final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; William W. Haury, Jr.,
Judge; L.T. Case No. 09-032688 (13).
W. Gurland, Jr., Scott H. Marder and Lida Rodriguez-Taseff of
Duane Morris LLP, Miami, for appellant.
K. Wendell, Daniel L. Abbott and Adam A. Schwartzbaum of
Weiss Serota Helfman Cole & Bierman, P.L., Fort
Lauderdale, for appellee.
Hollywood Development Group, LLC filed a two-count complaint
against the City of Hollywood ("City"), asserting a
violation of the Bert J. Harris, Jr. Private Property Rights
Protection Act (the "Harris Act") and a violation
of its substantive due process rights. The circuit court
entered a final judgment in favor of GSK on its Harris Act
claim, and in favor of the City on the substantive due
process claim. On appeal, both parties challenge the
merit in the City's argument on
cross-appeal. The then-existing version of the Harris
Act required "action of a governmental entity."
Because GSK never asked the City to act through a permit or
variance application, a waiver request, or otherwise, it was
not entitled to recover under the Harris Act. We reverse the
court's judgment against the City.
2002, GSK purchased two parcels of real property located on
Hollywood Beach, intending to develop the Mirador Project, a
luxury 15-story condominium, on the property. The property
was zoned to permit construction of up to 150 vertical feet
and up to 25 residential units per acre. Before purchase, GSK
spoke to the City's Director of Planning and Zoning, who
orally confirmed the zoning.
2004, while working on conceptual plans, GSK presented the
Mirador Project to various city leaders at an informal event.
Following this presentation, the mayor informed GSK that
residents of Summit Towers Condos, a neighboring condominium
association, were voicing opposition to the project. At
trial, GSK presented evidence that the mayor was receptive to
Summit's residents. The mayor responded to their emails,
writing that she had "protected the Summit from every
bad project that has come down the pike" and that
"when the presentations are made and the vote is taken,
I'm sure my vote will make my friends at Summit happy . .
. as they always have."
the mayor introduced a proposal at a city commission meeting
to reduce building-height limits from 150 feet down to 65
feet. Though the commission did not adopt the proposal, it
ordered the City to begin a study on building heights.
completing the study, the City's Planning and Zoning
Board proposed a step-down ordinance, which would maintain
the 150-foot height restriction, but gradually reduce
building height approaching the beach. The commission
rejected this plan on first reading while also rejecting the
mayor's renewal of her proposal to immediately reduce
building-height limits to 65 feet.
later, the mayor again placed her proposal on the agenda for
the next commission meeting and, at her request, the city
attorney prepared a new height ordinance limiting building
height to 65 feet. At that meeting, the commission rejected
the step-down ordinance proposed by the City's Planning
and Zoning Board on second reading but the Mayor's new
height ordinance passed on first reading. The commission
formally approved the new 65 foot height ordinance at a later
then filed its lawsuit against the City. GSK's complaint
alleged the City violated its rights under the Harris Act by
enacting a height ordinance with a height restriction that
burdened its use of the property. The City moved for summary
judgment on the basis that GSK's failure to submit an
application to develop the property precluded it from
establishing the City had applied a law or ordinance ...