THE WATERVIEW TOWERS CONDOMINIUM ASSOCIATION, INC., a Florida corporation not-for-profit, LAURA BENNETT, HELEN BOSSMAN, and THOMAS J. O'NEILL, individually, Appellants,
CITY OF WEST PALM BEACH, a Florida Municipal Corporation, and PALM HARBOR HOTEL, LLC, a foreign limited liability company, Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Edward A. Garrison, Acting Circuit Judge;
L.T. Case No. 50-2014-CA-005009-XXXX-MB.
J. Hauser of Pankauski Hauser PLLC, West Palm Beach, Robert
Sweetapple of Sweetapple, Broeker & Varkas, PL, Boca
Raton, and John R. Eubanks, Jr. of Breton, Lynch, Eubanks
& Suarez-Murias, P.A., West Palm Beach, for appellants.
Denise Haire and Douglas N. Yeargin, Office of the City
Attorney, West Palm Beach, for appellee, City of West Palm
S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort
Lauderdale, and Joseph Ianno, Jr. and Henry S. Wulf of
Carlton Fields Jorden Burt, P.A., West Palm Beach, for
appellee, Palm Harbor Hotel, LLC.
that unit owners and a condominium association have standing
to enforce certain development restrictions contained in
condominium documents, as defined in the declaration of
property central to this litigation is owned by the City of
West Palm Beach. It is bordered on the west side by Flagler
Drive, on the east side by Lake Worth, on the north side by
5th Street, and on the south side by 1st Street.
It is a
single piece of property, divided into three parcels: R-1,
C-1, and C-2. The parcels are aligned like this:
Harbor Hotel, LLC (the "Hotel") wants to build a
hotel and parking garage on parcel C-2. The neighbors living
in the condominium tower located on parcel R-1 oppose the
action was brought by The Waterview Towers Condominium
Association, Inc. and three individuals who own residential
units in the condominium (collectively, the
"Plaintiffs") against the City and the Hotel. The
Plaintiffs asked the circuit court to declare that the
Hotel's plans violated development restrictions found in
1968, the City leased the parcel to the West Palm Beach
Marina, Inc. for 99 years. In 1979, the City Commission
passed Ordinance 1455-79 which permitted the City to amend
the lease. The City, as lessor, and the Marina, as lessee,
executed the "Consolidated and Amended Lease" (the
"Lease"). Both parties to the Lease anticipated
future development of the property. While a portion of the
property was to be maintained as a marina,  the remainder of the
property could be used in almost any manner.
XXX, section 5 of the Lease is important because it contains
two development restrictions the Plaintiffs seek to enforce
in this action, the "View Restriction, " and the
"Unanimity Provision." The relevant language reads:
XXX - Miscellaneous Provisions
It is further mutually covenanted and agreed by and between
both of the parties hereto as follows:
* * *
Section 5. Lessee agrees that it will use good site planning
and architectural design so that the buildings will fit into
the character of the downtown area of West Palm Beach or
enhance the same, and retain the waterfront characteristics
of the area. There are 1, 573.35 feet of waterfront view,
measured on a north-south line, presently existing, of which
Lessee agrees to retain open and free from building
obstructions as viewed from Flagler Drive [62.82%]. All
development of the Leasehold Premises herein shall be
pursuant to a site plan to be approved by resolution or
motion of the City Commission unanimously passed, and any
modification, change or amendment thereto shall require a
unanimous vote of approval of same by the City
Commission of the City of West Palm.
Article XXXVI of the Lease, entitled "Condominium
Provisions, " the parties agreed that the entire
property would be submitted to condominium ownership in
accordance with the Condominium Act. The plan for the
"leasehold condominium" was to divide the property
into a residential and a commercial portion. The residential
portion would be further divided into 132 units, and the
commercial portion would be divided into two units. The
operation of both the residential and commercial portions
would be conducted by the Association.
addition to the development restrictions set forth above, the
Plaintiffs sought a declaration that development of Unit C-2
is limited to a four-story building with surface parking
only. The Plaintiffs' argument relies on the following
language found under Article XXXVI of the Lease:
. . . The Commercial Portion will include boat dockage
facilities, a marina office with related facilities, and
surface parking; additionally, a commercial building
having approximately one hundred (100') feet of frontage
on Flagler Drive and not exceeding four (4) stories
in height may be constructed on the Commercial Portion.
following definitions found within the "Condominium
Provisions" of the Lease are relevant to this appeal:
l. "Condominium Documents" means in the aggregate
the "Declaration" (as hereinafter defined),
Articles, By-Laws, this Lease and all of the
instruments and documents referred to therein.
* * *
q. "Lessee" means in the first instance West Palm
Beach Marina, Inc. . . .; and in the second instance upon
[the Marina's] assignment of the Lease . . . to LRI,
"Lessee" means LRI; and finally, after Submission
and upon assignment of the First Unit, "Lessee"
means the Unit Owners.
the documents "referred to" by the Lease is a site
plan. In June of 1979, "Site Plan 7" was
unanimously approved by the City Commission. The Plaintiffs
argue that language in Site Plan 7 imposes the same
four-story height restriction as well as a square footage
restriction on the future development of Unit C-2. Site Plan
7 contains this "NOTE:"
THE COMMERCIAL STRUCTURE SHALL NOT EXCEED FOUR STORIES IN
HEIGHT AND 20, 000 Sq. Ft. IN AREA. THE COMMERCIAL STRUCTURE
MAY BE LOCATED ANYWHERE SOUTH OF THIRD STREET, PROVIDED ITS
LOCATION IS IN COMPLIANCE WITH THE CITY OF WEST PALM BEACH
ZONING ORDINANCES. LESSEE MAY BUT IS NOT REQUIRED TO BUILD
THE COMMERCIAL STRUCTURE.
after the Lease was executed, it was assigned by the Marina
to Leisure Resorts, Inc. ("LRI"). In 1981, LRI
established a condominium on the entire leased parcel by
filing of the "Declaration of Condominium of The
Waterview Towers, A Condominium" (the
"Declaration"). The condominium, including
residential and commercial units, was named "The
Waterview Towers, A Condominium."
not attached to the Declaration, the Lease is referenced
throughout the document and, significantly, the Lease and all
documents referenced therein are included in the
Declaration's definition of the term "Condominium
l. "Condominium Documents" means in the aggregate
this Declaration, the Articles, By-Laws, the Lease and
all of the instruments and documents referred to
addition to the development restrictions in the Lease (and
its referenced documents), the Plaintiffs sought a
declaration that development of Unit C-2 is limited to a
single commercial building, not exceeding seventy-five feet
in height, with no more than one-hundred feet of frontage
along Flagler Drive. The Plaintiffs' argument relies on
the following language of the Declaration:
. . . The Commercial Unit, designated as "C-2" on
the Survey shall contain parking facilities which may be used
as determined by the C-2 Commercial Unit Owner and the
Developer reserves the right for and on behalf of the C-2
Commercial Unit Owner to construct a commercial
building ("Commercial Structure") within the
C-2 Commercial Unit not exceeding seventy five (75')
feet in height with approximately one hundred
(100') feet of frontage on Flagler Drive.
than 25 years after establishing the condominium, in 2007,
LRI sold parcels C-1 and C-2 to Leisure Resorts, LLC
("Leisure Resorts"). The parties executed a
Warranty Leasehold Estate Deed and Partial Assignment of
Lease Agreement which transferred all of LRI's interest
in parcels C-1 and C-2, including "any and all remaining
rights . . . held by Grantor as 'Developer' under the
Declaration and/or as the owner of the Units."
2009, the City and Leisure Resorts executed a Development
Agreement recognizing Leisure Resorts' intent to develop
Unit C-2 to include a hotel and a parking garage (the
"Development Agreement"). A diagram titled
"Site Plan No. 8" was attached to the Development
Agreement. The conceptual site plan had been approved by
Resolution 239-07 in 2007 by the City Commission.
Development Agreement, the City gave "conceptual
approval" to development of Unit C-2 in accordance with
Site Plan No. 8. Both parties agreed to "work
cooperatively for a period of up to three (3) years ...
towards a revised site plan ... in lieu of [Site Plan No.
Development Agreement, the City expressly waived any right it
may have had as Lessor to enforce the provisions of Article
XXX, section 5 of the Lease "with respect to the
Approved Site Plan [Site Plan No. 8] or any Revised Site
The City and Leisure Resorts also agreed that the Development
Agreement did not "constitute an amendment or
modification of any of the terms and provisions of the
Consolidated Lease, " and none of the Condominium
Documents were modified or amended to reflect the new
development plan for Unit C-2.
executing the Development Agreement, Leisure Resorts
subleased Unit C-2 to the Hotel. The sublease is subject to
the terms and conditions of the Lease, the Declaration, and
the Development Agreement.
in 2013, the Hotel applied to rezone Unit C-2 so it could
build an eight-story hotel with an attached three story
parking garage. The City approved the rezoning.
of their opposition to the proposed development of Unit C-2
(which had been a parking lot since the early 1980's),
the Association and two R-1 unit owners filed a petition for
writ of certiorari in the circuit court. A three judge panel
ruled that the petitioners were denied due process by the
City and quashed the 2014 Development Orders. The circuit
court appellate panel held that the Association and R-1 Unit
Owners had standing to participate in the
"quasi-judicial" zoning proceedings due to their
special relationship with the land.
case, the Plaintiffs sought a declaration that the
Association and Unit Owners have the right to enforce the
development restrictions found in the referenced documents
and that ...