455. 53-feet, chord N 62 °08' 38" W, 290. 00 feet; thence N 27 ° 51' 22" E, 381.35 feet; thence by .a curve to ''~e left,. radius 50. 00 feet, arc 102. 03 feet, chord N 30 °36'4I" W, 85. 23 feet; thence N 89°04'07" W, 112. 15 feet; thence by a curve to the left, -3- ~ • ~~ ~~ \' .~ \Q ^~ ~ ~ ~ ~- b" ~~ b ~ ~~ N ~' ~~~ ~ N~ radius 50. 00 feet, arc 55. 05 feet, chord S 59 °23' 3?" W, 52.31 feet; thence S 27°51'22" W, 532.53 feet; thence by a curve to the right, radius 220.00 feet, arc 242. 19 feet, chord S 59°23'37" W, 230. 14 feet; thence N 89°04'07" W, 407.73 feet; thence by a curve to the right, radius 145. 00 feet, arc 455. 53 feet, chord. N 62 °08' 38" W, 290.. 00 feet; thence 5 89 °04' 07" E, 334. ,08 feet; thence by a curve to the left, radius 50, 00 feet, arc 55. 05 feet, chord N 59 °23' 37" E, 52. 31 feet; thence N 27°51'21" E, 260. 82 feet; thence by a curve to the left, radius 50. 00 feet, arc 102. 04 feet, chord N 30 ° 14' 33" W, 85.23 feet; thence N 89 ° 04' 07" W, 364.28 feet; thence by a curve to the right, radius 35, 00 feet, arc 71.64 feet, chord N 32 °25' 56" W, 59. 77 feet; thence N 32 °37' 31" E, 76. 15 feet; thence N 89°04'07" W, 7I. 11 feet; thence S 31 ° 58'20" W, 134.22 feet; thence N 89°04'07" W, 87.54 feet; thence N 31°58'20" E, 338.47 feet to P. O. B. Zoned as RM-28 -High Density Multi-Family Use District Begin at the SE corner of Section I9, Township 29 South, Range 15 East, run N 89°04'07" W, 2, 293. 45 feet to a 1, point on the centerline of Gulf Boulevard for a P. O. B. ; ~~ thence N 31°58'20" E, 553.24 feet; thence S 89°04'07" E, 293. OS feet; thence S 31°58'20" W, 247.44 feet; thence S 89 ° 04' 07" E, 110.7 3 feet; thence S 31 ° 58' 20" W, 5 8. 36 feet; thence N 89°04'07" W, 110.78 feet; thence S 31°57'44" W, 247. 4I feet; thence N 89°04'07" W, 293. 05 feet to P. O. B. Zoned as RM-lb -Medium Density Multi-Family Use District Begin at the SE corner of Section I9, Township 29 South, Range 15 East, run N 89 ° 04' 07" W, 2, 293. 45 feet to a point on the centerline of Gulf Boulevard; thence N 31°58'20" E, 553. 24 feet to a P.O. B.; thence S $9°04'07" E, 293.05 feet to the mean high water line; return to P. O. B. ; thence N 31°58'20" E, 273.71 feet; thence by a curve to the left, radius 1, 909. 86 feet, arc 304. 28 feet, chord N 27°24'29" E, 303.95 feet; thence N 22 °50' 39" E, 2, 12I. 08 feet; thence S b7°09'21" E, 250.00 feet to the mean high water line; thence southerly along said mean high water line to a point that inter- sects aline running from the P. O. B. S 89 ° 04' 07" E, 293. OS feet. Zoned as RM-16 -Medium Density Multi-Family Use District Begin at the NW corner of Section 20, Township 29 South, ,cy' Range 15 East, run N 89 ° 10' 31" E, 843.48 feet to a point gJ on the centerline of Gulf Boulevard; thence N 42 ° 13' 3I" E, ~~,,GP, ~ 469.48 feet for a P. O. B. ; thence S 47°46'29" E, 245.18 feet ~ .to the mean high water line; return to P. O. B. ; thence S 42 ° ~J ~ ~ 13' 31" W, 1, 803.68 feet; thence by a curve to the left, radius ~~ s ~ 2, 864..79 feet, arc 958.72 feet, chord S 32°39'29" W, 954. 26 '~~ ~ ~ feet; thence S 66°56'44" E, 245. 07 feet to the mean high water \`~ /~ ~ line; thence northerly along said mean high water line to a point that intersects a line running from the P. O. B. S 47°46'29" E, 245. 18 feet. -4- `~ . : Y Section 3, All ordinances or parts of ordinances in conflict herewith are to the extent of such conflict hereby repaied. Section 4. Should any part or provision of this ordinance be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of the ordinance as a whole, or any part thereof other than the part declared to be invalid. Section 5. Any person, or persons, firm or corporation or association of persons, who shall violate or fail to comply with any of the terms or provisions of this ordinance shall, upon conviction, be fined not exceeding the. sum of Five Hundred Dollars ($500.00), or imprisonment in Jail for not exceeding sixty (b0) days or by both such fine and imprisonment in the discretion of the Judge. Each day that a violation is permitted to exist shall constitute a separate offense. Section 6. Notice of the proposed enactment of this ordinance has been properly advertised. in a newspaper of general circulation in accordance with Chapter 166.041, Florida Statutes. Section 7. The Planning Director is directed to include and set out and show upon the official zoning atlas. of the City of Clearwater the foregoing amendments as hereinabove set out. Section 8. The provisions of this ordinance shall take effect immediately upon its passage. PASSED ON FIRST READING PASSED ON SECOND AND FINAL READING AND ADOPTED March 16. 1978 April b, 1978 /s / Karleen F. DeBlaker Vice Mayor-Commissioner Attest; /s/ Lucille Williams Deputy City Clerk -5- r. ,~. ~- IN TIIE CIRCUIT COURT FOR PIir'ELLAS COUNTY, FLORIDA CIR. CIV, '~'0. 78-4765-7 UNITED STATES STEEL CORPORATIOi1 ) -~------ --_..~ , ~M_...__ _~ __. Plaintiff, ) ) -vs- ) CITY OF CLEARiYATER, a Diunicipal ) corporation, ) Defendant . ) SU`,ItiIARY JUDGMENT United States Steel Corporation, plaintiff, and City of Clearwater, defendan t, have each filed motions for summary judgment in this act ion. Pla intiff and de fendant in their respective mot ions aver that there are no disputed i ssues of material facts. The Court agrees. FACTS Sand Key is one of the island chains lying on the ~,aest side of Clearwater Bay. United States Steel owns a substantial part o'f the island. The island is now .within the city limits of the City of Clearwater, and subject to the zoning authority of the City. United States Steel Corporation purchased Sand Key from the estate of the late Ed C. SYright . The Special Act fixing the city limits of the City of Clear- ~ water included Sand Key within the city limits. in 1957 Sand Kev was in a wild state and u::developed. It was sepaj•ated fro:r. the re=t cf the City by water and could be reached only by boat. In the 19~0's dlr. Stiright, as owner, brought an Action of Ouster against the Citv and in 1957 a Decree of Ouster was entered by the Circuit Court oust- ing Sand Key from the city limits of the City of Clear~xater. ' , U.S. STEEL vs. CITY OF CLEAR~VATER CIR.CIV. h'0. 78-4765 -2 - In 1961 the City and llr. iVright, perceiving a mutual ad- vantage, contracted to have Sand Key annexed into the City. The contract of annexation provided inter alias That htr. Wright as owner would (a) Deed to the City right-of-way for access roads to a bridge between the north end of Sand Key and south end of Clearwater Beach; (b) Obtain from the State and deed to the City a substantial tract of submerged lands necessary for the bridge construction; (c) Underwrite and guarantee cost over-runs in the constructio of the bridge . (d) Convey to the City by deed a tract of land for the con- struction of a sewer plant and appurtenant facilities; (e) Consent to annexation; The City in consideration of 4Ir. .'.right's commit,~.ents bcunC itself to (a) Construct a bridge from Clearwater Beach to Sand Key and issue L-onds for the cost of same; (b) That the lands on Sand Key would be zoned 'TB" business, and that l~ir. Wright might develop the property under this zoning classification. Pursuant to the contract the City annexed Sand Key, issued its revenue bonds and constructed the bridge. In the bond validation to~finance the bridge the City committed itself to the contract between it and \ir. Wright and urged that a factor justifying vali- dation of the bridge bonds was the advantage accruing to the Cit3- under the Wright contract. ',ir . Wright in accordance with the contract posted a bond for annexation including his commitment to underwrite the cost ever-r of the bridge and obtain at his expense and deed to the City the nece~l ' S r ' - ~. UNITED STA ~ ~ - TES STEx,L vs . CITY OF CL•E~,R~YATER CIR.CIV. NO. 78-765 _. ~ ._ -., - submerged lands over which the bridge could be constructed. lir. SVri h g alsp deeded to the City right-of-way for access roads to the bridge ,tiir. Wright died and plaintiff, United States Steel Corporation, purchased from 1Ir. ~Vright's estate his interest in the land on Sand Key, subject to the contract with the City of Clearwater. Subsequent to plaintiff, United States Steel Corporation, purchasing the Wright interest, the City called upon plaintiff, United States Steel, to convey to the -City the tract of land for the con- struction of the sewer plant . In accordance with the contract Uni ted States Steel did deed to the City the land. United States Ste e 1 com menced develo me p nt of the land on Sand Key and from time to time conferred with the City concerning this development . The City recognizing the benefits which would accrue to it ~, and the citizens of the community wanted a portion of Sand Key set aside for public pur oses . P Pursuant to the request of the City plaintiff, United States Steel, deeded to the City some sixty acres of land for use as a public beach and other public purposes. The conveyance was for consideration grossly below market value . The origina 1 Wright -City of Clearwater contract reached a point in its execution where all the obligations i of 1Ir. Wright had been discharged ~~ the City had obtained all the i fruits of the contract to which it was entitled. ~ Plaintiff as successor to 1~Ir. Wright continued submitting to the City development plans for the land it still owned on Sand Key with the apparent encouragement and acquiesence of the responsible officers and agents of the City. In 19?7 the Planning Department of the City of Clear cater initiated procedures to rezone the Sand Key lands owned by plaintiff from commercial, or business, to residential. This zoning was accomplished. CIR.CIV. NO. 78-4765 -4 - The effect of the rezoning is to reduce the market value of plaintiff's land by several millions of dollars. This action was bro~ by plaintiff, United States Steel Corporation, seeking relief from the rezoning mentioned above. ISSUES (1) Is the City of Clearwater bound by the contract of annexation to permitting business or commercial development of Sand Key? (2) Does United States Steel Corporation have standing to enforce the Wright-City of Clearwater contract? (3) Is the City equitably estopped from enforcing the lower zoning classification by its affirmative acts or omissions which plaintiff relied upon in its planned development of Sand Key? CONCLUSIONS AND RULINGS ON CONTRACT ISSL~S The City urges that plaintiff in acquiring the Wright lands did not acquire any rights under the contract between the City and lir. Wright. This Court disagrees. The City throughout its dealings with plaintiff has recognized and affirmed that plaintiff was the successor to 111r. Wright and o~~~nerst~ of-the land and obligations of b~ir. Wright under the contract. The City insisted upon contractural rights when it obtained from plaintiff the land for the sewer facility. The Court does not deem it necessary to decide whether or not the contract was a cove^ant~ running with the land as urged by plaintiff, but is satisfied that the City cannot legally nor equitably be heard to take its credit but leave its debts under the contract . Turning now to the question of whether or not the City was bound by its commitment of zoning granted under the contract with ;.lr. ~9right. • CIR.CIV. ~'0. 78-4765 -5- The City has argued vigorously that a municipality cannot contract away its police powers as they pertain to the right to rezone lands. The weight of judicial authority is to the contrary. EASTERN SHORES SALES CO. v. CITY OF NORTH 1~IIA1rlI BEACH, 363 So.2nd 321 (F1a.197~ I4IAYOR AND CITY COUNCIL OF BALTIMORE et al v. CRANE, 352 A.2nd 786, FUNGEE vs. MAYOR OF S01~IERSETT, 239 A.2nd 748, iti'ARD vs. CITY OF NEtiY ROCHELLE, 197 N.Y.S.2nd 64, NILLIAIISPORT vs. ~9ASHINGTON COUNTY SANI- TARY DISTRICT, 231 A .2nd 40. hir. ~9right and plaintiff as his successor acquired contractural rights under the annexation contract. These rights vested when the owners fulfilled all their obligations under the contract, that is to when they agreed/annexation, deeded submerged lands for the bridge, conveyed right-of-way for access roads, underwrote the cost over-rides of the bridge, and conve;~ed to the City the lands for the construction of the sewer plant. It .is not necessary to decide whether or not these rights were acquired in perpetuaty insofar as zoning was concerned for they un- doubtedly acquired them for a period limited only by its reasonableness. Considering the nature of the development of Sand Key, the time involvec is not unreasonable. The City in contracting for the annexation and development of Sand Key obtained an advantageous bargain for its citizens. The City's act was for the benefit and general good of the public. The bargain having been struck, it is binding upon the City. If a City or County demands from an owner-developer substantial consideration and advantages flowing to the City or County from the developer in exchange for which zoning classifications are agreed to, this is legally permissible. Gcod conscience, public morality, and the • _ CIR.CIl%. N0. 78-47.6 . -6 - rules of fair play mandate that the respective parties to the agreement be bound . patently, if the controversy under consideration was between private citizens, there could be no doubt but that plaintiff would be entitled to enforce the contract. The consideration which the City granted in exchange for the Wright commitments are just as real and substantial as monetary consideration would be. This Court per- t eives no legal, logical, or moral reason why government should. be held to a lesser standard of probity and good faith than the citizens it governs. In consideration of the foregoing it is the finding of the Court that the City of Clearwater is bound to permit development of the lands owned by plaintiff on Sand Key in accordance with the re- quirements of that zoning classified as "B" business as ~it was pro- v ided for at the time of the annexation contract in 1961. EQUITABLE ESTOPPEL An extended recitation of facts as they relate to the issue of whether or not defendant City is estopped to deny plaintiff development under the original zoning is not necessary. They are in the record and abundantly support plaintiff's contention that it suffered sub- stantial detriment in reliance on the conduct of the City which led . ! plaintiff to believe that there would be no changeYin zoning. The City from the time plaintiff initiated purchase of the ~"righ" "interest was aware that plaintiff was relying upon the Wright agreement. as they pertained to zoning and not only acquiesced in what plaintiff p ned to do but encouraged it . The City never put plaintiff on not ice of any prospective change of zoning when it demanded conveyance of the for the sewer plant , but led plaintiff t o the belief that t hir.gs .~~ou ld proceed in accordance with the contract . In various conferences between the City and plaintiff relating to zoning and development on Sand Key, the City at no time indicated ~~ CIR. CIV. \'0. 78-4765 --7 -- a change of "zoning heart" . Indeed, every affirmative act taken by the City up until 1977 as they related to the planned use of the lands on Sand Key would lead any reasonable person to believe that they could relay upon the zoning h~ ~ ^ as it existed prior to 1977. ~~ 1 ~ , The plaintiff did rely upon the City s apparent conduct and in consequence thereof expended substant is I sums of money for engin- Bering and architectural studies, conveyed land to the City for the see plant, and conveyed to the City sixty acres of land .for public purpose: at a price far below market value, all to the City's advantage. It is th finding f the Court under the authority of PASCO ~~ COUNTY vs. TA~1PA DEVELOPMENT CORPORATION (2nd DCA Case i1o. 77-1349) , TOIVN OF LARGO vs. IMPERIAL HOtiIES, 309 So.2nd 571 (Fla . 2nd DCA 1975) , 1~IAYOR AND CITY COUNCIL OF BALTIMORE vs. CRANE, supra, PRINCE GEOP~GE'S COUNTY vs. tiicBRIDE, 302 A .2nd 620 (4Id. 1973) , that the City of Cleas- water is~to_p~e-d t_o-e-n.~o~c.e-t_he 1977 rezoning ordinances against pl< ~ __ m tiff and that. plaintiff is entitled to develop the property in accordai ~ with the B business zoning as~it existed~in 1961 under the ordinance: _._ ~.. _ __s~w-~..... of the City of Clearwater. ~ -~ - ~YHEREFORE, IT IS DE RED AND ADJUDGED: ~I ~- ~ ~- ^ (a) That the City of Clearwater is permanently enjoined from enforcing the zoning provision of Ordinance No. 1749 adopted April 6, 1978, as the same applies to plaintiff's land situated on Sand riey, City of Clearwater, Florida. (b) That the City of Clearwater shall permit plaintiff and its successors in tit le to develop the land now owned b~T plaintiff on Sand Key in accordance with the zoning ordinances of the City of Clear water as they existed prior to the adoption of Ordinance No. 1749, supra . ._ ,~ CIR.CIV. N0. 78-476 -8 - (c) The City shall in compliance herewith issue all necessary permits for construction on and development of plain- tiff's land on Sand Key upon plaintiff complying with the appropriate zoning, building, and development requirements as required by the ordinances of the City of Clearwater prior to the adoption of Ordinance) .No . 1749 supra . (d) IT IS FURTHER ORDERED A~'D ADJUDGED that plaintiff 's prayer for ouster from the city limits of the lands owned by it and situated on Sand Key, is hereby denied. (e) Plaintiff's prayer for damages is hereby denied. (f) Plaintiff shall have its costs from defendant and the Court retains jurisdiction for the purpose of taxing costs upon I appropriate motion. IT IS SO ORDERED AND ADJUDGED in Chambers in Clearwater, Pinellas County, Florida, this ~ day of January, 1979. B. J. DRI R, Circuit Judge COPIES MAILED T0: 1'IR. FRANK X. KOjVALSKI, City Attorney, P.0. Box 4748, Clearwater, Fa. 33 ;SIR. DENNIS P. THOhIPSON, 1253-Park Street, Clearwater, Fa. 33517 1lESSRS. THOMAS F. ICARD and TH0~1AS A. CLARK, P.O. Box 3239, Tampa 3360 CI~ OF CLEARWATER Interdepartment Correspondence Sheet TO: David Healey, Planning Director CC FROM: Frank X. Kowalski, Chief Assistant City Attorney COPIES: SUBJECT: DATE: February 27, 1979 FEB 28 1979 FL.A r~i NI~I~ I3~~`.~ RTARLI~IT I believe that it has been agreed that we would meet with the City Manager to discuss settlement in the U. S. Steel case. I have been contacted by representatives of the Plaintiffs in the Cooper's Point litigation. They have expressed an interest in discussing settlement. I believe it is necessary to meet with the City Manager to discuss settlement possibilities in both the aforementioned cases. I believe it would be advisable to confer prior to our meeting with the Manager, so that we may advance specific recom3nendations. I suggest Friday, March 2, 1979, at 9:30 a. m. for this meeting. Frank X. Kowalski Chief Assistant City Attorney FXK/km .q # 3'2- ORDINANCE NO, i 904 AN ORDINANCE AIvIENDING ORDINANCE NO, 1749, WHICH AMENDED THE ZOiVIidG ATLAS OF THE CITY OF CLEAR- WATER, FLORIDA, 1978, A5 AMENDED, BY RECLASSIFYING AND ZONING CERTAIN PROPERTY AS DESCRIBED THEREIN, TO CORRECT CERTAIN LEGAL DESCRIPTIONS CONTP_INED IN SUCH ORDINANCE AND THEREBY AMEND THE ZONING ATLAS OF THE CITY OF CLEARWATER, FLORIDA, 1979; PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH TO THE EXTENT OF SUCH CONFLICT; PROVIDING FOR THE SEPARABILITY OF THE PROVISIONS HEREOF; PROVIDING FOR PROPER NOTICE OF PROPOSED ENACTMENT; AND PROVIDING FOR THE EFFECTIVE DATE OF THIS ORDINANCE, WHEREAS, on April 6, 1978, the City Commission of the City of Clearwater, Florida, passed Ordinance No. 1749, after proper public notices and public hearings, to reclassify and zone certain property; and WHEREAS, it has been ascertained that there are errors in the } descriptions of two parcels which were zoned as RM-28, High Density Multi- Family Use District, and Ordinance No. 1749 should be amended to reflect these corrections; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF CLEARWATER, FLORIDA: Section 1. That Section 2 of Ordinance No. 1749, passed by the City Commission of the City of Clearwater, Florida, on April 6, 1978, be amended to read as follows: "Section 2. The following described property in Clearwater, Florida, is hereby classified and zoned as hereinafter indicated, and "The Zoning Atlas of the City of Clearwater,-Florida of 1979", as amended, is amended to indicate that fact as hereinafter set out: Zoned as CTF-28 -High Density Commercial-Tourist Facilities Use District Begin at the SW corner of Section 17, Township 29 South, Range 15 East, run N 89 ° 10' 31" E, 843.48 feet to a point on the centerline of Gulf Boulevard; thenc e S 42 ° 13' 31 " W, 2b 3. 9 3 feet to the P. O. B. ; thence N 47°4b'29" W, 590.00 feet to tae mean high water line; return to P. O. B. and proceed N 42 ° 13' 31" E, 1, 150.08 feet; thence N 47°4b'29" W, 944.00 feet to the mean high water line; thence southerly along said mean high water line to a point that intersects a line running from the P. O. B. N 47°4b'29" W, 590. 00 feet. -1- ... • ~ Zoned as RM-28 -High Density Multi-Family Use District Begin at the NW corner of Section 20,-Township 29 South, Range I5 East, run N 89 ° 10' 31" E, 843.48 feet to a point on the centerline of Gulf Boulevard; thence S 42 ° 13' 31" W, 263.93 feet to the P. O. B. ; thence N 47°46'29" W, 590. 00 feet to the mean high water line; return to P. O. B. and proceed S 42 ° 13 ' 31" W, 1, 070. 27 feet; thence by a curve to the left, arc 971.05 feet, chord S 32°32'05" W, 966.41- feet, radius 2, 864.79 feet; thence S 22°50'39" W, 207.79 feet; thence • ~ N 66°59'03" W, 325, 20 feet to an "X" cut in a seawall for direction; thence N b6°59'03" W, to the mean high water line; thence Northerly along said mean high water line to a point that intersects a line running from the P, O. B. 1V' 47°46'29" W, 590.00 feet. Zoned as RM-28 -High Density Multi-Family Use Distxict Begin at the SE corner of Section 19, 'T'ownship 29 South, Range 15 East,' run N 89°04'07" W, 2, 293.45 feet to a point on the centerline of Gulf Boulevard; thence N 31°58'20" E, 553._24 feet for a P. O. B. ; thence N 89°04'0?" W, 328. 36 feet, - to the mean high water line; return to the P. O. B. ; thence N 31°58'20" E, 273.71 feet; thence by a curve to the left, radius 1, 909. 8b feet, arc 304. 38 feet, chord N 27°24'29" E, 303, 95 feet; thence N 22 °50' 39" E, 2, 133.71 feet; thence N 67°09'15" 4V, 351.45 feet to an X on seawall for direction; thence N 67°09'15" W, to the mean high water line; thence Southerly along said mean high water line to a point that inter- sects aline running from the P. O. B. N 89°04'07" W, 328. 36 feet. Zoned as RM-28 -High Density Multi-Family Use District Begin at the SE corner of Section 19, Township 29 South, Range 15 East, run N 89°04'07" W, 2, 293.45 feet to a point on the centerline of Gulf Boulevard; thence S 31 °58' I6" W, 116,71 feet to the P. O. B.; thence S 89°04'07" E, 87.54 feet; thence S 31°58'20" W, 134,22 feet; thence S 89°04'07" E, ? 1.11 feet; thence N 31 ° 58'20" E, 108, 17 feet; thence by a curve to the right, radius 35.00 feet, arc 45.05 feet, chord N 58°21'51" E, 42.00 feet; thence S 89°03'11" E, 1, 055.9? feet; thence by a curve to the right, radius 170. 00 feet, arc 346.92 feet, chord S 30 ° 36' 22" E, 289. ?8 feet; thence S 27 ° 51' 22" W, 658. 35 feet; thence by a curve to the right, radius 145. 00 feet, arc 455, 53 feet, chord N 62 ° 08' 38" W, 290.00 feet; thence N 27 ° 51'22" E, 381.35 feet; thence by a curve to the left, radius 50, 00 feet, arc 102, 03 feet, chord N 30°36'41" W, 85, 23 feet; thence N 89°04'07" W, 112, 15 feet; thence by a curve to the left, radius 50. 00 feet, arc 55, 05 feet, chord S 59 °23' 37" W, 52.31 feet; thence S 27°51'22" W, 532.53 feet; thence by a curve to the right, radius 220, 00 feet, a~ c 242. 19 feet, chord S 59°23'37" W, 230, 14 feet; thence N 89°04'07" W, 407.73 feet; thence by a curve to the right, radius 145, 00 feet, arc 455. 53 feet, chord N 62°08'38" W, 290, 00 feet; thence S 89°04'07" E, 334.08 feet; thence by a curve to the left, radius 50, 00 feet, arc 55.05 feet, chord N 59°23'37" E, . 52.31 feet; thence N 27°51'21" E, 260, 82 feet; thence by a curve to the left, radius 50.00 feet, arc 102, 04 feet, chord N 30°i4'33" W, 85.23 feet; thence N 89°04'07" W, 364, 28 feet; thence by a curve to the right, radius 35. 00 feet, arc 71.64 feet, chord N 32°25'56" W, 59.77 feet; thence .N 32°37'31" E, 76.15 feet; thence N 89°04'07" W, 71. I1 feet; thence S 3I ° 58'20" W, 134.22 feet; thence N 89°04'07" W, 87. 54 feet; thence N 31°58'20" E, 338, 47 feet to P. O. B. -2- • • Zoned as RM-28 -High Density Multi-Family Use District Begin at the SE corner of Section 19, Township 29 South, Range 15 East, run N 89°04'07" W, .Z, 293.45 feet to a point on the centerline of Gulf Boulevard for a P. O. B. ; thence N 31°58'20" E, 553. 24 feet; thence S 89°04'07" E, 293.05 feet; thence S 31°58'20" W, 247.44 feet; thence S 89°04'07" E, 110.73 feet; thence S 31°58'20" W, 58. 3b feet; thence N 89°04'07" W, 110. ?8 feet; thence S 31°57'44" W, 247.41 feet; thence N 89°04'07" W, 293, 05 feet to P. O. B. Zoned as RM-16 -Medium Density Multi-Family Use District Begin at the SE corner of Section 19, Township 29 South, Range 15 East, run N 89°04'07'} W, 2, 2q3, 45 feet to a point on the centerline of Gulf Boulevard; thence N 31°58'20" E, 553, 24 feet to a P. O. B. ; thence S 89°04'0?" E, 293.05 feet to the mean high water line; return to P. O. B. ; thence N 31°58'20" E, 273.71 feet; thence by a curve to the left, radius 1, 909. 86 feet, arc- 304.28 feet, chord N 2?°24'29" E, 303. 95 feet; thence N 22 ° 50' 39" E, 2, 121.08 feet; thence S 67.°09'21" E, 250.00 feet to the mean high water line; tl'~ence southerly along said mean high water line to a point that inter- s ects aline running from the P. O. B. S 89 ° 04' 07" E, 29 3.05 feet. Zoned as RM-i6 -Medium Density Multi-Family Use District Begin at the NW corner of Section 20, Township 29 South, Range 15 East, run N 89 ° 10' 31" E,. 843.48 feet to a point on the centerline of Gulf Boulevard; thence N 42 ° 13' 31" E, 469.48 feet for a P.O. B.; thence S 47°46'29" E, 245.18 feet to the mean high water line; return to P. O. B. ; thenc e S 42 ° 13' 31" W, 1, 803.68 feet; thence by a curve to the left, radius 2, 864. 79 feet, arc 958.72 feet, chord S 32 ° 39'29" W, q54. 26 feet; thence S 66°56'44" E, 245.07 feet to the mean high water line; thence northerly along said mean high water line to a point that intersects a line running from the P. O. B., S 47°46'29" E, 245. 18 feet. Section 2. All ordinances or parts of ordinances in conflict herewith. are to the extent of such conflict hereby repealed. Section 3. Should any part or provision of this ordinance be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of the ordinance as a whole, or any part thereof other than the part declared to be invalid. Section 4. Notice of the proposed enactment of this ordinance has been properly advertised in a newspaper of general circulation in accordance with Chapter 16b. 041, Florida Statutes. -3- I w t •~. • Section 5. The Planning Director is directed to include and set out and show upon the official zoning atlas of the City of Cleartivater the foregoing amendments as hereinabove set out. Section 6. The provisions of this ordinance shall take effect im.rnediately upon its passage. PASSED ON FIRST READING April 5, 1979 PASSED ON SECOND AND FINAL READING AND ADOPTED Mayor-Commissioner Attest: City Clerk -4- Ci OF CLEARWATER Interdepartment Correspondence Sheet TO: rank X. Rewalski, Chief Assistant City Attorney FROM: David P.. Healey, Planning Director COPIES: City Manager Anthony L. Shoemaker; Thomas A. Bustin, City A ttorney Your Memo of April 25 in the I~iatter of U. S. Steel vs. City SUBJECT: of Clearwater - Circuit Civil Plo. 78-4765.7 DATE: April 30, 1979 The attached memorandum from Dennis Thompson to Tom Clark representing a counter-proposal from U. S. Steel is Ittdicrous. Plot only do they totally fail to respond in a meaningful way to the concept of settlmment which we proffered, but their development scheme, as outlined, would far exceed my under- standing of what was ordered by 3udge Driver were that to stand. The only conclusion which I can draw ie that they are not serious in seeking a mutually acceptable solution; that they, in fact, appear to rely on the contradiction evidenced on Page 7 of 3udge Driver's decision with respect to the regu- lations as they existed in 1961; and that the City's only reasonable recourse is to pursue its appeal with renewed com- mitment. Zn this regard, I offer whatever assistance I caa provide in overcoming some of the obstacles that you gpparently have in the course of the appeals .process. DPH: bd Attachment M_ .~.~ ;a;.. -.-~. . - -. ~ '. • M E M O R A N D U M TO: Tom Clark FROM: Dennis Thompson .t'`` . • ., - ,_ ~, '~ This summarizes the items which were recently discussed for inclusion in a counter-proposal to the City for settling the Sand Key rezoning litigation. The matters reflected i?n this memorand~.im would be incorporated into some form of stipulated revised or amended final judgment. Attached for your aid is a chart which outlines the densities on Sand Key under different hypothetical situations. Please note that under the column entitled "Present Court Order" that we are talking about the zoning in effect in 1961 and since there were no height limit- ations or density limitations in existence at that time to our knowledge, we have used a practical limitation of 54 units per-_ acre for residential usage. Interestingly, approxi-irately 2,786 hotel units could be built on USS's property under that zoning. I_ The seven (7) acre shopping center parcel (Tract-D): This parcel, which we have always assumed to be approx- imately seven (7) acres, actually contains 7.9 acres. USS will construct a 4-pod shopping center of the same size as the pre- viously-submitted plans - some 92,000 square feet of leaseable space. The project will be centered, without view corridors, on the 7.9 acre parcel. II. Southern Bay front tract (Tract E) USS would agree to develop this parcel in accordance with the RNI 16 zoning at building heights to accommodate this zoning density. III. Southern Gulf front tract (Tract A): USS will build three 13-story buildings containing a total of 432 units on this parcel. These will be built at the same height and with the same number of units as the building presently under construction known as South Beach 1460. Under Memorandtua Apri 1 2 0 , Page Two • to Tom Clark 1979 Judge Driver's order, Steel could build an unlimited number of units on this site but for practical purposes could and would build 729 units which would be a density of 54 units per acre: USS thus i_s willing to give up the right to build an additional 297 units by its proposal and would be giving up rights to sell ~.; :._.-.::-.,~__tithe property.-.for=.hotel "afid:_ resort, utiJ_izations.:. ___.•.._--: -. _ .. _.. .- .. :_ - -~ • --- ' - c. ... ~..st'. _~ - .~..-t _ ~ _ _ -_ __ - - _.L W~ -- B~11ar+~1 ~~3~! ~.41-L~ Tr~l~~.i t:~-B ~. 'f :.. c"~..._~ -=r..'_ ' _ _ - ~rr .: __.. _ .__ This is the tract that was originally sold to Fred Bullard, subject to a purchase money mortgage in favor of USS. USS regained title to the 3.9 acre parcel through fore-~ closure; it remains the owner; and the parcel was included in our complaint. There are no improvements on the parcel. USS desires to put one 13-story building on this parcel consistent with the height and density of South Beach 1460. In comparison with Judge Driver's order, USS is giving up the right to build 67 units. V. Cheezem tract (Tract C) This property lies between the two Cheezem condominiums •on the Gulf front. USS has a purchase money mortgage on~this property which has been in default for several years. Negotia- tions have occurred between Cheezem and USS concerning obtain- ing a deed in lieu of foreclosure. Foreclosure, of course, is a possibility, as well. Upon obtaining title USS desires to have the same density and height limitations. (72 units and 100 feet) as does Cheezem. ~~ VI. General terms: Docking f ac-ilities are contemplated for the shopping center. We would expect the City to cooperate with USS in obtaining necessary governmental permits. There is no intention, as I understand it, for fi~ese facilities to become a commercial marina, such as the City of Clearw ater's. .. Dennis P. Thompsor_ DPT/sco ,,. ,t~_.,t„_ ~, ~ ..~.r w. ~ ~ - ~ 1YI70~ti~ilWU~wii~i'~~~~ZvJhS' di ~.~M.Ciiu~{ ''; }} 1 I~ I~;UF'~.p~ ^' {-L'$l~~ti~'a ~ ~ pYl~ USk ~. T~F ~~tC~` 1~c~-~C,+;c.j~iltS (~9~~ ~°"~"J/ S~ ~ew'r~"~' .+.w.~.~..r...+ ww..,.a.n..~-.a..w J '~~1 ' I ~ I ~) ~ .1,555' ~ . ~ ~ C~ CG' a IJ s /~ ~~~ , ~ i~~l„ 'I r Y~ LE'~.I. y ~~; ~, ~; , ~, . .~ ~. ,, i ., ~. is ~ %;, ~ ~ ~ ~ + ~ •~ i ~ r' ~ 3 ~.;;. ~.;,.. t 7 :,,i, '~" ,~.; .',.~ '~ 1 ~+ ~ ~~ ~' ,~ ; , ~~:~ . ~:. ~• ~~ ~; ~~ '~ ', ~ ~ - _~ _ ~ - C: I y :~, ~ ~n , h~ <.a r i r Vh r~ ~~ / , L.. ,~ ~ i:~ ~~ Gil ....:.. _.... _,;,,, _. _ ... ._.....~ _ : ~.,.....~ ..._. .~ 1 ~ W _ ,,. _-, ..•, - 1 Z ~. 6i~~ l~ d.3 d.r s L I +i ~.`s~l s L v 1 ~3' ~1 ~ _ - ~.. _ ~. .. ~ - \~~~ / \ PROJECT NO Dlvfalon of tlnltad Statas ,it9el Carporatlon- ~ ' ~ BY 9 PPOJEET SNeET OF OA7e: • _ ~e.~. ~ ~®~y Available .: ~,,.-w--- ......--- i `~ ~ ~ ,- 211 l ~r~°~- - ~ ~ ~ _ ~ ' ~ - .._ .. . - 7 ___. - -.-- . ~ ~ ~ ~- - - ~ ~- - - .. _ - _ I i r - .t .. . - . • i - ~ ~ ~ / l ,~ 3 ~ '~ / t i ~ - - i • I ~~ t r J - i 7 _ _ ;_ ~~._ J 3 ,, I o 0 M~TCN UNC O R D ...--- GG rt''t' d e r ~'~ E R G 1749 ~ 1749 4.78 ~c Gne.S~ ~~o'~ a=~B~ MEB I o 0 0 I ry O v .k ORD. 15~- 4 •~5 0 r, V M5 $ 2 J ORD 1939 ~~o ~~P~ ~ ~~- 6.79 ~ - R 0,ti0•+ ~o~ _.~ 100 g 0 ~~ ,, • I ~ J „tD ~ `tYI~V MZ;B 2-2 , /,, ORD - 1749 4.78 ' ORD 17s a N9 s78 SP ~~ OFONQ~ ~ ~~~ G 8~ ~9 ' 0•~4 MEB 2-I _ ORD i 749 4.78 Mb B 17-i I ~~ I OE E p~R E~~ -~ e 0 ,~M ZO ~ ~U~ • •~ Gity Manager ~anthony L. Shoemaker David P. Aealey, Planning Director Frank X. Kowalski, G'hiaf ~ssist8at City Attorney Consideration of U. S. Steel Settlement Offer July 25, 1979 U. 8. Steel transmitted to me on July 11 a print of [hair development plan for Sand Key, including calculations as to permitted and proposed density, reflecting their proposed basis for settlement of our outstanding litigation. I have not responded other than to indicate to Frank Felix that I would meet with you and the City Attorney's office at the earliest possible date to revie~+ their proposition end respond to it. Zn-essence, their proposed settlement, ss interpreted from the print, would be as follows: (1) To limit the CG district and proposed shopping center to the approximately S-acre area at the north end of the Key (Tract D); (2) To provide for an RM-lb designation on the remaining approximately 3-acre parcel immediately south of the comu~ercial designation on the bay aide (Traet E-1); (3} To designate the approximately 7-acre parcel at the south end o! their holdings on the bay side a+s RM-16 (Tract E); (4) To develop the vacan~'3-Acre property between the two Cheezem towers at 72 units as provided for in our agreement with ('heesem (Tract C); (3) To develop that vacant 3.9-acre tract on the gulf side south of the Cheeaem development at 144 units in one I3-story building (Tract B); and (6) To develop 3 buildings at I44 units and i3 stories each on the approximately 13 1/2-acre gulf front site south of the South Beach 1460 building now under construction. By their tabulation, this would provide for some 808 units vs. a maximum 7I9 unite allowable under City Ordinance No. 1749 which they have contested. Yn addition, of course, there mould he approxt~aately 3 acres of coa~nercial property above and btyond the 1.9 acres permitted under the Ordinance, as adopted. Their proposal also re- presents approximately a 4-story variance {from 9 to 13) far each of the four I44-unit building• proposed on the gulf side or some 16 stories in all plus a 1 to 2-story variance on each of the loa-rise units proposed for the bap side on Tracts 8 and B-1. ,.- • City Manager Anthony L. Shoemaker Dgvid P. Eiealey, Planning Director Frank X. Kowalski,.Chlef assistan[ City ~'~ttorney Goaaideration of i3. S. Stsel Settlement Offer July 25, 1879 Page $2 sitar reviewing carefully their proposal, and discussing with Frank Kowalski the strengths and weaknesses of our position, it la my recommendation that we should respond as follows: (1j agree to the designation of the commercial area far the location of the shopping canter on the follos~ing conditions: (a) The total floor area not exceed 72,000 eq. ft., representing 3f4 of the total originally proposed; and (b) ~1 minimum 1/3 of the proposed 72,000 sq. ft. be devoted to servicing local neighborhood convenience needs as pppoeed to exclusive regional consumer needs. {2) Agree to the develogment of Tracts E and L-1, according to the RM-16 standards. and providing a height variance to permit a maximum building height of 3 stories or 30 feet; {3) Agree to the development of Tract C at 72 units at a maximum building height of 100 feet, consistent with the terms of agreement with Cheezem; {4) ~5gree to the develogment of Tracts ~~ and B on the basis of a maximum density of 30 unite gar acre and 11 stories in building height which would p~aradt a maximum of 522 units. 3his contrasts with the 576 units and 13-story height proposed and the 487 units and 9-story height that would be allowed under RM-2S; (5) agree to the allowable transfer of density from Tracts E and E-1 to Tracts a and B to the extent that Tracts E and E-1 are developed to a a¢t dena3~ty of less than 16 units per acre; and {6) Agree that each phase of develogment or any cosabination thereof would comply with all applicable provisions of the Zoning Ordinance and City Code of Ordinances other than those provisions specifically varied with respect to density sad height. I do not believe thEt the specific location of buildings nor the provisions far serprrts can be committed to on the basis of the lnformatioa submitted. I would recommend that we be receptive either to identifying only permitted density and height by tract or to a specific: and detailed plan, dhichever i• tbsir preference. ~r • ~~ ~ ' City Mansger Anthony L. Shoemaker David P. Iiealey, Planning Director Fraa{c %. 1Gawalski, Chief 4ssistaat City htm rney S.onsideration of U. S. Steel Settlement Offer 3u1~ 25, 1979 Page ~3 We would be agreeing to some 3 additional acres of commercial use for shopping center purposes on the bay side at the north end of the Hey and 35 additional dveiling units oa 17.4 acres on the gulf side in the middle and south portions of tha Key. In addition, the four gulf side huiidings would be granted a 2-story bonus each end the bay side units a 1-story bonus for each building. Since the three additional acres of commercial remove the potential for some 48 units that would otherwise have existed, the net effect, strictly in terms of residential dwelling units, is to provide approximately the same number o: residential units that would have been possible under Ordinance No. 1749!. All things considered, I believe it would be to the City's advantage to settle on the tetKns outlined above. Conversely, anything beyond what is outlined would be excessive and v~arrant the pursuit of the appeals process. I suggest We respond to their sub- mission in a positive manner, making it clear that this is our best and last offer. DP~i: bd t 'j • IN THE DISTRICT COURT OF APPEAL OF FLORIDA IN AND FOR THE SECOND DISTRICT CITY OF CLEAR WATER, FLORIDA, ) Appellant, ) v. ) Appeal No. 79-178 UNITED STATES STEEL CORPORATION, ) Appellee. } BRIEF OF APPELLANT Frank X. Kowalski Chief Assistant City Attorney P. O. Box 4748 Clearwater, Florida 33518 (813) 442-6131 Attorney far Appellant Page 12 19 21 l ~ * • • TABLE OF CITATIONS. Pa e Bryant v. Cole 6 282 So. 2d 652 (Fla. 2d DCA 1973) City of Clearwater. v. Field Construction Associates 18 350 So. 2d 845 (Fla. 2d DCA 1977) City of Miami v. Kayfetz 13 92 So. 2d 798 (FIa. 1957) City of Miami Beach v. Lachman 13 71 So. 2d 148 (Fla. 1953), app. dism'd 348 U. S. 906, 99 L. Ed. ?11, ?5 S. Ct. 292 (1955) City of Miami Beach v. 8701 Collins Avenue 12 77 So. 2d 428 (FIa. 1954) City of Riviera Beach v. Witt 8 2 86 So. 2d 5 74 (4th DCA Fla. 1973 ) Eastern Shores Sales Co. v. City of North Miami Beach 9, 10 363 So. 2d 321 (Fla. 19'78) Hartnett v. Austin 8, 9, 10 93 So. 2d 8b (Fla. 1956) Hall v. Talcott 1? 191 So. 2d 40 (Fla. 1966) Meigs v. Lear 17 210 So. 2d 479 (1st DCA Fla. 196 8) North Redington Beach v. Williams 13 220 So. 2d 22 (2d DCA Fla. 1969) Pasco County v. Tampa Development Corporation 12 364 So. 2d 850 (2d DCA Fla. 1978) Town of Largo v. Imperial Homes 14 309 So. 2d 571 (2d DCA 1975) Wiggins v. City of Jacksonville 13 3 I 1 So. 2d 40b (1st DCA 1975) Wolff v. Dade County 13 370 So. 2d 839 (3d DCA Fla.. 1979) -i- Page 2, 16 13 -ii- ` ,_ ' x • PRELIMINARY STATEMENT Throughout this Brief, the City of Clearwater is designated as "Appellant", or as "City". Appellant was defendant in the court below. United States Steel Corporation, plaintiff below, is designated as "Appellee". References to the Record are as follows: R- Record, page number R-I80, Doc. No. -refers to page 180 of the Record, which is a composite document consisting of Appellee's Request for Admissions. The Document Number refers to the documents listed in the Index of Documents accompanying Appellee's Request for Admissions. Thus, for example, R-180, Doc. No. 14, refers to an agreement between Ruth Kirby and Appellee, which is designated as Document No. I4 in Appellee's index. -1- 3 .. • • STATEMENT OF THE CASE AND FACTS Sand Key is an island lying between Clearwater Bay and the Gulf of Mexico. Sand Key was annexed into the City of Clearwater b'y virtue of Ordinance No. 971, which zoned the island "B" (business) classification (R-3). This fulfilled the obligations of an annexation agreement executed by the City of Clearwater (Appellant) and Mr. Ed C. Wright, Appellee's predecessor in title (R-180, Doc. No. 1). Sand Key is presently within the City of Clearwater and receives municipal services from the City. On October 8, 1969, Appellee, United States Steel Corporation purchased Mr. Wright's interest in Sand Key for 11 million dollars (R-180, Doc. No. 4). Since acquiring the property, Appellee has commenced development of a number of tracts on Sand Key. Development to this date has been residential and tourist facility (R-150-152). In 1970, Appellant notified Appellee of an intention to rezone the property from business to residential (R-180, Doc. No. 26). In 1974, the City Commission of the City of Clearwater advocated a downzoning of all property within 500 feet of the water, including Sand Key (R-I80, Doc. No. 52). The Comprehensive Land Use Plan for the City of Clearwater depicted Sand Key a s predominately residential (R-151-153 ). In 1976, Appellee hired an architect to develop plans for the construction of a shopping center on a 7-acre tract on Sand Key. (R-4, 5). Appellee submitted an application to the Building Department for a permit to construct a building on L9 acres, m. o. 1. , of the 7-s.cre site. (R-119}. -2- ~, > _ • • Appellant commenced action to rezone Appellee's property from commercial to residential in August, 1977 (R-5). Appellant ultimately adopted Ordinance No. 1749 in April, 1978 (R-7). Ordinance No. 1749 rezones Appellee's property to multi-family residential, except that the 1. 9 acres on which the building permit was sought has been retained as commercial property (R-44-49). Appellee filed its complaint on May 10, 1978, seeking to invalidate Ordinance No. 1749 insofar as it rezoned Appellee's property (R-I-4g). The cause came on to be heard upon motions for summary judgment filed by the parties, and on January 12, 1979, the court below entered its Order granting Appellee's Motion for S~l**+TM+ary Judgment and denying Appellant's Motion. (R-186 -193 ). Appellant timely filed its Notice of Appeal of this Order on January 25, 1979 (R-213). -3- • • POINTS ON APPEAL I DID THE COURT BELOW ERR IN HOLDING THAT APPELLEE POSSESSES CONTRACTUAL RIGHTS WHICH PROHIBIT APPELLANT FROM REZONING APPELLEE'S PROPERTY? A. Can Appellee claim the benefit of: an agreement to which it was not a party? B. Did the agreement between the City of Clearwater and Mr. Ed C. Wright merely require the City to initially zone Sand Key as "B", or -does it prohibit the City from ever amending the zoning ordinance? C. Was the agreement between Mr. Ed C. Wright and the City of Clearwater erroneously interpreted by the court below to prohibit a rezoning seventeen years after the execution of the agreement? II DID THE COURT BELOW ERR IN GRANTING SUMMARY JUDGMENT FOR THE APPELLEE AND IN HOLDING THAT APPELLANT IS ESTOPPED FROM AMENDING THE ZONING ORDINANCES RELATING TO APPELLEE'S PROPERTY? A. Did the court below err when it expressly held that Appellee had a right to rely on continuation of the present zoning? B. In the alternative, did the court below err in finding that there are no issues of material facts which preclude the granting of summary judgment on the issue of equitable estoppel? -4- • • I THE COURT BELOW ERRED IN HOLDING THAT APPELLEE POSSESSES CONTRACTUAL RIGHTS WHICH PROHIBIT • APPELLANT FROM REZONIlVG APPELLEE'S PROPERTY. A, Appellee cannot claim the benefit of an agreement to which it was not a party. The court below expressly held that the Appellee is entitled to summary judgment invalidating Ordinance No. 1749 on the grounds that Ordinance No. 1749 is unlawful because it violates an agreement entered into in 1961 between the City of Clearwater and Mr. Ed C. Wright, Appellee's predecessor in title. (R-189-191). The agreement which the court below relied upon wa.s a bond for annexation between Mr. Wright and the City of Clearwater to provide for annexation of Sand Key into the City limits of the City of Clearwater. (R- 180, Doc. No. 8). This agreement was entered into between Mr. Wright and the City of Clearwater in 1961. At the time the contract v~ra.s entered into, Sand Key was separated from the rest of Clearwater Beach by water, and was inaccessible to automobile traffic. Sand Key was in a wild and undeveloped state. (R-18b). As consideration for annexation, the City covenanted to construct a bridge from Clearwater Beach to Sand Key; to zone the lands on Sand Key as "B" (business); and to provide all municipal services. Mr. Wright agreed to convey to the City land for the construction of sev~ra.ge facilities, to personally guarantee cost overruns in the construction of the bridge, and to convey certain necessary property to the City in connection with annexation. (R-180, Doc, Nos.. 1, 2, 4, 6, 8). -5- • The 1961 agreement was a personal one between Mr. Wright and the City of Clearwater.. Because it required that Mr. Wright personally pledge security for construction of the bridge, it was an agreement which could be performed only by Mr. Wright personally. The record does not reflect that Mr. Wright had indicated an intention to convey the property prior to the execution of the agreement in 1961. In fact, the record reflects that the agreement was entered into between Mr. Ed C. Wright and the City of Clearwater in 1961, and that the contract was performed by Mr. Wright and the City at that time. (R-I80, Doc. No. 12). Appellee, United States Steel, acquired Mr. Wright's interest in Sand Key in 1969. (R-180, Doc. No. 14). The City of Clearwater was not a party to that transaction, nor has the City ever entered into a contract with United States Steel regarding the zoning on Sand Key. Nevertheless, the trial court held that Appellee is entitled to all the benefits of the contract entered into between Appellant and Mr. Wright. There has been no evidence to the effect that Appellee is a third party beneficiary to the agreement between the City and Mr. Wright. The Appellee cannot claim the benefits of an agreement to which it was neither a party nor an intended beneficiary. Bryant v. Cole, 282 So. 2d 651 (Fla. 2d DCA 1973 ), especially where the agreement could only have been performed by the parties and the obligations of the contract could not have been assigned. B. The agreement between the City of Clearwater and Mr. Ed C. Wright merely required the City to initially zone Sand Key as "B", and does not prohibit the City from amending the zoning ordinance . The trial court held that the City of Clearwater bound itself by contract -b- to continue busine s s ~ng on Sand Key at least une pre sent time. The provision of the contract between Appellant and Mr. Wright upon which the court relied is set forth below: "NOW, THEREFORE, the condition of the above obligation is such that upon completion of the Little Pass (Clearwater Pass ) Bridge and the approach roads thereto, the undersigned, ED C. WRIGHT, will consent to, or if necessary will apply to, the City of Clearwater for annexation of lands owned by Ed C. Wright located on Sand Key in Pinellas County, Florida, and will cooperate with said City for the annexation of said lands; provided, however, said City of Clearwater will zone the aforesaid lands of Ed C. Wright "B" (business) according to the present Zoning Ordinance of the City of Clearwater at the time of the enactment of the Ordinance for annexation by said City pursuant to Chapter 171. 04, Florida Statutes. If the said Ed C. Wright shall well and truly carry out and perform the conditions of this bond as hereinabove set forth then this obligation shall be cull and void, otherwise to remain in full force and effect. " (emphasis added) The trial court's interpretation is patently at variance with the language of the agreement. The contract required the City to initially zone the property on Sand Key as "B" (business). The record reflects that this was done (R-180, Doc. I4). Appellant promised Mr. Wright to zone the property for business "at the time of annexation. " Appellant promised no one, (and certainly not U. S. Steel), that it would not amend the zoning ordinance seventeen years after annexation. If Mr. Wright had sought to acquire business zoning for Sand Key for an indefinite period of time, he could have attempted to do so by spelling it out in the contract. The legality of such a contractual provision is dubious, and it may be that this is the reason Mr. Wright did not obtain contractual assurance that the City would not rezone his property at some future date. In any case, it is error for the trial court to infer a contract~.ial obligation on the part of the City which would prohibit the City from rezoning the property some seventeen years after execution of the annexation agreement, in plain derogation of the contractuallanguag• -7- 1 .._ • • C. The agreement between Mr. Ed C. Wright and the City of Clearwater was erroneously interpreted by the court below to prohibit a rezoning seventeen years after the execution of the agreement. Even though the agreement bound the City only to initially zone the property as business upon annexation, and nowhere by its terms purported to guarantee a continuation of that zoning, the trial court inferred such a continuing contractual obligation. Such an interpretation is not only strained; it is error. Traditional hornbook law states that a municipality is not empowered to contract away its zoning powers. In the case of Hartnett v. Austin, 93 So. 2d 8b (Fla. 1956), the court stated that a city has no power to enter into a contract with a property owner for amendments of its zoning ordinances, subject to performance of a collateral agreement. The court expressly reaffirmed the long-established principle that a city cannot contract away its police powers, including the power to zone ar_d rezone. The court explained its rationale succinctly and logically: "The adoption of an ordinance is the exercise of municipal legislative power. In the exercise of this governmentai function, a city cannot legislate by contract. If it could, then each citizen would be governed by an individual rule based upon the best deal that he could make with the governing body. Such is certainly not consonant with our notion of government by rule of law that affects alike ali similarly conditioned. " Ibid. , p. 89. In the case of City of Riviera Beach v. Witt, 28b So. 2d 574, {4th DCA Fla.. 1973), the court was faced with the question of whether a contract for employment of the city prosecutor could validly extend beyond flze term of office of legislators who approve the contract. The court held that the dispositive factor is whether the action of the governing body in executing the contract was legislative, governmental, or proprietary. If it was legislative -8- or governmental, the legislative body lacked the power to bind successive legislative bodies. If the action was merely proprietary, and therefore routine, the contract would be valid. The court expressly found that a contract to employ a city prosecutor is an exercise of the governmental function of the legislative body, and that therefore the city council was not bound by the contract executed by their predecessors in office. Obviously, if a city is not bound by the terms of ~an employment contract beyond the terms of the members of the .city council, then neither would a city be bound by the terms of an annexation agreement relating to zoning. Zoning is an exercise of legislative and governmental power. Hartnett v. Austin, supra. When a city acts to amend its comprehensive zoning ordinances, it acts in the exercise of police powers and for the protection of the public welfare. It acts in a coordinated way to protect the public at large. This is especially true in Florida, where a municipality is not empowered to zone except by legislation, and except where the municipality has adopted a compre- hensive land use plan, pursuant to public hearings, and with which the zoning is compatible. In the exercise of this legislative function, the City Commission in 1978 cannot lawfully be bound by an agreement entered into in 19 61 by a previous City Commission and by Appellee's predecessor in title. To support its conclusion that a municipality can contract away its police powers regarding the right to zone, the court below relied upon several cases from foreign jurisdictions and upon a single Florida case, that being Eastern Shores Sales Company v. City of North Miami Beach, 363 So. 2d 321 (Fla. 1978). Eastern Shores Sales Company, supra, involved an annexation -9- j ' L • agreement executed between the City of North Miami Beach and the predecessors in title of the Eastern Shores Sales Company. The City of North Miami Beach had purported to contract away its power to tax the subject property as consideration for annexation. -The annexation agreement was upheld by a circuit court in 195?, which judgment was not appealed. The court found that the final judgment of the circuit court rendered some 21 years previously was binding upon the City of North Miami Beach, and that the annexation agree- meat, once upheld by the court, was cloaked with invincibility by the doctrine of res judicata. The court specifically stated, however, that the trial court erred when it upheld the annexation agreement, and specifically the court stated that the city was not empowered to contract away its taxing power as consideration for annexation. Just as a city cannot contract away its power to tax, it cannot contract away its power to zone, this being a legislative action in the exercise of police powers. The court's reliance upon Eastern Shores Sales Company, supra, is therefore very much misplaced, and serves to emphasize the error committed by the court below. In summary, Florida cour+_s have always upheld the traditional principle of Iaw that a municipality is not empowered to contract away its zoning powers. A contract which guarantees zoning for a period of time is void. Hartnett v. Austin, supra. Rather than invalidating that portion of the annexation agree- meat relating to zoning, however, it would be appropriate for the court merely to interpret the agreement between Mr. Wright and the City of Clearwater according to its literal terms. Rather than torturing the agreement to infer an agreement to continue business zoning for an indefinite period of time, the court should rule as a matter of law that the agreement entered into in 1961 -10- • • between Appellant and Appellee's predecessor in title did not purport to guarantee the continuation of business zoning for any length of time, let alone for seventeen years. Such an interpretation would of course necessitate a reversal of that portion of the order below granting summary judgment for Appellee, and remanding to the circuit court for an entry of an order of partial summary judgment in favor of Appellant. -11- r l -~ i u THE COURT BELOW ERRED IlV GRANTIlVG SUMMARY JUDGMENT FOR THE APPELLEE AND IN HOLDING THAT APPELLANT IS ESTOPPED FROM AMENDING THE ZONING ORDINANCES RELATING TO APPELLEE'S PROPERTY. A. The court below erred when it expressly held that Appellee had a right to rely on continuation of the pre sent zoning. The trial court expressly held that the City was barred under the doctrine of equitable estoppel from applying the provisions of Ordinance No. 1749 to Appellee's property. Specifically, the court held: "An extended recitation of facts as they relate to the issue of whether or not Defendant City is estopped to deny plaintiff development under the original zoning is not necessary. They are in the record and abundantly support plaintiff's contention that it suffered substantial detriment in reliance on the conduct of the City which led plaintiff to believe that there would be no change in zoning. " (R-191). (emphasis added) The court below does not specify what acts or omissions of the City the Appellee relied upon. The court did, however, state that the Appellee did not rely upon a building permit, a variance, a special exception or some other vested right; rather, it relied upon conduct of the City which allegedly implied that the City did not contemplate a change in zoning. As a matter of law, a property owner has no right to rely upon a continuation of existing zoning. City of .Miami Beach v. 8701 Collins Avenue, 77 So. 2d 428 (Fla. 1954). This doctrine was expressly relied upon by this court in the recent case of Pasco County v. Tampa. Development Corporation, 364 So. 2d 850 (2d DCA Fla. 1978). Appellant is entitled to a reversal of the order of summary judgment granted below, and the entry of an order granting summary judgment in its -12- r , favor, on the grounds that equitable estoppel will not apply where the extent of the property owner's reliance is upon the continuation of existing zoning. B. In the alternative, the court below erred in finding that there are no issues of material facts which preclude the granting of summary judgment on the issue of equitable estoppel. When the City Commission of the City of Clearwater enacts a zoning ordinance, it acts to amend the Comprehensive Zoning Ordinances of the City of Clearwater. Such an action is legislative in character, can only be done by ordinance, and must be done in compliance with provisions of Florida Statute Chapter 16 6. Laws adopted by a municipal legislature carry with them a strong presumption of validity. City of Miami v. Kayfetz, 92 So. 2d 798 (Fla. 19571; Wiggins v. City of Jacksonville, 311 So. 2d 406 (1st DCA 1975). Zoning ordinances in particular are presumptively valid and will be overturned by the court only in the most extreme situations.. North Redington Beach v. Williams, 220 So. 2d 22 (2d DCA Fla. 1969); Miami Beach v. Lachman, 7I So. 2d 148 (Fla. 1953), app. dism'd 348 U. S, 906, 99 L. Ed. 711, ?5 S. Ct. 292 (1955); Wolff v. Dade County, 370 So. 2d 839 (3d DCA Fla, 1979). There have been a few extraordinary circumstances in which a property owner has relied substantially upon the conduct of local governmental officials, and then had his vested rights changed arbitrarily and to his great detriment. To deal with this extreme circumstance, the courts have recently developed a doctrine known as equitable estoppel. The doctrine was created -13- ` ~ ~ to assist a property owner when government has acted in a highly inequitable and unjust manner, and left the property owner otherwise without a remedy. The elements of equitable estoppel are set forth in the case of Town of Largo v. Imperial Homes, 309 So. 2d 571 (2d DCA Fla. 1975); (1) the property owner must rely in good faith, (2) upon some act or omission of the City, (3) and have made such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights that he has acquired. The very nature of equitable estoppel is a balancing of the interests between the local government and the property owner. The principle will e stop a municipality from enforcing the provisions of a zoning ordinance only where it would be highly inequitable and unjust to do otherwise. The court must balance the equities between the interests of the public as represented by the government, and the interests of the property owner. The property owner ha s a heavy burden of showing the inequity and fundamental unfairne s s of the enactment of the zoning ordinance as applied to him. This court said it best in the case of Town of Largo v. Imperial Homes, supra, when it stated the purpose of the doctrine as prohibiting a governmental body from laying out a welcome mat for a developer, encouraging the developer to expead considerable sums of money in reliance upon the welcome mat, and then suddenly and arbitrarily removing the mat, and the welcome also, In this case there has been no evidence of overt actions or omissions by the City of Clearwater upon which Appellee could rely. The file is replete with _lg_ i correspondence indicating that the City was kept informed of some of the development plans. There is a remarkable absence, however, of any overt actions by City officials to approve of such plans in any official dray, or even to encourage them. The record does reflect that Appellee applied for a building permit to c on struct a c omme rciai building on a c e rtain 1. 9 a c re s m. 0.1. on Sand Key. (R-lI9). The record also reflects, however, that Ordinance No. 1749 exempts that 1.9 acres from the rezoning. (R-44-49). The court below held that Appellant was equitably. estopped from applying Ordinance No. 1749 to any portion of Appellee's property. Although Appellee had prepared plans to commercially develop but a small portion of Sand Key (R-I80, Doc. Nos. 83, 9, 63), the court below estopped Appellant from rezoning any portion of Appellee's property on Sand Key from commercial to multi-family residential. (R-192, 193 ). The record does not reflect that United States Steel has made such a substantial change in its position. or incurred such extensive obligations and expenses that it would be highly inequitable and unjust to rezone the property. In fact, the record reflects that Appellee has expended approximately $150, 000 in architectural and development fees for the development of commercial property on Sand Key. (R-113-115). Considering that Appellee purchased the property for $11 million in 1969 (R-180, Doc. No. 14), and considering the enormous wealth of United States Steel, it is error as a matter of law to • conclude that the expenditure of $I50, 000 by U. S. Steel to develop plans for commercial property on Sand Key represents such a substantial expenditure that it would be highly inequitable and unjust to amend the zoning. -15- t ~} f i The record reveals that Appellee was well aware that the City considered rezoning Appellee's property years before any such action v~ra.s actually taken. In 1970, for example, Appellee wa.s aware that the City intended to rezone Appellee's property from commercial to residential. (R-180, Doc. Nos. 26, 2?). In 1974, the City Commission of the City of Clearwater. instructed the City staff to recommend downzoning of alI areas within 500 feet of the water, especially environmentally sensitive lands, to zoning consistent with land use. (R-180, Doc. No. 52). This would certainly put Appellee on notice that the City was considering rezoning its property. _ In 1974, the City adopted its Compre- hensive Land Use Plan as mandated by Florida Statute 163. The Comprehensive Land Use Plan designates Sand Key as predominately residential (R-151-153). In 197b, Appellee first indicated that it objected to residential zoning on its property (R-180, Doc. No. 60). As early as 19??, the City Commission officially considered the rezoning of Appellee's property. These facts appearing in the record create a genuine issue of material fact relating to the most critical issue in any equitable estoppel case, that is, whetYier the property owner did in good faith rely on actions of the city which would make it highly unjust to destroy vested rights. At a bare minimum, the record reveals ample evidence that Appellee was aware, as early as 1970, of Appellant's intention to rezone the property. (R.-I80, Doc. Nos. 26, 27). How could Appellee rely on commercial zoning when it knew that the City cvas contemplating a change in the zoning? -I6- i a "' . r • Admittedly, the record also reveals that Appellee from time to time sought to retain the option of commercial development, and communicated this intention to Appellant on numerous occasions. (R-180, Doc. Nos. 54, 26). It may be inferred that the purpose of these communications was to create vested rights in commercial zoning, which inference would naturally preclude any good faith reliance on the part of Appellee. The record, therefore, contains evidence that: (1) Appellee acquired no vested rights in the development of commercial property on Sand Key; (2) the City committed no official acts upon which Appellee could rely; (3) the City in fact expressed an intention to rezone just one year after Appellee acquired the property and on numerous occasions thereafter; (4) Appellee did not in fact rely on any vested rights; and (5) comparing the vast resources of United States Steel and its expenditures in acquiring and developing Sand Key to the' $150, 000 spent to develop plans for a shopping center, it would not be highly inequitable to rezone Sand Key to high-density residential. In the face of this conflicting evidence, the entry of summary judgment was error. Even where the evidence itself is uncontradicted, summary judgment must be denied if the evidence is susceptible of conflicting inference. Meigs v. Lear, 210 So. 2d 479 (1st DCA Fla. 1968). It is axiomatic that summary judgment cannot be granted unless the party in whose favor summary judgment is granted demonstrates conclusively there are no genuine issues of material fact. Hall v. Taicott, 191 So. 2d 40 (Fla. 19b 6 ). The present case is anything but clear. Not only is the evidence -17- conflicting, but it is voluminous and is susceptible to conflicting interpretation. Research has failed to disclose a single Florida case in which summary judgment has been av~ra.rded on a theory of equitable estoppel. This i s not surprising, because the very nature of equitable estoppel involves the weighing of conflicting evidence. Questions of whether there has been reliance and whether it has been in good faith necessarily involve the sifting of conflicting evidence. Whether a property owner's expenditures are so great that it would be highly unjust not to invalidate the zoning ordinance presents a classic case of equity in which the interests of a property owner must be balanced against the interests of the public. City of Clearwater v. Field Construction Associates, 350 So. 2d 845 (2d DCA Fla. 1977). It is no wonder that summary judgment and equitable estoppel are incompatible, for the one is used to resolve pare questions of law, and the other is based on a judicial determination of the facts and the import given to conflicting facts. Certainly the present case is not appropriate for summary judgment in favor of the Appellee, where there has been no showing of malice, bad faith, or an attempt to appropriate the property or to render it beneficially useless. Therefore, the order granting summary judgment must be reversed. -18- ' w + ~ • CONCLUSION That portion of the Order Granting Final Summary Judgment which holds that Appellee is guaranteed business zoning by virtue of a contract entered into in 1961 between Appellant and Appellee's predecessor-in-title cannot stand. The court below quite obviously misinterpreted the plain terms of the 1961 agreement, which required Appellant to zone the subject property "B" at the time of annexation. This court is respectfully requested to reverse the court below on this issue, and to remand for entry of an Order granting Appella.nt's Motion for Summary Judgment on either of these grounds: (1) that the agreement does not by its terms prohibit rezoning Appellee's property in the year 1978; or, (2) that to the extent that the annexation agreement may be read to prohibit such rezoning, it is void as an unlawful attempt to contract away the City's zoning power. This court is respectfully requested to reverse the court below, and to remand for entry of an Order granting Appellant's Motion for Summary Judgment on the issue of equitable estoppel. It is apparent from the record as a whole, as well as appearing on the face of the order appealed from, that Appellee relied on the continuation of existing zoning. As a matter of law, a property-owner acquires no vested right in the perpetuation of ex=sting zoning, and therefore cannot rely that the zoning not be changed. Therefore, Appellee's claim based on equitable estoppel must fail as a matter of law. If, however, this court should not remand for entry of an order granting Appellant's Motion for Summary Judgment on the issue of equitable estoppel, -19- ~ w , ro ~ . it is apparent that the court must reverse the order granting Appellee's motion, and remand for further proceedings. The record is abundantly clear that Appellant took no formal action upon which Appellee could rely, and furthermore, that Appellee was well aware that the City was considering a rezoning at least as early as 1974. At a minimum, the record shows the existence of an issue of material fact which precludes the entry of a final order in favor of Appellee. That portion of the trial court's order which denied Appellee's prayer for de-annexation and prayer for damages has not been appealed or cross- appealed, and should not be disturbed. Appellee's claim that Ordinance 1749 is unconstitutional, arbitrary, and capricious was not presented by either party as a matter appropriate for resolution by sr~mmary judgment, and this court should remand the proceeding to the court below for resolution of this claim. -20- I ` w i CERTIFICATE OF SERVICE a • I HEREBY CERTIFY that a true copy of the foregoing Brief of Appellant has been furnished by U. S. regular mail to Dennis P. Thompson, Esquire, 1253 Park Street, Clearwater, Florida, Attorney for Appellee; and to Thomas A. Clark, Esquire, and to Thomas- F. Icard, Jr., Esquire, P. O. Box 3239, Tampa, Florida, Attorneys .for Appellee, this ~ ~~' day of August 1979. Frank X. Kowalski Chief •Assistant City Attorney P. Q Box 4748 Clearwater, Florida 33518 (813) 442-6131 Attorney for Appellant =21- ..,,, • THE DISTRICT COURT OF APPE AL OF FLORIDA SECOidD DISTRICT Circuit Civil Number: 78-4765 Appeal Number 79-178 APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA ANSWER BRIEF OF APPELLEE UIIITED STATES STEEL CORPORATLON ~_r Dennis P. Thompson RICFiARDS, IQODINE, GILKEY, FITE, MEYER & THOMPSON, P.A. 1253 Park Street Clearwater, Florida 33517 (813) 443-3281 and Thomas A. Clark, And Thomas F. Icard, Jr., CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. Pcst Office Box 3239 Tampa, Florida 33601 (813) 223-5366 Attorneys for Appellee CI'!'Y OF CLEARWATER, FLORIDA Appellant, vs. UNITED STATES STEEL CORPORATION, Appellee. / • TABLE OF CONTENTS Page No. TABLE OF CONTENTS ...................................... i TABLE OF CITATIONS ..................................... ii PREFACE .................................. ............ v STATE OF THE CASE AND OF THE FACTS ..................... 1 POINT I ................................................ 11 WAS THE APPELLEE ENTITLED TO ENFORCEMENT OF THE WRIGHT AGREEMENTS RESPECTING BUSINESS ZONING ON SAND KEY? A. The Appellee can Claim the Benefits of the Wright Agreements. B. The Substantive Provisions of the Wright Agreements Prohibited the City from Amending the Zoning Ordinance which Authorized the Business Zoning. C. The City's Attempted Rezoning Impairs the Obligations of a Contract in Violation of~the United States and Florida Constitutions. D. The Wright Agreements are Enforceable and are not Prohibited Contract Zoning. POINT II ............................................... 30 WAS THE APPELLANT ESTOPPED TO CHANGE THE BUSINESS ZONING CLASSIFICATION APPLICABLE TO THE APPELLEE'S PROPERTIES ON SAND KEY? A. The Larger Case of Estoppel. B. Estoppel as to the Seven Acre Sand Key Shoppes Site. CONCLUSION ............................................. 44 CERTIFICATE OF SERVICE ................................. 46 i ~ x • • ~__ ~_ AMENDED TABLE OF CITATIONS Andover Development Corporation v. City. of New Smyrna Beach, 328 So.2d 231 (.Fla. 1st DCA, 1975 Appeal of Diamond, 196 A.2d 363, 370 (Pa.; 1964) Beshore v. Town of Bel Air, 206 A.2d 678 (Md., 1965) Boston Elevated Ry Co. v. Commonwealth, 39 N.E.2d 87, (Mass., 1942) Bryant v. Cole, 282 So.2d 652 (Fla. 2d DCA, 1973) Church v. Town of Islip, 168 N.E.2d 680, 683 (N.Y. , 1960) Cit of Colorado 5 rin s v. Kitt Hawk Dev. Co., 392 P.2d 467, 471, 473 Colo., 1964 , cert. denied 379 U.S. 647 (1965) City of Miami v. Bus Benches Co., 174 So.2d 49 (Fla. 3d DCA, 1965) Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA, 1975) Eastern Shores Sales Co. v. Cit of North Miami Beach, 363 So.2d 321 (Fla., 1978 Finesmith v. Singer, 216 So.2d 39 (Fla. 3d DCA, 1968) Gruber v. Ma or and Township Committee of the Township of Raritan, 179 A.2d 145, 148 N.J. Super. ApP. Div., 1962), aff'd, 186 A.2d 489 (N.J., 1962) Hall y. O'Neil Turpentine Co., 47 So. 609 (Fla., 1908) Hartnett v. Austin, 93 So.2d 86 (Fla., 1956) ii Page, No . 44 43 21 19 14 , 15 21 18, 23 18 32 21, 26, 28, 29 14 30, 43 i2 20, 21 1 ~..~ ; ~_ • • Page No. Indiana v. Brand, 303 U.S. 95, 100 (1938) 18 Kitsos v. Stanford, 291 So.2d 632 (Fla. 3d 12 DCA, 1974) Lalow v. Codomo, 101 So.2d 390, 393 16 (Fla., 1958) ' Mayor and City Council of Baltimore v. Crane, 17, 20, 352 A.2d 786, 792 (Md., 1976) 22, 23 Mayor & Council of Rockville v. Brookeville 15, 23 Turnpike Const. Co., 228 A.2d 263, 280 (Md., 1967) McGinn v. State Board of Harbor Com'rs, 17 299 P. 100 (Cal. App. , 1931) New Jersey Highway Authority v. Sills, 18 263 A.2d 498 (N.J. Super., 1970) aff'd 278 A.2d 489 (N.J., 1971) 165 Broadway Bldg., Inc. v.-City of Investing Co. 13 120 F.2d 813 (2d Cr., 1941) Pasco County v. Tampa Development Corporation, _- 34, 39 364 So.2d 850 (Fla. 2d DCA, 1978) Project Homes, Inc. v. Town of Astatula, 373 So.2d 37-41 710 (Fla. 2d DCA, 1979) Sakolsky v. City of Coral Gables, 151 So.2d 44 433 (Fla., 1963) Soper v. Stine, 184 So.2d 892 (Fla. 2d DCA, 1966) 32 Tanner v. City of Boulder, 405 P.2d 939 (Colo., 1965) 21 Telimar Homes, Inc. v. Miller, 218 N.Y.S.2d 43 175 (App. Div., 1961) Texas Company v. Town of Miami_Springs, 44 So.2d 35, 40 808 (Fla. , 1950) Tollius v. Dutch Inns of America, Inc., 244 So.2d 32 467, 472 Fla. 3d DCA, 1970 iii <_: :` C~ • Page No. Town of Largo v. Imperial Homes Corporation, 31, 32, 34 309 So.2d.571 (Fla. 2d DCA, 1975) 37, 40 Troslin v. City of Sonora, 301 P.2d 891 18 (Cal. App., 1956) Trustees of Dartmouth College v. Woodward, 17 4 tr7Yieat 518 (1819 ) Ward. v. City of New Rochelle, 197 N.Y.S.2d 23, 25 64 (Sup. Ct.) aff'd without o inion, 197 N.Y.S.2d 128 (App. Div. (1959 ; aff'd without opinion, 168 N.E.2d 821 (N.Y., 1960) Waterville Realty Corp. v. City of Eastport, 20 8 A.2d 898 (Me., 1939) Wa-Wa-Yanda, Inc. v. Dickerson, 239 N.Y.S.2d 18, 19 473 (App. Div., 1963) OTHER CITATIONS: 4 Fla. Jur.2d, Assignments, §21 12 11 Fla. Jur.2d, Contracts, §106 16 12 Fla. Jur., Estoppel and Waiver, §§50, 51 and 72 14, 29 17 Am. Jur,2d, Contracts, §§256 and 297 12, 16, 27 Fla. Const. Art. I, §10 17 U.S. Const. Art. I, §10, cl. 1 17 iv ~ ~ ~ • i P RE FACE; References herein to the parties, the Record on Appeal and to documents listed in the Appellee's Request for Admissions will be consistent with the references indicated in the Preliminary Statement in the Brief of Appellant. Appellee has also prepared and submits an Appendix which contains the trial court's Summary Judgment and excerpts from many of the pertinent documents. Parenthetical references to the Appendix will be indicated by "A" followed by a page number in the Appendix. v ~, `_ e ~ • STATEMENT OF THE CASE AND OF THE FACTS This is an action by a landowner (Appellee) against a zoning authority (Appellant) based on two theories: 1) breach of contract, and. 2) equitable estoppel, sometimes referred to as zoning estoppel. Appellants' Statement of the Case and the Facts is accurate, but substantially incomplete. Appellant has appealed from the trial court's final Summary Judgment which permanently enjoined the enforcement of a zoning ordinance. The stricken ordinance changed the zoning classification applicable to the Appellee's 1Ja-~dholdngs located on Sand Key and effectively prohibited the Appellee from proceeding with its long standing plans for development of the peninsula known as Sand Key. Appellee disagrees with the statement in the first paragraph of Appellant's Statement of the Case and Facts that the City's action 'in initially zoning the Wright properties in the "B" (business) classification "fulfilled" the City's obligations under the terms of the 1961 Annexation Agreement with Mr. Wright. This Statement is misleading and obviously objectionable as conclusory. The authenticated copies of these various agreements, which are part of the record (A-15 and R-180, documents number 1-4, and 6-13), are the best evidence of the terms thereof. In addition to these specific areas of disagreement, Appellee submits that an additional explanation of the chronology and cast • i of characters is necessary because of the significant facts which _., were omitted from Appellant's Statement of the Facts. During the 195U's the peninsula of Sand Key was in a completely wild state, had no improvements and was provided no city services. (R-186)._ At that time, the owner of the property, Ed C. Wright, initiated litigation against the City asserting that Sand Key should not be a part of the City of Clearwater. The Circuit Court for Pinellas County specifically declared the special act of the legislature incorporating the City in 1933 to be unconstitutional and void insofar as it Purported to include the Wright-Sand Key properties within the corporate limits of the City. (A-12). Thus, in 1960, Sand Key was not within the corporate limits of the City of Clearwater. -In order to annex the peninsula into the City, the City, in 1961, entered into a series of contractual arrangements with Mr. Wright (herein referred to as the "Wright Agreements", (A-15 and R-180, documents 1-4 and 6-13 and R-187), by the terms of which Mr. Wright agreed as follows: 1) 'i'o deed to the City right-of-way roads to a bridge between the north end of Sand Key and south end of Clearwater Beach; 2) To obtain from the state and deed to the city a substantial tract of submerged lands necessary for the bridge construction; 3) To underwrite and guarantee cos ~ ver^f~`~'' in the construction of the bridge; -~ ~ 4) To convey to the city by deed a tract of land for the construction of a sewer plant and appurtenant facilities; 5) To consent to annexation. 2 • In consideration of Mr. Wright's commitments, the City bound ~..~. itself that: (A-15 and R-180, documents number 1-4 and 6-13 and R-187 ) (1) The city would construct a bridge from Clearwater beach to Sand Key and issue bonds for the cost of same; (2) The lands oti Sand hey would be zoned "B" business, and that Mr _ Wri ht c7_..ras-ablf' *~ rIA~~PI off, the property under this zoning cl __ - ion. -'-_ In November, 1961, certain testimony was admitted in the Circuit Court Clearwater Pass Bridge bond validation proceeding. The transcript reflects that the land owners of Sand Key had agreed to donate to the City of Clearwater the land necessary for the right of way road which would join the City of Belleair Beach with the toll bridge. The testimony was also clear that N;r. Wright had agreed ~~ to purchase the submerged land needed for the construction of the bridge from the State and guarantee cost overruns. Specifically referring to the Wright Agreements, the City Manager's testimony confirmed the reciprocal obligation of the parties, as described above . ( A-19) . The transcript further reflects that the Assistant State Attorney, who represented the public, insisted-that the Wright Agreement be made a part of-the proceedings; He said: "I think that it is information which the city has already passed upon as being sufficient. These other agreements actually become, in my opinion, a part of the proceedings and affect the security of the bond holders. You only have a $5,000.00 contingency fund, therefore your cushion comes with Mr. Wright's bond and that which was put up by the Bayside Hotel Corporation." (A-23) . 3 ~. ,'. s • Then the City offered copies of the contracts and the court received them as evidence. Among the objections raised by the State Attorney was that the bridge improvement was private rather than public.. The Court found to the contrary, saying: "It is almost always true that any project for the public benefit has some incidential benefits to private parties. This project will benefit many thousands of private parties, but that is the nature of public improvements. I will sign the decree." On December 12, 1962, James R. Stewart, Clearwater City Manager, wrote Ed C. Wright advising him that the bridge would be open to traffic on December 15, 1962, that the City would proceed with its Annexation Ordinance, and that the property would be zoned for business use. He enclosed in his letter a part of the zoning ordinance describing uses in a "B" district and added a postscript: The enclosed zoning ordinance is pretty broad. It states that almost anything can be done in a "B" businss zone. I trust it will meet with your approval. JRS" (A-27) On May 14, 1963, the question of zoning for Sand Key [then referred to as Dan's Point by some) and its annexation into the City of Clearwater came before Clearwater's Planning and Zoning Board. The following is an excerpt from the minutes of that meeting regarding Sand Key: Mr. Kruse informed the board that he had been advised in conversation with the 4 • City Manager that the city has made commitment that Mr. Wright can have business zoning for - all the annexation; further, that he had pointed out to the I~tanager the danger to the developer in blanket business zoning, particularly as to lack of use restrictions and set backs on property that might change hands and over which the original owner would not exercise control, thus resulting in a spotty development .. After some discussion, it was agreed that the chairman would follow with a follow-up memorandum to the City Manager and request that-the potential situation involved in "B" zoning be brought to the attention of the property owner and/or owners and discussed with them." (App. ). Pursuant to the terms of the Agreements, the bridge was built, the land was annexed and was zoned to a "B" (business) classification. On August 11, 1969, Joseph Dembeck and other representatives of the Appellee met with the executrix of Mr. Wright's Estate, the Mayor of the City of Clearwater and the City Manager. At that meeting, Mr. Dembeck advised the Mayor and the City Manager that the Wright Agreements had been exhibited and made available to the Appellee in connection with negotiations for the purchase of the wright-Sand Key properties. He further advised them that the Appellee interpreted the Wright Agreements as forming the legal basis for obligations on the part of the City to maintain zoning classifications on Sand Key that would permmit its use for commerical development and to provide city sewer and water service to the peninsula when it was eventually developed. R-96) Mr. Dembeck advised the Mayor and the City Manager that the Appellee intended to purchase the property in specific reliance upon the Wright Agreements as insuring zoning to permit Appellee's intended future development and the availability of necessary City services for that development, when 5 - ~ • needed. Mr. Dembeck then specifically inquired of the Mayor and the City Manager as to whether the Appellee had overlooked anything in interpreting the Wright Agreements in this manner and whether, as far as they knew on the City's part, there was any reason why the Appellee should. not proceed to purchase the property with this understanding and with these intentions. Neither the Niayor nor the City Manager advised Nir. Dembeck or anyone else associated with the Appellee that their interpretation and intended reliance on the Wright N 0''C ~ ~ ~ /y~,0 ~ Gift., -- Agreements was in error. ( R-97) . ~Q~~ '"~ ~~ Q 5~~//V-V Thereafter, Plaintiff, on August 12, 1969, entered into a ~- contract with Nor. Wright's Executrix for the purchase of certain lands, including all of ttie land owned by Mr. Wright on Sand Key. (R-180 , document number 14) . ~`~- The contract provided, in part, as follows: 3. Zoning. It is understood that the properties will be conveyed subject to existing zoning laws and regulations at the time of closing. It is further understood that the present zoning is as follows: (a) Parcel No. 1 [Sand Keyj is currently zoned "B", business district. A copy of the Zoning Ordinance of the City of Clearwater, Florida is attached hereto as Exhibit "E"... Aiso attached is Exhibit "E 1", being a copy of Ordinance No. 971 providing for the annexation of said property to the City of Clearwater and fixing the. zoning classification as aforesaid." On October 8, 1969, Appellee acquired the Wright-Sand Key properties and in a separate agreement assumed and agreed to fulfill all remaining obligations of Mr. Wright to the City under the Wright Agreements. (A-36). 6 . • i _ An undischarged obligation of Mr. Wright remaining at the time of the Appellee's acquisition was the conveyance of a tract of land on the peninsula for the construction of a, sewer plant. The Appellee and the Appellant exchanged correspondence between May, 1970, and July, 1972, wherein they acknowledged their respective obligations .under the Wright Agreements with respect to the construction of a sanitary sewer treatment plant on Sand Key. (A- 38, 39). The deed to this land was delivered by Appellee on September 13, 1972. (A-40). In 1972, the Appellee was engaged in negotiations with third parties for the sale of two tracts of property on the island for the construction of resort hotels. At that time, the city issued verbal confirmations with respect to commercial zoning on the properties and the availability of City water and sewer service when needed (pursuant to the terms of the Wright Agreements). These verbal confirmations were issued to Mr. Borgh, a representative of the Appellee. (R-97, 116-117). Also in 1972, the Appellee contracted with and ultimately sold approximately 60 acres of Sand Key (the number of acres designated by the City} to the City or its assignee for public recreation purposes with the restriction that the land would be used for public purposes only. The sales price was substantially below market value, as an accomodation and a gesture of good will to the city (R-97-98). In connection with negotiations for the sale of this property, the Mayor and the City h:anager again reaffirmed the City's obligations to the Appellee under the Wright Agreements with 7 C7 respect to zoning on the Appellee's properties on Sand Key and further i ~ _._ indicated that, in consideration of the favorable price and terms the Appellee granted to the city for the sale of the 60 acres, the Appellee could expect the City's full cooperation with respect to the Appellee's future plans for commercial development of some of the remaining portions of its property on Sand Key. (R-98). ---- From the inception of the Appellee's acquisition of Sand Key, it planned a gradual development of the property for residential, hotel and business purposes. The only significant deviation from this plan was the sale of the 60 acres. All sales to third parties, including the sale to the City, were conditioned upon the purchasers using the land for specific purposes. These limitations were implemented by provisions in the sales agreements, whereby building plans required the specific approval of the Appellee in order to reserve to the Appellee the exclusive right to develop its properties on Sand Key for commercial purposes. (R-98-99). Based upon its dealings with the City from 1969 to 1976, the Appellee initiated planning for the development of an integrated shopping center complex to be known as-Sand Key Shoppes on a seven- acre tract located on the northern end of Sand Key on the bay side. Beginning in January, 1976, the Appellee employed the firm of Harry A. McEwen, Architect, of Tampa, Florida, for the purpose of preparing plans and designs for the shopping complex and for the purpose of meeting, negotiating and consulting with representatives charged with responsibilities pertaining to the administration and enforcement of City zoning and building regulations with respect to this intended commercial development. (R-99)$ L J .~-~ On January 16, 1976, Mr. McEwen presented a summary description of the commercial project for the seven acres, captioned "Clearwater Sand Key 5hoppes Planning Preliminaries" to the Planning Department. (R-119). Thereafter, Mr. McEwen and other members of his architechtural firm met, negotiated and consulted with representatives of a variety of City agencies and departments with respect to the furtherance of the Sand Key Shoppes commercial development. A specific listing of all of these 40 meetings and contacts during the period between January 21, 1976, and October 26, 1977, is included in the Appendix to this brief. (A-45). Later, in~, the City initiated rezoning action on Sand Key (A-43). Significantly, the seven-acre parcel designated for commercial development was omitted from this City-initiated proposal. Mr. Bergmann, then City Planning Director, made it clear that, prior to this City-initiated action, he had been aware of and knew the extent of U.S. Steel's plans for commercial development of the seven- acre parcel on Sand Key. (A-54 to 57). The City Commission also became aware of these specific plans during this zoning proceeding. (A-61). This zoning action was later withdrawn. (A-63). From the beginning of the planning stages for this commercial project, the Appellee's directions to Mr. McEwen and his architectural firm and all resulting plans for the development consistently provided for and assumed a single integrated shopping center, consisting of four or more buildings to be located on the entire seven-acre tract. It is standard industry practice to construct in phases in developments of this type. For this reason, Nir. McEwens firm prepared 9 . • • and submitted plans to the City in 1977 for one building only, along ;~~ with a request for a building permit. (R-119). Nonetheless, Mr. ._ McEwen and other members of his architectural firm consistently advised representatives of the City on numerous occasions that the project contemplated the use of the entire seven-acre tract. Construction of the one phase {in this case, one building) for which plans were submitted to the City would not be economically viable. The marketability and economic viability of the Sand Key Shoppes commercial project depend upon the completion of the entire project, as designed and intended for the entire seven-acre tract. (R-119). From January, 1976, through and including October of 1977, the Appellee engaged in work and expenditures involving surveying, engineering, planning, design, contacting of prospective tenants, and other tasks devoted to the development of this seven-acre tract ~_. in a single-unit shopping center. (R-lOG). The Appellee spent $150,000 for this purpose. (R - 102-03). In October, 1977, the Appellee received a notice of public :. hearing on applications for change of zoning, which notice indicated that the Appellee's properties were to be brought before the City's Planning and Zoning Board and the City Commission for consideration of changes in zoning classifications. (R-5,62). Following readings on March 16, 1978, and April 6, 1978, the City adopted Ordinance No~1749~ which changed Appellee's zoning on all of Sand Key from commercial to residential except for 1.9 acres for which Appellee had submitted plans for Phase I of the Sand Key Shoppes development. (R-7,62) . 10 • • ~'`'~ The Appellee's planning and promotion of its proposed shopping ~, center on the seven-acre tract during the period since 1975 enhanced the value and development potential of that site. This enhanced value of the property, however, has been jeopardized by the actions of the City Commissioners described above. Also, under the zoning classification in the stricken ordinance applicable to 5.1 acres of the original seven-acre shopping center tract, the Appellee would have been unable to proceed with the completion of that project. POINT I WAS THE APPELLEE ENTITLED TO ENFORCEMENT OF THE WRIGHT AGREEMENTS RESPECTING BUSINESS ZONING ON SAND KEY? A. THE APPELLEE CAP] CLAIM THE BENEFITS OF THE WRIGHT AGREEMENTS. At the time of the Wright Agreements, Sand Key was a large and undeveloped peninsula, separated by water from the City of Clearwater and thus inaccessible to automobile traffic. The City as a part of its bargain agreed to zone this land as "B" (business) and provide the area with municipal services. In return, among other things, the City would obtain land from Mr. Wright ror the construction of sewage facilities and obtain a cost overrun guarantee in connection with the construction of the bridge. The City, in its brief, has characterized the Wright Agreements as a personal agreement which only Mr. Wright could perform. :~Y, 11 • •__ This argument is difficult to follow. The guarantee or security that the City obtained with respect to the bridge was not Mr. Wright's personal promise but, rather, was guarantee evidenced by its possession of negotiable securities. Certainly the City was more concerned with the quality of its security than with who executed the pledge. Accordingly, since it does not appear that the Wright agreements expressly forbade an assignment, that an assignment would violate a rule of public policy or statute, or that the contract involved a question of personal trust and confidence (e.g., an employment contract), the agreement was one which could be assigned by Mr. Wright's executrix to the Appellee. Hall v. O'Neil Turpentine Co., 47 So. 609 (-Fla., 1908), Kitsos v. Stanford, 291 So.2d 632 (Fla. 3d DCA 1974). And,. if an agreement is assignable in nature, an assignee may enforce performance of obligations due under that agreement. 4 Fla. Jur.2d, Assignments § 21; 17 Am.Jur.2d, Contracts ~ 297. The Wright agreements had to be enforceable to have substantive meaning for either party. For instance, the City, to obtain the benefits it sought,-had to be in a situation to obtain title to the land designated for a sewage facility. It certainly would have been useless for the City if Mr. Wright could have conveyed a part of Sand Key and defeated the City's objectives. From the landowner's point of vie~~•, since Sand Key was wild and undeveloped, the business designation for zoning would have been illusory unless Mr. Wright or his successor could utilize the benefits of that zoning 12 • for future development. It was on this basis that the Appellee ""maintained before the-trial court that the Wright Agreements created a covenant running with the land with each party having affirmative benefits and duties thereunder. The Appellee, as successor in interest to the Wright ownership, tood the property subject to obligations-and benefits created by that covenant. This is thus analogous to 165 Broadway Bldg., Inc. v. City Investing Co., 120 F.2d 813 (2d Cir. 1941), the classic case concerning covenants running with the land. However, Judge Driver indicated that there was a less involved method of showing the requisite interests in the Wright agreements by the Appellee. Judge Driver found that "The City throughout its dealings with plaintiff has recognized and affirmed that plaintiff was the successor to Mr. Wright and ownership of the land and obligations of Mr. Wright under the contract. The City insisted upon contractual rights when it obtained from plaintiff the land for the sewer facility" (R-189). These findings are supported by undisputed facts in the record that demonstrate that, prior to the conveyance from the Wright estate to the Appellee, the City was made aware of this conveyance and of the assignment of the Wright interests to the Appellee (R-96, 97). The undisputed record further establishes that in 1972, some three years after Mr. Wright's death, the City. demanded performance from the Appellee of that aspect of the Wright Agreements concerning the land for the sewage facility (A-38). In so doing, the City recognized the Appellee as the assignee of the Wright Agreements with respect to this remaining obligation of Mr. Wright. 13 • • ' Concerning the foregoing, Judge Driver said "the court . is satisfied that the City cannot legally or equitably be heard to take its credit but leave its debts under the contract" (R-189). See 12 Fla. Jur., Estoppel and Waiver, ~ 72. In Finesmith v. Singer, 216 So.2d 39 (Fla. 3d DCA, 1968), the court held that recognition of an assignment estopped the complainants from questioning the validity of that assignment and the assignee's interests in the subject matter of the assignment.-- even when the assignor's interests had been tainted with fraud and subject to forfeiture but for the assignment. The City has insisted that this Court's holding in Bryant v. Cole, 282 So.2d 652 (Fla. 2d DCA, 1973) is controlling on its claim that the Appellee does not have the requisite beneficial interest in the Wright Agreements for enforcement purposes. As pointed out above, the Appellee derived its position in two ways: (1) by virtue of having taken title to the land as the beneficiary of and subject to affirmative covenants running with the land; and, (2) as an assignee in privity with its assignor, as in Fine smith. The Bryant case involved a claim by the plaintiff that he was a third party beneficiary to a contract. The court decided that case on that theory and held there was no third party beneficiary contract. An analysis of the facts in the present case reflects that no suggestion has been made that the Appellee is a third party beneficiary to the Wright agreements. Typical third party beneficiary claims under the Wright Agreements would have been claims by the --- citizens of the City that certain provisions. of the agreements had 14 s ~ .- not been met. No such claims have been presented in this case. The Bryant v. Cole case is, therefore, not in point and is not controlling in the present case. The lower court was correct in holding that the Appellee had sufficient interest in the Wright Agreements to enforce its contractual rights thereunder. B. THE SUBSTANTIVE PROVISIONS OF THE WRIGHT AGREEMENTS PROHIBITED THE CITY FROM AMENDING THE ZONING ORDINANCE WHICH AUTHORIZED THE BUSINESS ZONING. The Appellant has urged that the Wright Agreements should be construed to the effect that the-City fulfilled its obligations thereunder by initially zoning Sand Key in the Business classification.l/ The original parties to the Wright Agreements could not have intended anything so illusory. One must believe that the City would rot have entered into any transaction that it thought illegal. It was proffering the agreements to a circuit court as evidence to substantiate the validation of bridge bonds and at the time it was publicizing the agreements in a ros~ectus for the sale of such bridge bonds. (A-26) . ~iJ- O~"~'~ In the state that Sand Key existed, zoning for business use, which, as indicated by the City Manager, would have provided for 1/ The City is constrained to suggest this construction; otherwise, it would be conceding that the 1961 agreements were ultra vices. See, e.g., the discussion in the dissent in Mayor & Council of Rockville v. Brooksville Turnpike C©nst. Co., 228 A.2d 263, 280 (Md., 1967). 15 I ~ ~, a variety of uses, would have been of no immediate practical benefit except for future development. (A-31). That the City was aware of the purpose of the business zoning is evidenced by the City Manager's comments and by the minutes of. the City's Planning and Zoning Board of May 14, 1963, in which concerns were expressed as to the effect of such zoning when the property changed hands (.A-29). While specifically expressing these concerns, the City nonetheless proceeded to enact the ordinance annexing and zoning Sand Key (A-32). As a result of this procedure, the City could place Sand Key on its tax rolls without having to provide full municipal services in return, almost a return to the situation that preceded the ouster suit. .Hornbook law states that the intention of the parties governs v the construction of .contracts. 11 Fla. Jur.2d, Contracts § 106. Also, as the Florida Supreme Court has stated, "the actions of the parties may be considered as a means of determining the interpretation that they themselves have placed upon the contract". Lalow v. Codomo, 1 So.2d 390 393 Fla. 1958). Further, "eve contract implies G~ 10 , C ry good faith and fair dealing between the parties to it, and a duty of cooperation on the part of both parties". 17 Am.Jur.2d, Contracts § 256. Applying these principles, the complete lack of City improvements on Sand Rey, the bond validation proceedings, the sales of bonds, the construction of .the bridge, and the annexation and zoning proceedings make it inescapably clear that the City was aware and knew that the development of Sand Rey could not be done at once, 16 . • • that municipal services could not be provided immediately, and that, •._~ in fact, it would be a number of years before utilization of the zoning and city services would be made or even required. The City has suggested that it is obvious error to prohibit rezoning some 17 years after the execution of the agreements. It should be noted that only seven years have elapsed since the City obtained title to the sewage facility land and that no reason existed to test the validity of the agreements until the City's attempted rezoning action. In a case having a number of similarities to the present action, the court held that the test was that of a "reasonable time". Mayor & City Council of Baltimore v. Crane, 352 A.2d 786, / 792 (Md. , 1976) . C. THE CITY'S ATTEMPTED REZONING IMPAIRS THE OBLIGATIONS OF A l CONTRACT IN VIOLATION OF THE UNITED STATES AND FLORIDA CONSTITIITIONS. Under the Constitutions of the United States and Florida, a municipality is not allowed to pass any law impairing the obligations of contracts. U.S. Const. Art. I, §10, cl. 1; "Pdo state shall pass any law impairing the obligation of contracts .", and Fla. Const. Art. 1, §10. "No law impairing the obligation of contracts shall be passed". See Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 (1819).. These restrictions are particularly applicable when a municipal corporation is acting in a proprietary capacity. McGinn v. State Board of Harbor Com'rs, 299 P. 100 (Cal. App., 1931). When the City entered into the Wright Agreements, it was ~_ acting in a proprietary capacity since Sand Key was not amenable ct 17 f ~ i to to any ordinance passed by the city commission. Troslin v. City of Sonora, 301 P. 2d 891 (Cal. App. , 1956) ; City of Colorado Springs v. Kitty Hawk Dev. Co., 392 P.2d 467, 471 (Colo., 1964), cert. denied, 379 U.S. 647 (1965). A contract can be formed even when part of the agreement is formed by legislation and even when the contract extends beyond the term of the legislature. Indiana v.~Brand, 303 U.S. 95, 100c~ (1938). The City of Clearwater is attempting to abrograte the Wright Agreements by rezoning Sand. Key from business as provided in the agreements. Although zoning is normally considered to be within the police power of the municipal corporation, this power may not be used to impair the obligation of its contracts. Wa-Wa-Yanda, Inc. v. Dickerson, 239 N.Y.S. 2d 473 (App. Div., 1963); Indiana v. Brand, su ra; City of Miami v. Bus Benches Co., 174 So. 2d 49 (Fla., 3d DCA, 1965). In New Jersey Highway Authority v. Sills, 263 A.2d 498 (IJ.J. Super. 1970), aff'd, 278 A.2d 489 (N.J., 1971), the state had passed a statute exempting members of the National Guard from all tolls while they were travelling to and from their posts for active duty. The court ruled that the statute was unconstitutional under the constitutions of New Jersey and the United States because the statute impaired the state's contract with the bondholders, whose bonds were to be paid with the collected tolls. In Wa-WaYanda, Inc. v. Dickerson, supra, the town leased property to the plaintiff, specifically providing that, among other 18 uses, the land was to be used for the sale of gasoline in conjunction ~~~~ with navigation. Subsequently, the town changed the zoning of the area so that the sale of gasoline would no longer be allowed. The court ruled that the lease was a contract, which could not be altered by legislative enactment, saying: "In applying the foregoing authorities . . it seems clear that since the Town of Islip, in fro rietary capacit leased the subject premises loner it cannot now be heard to assert that subsequently, and in its governmental capacity, it could alter the ;/ lease by zoning enactment." (Id. at 479). See also Boston Elevated Ry. v. Commonwealth, 39 N.E. 2d 87 (Mass., 1942), in which the court upheld a contract between the city and a company that provided for compensation to the company if the city used its police power in such a way as to deprive the company of the use of its stations. Accordingly, in view of the foregoing authorities, since f the City of Clearwater-was dealing in a ~ roprietary capac~ at the time it entered into the Wright Agreements, it may not now use the process of enacting an ordinance to impair those Agreements. Furthermore, even if the City had retained its police power over the property subsequently annexed, it may not unreasonably use that power to impair its contracts. In Wa-Wa-Yanda, su ra, the court stated if the police power was retained by the municipality, the municipality could not use that power as a guise to impair its contracts. The exercise of that power would have to be a reasonable,:' sd exercise taken for the public welfare in an emergency before the J vd 19 • !' ~~ city could impair its contract. See also Waterville Realty Corp. v. City of Eastport, 8 A.2d 898 (Me., 1939). D. THE WRIGHT AGREEMENTS ARE ENFORCEABLE AND ARE NOT PROHIBITED CONTRACT ZONING. Appellant contends that to interpret the Wright Agreements to prohibit further rezoning would result in contract zoning which as a general rule is beyond the powers of a municipal legislative body. Hartnett v. Austin, 93 So.2d 86 (Fla., 1956). However the agreements contemplated performance beyond the conveyancing of rights of way, posting of bonds, sales of bonds, construction of a bridge, annexation and zoning in that there was a realization. that the City would not need to provide municipal services until there was act~ial development and a resulting need for those services. (A-38, 39 and 40). Accordingly, the City received the benefit of having Sand Key added to its tax base, by voluntary agreement, without having to provide municipal services in return. While the Appellee might not have obtained a right to retain the business zoning in perpetuity, that zoning should be allowed to have a reasonable life. Mayor & City Council of Baltimore v. Crane, supra. Certainly the trial court's finding that a reasonable time has not yet elapsed is not an abuse of discretion, particularly when only seven years has elapsed since the City demanded conveyance of property for sewer services and thus commenced providing those city services to Sand Key (A-38 and 40). This Court must determine if tha r*';al court was correct in holding that the City must live up to the Wright Agreements. The City is bound by file agreements on two theories: first, that -~ the agreements do not consitute prohibited contract zoning as that 20 • .-~ t term is generally recognized, and, second, that the City is collaterally estopped from denying their validity. (1) The Wright Agreements Do Not Constitute Prohibited Contract Zoning The general rule is that contract zoning is prohibited because <~ a municipality cannot contract away the exercise of its legislative powers.- Hartnett v. Austin, supra. But there is nothing inherently invalid about combining annexation action with zoning. Beshore v. Town of Bel Air, 206 A.2d 678 (Md., 1965); Tanner v. City of Boulder, 405 P.2d 939 (Colo., 1965). As stated in a leading zoning case, in which the "contract" was upheld: "All legislation 'by contract' is invalid in the sense that a_Legislature cannot bargain away or sell its powers. But we deal here with actualities, not phrases". Church v. Town of Islip, 168 N.E.2d 680, 683 (N.Y., 196U). The City has suggested that Hartnett and the dicta in Eastern Shores Sales Co. v. City of North Miami Beach, 363 So.2d 321 (Fla., 1978), are diapositive. However, such contentions are incorrect. In Hartnett, there is no indication that the subject contract was to be entered into with the city by someone whose property was not already subject to the jurisdiction of the city, which, as will be shown, is a critical point. Likewise, in Eastern Shores, there was an attempt to restrict the city's right of taxation, possibly the most important legislative power a municipality has. Such is not the case with the zoning power. Particularly where, as here, the record reflects that the city obtained valuable consideration for 21 ~ ~ ~~ ~ ~ ~- ~ • • the public in exchange for its agreement to zone the property for ~~, ~`-~ business use -- consideration which included land, a guarantee against construction overruns, a significant public improvement in the form of a bridge and the power to levy property tax on property without any present concurrent requirement to deliver municipal services. The leading case in this area is Mayor & City Council of Baltimore v. Crane, supra. In this case, which died not involve an an exation question, an ordinance was enacted which allowed the ~~ plaintiff to develop 6.5 acres to the same density as would have been permissible on of a 4.5 acre orti~ made the conveyance 1971 when Baltimore which, when applied his original ll.l acre tract upon his conveyance -,_~ ~n to the city for public urposes. The plaintiff in 1954 and thereafter the matter stood until ~- enacted a new comprehensive zoning ordinance 7 y~S to the plaintiff's property, would prevent construction to the previously agreed-upon density. In the land owner's suit against Baltimore, the city contended, among other things, that the earlier transaction was contract zoning. The Maryland court held that the plaintiff had acquired a "vested contractual interest" by virture of the performance of its part of the agreement, i.e., conveyance of the parcel, in acceptance of the offer set forth in the City's ordinance. In explaining part of its decision the Court said: "Indeed, where a municipal made an offer by ordinance accepted and acted upon by may arise, the obligation constitutionally protected ." (Id. at 791) . corporation has which has been another, a contract ~f which is against impairment, 22 • • ~~~~ In a similar case wriere the landowner w~rsattempting to recover_ money , ~. he had paid to the municipality in return for annexation, the Colorado Supreme Court said: "Plaintiff asserts that the agreement between it and the City was ultra wires. Assuiming, arguendo, that this is so, this is no help to the plaintiff since it is estopped to assert such fact, having received and retained the benefits conferred thereunder, and the contract being fully executed on the part of all parties." City of Colorado Springs v. Kitty Hawk Dev. Co., 392 P.2d 467, 473 (Colo. 1964), cert. denied, 379 U.S. 647 (1965). The N~aryiand court in Crane found no distinguishing factors in the case of Ward v. City of New Rochelle, 197 N.Y.S.2d 64 (Sup.Ct.), aff'd without opinion, 197 N.Y.S. 2d 128 (App.Div., 1959); aff'd without opinion, 168 N.E.2d 821 (N.Y., 1960). In the Ward ~,~,~: case the plaintiff had contributed a 13-acre parcel to the New Rochelle School District in return for an agreement permiting her to divide her remaining land into 10,000 square foot lots. Shortly after her conveyance to the school district, the public authority disapproved the plan and recommended that her subdivision be required to have 20,000 square foot lots. The New York court,. because of the performance by the plaintiff, held that the City was estopped from changing the prior agreement. A case factually similar to the present case is Mayor and Council of Rockville v. Brookeville Turnpike Const. Co., 228 A.2d 263 (Md., 1967). In this case where city and a developer entered into a written agreement, the city agreed to annex the landowner's land into its corporate limits in return, for among other things, 23 • • the landowner's promise to dedicate one-half acre for a street and li ~_" ~._~ to set aside and develop two areas for recr The city, in accordance with the agreement, proceeded to annex the land but the developer refused to perform and the city brought an action for specific performance. The claim was made that the city did not have the power to exact conditions in return for annexation. The court, in denying this contention, said: "Since a municipality may or may not annex as the exercise of its honest judgment dictates, it seems only logical that it may, as prerequisites to granting annexation, impose reasonable, bona fide conditions for the public good and public welfare if they are related to the area to be annexed and nearby areas." (Id. at 273). The landowner claimed that the conditions for annexation ~ constituted illegal zoning. The court pointed out that the landowner ,~ as a part of the annexation agreement had insisted upon a particular zoning and in denying its claim said: The conditions the City insisted on were prerequisite to annexing, not to rezoning, as to which there was no significant controversy, and the fact that an agreed upon zoning classification would accompany the annexation as a condition of the annexee does not .bring the rezoning within the Maryland rule that rezoning cannot be granted conditionally. There was no lack of mutuality in the contract either of obligation or of remedy. Rockville could have been required to annex the land it agreed to annex had it failed to do so." (Id.) Accordingly, the N:aryland court granted relief to the municipality. As can be seen, the City of Clearwater's position 24 • • in the present case is the reverse of Rockville. In the present ~, (. -~- case the landowner and his assignee completed all obligations of performance and it is the City that has attempted to repudiate it. Certainly, there could be no question that the landowner in this case, Mr. Wright, would have been able to specifically enforce the agreements had the City refused to annex and zone after he has conveyed the right-of-way and posted the bonds and performed all other conditions precedent to the sale of the bonds and the construction of the bridge. In Ward v. City of New Rochelle, supra, the court in concluding its opinion stated as follows: [This case is] one where equity should protect the rights of ttie plaintiff, not by setting aside the zoning amendment adopted by the _ city as wholly invalid, but by holding it not applicable to the plaintiff's property by reason of the sequence of events, as set ' forth above. If the amendment were held applicable to the plaintiff's property, a great injustice would be done to one who had dealt most generously with her community by depriving her of the just consideration contemplated by all parties at the time she made her gift 'Courts should not be astute to enable a municipal corporation to disavow its just commitments or obligations, or to conduct itself respecting them in a manner violative of fair dealing, which they would not sanction were natural persons the parties involved.'" (p. 73) Of course the above cited decisions are from other jurisdictions and are not binding on this Court. However, the rule ~._ in each of the states whose decisions are cited is the general rule followed in ~'iorida that a municipality cannot contract away its police powers, and the decisions are directl~_=nip. Thus, within 25 • ~~ `_ `.. . • the general rule, the so-called "contracts" are upheld on two grounds: public benefit and good faith. Public benef it requires that the transaction has not been just for the benefit of the private land owner but equally for the city and its citizens who have gained an equal or possibly even a greater benefit in comparison; r_he annexation cases usually involve a benefit the City would not have been able to obtain without the agreement, or in other cases, one that it could have only obtained by vixtue of expensive condemnation proceedings. Good faith requires that the parties have from the beginning bargained at arm's length in good faith with each other in entering into the "contract". Thereafter, the courts will not allow a repudiating party to benefit at ter the other has performed. In these instances the principle of estoppel has been utilized by the courts to prevent un~ustices. Eastern Shores, supra, is distinguishable because it does not come within the recognized fact patterns. The annexation agreement there did not reflect any public benefit conferred upon North Miami Beach in return for allowing the annexed property to remain free of ad valorem taxes. The facts of this case conform to the recognized pattern and rationale of the foregoing cases. Without attempting to restate the facts in detail, it should be noted that Sand Key was ousted from the City's jurisdiction in 1957 because it had been unable or unwilling to provide municipal services, and it was therefore unable to bring it within its municipal boundaries without agreement. The City perceived that it would be to the public benefit to have a bridge 26 • • across Clearwater Pass. The City was able to receive additional ,- - `. ~- benefits by obtaining from the landowner certain lands necessary for this bridge without having to expend City funds and guarantees from the landowner against the possibility that it would have to fund any construction cost overruns on the bridge. In addition, the City added Sand Key to its tax base without having to provide full municipal services as would have been, the case for a typical annexation. All of these things were perceived by the City as being benef icial to its citizens. All of these benef its were only obtainable by an agreement with a private citizen, and not by unilateral action of the City. How can the City now repudiate its obligations? It has been stated: "Every contract implies good faith and fair dealing ber_ween the parties to it, and a duty of co-operation on the part of both parties. Accordingly, whenever the cooperation of the promissee is necessary for the performance of the promise, there is a condition implied that the cooperation will be given. Indeed, it may be said that contracts impose on the parties thereto a duty to do everything necessary to carry them out. When one undertakes to accomplish a certain result he agrees by implication to do everything to accomplish the result intended by the parties." 17 Am.Jur.2d "Contracts" ~ 256. Indeed, the Wright obligations have been-met voluntarily and upon demand of the City. The only obligations remaining to be performed are to allow the successor to Mr. Wright the opportunity to develop the remaining portions of Sand Key in accordance with the zoning then applicable. The City is estopped to do otherwise. 27 • • (2) The City of Clearwater Is Collaterally Estopped From Asserting That The Wright Agreements Are Invalid. The City is collaterally estopped by virtue of the agreements having been litigated and determined in the 1961 bond validation proceeding, City of Clearwater, Florida v. the State of Florida, et al., Chancery No. 56,912 Circuit Court for Pinellas County (A- The 1961 proceeding was an action for the validation of the bonds to be issued in connection with the sale of the Sand Key Bridge Bonds. An examination of the transcript reveals that reference to the Wright Agreements is made throughout the proceedings. For example, the City Manager testified that the bonds would be sufficient to prevent cost overruns (A-2i). The assistant state attorney, who appeared on behalf of the public, insisted that the contracts and indemnity agreement be made part of the record of the proceedings, feeling that they were a part of the proceedings and affected the security of the bond holders (A-23). These documents were received in evidence as a result (A-23). At the conclusion of the hearing, the Court held that the project was for the public benefit and consented to sign the decree validating the bonds (R-180, document number 5). In Eastern Shores Sales Co., v. City of North Miami Beach su ra, the Florida Supreme Court held that the City of North Miami Beach was collaterally estopped from asserting the invalidity of a previous judgment upholding the validity of an annexation agreement in which the city agreed not to levy taxes aga ins t the annexed land 28 • • until improvements had been constructed. In Eastern Shores, as in - the present case, the parties seeking to enforce the agreements with the city were successors in interest to the parties who had originally contracted with the city. Additionally, in each case the validity of the agreement was litigated. As pointed out above, the court in 1951 admitted the agreements into evidence in support of validating the bond issue.. (A-23) If, at that time, the agreement concerning the annexation and zoning and the other matters had been found to ~8 I be invalid, the court could not have entered the final decree because it would have become questionable whether the proceeds of the bonds would cover all costs of the project. Even if every element of collateral estoppel is not present, this Court should accord the Wright Agreements that respect. The ~~~ City has put itself in an untenable position in this case by offering the agreements and all of the facts surrounding the proposed but yet unaccomplished annexation in support of its contention that the bridge bonds should be validated in the 1951 proceeding. Would the City have made such representations to the Court if it felt that its actions were invalid? Can it now disaffirm those facts and take inconsistent positions with respect to the same agreements? In 12 Fla. Jur., Estoppel and Waiver §§ 50, 51, it is stated: "A man shall not be allowed to approbate and reprobate. And where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts "I t may also be laid down as a general proposition-that where a party assumes a 29 • certain position in a legal proceeding and succeeds in maintaining that position he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it is to the prejudice of the party who has acquiesced in the position taken by h im . "It is said that there is a kind of evidential estoppel which, though it may not amount to a complete estoppel in pais, is raised when persons who have spoken or acted one way unde r one set of circumstances, and with, one objective in mind, under other circumstances and when their objective has changed, to testimonially give a different color to what they formerly said and did." When, as here, there were representations made and evidence introduced to a court which were utilized as the foundation for a final judgment in a proceeding of the solemnity of a bond validation action, the adjudications resulting from those representations and evidence are entitled to be treated as a collateral estoppel even if all the traditional, technical elements are not present. For even "a municipality is not totally exempt from the principles of fair dealing". Gruber v. Township of Raritan, 179 A.2d 145, 148 (N.J.Super. App. Div., 1962), aff'd, 186 A.2d 489 (iQ.J., 1962). POINT II WAS THE APPELLANT ESTOPPED TO CHANGE THE BUSINESS ZONING CLASSIFICATION APPLICABLE TO THE APPELLEE'S PROPERTIES ON SAND KEY? The uncontradicted facts in the record in this case demonstrate that there are two distinct cases of estoppel established in favor of the Appellee against the city The first is with respect to all of the Appellee's properties, including the seven-acre Sand 30 ~-- ~ r . ~ SS a ~ ~ ~ ~,~.~- Key Shoppes site, and arises from tnP tr_ ansactions between the parties /`~°` ~`-- from the Appellee's 1969 purchase to the actions of the City in 1976 in failing to act on an application by the city planning director to downzone portions of the Appellee's properties. The second case of estoppel arises during the period from January 1976 to October, 1977 and specifically concerns the seven-acre Sand Key Shoppes site. This second case within a case is clearly sufficient to stand alone, but it is also inextricably related to the larger case of estoppel for the entire island and, in fact, is made even stronger and more compelling because of the facts giving rise r_o the larger case. The equitable estoppel theory is an exception to the basic proposition that a property owner does not have a vested right in a particular zoning classification. The most widely accepted statement of the requisites for the application of the theory of equitable estoppel is that contained in this Court's opinion in Town of Largo v. Imperial Homes. Corporation, 309 So.2d 571 (Fla. 2d DCA, 1975): "The doctrine of equitable estoppel is applicable to a local government exercising its zoning power when a pr erty owner (1 ) relying in food faith .. ~ . f c ( 2 ) upon some act or o~ sion of the government -~~~ C ~ ( 3 ) has made such a substantial change in position or ~~ -~,p'C incurred such extensive obligations -and expenses that it would be hiJ_h_ly inequitable ar,~ -~ ::,~st to destroy the rights he has acquired." Id. at 571-72. As noted by the trial court, the facts that give rise to estoppel in favor of the Appellee against the Appellant in this case "are in the record and abundantly support (Appellee's) contention 31 C~ -1, that it suffered substantial detriment in reliance on the conduct of the city." (R-191). By way of explanation, the evidentiary matter in this record upon which Appellee relies was submitted solely by Appellee. Appellant made no effort to contradict any of Appellee's facts submitted in the form of affidavits, deposition and Request for Admission (except for one or two denials that are not material to the estoppel issue). Under the circumstances, estoppel becomes a question of law. Tollius v. Dutch Inns of America, Inc., 244 So.2d ~ 467, 472 (Fla. 3d DCA 1970). The Appellant has an affirmative duty, which it did not perform, to provide facts showing the existence of material issues of fact. Soper v. Stine, 184 So.2d 892 (Fla. 2d DCA, 1966); Connelly. Sledge, 306 So.2d 194 (Fla. lst DCA, 1978). A. The Larger Case of Estoppel - Estoppel as to all of Appellee's Properties. The Appellee's good faith was not placed in issue by t,~he ~~`~~ --- ~~pellant below. Therefore, this discussion will focus on the latter two of the Town of Largo criteria for zoning estoppel. 1. Act or omission on the part of the government. The only significant factual distinction between Town of Largo and the instant case is that here the Appellee found proper zoning in existence at the time it began negotiations for the purchase of Sand Key. In Town of Largo, it was necessary for the zoning authority to rezone the property in order to provide a "green light°° for the intended _. development. In the case at bar, rezoning being unnecessary, the 32 . • • Appellee requested confirmation of proper zoning on the property ~`; ~~--~ to accommodate its intended future use. The equivalent "green light" as to zoning in the instant case was given by the city at the time of the October 11, 1969 meeting between Mr. Dembeck, representing the Appellee, and the mayor and city manager, representing the city. The uncontradicted affidavit of Mr. Dembeck (R-94) establishes that, prior to the Appellee's purchase of Sand Key, Mr. Dembeck specifically advised the city's representatives that not only was the Appellee aware of and familiar with the Wright Agreements with the city regarding business zoning on the peninsula, but also: (a) That the Appellee interpreted the Wright Agreements as guaranteeing business zoning on the peninsula to Mr. Wright's successor in interest, and (b) That the Appellee intended to proceed with the purchase of the peninsula in specific reliance upon the Wright Agreements and the expectation that the city would continue to honor its commitments thereunder regarding zoning subsequent to the purchase and in favor of the Appellee. .- Mr. Dembeck's Affidavit also establishes-that the Appellee went yet a step further at that time and specifically inquired of the city's representatives as to whether its interpretation of the Wright Agreements was in error and whether they were aware, from the city's point of view, of anything to the contrary. Despite this very specific explanation and inquiry, both the Mayor and the City Manager remained silent. 33 • • It is significant that this Court, in describing the '~' governmental action element of estoppel, expressed itself in the alternative - "some act or omission." Town of Largo, supra. (Emphasis added). Appellee submits that the failure of the city's representatives to advise the Appellee of any error or risks on its part with regard to its intended reliance on the Wright Agreements was an "omission" within the meaning of Town of Largo, su ra, if not the equivalent of an act. of affirmation. A more recent opinion of this Court regarding the interpretation of the term "omission" in the context of zoning estoppel further supports the Appellee's position in this regard. In Pasco County v. Tampa Development Corporation, 364 So.2d 850 (Fla. 2d DCA 1978), the Court reaffirmed the well established principle ~~ that "the mere purchase of land does not create a right to rely on _\' existing zoning." Id. In rejecting the plaintiff's proposition in that case that failure to zone at all is a sufficient "omission" to invoice estoppel against the zoning authority, however, the court announced an important caveat to the basic principle of "no right to rely on existing zoning." That caveat is that an interested party, in that case the landowner, has a "duty to inquire of and confer with (the] county regarding the uses of the property that (will] be permitted" before relying on existing zoning. Id. at 853 (emphasis added). It necessarily follows that if this duty to inquire and confer is discharged and the zoning authority responds by confirming, either expressly or through inaction or acquiescence, that~a spe ~•? ir,ter~ded use' of the property is permitted, then estoppel will result. ~•` The Appellee did not merely rely on the existing business zoning 34 I • classification on properties located on the peninsula. Rather, the i -~-- _. Appellee relied upon the combination of the existing business zoning and the city's recognition, through omission and/or acquiescence, of the Appellee's continuing rights with respect to that zoning under the Wright Agreements. Existing zoning in combination with inquiry has previously been recognized by the courts of Florida as the basis for estoppel against a zoning authority. In Texas Company v. Town of Miami Springs, 44 So.2d 808 (Fla. 1950), the court recognized that reliance in the form of the_ purchase of real property for a particular purpose, after having firs t conf firmed official approval for the use of the land for that purpose, with nothing more, is sufficient to invoke estoppel. The following excerp is from the court's opinion in that case are particularly applicable to the case at bar: "We think the Appellant's cause is pregnant with equity. The Appellant took the precaution before it purchased the property involved of going to the only place it could ge t authoritative information to determine whether the land could be used for the purpose intended . Relying upon the information and the authorization from an official source, the Appellant bought the .land, and bought it for one purpose only. The whole picture presents, we think, a typical case of estoppel, and in all the circumstances we see no reason not to apply 35 business, and many months after the deal had ,_ been consummated repudiated, through the median of the so-called emergency ordinances what its representatives had quite properly done, there having been certainly no impediment to the (issuance of the permits at the time. "l Id. at . There was additional and continuing governmental action in this case confirming the City's recognition of the Appellee's right to r_he continuation of commercial zoning on the peninsula, pursuant to the Wright Agreements: (1) The 1972 verbal confirmation given to Mr. Borgh ny the city in connection with negotiations for the sale of portions of the Appellee's properties on the peninsula to third parties. (R- 97, 116-117). ~'~ ~ -~ (2) The City's 1972 request to the Appellee to perform under -- ~~~ thee t~ f the Wri ht A~reemen by conveying land for a sewer treat~-nent plant. (A-38) . (3) Correspondence from the city in connection with the request for land for the sewer plant wherein the city again acknowledged the respective obligations of the city and the Appellee -..__ with respect to the Wright Agreements. (A-38). ' (4) Additional reaffirmation in-1972 of the city's obligations to the Appellee with respect to commercial zoning, pursuant to the Wright Agreements, given by the city's representatives in connection with negotiations for the sale, at a very favorable 36 price to the city, of 60 acres of the peninsula for public recreation. (R-98). (5) The city's action in withdrawing a 1976 application by the planning director to downzone portions of the Appellee's properties. (A-63). This course of conduct on the part, of the city includes omission through inaction as well as overt action in the form of express and repeated assurances to the Appellee regarding the Wright Agreements and commercial zoning on the peninsula. Admittedly, this scenario is comprised entirely of informal action rather than formal ~_ governmental action, such as the enactment of a resolution or the adoption of an ordinance. It is nova clear, however, that such informal governmental conduct as that involved in this case is sufficient to invoke equitable estoppel. In its recent opinion in the case of Project Home, Inc. v. Town of Astatula, 373 5o.2d 710 (Fla. 2d DC A, 1979), this Court specifically held that informal as part of reb~esentar;vPS of a zoning ~_ or_omission" requirement for the a' forth in Town of Largo, .supra. In action as a basis for estoppel, th well as formal conduct on the cs~ ~"`''"`'j~t authorit~ay s~tisfv t~"act ~~~. ~plication of estoppel, as set / j~_. recognizing informal governmen a~ e opinion substantially bo s ters the Appellee's position in this case. In Town of Astatula, the prospective sellers of a parcel of property inquired as to whether mobile homes could be placed on ttie property. In response, the town clerk issued a letter advising 37 • that the parcel in question "is zoned for mobile homes." At the tirne, however, the town actually had no official zoning plan in effect at all. On September 20, 1974, Project Home, Inc., a nonprofit -~--._._ corporation formed bv__a_ Franciscan priest to aid migrant workers in purchasing mobile homes, entered into a contract to purchase the property "contingent on Project Home's obtaining mobile home park zoning that would allow ten mobile homes to be placed on the ~..ts.~ '~ property." Town of Astatula, Id. Subsequent to the purchase contract, Father Reilly inquired concerning the procedure to increase the number of lots on the property from six to ten. With the help of the town clerk, Father Reilly prepared a sketch showing ten lots on the property which he understood the clerk would submit to the town council for its approval. In December, 1974, the clerk wrote Father Reilly stating "concerning the proposed plan of ten lots . . at this time the Town of Astatula has no restrictions against this size lot if the size is not in conflict with the health department or other agencies requirements." Id. (emphasis added). Project Home purchased the property in February, 1975. The town clerk advised Father Reilly that in order to obtain building permits, he would have to first obtain water and sewer permits from the county health department. The permits were obtained and utilities installed at a cost of approximately $8,300.00. The town clerk advised Father Reilly that the building permits would then be issued "as a matter of routine." Id. When Father Reilly approached the clerk for the permits on May 12, however, he was advised he first time that the town had ad opted an emergency ordinance on April 17 that imposed a 60 day moratorium on all develpment and 38 ~~ construction. On July 1, the town adopted a comprehensive zoning ordinance which made the intended use of the property impermissible. Project Home applied to the new zoning board for rezoning, which was denied, and appealed unsuccessfully to the town council. Project Home thereafter brought suit against the town seeking an order compelling the town to issue the permits. The trial court ruled i n f avo r of the town . The Second District Court of Appeal reversed, finding the Town to be "estopped from rebuffing that which it so graciously encouraged." I_d. The rationale stated by the court in reaching that conclusion is equally applicable to the present case: ~` "Although the actions by the Town of Astatula on which Project Home relied do not amount to the kind of formal zoning actions contemplated in the cited cases, the spirit of equitable estoppel is nonetheless present . We believe that in vi t towns i al m t od i ic, acts such as a ers from the town clerk, coupled with the town's inaction after being informed of Project Home's intentions, provide the necessary elements to raise equitable estoppel. Id." The factual context in Town of Astatula is precisely analogous to that ih the present case. So as not to be merely relying on existing zoning, the Appellee discharged its "duty to inquire" (Pasco County v. Tampa Development Corporation, supra) regarding its specific intended use of the property. Thereafter, the Appellee relied upon "informal" governmental action on the part of the city that was identical in quality and purpose to that relied upon by the plaintiff in Town of Astatula. From these facts, it necessarily follows that, 39 ~~ ~ i as in Town of Astatula, the "spirit of equitable estoppel" is ` unmistakably present in this case. 2. Reliance In reliance upon the actions and omissions of the city, the Appellee: a) Purchased the Wright-Sand Key properties at a substantial cost. b) Completed performance of Mr. Wright's contract ~.rey p~r~ st r v~~ c ~ obligations by conveying property on the peninsula to the city for ~ v S S a server treatment plant; and c) Sold 60 acres of beach front property on the peninsula 4 to the city for recreational purposes at a substantially reduced Sept,.~/ price as a gesture of good will toward the city and contemporaneously ~4~SX,~. with assurances from the city regarding the city's cooperation in the Appellee's intended future commercial development of remaining portions of its property. These items of specific reliance are likewise precisely analogous to that found in Town of Largo, supra Texas Company, su ra and Town of Astatula, su ra. B. Estoppel as to the Seven Acre Sand Key Shoppes Site In October, 1975 and in the factual context of the larger estoppel case described above. the Appellee embarked upon its long planned commercial development. (R-91). Against this recent 40 ~~ historical background, the Sand Key Shoppes project was initially ,. °- greeted by the city with the acceptance and approval that the Appellee had so long been encouraged to expect. 1. Governmental action (a) The Appendix contains a detailed listing of ~, 40 different meetings, conferences and telephone contacts between the Appellee's architects and representatives of the city regarding the Sand Key Shoppes project between January, 1976 and July, 1977. (A-45). The Affidavit of the Appellee's project engineer, Mr. D.E. Simpson, lists additional such contacts. (R-90). It is apparent from the record that the purpose of these numerous consultations during a period of over a year and a half was to provide guidance to the Appellee in its efforts to plan the project in such a way that it would comply with the various building and zoning requirements of the city. As such, the city's conduct over this period of time is precisely analogous to that of the town clerk in Town of Astatula su ra. In both instances, the actions of the representatives of the zoning authority encouraged and assured the property owner that c.~,,~~ the use they were preparing to make of their properties was a j""`r~~d permitted u se and that final approval was forthcoming . ~~l ~~~ '`-~0 `~ ~ ps . (b) The City initiated rezoning proposal in 1976 omitted the seven acre parcel designated for the Sand Key Shoppes development. This omission constituted a recognition by the City of the Appellee's vested rights with respect to the development of the seven acre tract. The Appellee submits that this course of conduct, coupled with the circumstances set forth with regard to the larger case of 41 ... i • estoppel, constitute "governmental action" sufficient to invoke the ( doctrine of equitable estoppel. 2. Reliance During the period prior to Sptember 30, 1978, the Appellee expended nearly $150,000.00 specifically in connection with the Sand ~s~~c Key Shoppes project. These expenses are detailed in Exhibit Number 2~to Mr. Dembeck's Affidavit. (R-94). The Appellant has urged that this expenditure is not substantial because of the "enormous wealth" of the Appellee. (Brief of Appellant at page 15). The Appellee's wealth is, of course, .not a part of the record. In any case, the court can and should take judicial notice of the fact that $15U,000.OU is a very large and substantial sum of money, regardless of the identity or other wealth of its owner. The suggestion that the Appellee is not entitled to relief in this case be-cause of its wealth is inconsistent with the constitutional principles of equal protection and due process and, in fact, approaches the ludicrous. It is undisputed that the Sand Key Shoppes project was undertaken by the Appellee as an integrated commercial development, with each part dependent upon the other and not as separate projects on separate parcels of property. (R-119). The City recognized the Appellee's rights with respect to the 1.9 acre portion of the seven- acre site, for which plans and an application for a building permit was submitted, by specifically excepting that 1.9 acres from the operation of Ordinance No. 1749 (consistent with the similar omission 42 ., of the entire seven-acre tract in the 1976 City initiated rezoning attempt). In connection with these submittals, however, representatives of the City were specifically advised that the plan for the project contemplated the use of the entire seven-acre tract. For zoning purposes, an integrated, comprehensive, staged development may and should be treated as a single undertaking. Appeal of Diamond, 196 A.2d 363, 370 (Pa., 1964)._ See also Gruber v. Township of Raritan, 179 A.2d 145 (N.J. App., 1962); Telimar Homes, Inc. v. Miller, 218 NYS2d 175 (App. Div., 1961). Accordingly, the Appellee's vested rights in the business zoning classification with respect to the 1.9 acres, which was tacitly admitted and recognized by the City when this parcel was excepted from Ordinance No. 1749, should be likewise recognized with respect to the balance of the entire seven- ac r e tract . ~- C~~„ ~~- ~ ~ ~ J' %~~--~ ~~~ ~~. ~/ The City has stated that in 1970 and again in 1974, it gave notice that it was considering rezoning the Appellee's properties on Sand Key. At page 16 oL- its brief, the City poses the question ----.r-~ "How could Appellee rely on commercial zoning when it knew the City was contemplating a change in the zoning?" An adequate response would be because of the City's numerous assurances to the Appellee ~4.~,`~-- that it would have. the Citv's full cooperation when it embarked on ~s ~(~ its long planned commercial development of some portion of its property. Regardless of whether notice of a possible change of official mind was even given by the City, however, facts regarding such notice are legally irrelevant for purposes of determining the legal issue 43 ~ ~ ' ~ ~ • presented in this case - whether the City was equitably estopped. ~,~_~~. Although it has not used the common short-hand reference in raising the matter of notice, the City has attempted to invoke the "red flag doctine" in an effort to avoid estoppel. The Appellant's efforts are misplaced, however, because this doctrine has been specifically rejected by the courts of Florida. in Andover Development Corporation v. Gity of New Smyrna Beach, 328 So.2d 231 (Fla. 1st DCA, 1976), the judgment of the trial court included extensive findings of fact that the developer "had knowledge prior to and at the time it purchased the subject property of substantial opposition" to proposed planned unit development zoning of the subject property. The appellate court in Andover commented as follows: "Such findings do not vitiate the doctrine of equitable estoppel under the facts.-of this t case. Earlier zoning cases of this jurisdiction created and applied the 'red . flag doctrine'; that is, if a landowner had good reason to believe that the official mind would change, he could not invoke the doctrine _ of equitable estoppel. The doctrine is not here applicable for two reasons: 1) the official mind not only did not change, but continuously negotiated with Andover to amend and revise its plans subsequent to approval by the official mind to ameliorate objections of individual citizens, and 2) in Sakolsky v. City. of Coral Gables, [151 So.2d 433 (Fla. 1963)], .the Florida Supreme Court candidly receded from the 'red flag doctrine'." Id. at 238. CONCLUSION The Appellant has chosen to ignore the realities of the relationship between it and the Appellee over the past ten years and with Mr. Wright since at least 1961. It is indisputably clear 44 ,~ , , ,, .-~_ ___.. that the Appellee, at the very least, has established its rights to business zoning to the seven-acre shopping center tract known as Sand Key Shoppes. Equally, the record reflects that occurrences since 1961 through the present, the initial agreements and the ratification and recognition of the agreements by the parties through the years, entitle the Appellee to the rights originally bargained for, that is, business zoning for all. its properties on Sand Key. Based on the foregoing reasoning and authorities, Appellee submits that the Final Summary Judgment should be affirmed in all respects. Respectfully submitted, RICHARDS, NODINE, GILKEY, FITE, MEYER & THOMPSON, P.A. 1253 Park S treet Clearwater, Florida 33517 (813) 443-3281 By / = ~~ ~ Dennis P. Thompson and CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. Post Office Box 3239 Tampa, Florida 33601 (813) 223-5366 By T omas A. Clark and i ,~ ~~ homa s F. I ;a r J r. / /, Attorneys for Appellee United States Steel Corporation I ~__. 45 ~ f • ~ ~ • r! ~~ CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished, by U. S. Mail, to Frank: X. Kowalski, Chief Assistant City Attorney, Post Office Box 4748, Clearwater, Florida 33518, this 11th day of October, 1979. ~~ ~ . ~i ,, THOMAS F . {~CAR~ , JR . r` ~~•: '~..... 46 TO: FROM: COPIES: SUBJECT: DATE: David Healey, Planning Director Thomas A. Bustin; City Attorney Max Battle, Public Works Director Sand Key Beach--Cheezem Development October 16, 1979 ~Ci I7 ~~~ F~fl'I'dI1\rG Responding to your memorandum of September 25, 1979, regarding the above captioned easement to be granted by Cheezem Development, you are advised as follows: (a) When the easement is obtained, the City should also request Cheezem Development to provide a release of mortgage as to the easement area, With the release of mortgage the City would be protected should an absolute foreclosure of the property take place. (b) The settlement should be viewed in the nature of a contract. Examination of the document does not disclose that if the City takes the easement, the development rights contained therein will be further extended. See for example paragraph 5 of the settlement. (c) It may be best to get the release discussed in (a) under the beach nourishment program since both Cheezem and the mortgage holder will profit from the program. TB:br /~ ~} Thomas A. Bustin City Attorney ~YY OF CLEARWATER inferdepartment Correspondence Sheet 1,~i~ l a5 ~, ,• _~ 4 IN THE `DISTRICT COURT OF APPEAL OF FLORIDA IN AND FOR THE SECOND DISTRICT CITY OF CLEARWATER, FLORIDA, ) Appellant, ) v, ) Appeal No. 79-178 UNITED STATES STEEL CORP ORATION, ) .) Appellee. ) REPLY BRIEF OF APPELLANT ,~ t , T ~\ f. TABLE OF CONTENTS Table of Citations Preliminary Statement Statement of the Case and Facts Questions Presented Argument Point I Point II Conclusion Certificate of Service • Page i 1 2 3 4 4 10 21 22 -. TABLE OF CITATIONS Page Andover Develo ment Corporation v. City of New_Smyrna Beach 328 So. 2d 231 (Fla. 1st DCA 1976) 18 Bayiis v. City of Baltimore, et al 148 A. 2d 429 (Md. , 1959) 7 City of Clearv~a.ter v. State 8 Chancery No. 56, 912, Circuit Court for Piaellas County City of Safety Harbor v. City of Clearvwa.ter 6 330 50. 2d 840 (2d DCA 1976) City of Miami Beach v. 8701 Collins Avenue 10 ?7 So. 2d 428 (Fla. 1954) Connell v. Sledge 19 306 So. 2d 194 (Fla. 1st DCA 1975 ) Dade County v. United Resources, Inc. 19 374 So. 2d 1046 (Fla. 3d DCA 1979) Eastern Shores Sales Company v. City_of North Miami Beach ? 363 So. 2d 321 (Fla. 1978) Gendzier y. Bielecki 5 9? So. 2d 6Q4 (Fla. 1957) Hartnett v. Austin 7 93 So. 2d 8b (Fla. 1956) Hurley v. Weriy 203 So. 2d 530 (Fla. 2d DCA 1976) Hughes v. Jemco, Inc.. 20 201 So. 2d 565 (Fia. 1st DCA 1967) Mayor and City Council of Baltimore v. Crane b, 7 352 A. 2d 78b, ?92 (Md. , 1976) Mayor and Council of Rockville v. Brookeville Turnvike Construction Company 7 228 A. 2d 263 (Md. , 196?) -i- ~'~~ (Table of Citations -continued) .Meigs v. Lear 210 So. 2d 479 (ist DCA Fla.. 1968) Mobile Oil Corporation v. Shevin 354 So. 2d 372 (Fla. 1978) Mutual Loan and Building Association v. Miles 19 Fla. 127 (Fla. 1882) Pasco County v. Tampa. Developm 364 So. 2d 850 (2d DCA Fla. 1978) Pennsylvania Insurance Company 241 So. Zd 86 i (3d DCA 1970) Project Home, Inc. v. Town of A: 373 So. 2d 710 (Fla. 2d DCA 1979) Sakoisky v. City of Coral Gables 151 So. 2d 433 (Fla. 1963) State v. City of Coral Gables 114 Fla. 326, 154 So. 234 (Fla. 1' State of Florida v. City of Daytonz lI8 Fla. 29, 158 So. 300 (Fla. 19 Texas Company v. Town of Miami 44 So. 2d 808 (Fla. 1950) Town of Largo v. Imperial Homes 309 50. 2d 571 (Fla. 2d DCA 1975. Wa-Wa-Yanda, Inc. v. Dickerson 239 NYS 2d 473 (App. Div. 1963) ~_~ • Page 13 8 16 ~- ~.~ • .. PRE LIMIlVARY STATEMENT Appellant, City of Clearwater, .Florida, adopts the Preliminary Statement as set forth in its initial Brief. -1- ~. :• • STATEMENT OF THE CASE AND FACT5 Appellant, City of Clearwater, Florida, adopts the Statement of the Case and Facts as set forth in its initial Brief. -2- _• QUESTIONS PRESENTED ~-.\ • I DID THE COURT BELOW ERR IN HOLDING THAT APPELLEE POSSESSES CONTRACTUAL RIGHTS WHICH PROHIBIT APPELLANT FROM REZONING APPELLEE'S PROPERTY? II DID THE COURT BELOW ERR IN GRANTING SUMMARY JUDGMENT FOR THE APPELLEE AND IN HOLDING THAT APPELLANT IS ESTOPPED FROM AMENDING THE ZONING ORDIlVANCES RELATING TO APPELLEE'S PROPERTY? r .~. Did the Court below err when it expressly held that Appellee had a right to rely on continuation of the pre sent zoning? B. In the alternative, did the Court below err in finding that there are no issues of material fact which preclude the granting of summary judgment on the issue of equitable estoppel? -3- -~ I THE COURT BELOW ERRED IN HOLDING THAT APPELLEE POSSESSES CONTRACTUAL RIGHTS WHICH PROHIBIT APPELLANT FROM REZONING APPELLEE'S PROPERTY. It is interesting to note that the Appellee has filed a 68-page Appendix, which is composed of excerpts from the rather voluminous record. Nowhere in the Appendix has the Appellee provided the Court with the contract between Mr. Ed C. Wright and the City of Clearwater upon which Appellee rests its contract ciaim. The obvious reason for this omission is that the Appellee wishes for the Court to interpret a contract without even reading it. The reason for this concealment, of course, is that the contract relied upon confers no rights whatsoever to a continuation of business zoning. Mr. Wright and the City of Clearwater entered into a series of agree- ments which culminated in the annexation of Sand Key into the City limits- of the City of Clearwater. (R-180, Doc. Nos. 1-4, 6 & 7).In only one of these contracts was there any reference to zoning on the subject property, this despite the fact that the contracts set forth in some detail the respective obligations of the parties in all other regards. Nonetheless, the parties did attempt to contract to provide that the subject property would be zoned for business "at the time of the enactment of the ordinance for annexation. " (R-180, Doc. No. 8). The entire pertinent clause is set forth in full in Appellant's Brief, page 7. Appellee stated that the intention of the parties governs the construction of contracts (Answer Brief, page 16). But the language used in the contract -4- ~. • i s the best possible evidence of the parties' intent, and extrinsic evidence of intent is only admixsible where the language is ambiguous. See, for example, Hurley v. Werly, 203 So. 2d 530 (2d DCA 1976); Gendzier v. Bielecki, 97 So. 2d 604 (Fla. 1957). In this case, the contractual language is clear and unambiguous: the property was to be zoned business at the time of annexation. It was error for the trial court to look beyond the plain and unambiguous language of the contract. For the court to have entered an Order of Summary Judgment, based upon the scant evidence in the file contradicting the clear and unambiguous intent as expressed in the contract, is palpable error, Appellee also contended that the City's rezoning of the subject property impairs the obligation of a contract in violation of the United States and Florida Constitutions. All the cases relied upon by Appellee involve instances in which a municipality was acting in its proprietary capacity when it entered into the contract. Appellee relies most heavily upon Wa- Wa-Yanda, Inc, v. Dickerson, 239 NYS 2d 473 (App. Div, 1963), a case in which the Town of Islip, New York, executed a lease with Wa-Wa-Yanda which provided that the leased premises could be used only for the sale of gasoline for a period of thirty years, The Town of Islip later enacted a zoning ordinance which prohibited the sale of gasoline on the subject premises. The court invalidated the ordinance on the grounds that it impaired the initial contract, but emphasized that the impairment doctrine applied only be-cause the initial contract was an exercise of the Town's proprietary capacity, rather than an exercise of its police powers. -5- ,--~ Ji. • Of course, when the City of Clearwater entered into the agreement with Mr. Wright to anaex the Wright properties on Sand Key into the corporate limits of the City of Clearwater, it was acting in its governmental or legislative capacity. Annexation can only be constitutionally accomplished by the adoption of a municipal ordinance, the classic example of local government acting in its legislative capacity. This court expressly so held in the case of City of Safety Harbor v. City of Clearwater, 330 So. 2d 840 (2d DCA 1976). In arguing that the annexation agreement did not constitute unlawful contract zoning, the Appellee relies most heavily upon Mayor and City Council of Baltimore v. Crane, 352 A. 2d 786, 792 (Md. , 197b), which Appellee refers to as the leading case in this area (Answer Brief, page 22). In the Crane case, the City of Baltimore had adopted an ordinance of general application throughout the city which provided that a developer would be permitted to dedicate land which would be used for right-of-way, and that dedication would not reduce the land- owner's density for development purposes. Mr. Crane was one of the property owners who availed himself of this opportunity, In effect, the City of Baltimore received the land it needed for its rights-of-way, free of charge, and in exchange the developer was guaranteed the opportunity to construct his project without any reduction in density. In the case before this court, Mr. Wright and the City of Clearwater were the only parties to an annexation agreement. The City made no offer to any other similarly situated property owner; rather, the bargain was struck only between Mr. Wright and the City, and only in connection with annexation. In Crane, the -6- i~~\ __~ ~ ~ court emphasized that had the City granted this offer only to the Cranes, "with- out enacting an ordinance granting this benefit to ail similarly situated property owners, the arrangement would have amounted to contract zoning. " Mayor and City Council of Baltimore v. Crane, supra, at page 790. See also, Baylis v. City of Baltimore, et al. , 148 A. 2d 429 (Md. , 1959). Therefore, even under the authority rr~ost vigorously argued by Appellee, the agreement between Mr. Wright and the City of Clearwater constituted unlawfui contract zoning. None of the cases cited by the Appellee involved the question of the validity of an annexation agreement which purported to confer perpetual rights to any particular zoning. Thus, all the cases cited by Appellee are substantiall~* different from the case at hand. Appellee concedes that all the cases it cited on the issue of contract zoning are from other jurisdictions, and hence are not controlling. The cases cited by Appellee represent a distinct minority view. See, the dissent in M_ ayor and Council of Rockville v. Brookeville Turnpike Construction Company, 228 A. 2d 2b3 (Md. , 1967), at page 281. Even if the cases cited by Appellee stood for the .propositions that Appellee argues, and even if they represented the majority view, the cases are not relevant because the Florida courts have already ruled on this issue time and time again. It is most significant that the Appellee has not cited a single Florida case in its behalf on this issue, but has attempted to distinguish those cases which are directly on point. The cases of Hartnett v. Austin. 93 So. 2d 86, (Fla. 195b), and Eastern Shores Sales Co. v. City of North Miami Beach, 3b3 So. 2d 321 (Fla. 1978), discussed at length in Appellant's previous Brief, -7- i ~, are dispositive of this issue. Finally, Appellee asserts that the City of Clearwater is collaterally estopped from asserting that the Wright contract does not guarantee a perpetual business zoning. (Answer Brief, page 2$-30). To support its claim of collateral estoppel, Appellee relies upon a 1961 bond validation proceeding entitled City of Clearwater,- Florida v. State of Florida, et al. , Chancery No. 5b, 912, Circuit Court for Pinellas County. For collateral estoppel to apply, the following elements mustbe present: (1) the parties must be identical; (2) the issues must be identical; (3) the particular issue upon which collateral estoppel is applied must have been fully litigated and conclusively determined in the prior proceeding. Mobile Oil Corporation v. Shevin, 354 So. 2d 373 (Fla. 1978). None of these elements are present in the existing situation. The parties to the bond validation proceeding were the City of Clearwater and the State of Florida. United States Steel was not a party, nor was its predecessor in title, Mr. Ed C. Wright. Even where a person has an actual interest in the outcome of litigation, and even if it arose from the same transaction, collateral estoppel cannot be applied if the parties are different. Pennsylvania Insurance Company v. Miami National Bank, 241 So. 2d 8b 1 (Fla. 3d DCA 1970). The issues are in no way the same. The issue which this court must determine is whether the annexation agreement between Mr. Wright and the Appellant would prohibit the City of Clearwater from rezoning Appellee's property ,some seventeen years after the annexation agreement. The only issues which may be litigated in a bond validation proceeding are whether the -8- ' ~ ;"~ -~ • City has the power to issue the bonds, and whether they were issued with procedural regularity. Everything else is collateral and may not be litigated. State of Florida v. City of Daytona Beach, 118 Fla. 29, 158 So. 300 (Fla. 1934). The wisdom of the city officials in deciding to issue the bonds may not be considered. State of Florida v. City of Daytona Beach, supra. Whether the land was legally incorporated into the City limits is not determinable in bond validation proceedings. State of Florida v. City of Coral_Gables, 114 Fla. 326, 154 So. 234 (Fla. 1934). The mere fact that the annexation agreements between Mr. Wright and the City were introduced into evidence by the Assistant State Attorney is not relevant and is certainly not a matter which establishes the elements necessary for collateral estoppel. This is conceded by Appellee on page 29 of the Answer Brief. The fact that Appellee would attempt to establish affirmance on such a tenuous basis is evidence of error in the judgment below. -9- II THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT FOR APPELLEE AND IiV HOLDING THAT APPELLANT IS ESTOPPED FROM AMENDING THE ZONIlVG ORDINANCE RELATIlVG TO APPELLEE'S PROPERTY. A. The Court below erred when it expressly held that Appellee had a right to rely on continuation of the present zoning. In its prior Brief, Appellant cited the cases of City of Miami Beach v. 8701 Collins Avenue, 7? So. 2ci 428 (Fla. 1954), and Pasco County v. Tampa Development Corporation, 364 So. 2d 850 (2d DCA Fla. 1978), for the' proposition that Appellant is entitled to entry of summary judgment in its favor on the estoppel issue, because the court below expressly held that the Appellee was entitled to rely upon a continuation of the existing zoning. (R-191). In its Answer Brief, Appellee attempted to rebut this arg~unent by relying upon Texas Company v. Town of Miami Springs, 44 So. 2d 808 (Fla. 1950), and Project Home,. Inc. v. Town of Astatula, 373 So. 2d 710 (Fla. 2d DCA 1979). In Texas Company, supra, a prospective purchase of property submitted plans and received a building permit which would enable him to construct gas stations on the subject property. Later, the Town attempted to rescind the permit but was estopped from doing so. This is clearly distinguishable from the case at hand, where the Appellee has rreceived a permit which would entitle him to build a commercial establishrinent on a portion of his property, and which permit has not been rescinded or revoked. In fact, the City specifically exempted from its rezoning that portion of Appellee's property upon which a building permit has been issued. In Project Home, Inc. v. Town of Astatula, supra, a Franciscan priest desired to purchase certain property for fhe specific purpose of erecting mobile homes to house itinerant laborers. The prospective sellers specifically inquired of the town council whether mobile homes would be permitted on the subject -10- ~i property. The council expressly authorized the town clerk to write letters which would affirm that mobile homes were permitted on the subject property. This was done by the town clerk, and both the seller and buyer relied upon this promise by the town council in conducting the transaction. The parties went even further, submitting a plat which was approved by the city council and the city clerk. Water and sewer permits were obtained, and utility hookups were substantially completed. After all .this was done, the city passed an ordinance which would have prohibited the erection of mobile homes on the subject property. Probably the most salient distinction between the Town of Astatula, supra, and Texas Company, supra, on the one hand, and the instant case , on the othe r hand, is that there was never any formal action taken by the City of Clearwater upon which Appellee could rely, nor has there ever been any indication by the City Commission of the City of Clearwater that any particular zoning or development would be permitted. The only exception to this is the building for which a building permit has been obtained, and which has not been rezoned by the City from its business classification. The case of Pasco County v. Tampa. Development Corporation, supra, has been cited by both parties in support of their respective positions. Appellant has cited Pasco County for the proposition that a landowner has no right to rely upon the continuation of existing zoning. Appellee has cited Pasco County for the proposition that estoppel can be created by the failure of a governmental body to act, as well as by an affirmative action. But this court has stated that: ~'We consider it rudimentary law that an omission means a negligent or culpable omission where the party failing to act was under a duty to do so. Otherwise, silence or inaction will not open-ate to work an estoppel. " Pasco County v. Tampa Development Corporation, supra, at page 853 -11- ~~ i The City of Clearv~a.ter was never placed in a situation where it had a duty to advise Appellee that the City reserved the right to amend the zoning ordinances in the exercise of its police powers. Appellee suggests that that duty was created when representatives of United States Steel advised certain representatives of the City, such as the City Manager, that it desired a perpetuation of the business zoning. At no time did U. S. Steel representatives direct their inquires to the City Commission of the City of Clearwater, the only authority which has the power to zone property within the corporate limits of the City of Clearwater. In Pasco C-oun supra, this court pointed out that, "Questions about the zoning of their property should be directed to the Board of County Commissioners of Pasco County. " (At page 853). As a matter of law, statements made by representatives of United States Steel to the City Manager and Mayor of the City of Clearwater, but not to the City Commissioners, created no duty upon the City Commission to formally respond, and could not be relied upon by United States Steel as acquiescence by the legis- lative body. Only the City Commission has the power to zone, and acquiescence by administrative or executive officials cannot in any vray estop the legislative body from exercising its powers. B. In the alternative, the Court below erred in finding that there are no issues of material fact which preclude the granting of summary judgment on the issue of equitable estoppel. The parties are in agreement that the elements which Appellee must prove to establish a case of equitable estoppel, as set forth in this court's opinion in Town of Largo v. Imperial Homes Corporation, 309 So. 2d 571 (Fla. 2d DCA 1975), are: (1) good faith reliance; (2) upon some act or omission of the governing body; (3) a substantial change in position or incurrence of such extensive obligations and expenses that it would be highly inequitable and unjust to destroy vested rights. -12- ~\ i Appellee has stated that the issue of good fa~ reliance was not presented by the Appellant in this case. (Answer Brief, page 32). C+n the contrary, United States Steel alleged that it relied in good faith upon certain acts and omissions of the City of Clearwater, in paragraph 15 of the Complaint (R-4, 5), which allegation was denied in the City's Answer (R- b2 ). In its Eleventh Affirmative Defense, the City of Clearwater alleged that it took no action or omission upon which United States Steel could in good faith rely. (R- 64 ). In its Brief, Appellant suggested that the Appellee initiated communications with the Appellant City from time to time so as to create vested rights in commercial development on its property. (Appellant's Brief, page 1?). This suggests that the Appellee did not in good faith rely upon any acts or omissions of the City of Clearwater, but rather attempted to make certain that its broad development rights would never be abridged. The doctrine of equitable estoppel was created to prevent a governing body from encouraging a property owner to rely upon certain official actions, and then changing its policy; it never was intended to enable a property owner to engage in a series of actions which were calculated to build a case for estoppel long before any change in policy was ever contemplated by the governing body. The entire pattern of conduct between the parties, dominated almost entirely by the unilateral statements of Appellee United States Steel, and the inaction on the part of Appellant City which Appellee claims constitutes acquiescence, could certainly give rise to an inference of calculation, rather than good faith reliance. Certainly the evidence on this point is susceptible of conflicting inference, and therefore summary judgment should not have been granted. Mei gs v. Lear, 2I0 So. 2d 479 (1st DCA Fla. 1968). To substantiate its case of reliance, Appellee relies upon its following three actions: (1) its purchase of the property; (Z) it conveyed property on the -13- • `~ `~ island to the City fo~ sewage treatment plant; (.3) i~ld 60 acres of the property ~. to the City for recreational purposes. (Answer Brief, page 40). When it purchased the property from Mr. Wright, Appellee had not contemplated specific development plans for the entire tract of land. (R-180, Doc, Nos. 27 and 29). Certainly, Appellee desired to extract promises from the City of Clearwater regarding zoning on the subject property, but there is no conclusive evidence that the purchase was contingent upon a continuation of the existing zoning, Every case cited by Appellee involved considerably more encouragement. from govern- mental officials regarding a particular project. In each and every of the Florida cases cited by Appellee, a building permit had been issued by the local governing body and then rescinded. In this case, when Appellee purchased the property it had not applied for any building permits, nor had it planned to develop any parti- cular portion of the property for business or commercial use. (R-180, Doc. Nos. 17, 29). _ Appellee has suggested that its conveyance of a tract of the subject property to Ap llant for construction of a sewage treatment facility gives rise to an estoppel against the City from amending the zoning ordinance. In conveying this property, of course, Appellee merely provided a mechanism whereby Appellant could provide municipal services to Appellee's properties, so that they could be developed. There was consideration for the transfer, which was in the mutual interest of all concerned, aad which could not give rise to estoppel. The sale of 60 acres of the subject property to the City for a parkland, several years after Appellee purchased the property from Mr. Wright, could not possibly give rise to a case of estoppel. To the extent that Appellee suggests that its transfer of the property was for less than fair market value, such a sale in exchange for unofficial guarantees of a perpetuation of zoning would of course -14- --~ constitute unlawful tract zoning, as well as being~olative of the Statute of Frauds. As well as being factually repugnant, this allegation is legally insufficient. That Appellee has failed to prove its case of equitable estoppel is most strikingly evident when the instant case is contrasted with those cases upon which Appellee relies. In Texas Company v. Town of Miami Springs, supra, and Project Home, Inc. v. Town of Astatula, supra, the property was purchased for a single purpose, and official approval for that purpose had been obtained prior to the purchase. Besides establishing good faith reliance upon some act or omission of the governing body, the property owner. must demonstrate that he has made such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy bis vested rights. Although Appellee concedes that this is an essential element in establishing the case of estoppel (Answer Brief, page 31), Appellee has not addressed this point in its Brief. In order to establish such a highly inequitable and unjust re suit, the Appellee would be required to present evidence which would demonstrate that its expenditures are so extremely substantial in relation to its total assets, and its total commitment to a particular project so complete, that equity would mandate the imposition of estoppel against the government. Similarly, the Appellee would have to show that the public good and welfare is not served by the adoption of the zoning ordinance. These questions involve the balancing of the competing public and private interests, which are at the very heart of the equitable estoppel case. It is understandable that Appellee would seek to avoid proving this element in its case, because the balancing of the competing interests can only be done at trial. Appellee has sought to persuade this court that equitable estoppel should be applied as to the 7-acre site which it has designated in its own planning as a -15- ~ \ i-~.~ 1 sho in center. ~n the court below issued its o~i.on granting summary PP g judgment to the Appellee, it expressly stated that Appellee wa.s entitled to rely on a continuation of the existing zoning for all its properties on Sand Key. The trial court did not specifically separate the 7-acre site, allegedly planned fora commer- cial development, from the remainder of the subject property. If the summary judgment cannot be sustained either under the contract theory or the equitable estoppel theory, it must be reversed in its entirety; it should not be modified or rewritten so as to strike a compromise. Mutual Loan and Building Associates v. Miles, 19 FIa. I2? {Fla. 1882). Appellee's tactical decision to treat the 7-acre shopping center site as a separate case for estoppel constitutes a tacit recognition that its case for equitable estoppel as to the remainder of the subject property is deficient. This is not to say, however, that Appellee could prevail even as to the ?-acre site. The record reflects that Appellee applied for a building permit to construct a commercial building on a certain 1. 9 acres on Sand Key (R-119), and also that Ordinance 1749 exempts that 1. 9 acres from the rezoning (R-44-49). Although Appellee contends that its plan contemplated use of the entire 7-acre tract, Appellee chose to apply for a building permit only as to the 1. 9 acre tract. In each of the cases cited by Appellee in support of the equitable estoppel case, the property owner had obtained a building permit which was later rescinded. It is important to recognize that in this case, Appellant made no attempts to rescind the building permit, and in fact expressly exempted that property for which a permit was issued from the rezoning process. To hold that Appellee could acquire vested rights to commercially develop the entire 7-acres by virtue of having applied for a building permit as to a small portion thereof, would be to grant Appellee vested rights to commercial zoning in perpetuity, whereas the right to develop under a building permit expires -16- ~ -~ if construction is not-timely commenced and continu• ly pursued. (Sec. 7-1, Code of Ordinances of the City of Clearwater, incorporating by reference Sec. 106.3 of the Southern Standard Building Code). It would surely be ironic for this court to award, on a motion for summary judgment, greater rights to a developer who has studiously avoided applying for a building permit than to a developer who has acquired one. Appellee has alleged that it has spent $150, 000 in developing plans for construction on the 7-acre site, which site includes the 1. 9 acres for which a building permit i s currently outstanding. (R-113 -115 }. The record does not show how much of this would have been expended in plans for development of just the 1. 9 acres. Nor does the record demonstrate whether the property could be developed at a profit under the zoning promulgated by Ordinance 1749. In determining the equities and justice of any situation, the harm suffered by a landowner, and the extent of his expenditure, must be viewed in the context of his entire assets. Thus, whereas the expenditure of a relatively small amount of money by a Franciscan priest to develop housing for migrant workers constitutes a major hardship, the expenditure of $150, 000 by a corporate giant may be nothing more than the ordinary risks of doing business. The record does not provide the data by which the court could resolve these issues at summary judgment. In its Brief, the City attempted to show that Appellee could not have relied upon the continuation of existing zoning because of the instances in which the City notified Appellee that it was considering rezoning the property (See, for example, R-180, Doc. No. 52; R-151-153; R-180, Doc. Nos. 2b, 27). Appellee suggests that these communications of an intent to consider a change in zoning are not relevant to the issue of good faith reliance. Appellee suggests that this falls under the "red flag" doctrine, which has been specifically overruled by the courts. -17- i~ ~ ~ ~-_\ ies u on Sakolsk v. Cit of Coral Gables 151 So. Zd 433 Fla. 1 63 L Appellee rel p y y ( 9 ), which stated that the red flag doctrine refers to a situation where a property owner has received a lawful building permit authorizing construction, and is aware of a political contest which might produce an official change of mind.. In the instant case, of course, the property owner has received a building permit authorizing construction, on only I. 9 acres, and that has not been rescinded. Also, unlike the Sakolsky case, the present case involves no election or political contest focusing on the property owner's vested rights. Rather, the record reflects that the legislative body of the City of Clearwater considered rezoning the subject pro- perty as early as 1969 (R,180, Doc. No. 1?), and 1970 (R-180, Doc. No. 23); again in 1974 as part of its Comprehensive Land Use Plan (R-150); and in 1978 adopted Ordinance 174q (R-44-49). The Appellee relies also upon Andover Development Corporation v. City of New Smyrna Beach, 328 So. 2d 231 (Fla. 1st DCA 1976). In that case, the developer and the City of New Smyrna Beach worked very closely to come up with development plans suitable to both.the developer and the City. In fact, the City approved the preliminary plans. Political opposition to the development resulted in a referendum whereby the citizens of New Smyrna Beach were offered the opportunity to snatch away the development rights which already had been granted by the City. In that case, the court found that the mere existence of a political. contest, or political opposition to the development, was insufficient to destroy vested rights which had already been acquired. The record reflects no political contest in the City of Clearwater regarding development of Appellee's property, and no building permit issued on any portion of Appellee's property which has been the subject of rezoning. Therefore, the elements of the red flag doctrine are not present in this case. The facts of this -18- ^, . '~ .~' , case are more similar to Dade Coun v. United Resources, Inc. , 374 So. 2d 104b (Fla. 3d DCA 1979), in that the legislative body put Appellee on notice of an intent to consider rezoning. (R-180, Doc. Nos. 17, 23, 52; R-150). When the trial court granted Appellee's Motion for Summary Judgment, it' necessarily concluded that there was no genuine issue. of any material fact. A summary judgment is not a trial by affidavit, deposition, memoranda, or letters. If the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other evidence in the record raise even the slightest doubt as to any issue of material fact, then a summary judgment may not be granted. ConneIlv, Sledge, 306 So. 2d I94 (Fla. 1st DCA 1975 ). In its Statement of the Case and Facts, Appellee conceded that Appellant's Statement of the Case and Facts is accurate, but suggests that it is incomplete. (Answer Brief, page 1). By conceding that Appellant's Statement of the Facts is accurate, Appellee concedes that the record contains considerable evidence that the City of Clearwater had communicated to the Appellee, on numerous occasions from 1970 until the adoption of Ordinance 1749, that it was. considering a rezoning of the subject property. (R-I80, Doc. Nos. 26, 52, 60, 27; R-151-153). For example, in 1974, the City Commission instructed the staff to recommend down- zoning of all areas within 500 feet of the water, especially environmentally sensitive lands, including Appellee's property (R-180, Doc. No. 52). This alone would be sufficient to create more than the slighe st doubt on an issue of material fact, that being whether Appellee could in g ood faith rely upon a continuation of the existing zoning. This in itself would be sufficient to defeat Appellee's Motion for Summary Judgment. Contrary to Appellee's assertions, a party is not required to file a counter- affidavit to defeat a Motion for Sl1T*,*r+ary Judgment. Connell v. Sledge, supra. -19- ..~ The Request for Admissions filed by Appellee contain within themselves a plethora of inconsistencies and demonstrate on its face a pattern whereby Appellee, United States Steel, attempted to extract repeated assurances from Appellant, City of Clearwater, regarding continuation of commercial zoning on its subject property, even though Appellant had evidenced repeated intentions to consider rezoning. Appellee has failed to meet its burden of demonstrating that there is no genuine issue of material fact, and therefore the order granting suznma.ry judgment for Appellee must be reversed. Hughes v. Jemco, Inc., 201 So. 2d 565 (Fla. 1st DCA 1967). -20- r, ~ ~ w ' CONCLUSION 1 • The Court should reverse the Order granting Appellee's Motion for Summary Judgment, and enter an Order granting partial summary judgment for the Appellant in that Appellee has acquired no. rights to a continuation of business zoning as a result of a contract executed in 1961 between Appellant and Appelle's predecessor in title. The Court should also grant Appellant's Motion for Partial Summary Judgment on the issue of equitable, estoppel, on the grounds that Appellee could not lawfully rely upon a continuation of the existing zoning . If, however, the Court finds that there are genuine issues of material fact which must be resolved before summary judgment is entered as to this issue, this Court should remand the proceedings to the Circuit Court for further proceedings. Appellee's claim that Ordinance 1749 is unconstitutional, arbitrary, and capricious, was not presented by either party as a matter for resolution by summary judgment, and this Court should remand the proceeding to the court below for resolution of this claim. Re spec fully submitted, X. C 1 Frank X. Kowalski Chief Assistant City Attorney P, O.Box 4748 Clearwater, Florida 33518 (813) 4b2-b760 Attorney for Appellant -21- ,n ~ -~ _ ~ I ,' ' • ~ ~ CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of Appellant's Reply Brief has been furnished by U. S. mail to Dennis P. Thompson, Esquire, 1253 Park Street, Clearwater, Florida, Attorney for Appellee, and to Thomas A. Clark, Esquire, and Thomas F. Icard, Jr. , Esquire, P. O. Box 3239, Tampa., Florida, Attorneys for Appellee, this .a ~~ day of ~~-~'--~+~-t~~ ____, 1979. Frank X. Kowalski Chief Assistant City Attorney • CITY OF CIEARWATER Interdepertmenf Correspondence Sheet TO: David P. Healey, Planning Director FROM: Frank X. Kowalski, Chief Assistant City Attorney COPIES: SUBJECT: City of Clearwater v. United States Steel DATE: November 29, 1979 Attached for your information are copies of Appellant's Brief, Answer Brief of Appellee, and Reply Brief of Appellant, in the above captioned case. t~ /u Frank X. Kowalski Chief Assistant City Attorney F XK /km att. '~r.r'L~.IVED NOV 29 1979 PL.~NNING DE^P1`•~NT • TO: FROM: COPIES: SUBJECT: DATE: C'~ ity Manager Anthony L. Shoemaker David P. Healey, Planning Director CIT~OF CLEARWATER Interdepartment Correspondence Sheet Thomas Bustin, City Attorney; Frank Kowalski, Chief Asst. City Atty. Discussion t9ith U. S. Steel Concerning Sand Key June 20, 1980 Following our meeting with Frank Felix and his associates on Wednesday, June 18th, concerning alternatives for the development of the remainder of the U. S. Steel property, it was determined that the City Attorney's office would be in touch with their legal representatives to discuss an interim arrangement whereby they could initiate"development on the next proposed building while they prepared and we considered an RPD plan for the remainder of their holdings. After consideration of this approach, it is my recommendation that we proceed to initiate a rezoning action on the U. S. Steel property, west of Gulf Boulevard to RM 28 and east of Gulf Boulevard to RAi 16 with the exception of the shopping center site which would not be addressed. Given the conclusion of the previous litigation, it is unclear whether we would be precluded from carrying out such proposed action based on the previous arguments of contract zoning and estoppel although the Latter ought to be eliminated if we don't rezone the shopping center site. By formalizing such amendment request, and putting U. S. Steel on notice of same, we would establish the intent of the City with re- gard to the distribution of density as expressed in the adopted Land Use Plan. Were the negotiations to arrive at an RPD concept to be unsuccessful, the applicant would be on notice-as to the proposed zoning amendment, its status would be established as "pending" and we would not stand in jeopardy of having encouraged them to prepare plans which we were then not in a position to approve. On the other hand, if negotiations pro- ceed to fruition, the Land Use Plan designation, as expressed through the proposed zoning amendment, would be the basis for distribution of densities among the U. S. Steel holdings. The distinction, of course, between what U. S. Steel is proposing and what the present Plan would allow is that they consider all of the area to be developable at 28 units per acre rather than a portion at 28 and the remainder at I6. I do not believe it is consistent with our adopted Plan nor in the best interests of the City to allow the current result of the litigation to stand without attempting to re- address the issue in a legally satisfactory manner. I would appreciate your response and direction on this matter. BFH/fp C~Y OF CLEARWATER Interdepsrtment Correspondence Sheet TO: FROM: COPIES: SUBJECT: DATE: City Manager Bnthony L. Shoemaker David Y. Healey, Planning Director Thomas A. Bustin, City Attorney U. S. Steel Property on Sand Key July 15, 1980 At your request Tom Bustin, Frank Kowalski and I reviewed the entire matter related to previous litisation and current requests by U. S. Steel and have identified below our suggested approach: (1) Contact U. S. Steel and indicate our willingness to agree to a transfer of density from their 7-acre MOL bayside property, based on the maximum 26 units per acre classification indicated on our Land Use Plan, to the 13.5-acre MOL gulfside property,now designated at a maximum 28 units per acre under our Land Use i'lan. Corollary to this there would need to be some provision for considering building height in excess of that now provided for. This would allow the com- munity impact statement and site plan for the next building to be considered while they are developing an RPD plan for the remainder of their property to be submitted for consideration. This alternative would not require amendment of our Land Use Plan or submission to the PPC for amendment of the County flan; or (2) If U. S. Steel is not agreeable to the above, to indicate our willing- ness to discuss a density transfer from the bayside property to the gulfside property following submission and approval of amendment to the County Plan by the PPC, as is required to legally allow us to consider such density transfer. In short, while there are reasons of interest to the City to encourage a density transfer, we are not able to agree to their position that they are entitled to 28 units per acre on each the bayside and gulfside properties without approval of the PPC for County Plan amendment. To do otherwise would risk being cited for violation of the County Plan. I recommend we contact Frank Felix and advise him of our position and agreement to pursue either alternative one or two above, as they prefer. No further action on the CIS or site plan can or should be taken until their posture on the above options is clear and the necessary follow-up carried out. DPH:bd TO: FROM: COPIES: SUBJECT: DATE: ity Manager Anthony L. Shoemaker David P. Healey, Planning Director C~ OF CLE•ARWATER Interdeparfinenf Correspondence Sheet Frank R. Kowalski, Chief Assistant City ~'~ttorney U. S. Steel Property on Sand Rey July 30, 1980 Following our meeting with representatives of D. S. Steel on -dednesday, July 23, and . subsequent discussions with the staff of the Pinellas Planning Council, 1 have outlined below alternatives to the submission of a Plan amendment to the Pinellas Planning Council for the 6.5 IDOL acre parcel at the south end of Sand Rey on the bayside. The tatulations below are premised oa my understanding that the PPC will not require a Plan amendment provided the actual densities to be placed on the property do not exceed those provided for under the County Land Use Plan. Ibere are, therefore, two options we could pursue, with the concurrence of U. S. Steel, that are outlined below. (1) Considering only Tracts A and E at the south end of the Rey, under the t:..~ns ~: the County Plan _a maximum of 30 units per acre can be permitted without any transfer of density from Tract E; with the 30 units per acre to be permitted under the City Plan throuth a:transfer of 27 units (13.5 acres % 2) from Tract E to Tract A. _ -- County Plan _ City P'. an Density in Units Per Acre Tract 9 30 28 Tract E 15.5 28 This would permit the City, without recourse to amendment of the County Plan, to proceed to consider the next building proposed by U. S. Steel at a maximum density of 30 units per acre on an interim basis while an RPD plan is prepared for Tracts A and E that would establish the basis for developing the remainder of thoee ad- joining tracts. (2) Expanding on the basic premise outlined in (1) above would allow for consideration of the following: County Plan City Plan Density ~f Units Per Acre Existing Transfer - Existing Transfer Tract A 30 32 28 32 Tract B 30 - 32. 28 32 Tract E 15.5 15.5 28 * 16 Tract E-1 15.5 15.5 28 * 16 Tract D (15.5 - portion) Commercial (28 ) - portion) Commercial * Assumes density permitted based on Court determination relative to Ordinance No. 1749. } , TO: FROM: COPIES: SUBJECT: DATE: Page ~2 City Manager Anthony L. Shoemaker David P. Healey, Planning Director CI~ OF CLEARWATER Inter epartmenf Correspondence Sheet Frank X. Kowalski, Chief Assistant City Attorney U. S. Steel Property on Sand Key 3uly 3C, 1980 This alternative would involve a necessary Plan amendment submitted to the Pinellas Planning Council for the portion of Tract D not now classified as Com- mercial (2.5 acres MOL). The CPC has identified that this will be necessary • irrespective of any density= transfer in~that.the property is to be used in a manner different from that designated on the County Plan. In amending Tract D to Cemmer=ial, which the City would support, the balance of the allowable density from Tract E-1 (2.5 acres MOi. X 12) would be transferred to Tracts A and B under the County Plan providing some additional 30 units to be distributed over the approximately I7.5 acres, allowing for approximately 32 units per acre to be placed on the two gulfside tracts. This alternative has the advantage of ac- complishing essentially what U. S. Steel proposes to do with Tracts b and B, density-wise, while recognizing the City's objectives with respect to Tracts E _ and._E-1. It has_the disadvantage of necessitating an amendment to the i:ounty - - Land Use Plan prior to going fo nrard with the density transfer. Obviously, all of the numbers, both acreage and consequent numbers of units and density, are approximate and would need to be adjusted to correspond to validated survey in- formation. Qnce ~ determination is made by U. S. Steel as to whether they concur in one or the other of the alternatives identified above, the City will need to construct an interim arrangement whereby to consider the community impact statement and site plan for the next proposed building during which time U. S. Steel would prepare, and submit for approval, an RPD plan encompassing either the provisions outlined in (1) or (2) above. With regard to timing, if Alternative ~1 is pursued, we would be in a position to present the interim arrangement to the City Commission at their September 4th meeting and, if approved, for a building permit to be issued thereafter. If Alternative ~2 is pursued, it will require consideration of the County Plan amendment at the Pinellas Planning Council meeting of September I7; with the earliest likely date for City Com- mission authorization of the next building, on an interim basis, occurring on Gctober 16. As part of any interim arrangement, whereby the City would allow the next building tc•_ proceed at greater than the density allowed, we would need whatever assurance is deemed appropriate by the City Attorney with regard to the trade-off on Tract E, as well as Tracts E-1 and D, if involved, along with a firm commitment as to the time within which an RPD would be submitted for approval. I believe either of these two-tiered density transfer approaches allows us to work within the framework of both the Court decision and the County Land Use flan in a manner both equitable and expeditious. ,. DPA:bd . > .. TO: F:R OM: COPIES: SUBJECT: DATE: omas A. Eustin, City F>ttorney David P. Healey, Planning Director Elisabeth S. Haeseker, Chairman, RDC, Assistant City Hanager Cheezem Development on Sand Key August I, 1980 .- At the Resource Development Committee meeting of July 25, the Committee considered requests for a waiver of the community impact statement and for preliminary site plan approval of Building III, Sea Towers at Sand Rey, on property which was the subject of a stipulated settlement agreement between the City of Clearwater and the Cheezem Development Corp. (one unezecuted copy attached}, In 'the meeting with the Resource Development Committee, the attorney for~the Cheezem Development Corp. assumed the following positions regarding the two separate actions before the Committee: (1) with regard to the community impact statement, Counsel represented it was incumbent upon the Committee to waive tie community impact statement • unless to do so would pose a threat to the health, safety, morals and general welfare of the City (see paragraph 3 of the attached Agreement). The Committee was divided with respect to the value and need for an impact statement, gives that~the number of dwelling unite is set under the stipulated Agreement. We were uncertain, however, given the position of Cheezem's legal representative, ae to whether we had a right to ask for a community impact statement if we deemed it appropriate. In essence, does the stipulated ~ettlemenL affect the City's otherwise applicable require- ment governing the submission or waiver of a community impact statementY (2) With regard to the site plan, Counsel for the applicant took the position that the otherwise applicable requirements of the Zoning Ordinance, specifically the setback and waterfront vista provisions, could not be applied to the subject project unless a showing was made that the health, safety, morals or general welfare of the City were threatened by their not being met. It is Cheesem's position that paragraph 3 of the settle- ment entitles them to a specific building dimension and thus to exemption from the setback requirements. The Committee finds it necessary to solicit your reading of the settlement agreement as to whether the applicable re- gviremeata of zoning, other than the building height and number of dwelling units, apply to the review of~the site plan. r As a result of these questions, action on both the request for waiver and site plan approval was continued pending your opinion. The next scheduled meeting of the Heaource Development Committee is August 15, prior to which we would very much ap- preciate your counsel and direction with the hbove two questions. -' u r° cy C~Y OF CLEARWATER Inferdeparfinent Correspondence Sheet L~ ~c~rr~ 1 ~ ~` S DPH:bd Attachment ~. ,. ~~ ~- .. '. IN THE CIRCUIT COURT FOR PINELLAS COUNTY, FLORIDA CIRCUIT CIVIL N0.'74-8295-18 74-8333-17 CHEEZEM DEVELOPMENT CORPORATION, ) a Florida corporation, ) ' Plaintiff, ) . _ ) vs . - ~ ) THE CITY OF CLEARWATER, FLORIDA, ) etc. , et al, , ~ ) Defendants . ) STIPULATION FOR SETTLEMENT AND ENTRY '. OF FINAL JUDGMENT '= IT IS HEREBY STIPULATED AND AGREED by and between counsel for plaintiff and counsel for defendants that the foregoing cause be settled upon the terms and conditions as .specified -'~ in this stipulation and that a final enforceable judgmen~e entered by the Court recognizing the stipulation which shall have the full force and effect of law: 1. CHEEZEM DEVELOPMENT CORPORATION shall have the right to build that certain building known as Sand Key No. 3 at 144 units with a height restriction of 1672 feet. CHEEZEM DEVELOP- MENT CORPORATION shall not be required to redesign the building and shall build said building known as Sand Key No. 3 on CHEEZEM` S lot designated .for building of Sand Key No. 4 which is CHEEZEM`S property Lying to the south of Sand Key No. 3. 2. CHEEZEM DEVELOPMENT CORPORATION shall have the right to build Sand Key No. 4 and shall be restricted~to building said building at 72 units with a restriction of 100 feet in height. CHEEZEM DEVELOPMENT CORPORATION shall build Sand Key No. 4 on the lot specified for the building of Sand Key No. 3. t .. ~ - ~ .. ~' ~ ~ ~ , • 3. CHEEZEM DEVELOPMENT CORPORATION shall grant to the i CITY OF CLEARWATER a ten-foot easement for access by the public on the south edge of CHEEZEM DEVELOPMENT CORpORATION's•property. The location of the easement shall be mutually worked out between the parties after final development plans have been concluded an d prior to the release of any building permits associated with the development covered by this stipulation. The CITY OF CLEARWATER shall then submit its proposed document for filing of record the easement which shall then be signed and returned to the CITY OF CLEARWATER for filing.. 4_ The development rights conferred under the terms of this stipulation for settlement shall be commenced within a period of five (5) years .from the date of the final judgment ratifying this stipulation. `: 5 . .The ~ def endant, CITY- OF CLEARWATER; agrees that at no _ ____ time will it,...in the future, _by any__ act, -seek to -prohibit ,. plaintiff from developing its property in accordance with the-' terms of this stipulation and the judgment to be entered -thereon. This particular stipulation shall not be construed to abrogate the CITY OF CLEARWATER'S~.police power with respect to the property where it can show~th at activity of ongoing or contem- plated which poses a threat to the health, safety, morals or . general welfare of the defendant municipality and its citizens. ~. The City will not use its police power in any way to abrogate the developmen t~rights as conferred in this agreement. 6. This Settlement Agreement shall represent a full and final settlement ~of all existing claims between the parties which resulted in this litigation. 7. The parties jointly request the Court to recognize this stipulation and enter a final judgment in this. cause which shall be, fully enforceable according to law consistent with the stipulations herein_ - 2 - < <; DATED this day of i • ~~. J H T. ALLEN, ., P. . • 4 8 Central A nue S Petersburg, FL 37 1 (813) 381-0126 Attorney for Plaintiff 1978. THOMAS A. BUSTIIQ City Attorney P. 0. Box 4748 . Clearwater, FL 33518 (813) 442-6131 Attorney for Defendants f ~ a ~C~ ~{ ~ , n rl~~~,,.,,,., ,,I„y~~ • C I T Y O F C L E A R W POST OF.F CE OX 4748 CLEARWATER, F O DA 33518 ~ ~ OFFICE OF' CITY ATTORNEY ~'~~.f~IE;i~~D Dennis P. Thompson, Esq. ~ ~~ ~~ 1253 Park ~'I~,i3t1VgF~r~ Clearwater, Florida ~EPAFZT~EIaIT Re: U. S. Steelf City of Clearwater Dear Dennis: ~~~-i~ At our meeting of August 12 we discussed a tentative agreement relating to development on Sand Key, and providing: 1. That U. S. Steel could apply for a permit to construct a condominium in excess of current height limitations (South Beach IV) on the Gulf side, and that the City would process the application, i~ (a) Uo S. Steel submitted a community impact statement, site plan and application for a variance of the applicable height restrictions; (b) Uo S. Steel agreed in writing to submit an Application for an RPD, covering at least a tract of land on the Bay side which, together with the development proposed on the Gulf side, would average no more than 28 units per acre . The RPD would have to be submitted within 6 months of the application for the first building permit, and the certificate of occupancy would not be issued until this requirement had been satisfied; and (c) the parties agreed that the customary community impact statement and site plan review of all birildings proposed ' for construction would not be waived, and that the City would be empowered to take appropriate action on same. 2~ It is understood that, if an agreement were reached between City staff and representatives of U. S. Steel, the staff would recommend that the City Commission authorize execution of the agreement and grant the variance subject to execution of the agreement by both parties. "Equal Employment and Affirmotive Action Employer" Augu 1 , 19 • • Dennis P. Thompson Page 2 August 19, 1980 • ~' 3 . It i s understood that no permit will be issued by the City which doe s not conform to the County Land Use Plan, which designates a maximum density of 30 units on the Gulf side and 15.5 units on the - - - - - - - Say- side. - - - - - - 4. The purpose of the agreement is to enable U. S. Steel to seek a building permit expeditiously without compromising the authority of the City to review site plans and to ensure compliance with codes. It is intended that any transfer of density designate, either by contract or by a site plan submitted as part of an application for an RPD, a specific parcel from which density is borrowed and another parcel to which it is transferred, It is also intended that any such transfer be binding on any successor-in-interest or assignee. 5. It is understood and agreed that U. S, Steel or its successor- in-interest or assignee would be obligated to submit any and all documents required in support of an application for RPD; that the RPD would be submitted in good faith and with the intention that it serve as the basis of future development on the designated tracts; and that the City would retain all its powers inherent in the process of community impact statement and site plan review. I believe that an agreement might be reached which incorporates essentially what has been set forth here. This would enable U. S. Steel to apply expeditiously for a building permit on South Beach N, and would satisfy the City's obligations under the final summary judgment as to the parcels involved in the agreement. The City will of course honor its obligations under the judgment, but you should be aware that it is the opinion of City staff that the property held by U, S. Steel on Sand Key is not appropriately zoned, and when the City is legally empowered to rezone the property it is the intention of staff to propose such a rezoning. I appreciate your efforts and that of U. S. Steel's other representatives to resolve the differences between our respective clients. It is my hope, as expressed by the City Manager, that we amicably resolve our differences in the best interest of all concerned. In that regard, please respond as to whether your client is irk agreement with the matters presented. Sincerely, ~ r ~~~X ~ ~ Frank X. .Kowalski Chief Assistant City Attorney FXK:fs /~~ /'yl ~ ~/~ o1e-C • • / ~..*~ -. - ,l ___~_ - --c~7_ `-- 3bJ _ _ .. ~ - - _ . o g ; ti _ oc. _5~ _ .._ov'n O_'~gir • :,..-~"- ti-::r._. _;LK_~. =~--. _ _? ..'~,•C!-'?SON. ?. ?.. ~_=.~=w4-?o -_G?:.- ?35:6 _._ ~ 9_3. OCT 1 1980 ~- T 1j ~~ -z; i h~ T: T.T .. ~.w.~j-~. ~~ ~ ~. -r ___ ~ ~~~r. r_"3"1K ~:. ~J~va~ SiC1 ~ ._. .:~a_': Ci t\~~' L,~:___^t'. _y .. _. .':fin r°ic:'=.!'1Q LO ~i2e ~ is =~~r~ CO j =='iiC ~_Or_ Ort =7~ SO:: Lri :~Or ~? O:i Or ~cIlO ::.~, ia'1~.t1 .~ou_c Co s.s ~ o= a-: ~c_==-'.?*:= b~- =^e C.--_~ ~~c ~. S. S `ee a~ ~c se=~lzier:~ a= zoni~e c.s~~.~e= .o. =~tGt a_ea. ~~ er` are one Gr ~:cc _ . _- ~ °s _ ~ -. ~ =_~o~o :off:- - ~ or,~ =_~e ou ~ ~ =rte o~ your prc~osal ; n jour ? _ ==.r c _._~ ~-_ _ ? o , Z 3G, r.;a; n~j° -~__._= C ~.O :'+SL=:rs O. .:i~,iYn S~^.=..-.-~5. 44 •? _:=°- ~'~- _--Orir.~V =_'ci:,•-a1' ~_s° c3D'J=0Va1S 5^•1i:1C OC QC.^.C ate. C:'i= ='__TiS c'..i~C- ~.'2d`. =lle -_ _ '"OVS_ O. ~.^e _Ii_ ~_a_ -- _•~?C = .5 =~1:.;' .Or =?2 1[ji, as aII =X c._TiD'_c, _, /_~_ _-----•_ - ----- =fir • 9/3C"^oC ^riIS ~G?_u:_~tiT -~.da =mod __: ~.~~ ad zn ~.o `~; s . ~'av l7_ ~ ~~9 S~ ~ x:V and D° t*.v?_'1 l:i`ii'l~a~ S'~A•~•~S ``L:~~ i~i~ ~'~(1?-,i~l'T17~ ~ ..~=5__,1==°r =?_~i: @Q t0 aS "USS" a:?Q Cj=~' ~F CLL._~'r'+ '~~ X72.?"°___..._'__~= r ~~' ~ T N E 5 S~ •~ ~. ~'," ~~1 .~5~ LSS naS Si;~%t1t`2d can aDD~ _Cat.OP. =0~ a bu? ~ ~-_?~ .-..._ . =~~Y co^st_uct ion o_ a cordo~_.-_~:~t on _ e Gu-= _-~~ of Sa~1 ~tie~' ad~acant and contiQUOUS to ~~SS's p_asent c~oncc:- _-_._:; .. __~~c ~__~ '.:~1Ck'n 3S SOUth. ~2aCiI 1^-.0'~, [v_:1C^ D'.i__d1:1C} a_ld _'~??-'--. r :~_^.~ri C`~.":S =Z-?~:. =°C~..r riGUlu °XCc~Q L:°= ~a-_^• -•-~G:! - ~ -~`- --- ----'-__ _--- - _. ~~- - - -" - _=C` ~.arQ S~'^aC1C =°•~u1_,....;'ents u':C. r ~~?° C_L~'' S .»_= ?i ~ Z•1^_17t~ C_~.5---1Cat?On ~~ald 'Dt~i].C-:~ =±.7C = ~----x.35 S::?11 '.:.` .°_°_'".°r =0 ~ci c__. ti. ,: ~OlI t^ ~~.aCZ ! ' b J J ; td. ~`'HER~.TiS~ USS 3nC1 C? tJ ar@ In Cij.S3Cr.°c:T~~n ~ ?S ~O L`~~ Q~_^.S? tV a:1C Otj'lEr 11R11tat10:1S cDDliCaJ~e t0 t_^.z ~c.:2G _;+:':Cd ,'~~T ~'SS Or! S3.7d ~:~~ aS a r2SUlt O. t~";at C2r ~a_n St~" l:T.c'"V ~ L?•^ __...n ~ OL t_R° L_'_"'O.ulT: Cou1'L .Or PiAellaS COUnty~ ~'~O_iGa~ dct@d ~~=:*?;larV 1].~ 1_g7C~ _r: ..ri aCt'_OP_ E'_P. Titled lini tad S ~..Z i..G?S S .°21 COrDG_ 3 =_on ~'S . Ci ~V C= C? :~Y-•:a =2. ~ and vY~,:.:?r.~S~ ti'le Dart1°S d„51r2 t0 reSOl~'°_ _--.-- Q___er°_~ ±`S .O ~:'° ::'.=~llit~~it 2S:t°nt DCS51D! °_ ~J' V •3~12?i.1C ~ ~_. - ~_. ''S' .O'_" C2r ~a1P. ~arD~ OT Sand ri?y and =C a110w t,SS t0 ~=C _..C k', L1 =^~ ~'J_^_S ~-11C =? O:'i OL SOLI ~Ii ~Sc•^.7 ~=`a~ . :171': r 'r .~~: J-.`~. f i ^ C~~S=.r~.'_'S =1CP J- --• _ -~- _' -- _`. 3'iG •C- ~.::° ~'Jt ---_'~ -S :7°i°1n CO :~„_^2^ =::~ _a.'--mac ~~:=C= ;S .O._... ... r _ J _ _ ' / ~'~- ~' - =S °-~''._.i1G~ Gy rJ, _r? __r'.'li _C ~.iS =.'~~. "~1 ,... .~_=J'~_ _(.:~_ G .^iu_~ ~- _ _ r .r. =^~__ca=ion• .or varianc_s c= _~~ --='cht ra= =r_c=_~.-s .._.~~_ =__-« l _:'.G c. ~=1-._orlt S1Q0 ?rG SEL:.=C-' -_ _'_i-- _--°----= ~ ---°- -_- - C~SCY-~--C'i- - ~, .. ~ . • 2. Ti:at 4ditZ1% S1X ;ilOntilS Or tale Gate Of ~~11S aCY'e~':e i _ n ~, L 5:,, ;well SllD~1t t0 rile C'1tV an aDD11Cat10n .Or an r`Z?D C'? i r; .,C ss _ , ~~on coreri ng the t.acts o~ land on Sand hey cescribed in ~xilibit a . Si.:C =DDjlCatlOn well ~rOVlde ti,at deVej O` _<<ent OVer rile ba~'Siue :_ :~ :r'_11 CQ':S'_5t''.. O. _%v ~n1tS (~ 2 un_L3 =?' aC''°1 ''• _--_ _-- • ice/ _.le ._._'1=_:t_.1v ----.r'1P__l.ilil unit :w~_1 '.^.d al? OCct` L L^.~ t' r '` n ~ sist o~ your buildi ncs (including 180) eacr: bavi nc lc stori es o~ -,-..~-osPi ni ti;~ awellincs and one level o. ^ '-' _ Gr,{1nQ 1i:_ GJC~4~ge Q~:i~_ Lj• ~ ~ over all the land aescrlbed ? n EXhiblt ~ S ;all ^ot zxce°_d 23 units D~_ 3C. °, 3. ASS, =t rile tiie of itS - ~ li ^a ~_or. =~ . ~~ ~ ]„ ~~ ~ _vr '.i ~ , :7i~G S'-' =<<it a CCTiriiilni tV _nDaCt Statel;~ent ~Or .:-le en __ rc ?~ and rile i _. ~graes twat no . ~~_ ther co::~-nuni .y _:,, ac . s to =e:,,~ ~ ? 11 e -~=':'.1_~?d With reS:CEC~. t0 ti,e COIlSt1"llCt_On G= i ::d i Vi ^jilal i~u._d' •~ _.l, S con=orning to file RPD. ~. Tile City agress, upon execution o= this a^ree.~ent, anC aDDroval Oi the re'Jtlir?d variances, t0 DrOC°55 tiiE dDDliCati On ~o= building perir,it on South Seach 150 in accorcance .ai th its cT.:s tc~T~ary and usual permit tine proced- -es . ~: S. Tips afire=-~ent sna11 const_t,.~_e a-1y recu_re~ 7 apDrOVal ~~' -=1e C1ty Oi Vc__aisCeS Oi helght =eSDr?CtlO_^. ~ --` • S 20r S ==LCL_~ S u^ .o anc n^' `xceed -- 12 y ri s , _ ~ ~ _n, s ~o e o= conno:rinlum cwell_ .mss and one 1_vel o par~ins on tze gull side and uD to and not exceeding =Ou_" StOr_e5 Oi COnQOIii7.n11.1~':1 dWel11i1Q5 and Oise ~?Vel O' ;~ar)KinG Gn t_^_°_ .:.a~' S:iQe =0- -_'7e 13P.Ci G°_5Ci_DeC 1P. ~1:~!_'_-~,' ~ ~. ~ O ~ - ^1 ~c,^~" •-, 7T'''~~ 1 1... L ~ ~ _ _ . .r _ ... _ C. i..SS d~-6e5 t:aL Co:~Dl~anC= .'~ _:~ ~:_S ~~"O°..~::=r1- _ _ .^.V ---_ ~-- -.' S-•,-' ! Sa .1S=~' ta2 C1tV ~ S OD=1 ~~ -O"- '-`'•C°°r -~°- S:._-_..1?"V _ -- ~-.~- ~ ~ _- -_ = ec tc above w_th respec _ to ~_,e _anc aesc. i .;°^. ; :. - ~- --- '- -- -;~~_ _i?V_ _i~CQr ~.,e Si.:.:;~..G"~' '11 C: - '1°-:1 ~ ='`- -- ~?C t0, SOOV~, wl ~.il ~ ?S^cC r. ~.C ~c%C O.^, Sc.^.C ~ V - Z n o ~. C+= i Or ..=%a11 L:'l~S ~'"==-:eni, '?c~~GL1~__CnS 1...3G::Q t0 ~~'i2 ~;;°Cll 410P. OL L:?1S 3?_"COI^` '' ~ ?!r `.° ? ri il~r QOC:.:lilZP.tS X ii CI CO?"iilc~'~::].Ori w1 L~'1 u`115 ~~_ ~~:::erit Or' Si.~ ~.S^'.`ri `S ?+~3C.e 1R SliODOr ~ _.. _~?O~ °i0~ e ~~e C1 ~V ~v:T~'t1? Ss~Ori JV 1"2DrRSCriLc'C1V`S Oi e1 ~,'leL' :..c1'" ~~J ..:~ '1L'_'_1Z°~ OV @1t7=Z" Dc_'=~' 3~ ci cC;ii,SSiC:i Ci °ti_'CCP.C° 1i1 ai V _.C=_J'i O?" O''OC°°L1:7CJ.' 1_^.L Ol~'_:3~3 ~.~..:-'~i1daC2 OL" ~O' -...,~~.~! -4:7~:° '.~T1 ~;1 Sd~^j s~.~-.::,ary junr::lent. s C~Y OF CLEARWATER Interdepsrtment Correspondence Sheet TO: Anthony L. Shoemaker, City Manager FROM: Frank X. Kowalski, Chief ~Assi~tant City Attorney COPIES: avid P. Healey, Planning 13irector SUBJECT: 1~rrrpoeed U. S. Steel t~-greement on Sand Key . DATE: 'Yoe will sofa that I spoke with you and expressed some re servatiaars about, the proposed agreement for settlement of the dispute regarding laculdir~g peranits for I:T. ~S.'Steel on Sand ?c~ey. ~e have received a rAemorandum #rcm Ivir.. Healey which sets fcrth his specific objections to Mr. Thompson's proposal. It is necessary that I reply to NLr. Thompson' proposal. F would request that you either direct Ene to respond car that we sheet to discuss what course we should fallow. "Frank X. k{owalski, .~_ Chief Assistant City Attorney ~~~ ~~n~ r w to ~T~T i?Rf'-'. r.. ~~ November 1D, 198Q ,~ ~,~ ~ x . . Dennis P. Thompson, ~ea,~quixe ' "• ~ , 1253 Park. Street ~ ` , - ..Clearwater, Florida 3351b Res Sand Key Zoning Agripe~ieent " ~ ,~ t ~ ~~ ~~ _ - Dear Dennis: ~, j ~ ~~ a . :a~ ..~ ' , ... > Z have~had an opportunity to ~ceview with my~ciient your proposal . dated September 30 to' settle:ceit}in raungdisputcs reg#'ng;the'South end of Sand Key. f .~ Frankly,- the City is keenly disappointed a-ith your proposal. We feel tha# •the compromise propas.ed by spy lette~r.of August 19 represents rubataatial concessiaas, sad yet ,your proposaldeparts. radically ~£rom ~.: ~, '-~ thst~proposal. The C~tp' is rtoncerned that your proposal would,violate . _ the '~-at+~rfrant vista ordinance, would provf~de for 8es~stty in +~xces+~ of twelve units peracre errs the bay Bide if 1tQ tmiEs-were constructed, and arould Increase both the number of high-risen sad the height of each • ~~ aver what was previously discussed.- Also, the proposal contains . insufficient guarantees re~a.rdug density transtar is the event U. S. Steel subsequently cotsveys a portion of its h©ldings to a successor-fn- . _- ____~ interest.. Xn light- of thin. the City w-fll proceed witb- plans far re-aoninE of Sand Key.. Should yourdesire to offer a more realistic. proposal we will, as always, entertain your suggeaticros. . Since rely, . FranTi~ X. iCasraish#, . Chief Assistant City Attorney