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GSK Hollywood Development Group, LLC v. The City of Hollywood, Florida

Florida Court of Appeals, Fourth District

May 2, 2018

GSK HOLLYWOOD DEVELOPMENT GROUP, LLC, Appellant,
v.
THE CITY OF HOLLYWOOD, FLORIDA, a Florida municipal corporation, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal 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).

          Harvey W. Gurland, Jr., Scott H. Marder and Lida Rodriguez-Taseff of Duane Morris LLP, Miami, for appellant.

          Laura K. Wendell, Daniel L. Abbott and Adam A. Schwartzbaum of Weiss Serota Helfman Cole & Bierman, P.L., Fort Lauderdale, for appellee.

          Kuntz, J.

         GSK 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")[1] 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 court's findings.

         We find merit in the City's argument on cross-appeal.[2] 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.

         Background

         In 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.

         In 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."

         Subsequently, 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.

         After 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.

         Days 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 meeting.

         GSK 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 ...


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