City of Hollywood v. Hollywood, Inc.

432 So. 2d 1332
CourtDistrict Court of Appeal of Florida
DecidedApril 27, 1983
Docket81-951
StatusPublished
Cited by7 cases

This text of 432 So. 2d 1332 (City of Hollywood v. Hollywood, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Hollywood v. Hollywood, Inc., 432 So. 2d 1332 (Fla. Ct. App. 1983).

Opinion

432 So.2d 1332 (1983)

CITY OF HOLLYWOOD, a Municipal Corporation, Appellant,
v.
HOLLYWOOD, INC., and Sherwood Investment Co., a Florida Corporation, Appellees.

No. 81-951.

District Court of Appeal of Florida, Fourth District.

April 27, 1983.
Rehearing Denied July 5, 1983.

*1333 Myron H. Burnstein of Salter, Yeslow & Burnstein, P.A., and Nancy Cousins, City Atty., Hollywood, for appellant.

Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, and Ellis, Spencer, Butler & Kisslan, Hollywood, for appellees.

LETTS, Chief Judge.

This appeal centers on a narrow strip of undeveloped beachfront land, originally platted as a single family subdivision. The City slashed the allowable multi-family densities on the western portion thereof and created a separate single family classification in the most eastern part adjacent to the ocean. As an alternative to building homes in this new single family classification, the owner developer of the vast majority of the entire parcel was given the option to leave this eastern area open and unbuilt upon, in return for a transfer of increased multi-family density allowances on the western portion. The trial court, finding the City's actions to be arbitrary, unreasonable and not fairly debatable, entered final judgment for the developer. We disagree with this ruling and reverse.

The appellant City and the appellee developer have been fighting over the beach in Hollywood and the land adjoining thereto, from one end to the other, for over twenty years. This particular chapter of an apparently endless saga centers around a small strip of land comprising 92 net acres, 1 1/4 miles long from north to south, never more than 400 feet wide and named North Beach, in which the developer owns 65 acres. A north-south dedicated road (Surf Road), which is largely pedestrian and described more as a "pathway," splits the parcel and provides for vehicular parking and one way traffic. This pathway was used in the new zoning plan to separate the building pattern, resulting in the portion west of it (the D or Development Zone) being designed for residential multi-family units not to exceed 32.5 per acre. Under the same rezoning, the land to the east of the road (the C or Control Zone) was reserved exclusively for single family dwellings with a maximum of 7 density units per acre. However, the new single family area had a transfer of development rights proviso, which would permit the developer, at his option, to not build at all on the land zoned for single family residences leaving it untouched and open running east without interruption to the ocean. As a quid pro quo for this uninterrupted open area to the high water mark, the developer would have the right, after dedicating the open area to the City, to increase the density on the west side of Surf Road, so that instead of being limited to 32.5 density units per acre as before, the density would be increased to 37.4 units per acre. This transfer would result in some 368 more units being added to the D Zone while the C Zone would suffer the loss of 79 single family units.

*1334 The foregoing recitation of the facts involved in the City's plan for this North Beach area, hardly scratches the surface of any effort to completely detail the mass, or rather morass, of reports, surveys, plans, drawings, exhibits and testimony which together comprise the factual and legal basis for the city's efforts — never mind a no less bulky presentation by the developer in opposition. As a consequence, and in contrast to our norm, we will report any further factual data deemed necessary to support our legal conclusions as we continue hereunder and thus hopefully avoid sinking in a sea of factual verbiage.

The complex trial was held without a jury before one of our most deservedly venerated jurists who necessarily toiled mightily to fashion his findings and conclusions. Distilled to its essence, said judgment held as follows:

1. That the 3,000 unit density cap for the entire North Beach area "is invalid and arbitrary because the evidence is clear that it is premised upon a traffic generation rate which is patently erroneous." (We disagree.)
2. That "while the court does not per se find the subject ordinances to be confiscatory ... the evidence is clear that zoning of property located within the Control Zone to ... single family residences ... is unreasonable and arbitrary, bears no reasonable or rational relation to the public health, welfare or safety and ... is not fairly debatable." (We again disagree.)
3. That "the transfer of development rights concept as contained within this ordinance is unsupportable in fact or law." (Once again we disagree.)
4. That while "the court does not per se order [a Planned Unit Development alternative] ... nevertheless the Court can and does strongly urge . .. the utilization ... of such a flexible approach." (We do not address this particular urging.)
5. That the City "is hereby ordered to rezone ... in accordance with this judgment, those properties .. . lying within North Beach ... within six months... ." (Our conclusion here necessarily voids that direction without discussion.)

We shall address the three points in the judgment with which we must take issue.

A. THAT THE THREE THOUSAND UNIT DENSITY CAP IS INVALID AND ARBITRARY BECAUSE IT IS PREMISED ON A PATENTLY ERRONEOUS TRAFFIC STUDY.

Whether or not the City's traffic expert conducted an inaccurate traffic survey, and we do not fault the trial judge's preference for the credibility of the developer's experts to the contrary, it is completely obvious from the record that the overall density cap was predicated on a myriad of other considerations. Whether the vehicle trip generated is 10.6 vehicles a day or 6 trips was a consideration but it was not the only one by any means.

A multitude of factors was taken into consideration over and above traffic. Water and sewer capacities were measured as was the provision of services such as fire and police protection. The question of how to evacuate the residents in a hurricane with only two possible escape routes to the mainland, one at each end, was also considered concomitantly with maintenance of the dune line to protect against storm ravage. The fact that this, as the developer admitted, "is the last undeveloped beach area on the Gold Coast," is filled with desirable rare flora, is ecologically sensitive and crying out for environmental protection, is in desperate need of open space and easy public access to the ocean, were all addressed and considered in agonizing detail. Another important factor was that the area to be developed is never more than 400 feet wide from A1A to the dune line and is only 1 1/4 miles long. The placing of multi-family units in this narrow area at the former 80 units per acre density would necessitate long lines of high rise structures (which the developer's drawings depict running all the way to the ocean to the apparent exclusion of Surf Road) behind which the public would drive on A1A through another only too familiar Gold Coast sky-high concrete *1335 barrier with no sight, sound or smell of the ocean. The question of shadow on the public beach from these proposed monolithic structures was also addressed. The admitted truth is that the entire area was originally platted and earmarked for small single family dwelling lots, so that the area is now crisscrossed to A1A by some 20 paved dedicated east-west streets.[1]

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