Jones v. FIRST VIRGINIA MTG.

399 So. 2d 1068
CourtDistrict Court of Appeal of Florida
DecidedJune 19, 1981
Docket79-2276
StatusPublished

This text of 399 So. 2d 1068 (Jones v. FIRST VIRGINIA MTG.) 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
Jones v. FIRST VIRGINIA MTG., 399 So. 2d 1068 (Fla. Ct. App. 1981).

Opinion

399 So.2d 1068 (1981)

Don JONES, G. Patrick Iley, Jeanne Malchon, Charles E. Rainey and Cliff Stephens, As Members of and Constituting the Board of County Commissioners of Pinellas County, Florida, Appellants,
v.
FIRST VIRGINIA MORTGAGE AND REAL ESTATE INVESTMENT TRUST, Appellee.

No. 79-2276.

District Court of Appeal of Florida, Second District.

June 19, 1981.

*1069 Andrew J. Rodnite, Asst. County Atty., Clearwater, for appellants.

Thomas F. Icard, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee.

PER CURIAM.

Pinellas County downzoned certain property while a developer was seeking approval of a preliminary site plan for a project *1070 exceeding the new density restrictions. Appellee, the financing institution which had supplied the funds with which the developer purchased the site, acquired the property by foreclosure when the developer defaulted on the loan. This action was then instituted to enjoin the county from enforcing the new zoning as to that site. The original complaint and a first amended complaint were dismissed for failure to state a cause of action, but appellants' motion to dismiss the second amended complaint was denied on the ground that a cause of action for equitable estoppel had been stated. Appellee then moved for summary judgment on the ground that the uncontradicted facts established equitable estoppel as a matter of law. Appellants countered with their own motion for summary judgment, on the ground that the facts established the absence of equitable estoppel, as a matter of law. Appellee's motion was granted without explication of reason or ground. We reverse the summary judgment.

In 1973 Williams Development Corp. paid a $10,000 deposit on (1) a contract to purchase approximately 13 1/2 acres out of a parcel of land situated in an area known as Coopers Point, and (2) an option to purchase the remainder of the parcel (approximately half) for $750,000 less any sums paid for the first half. The contract provided that the price was to be determined by the number of residential units that could be constructed on the land. The base price was set at $375,000 if 253 units could be constructed on the "Phase I" plot. The contract also provided:

4. This Agreement is subject to the Property being zoned to permit the construction of apartments and having a permissible density of not less than five hundred and six (506) units, and that said zoning and allotment of density requirements as hereinbefore mentioned be evidenced by an official letter from the proper zoning official of the County of Pinellas delivered to Buyer prior to closing. This Agreement is also subject to the issuance of building and use permits on the Property for two hundred fifty-three (253) units prior to the date of closing. If said permits have not been so obtained or said official letter is not so delivered, Buyer shall have the option to terminate this Agreement and have its deposit returned, or to waive the requirements and close the sale.

Two months later Williams assigned the contract to Financial and Development Corporation of North America (hereinafter Financial Corp.) for $205,000. Shortly thereafter the owners of the property met with Charles V. Zimmerman, a zoning technician in the Pinellas County Department of Planning, and requested confirmation that the property in question was zoned RPD-15. In response, Zimmerman sent them a letter on May 31, 1973, stating in part:

The Bay Harbor Residential Planned District, a 25-acre MOL tract ... has been approved for a total of 506 units.[1] In accordance with the ... zoning regulations ... the Bay Harbor site would allow a five-story building elevation provided they are in compliance with the additional setbacks.
The final construction plan would require submittal to, and approval by, the Pinellas County Board of County Commissioners. Also this parcel ... has a minimum elevation requirement for the first floor living area of nine (9) feet above mean sea level.
Sincerely, Charles V. Zimmerman Zoning Technician

Financial Corp. then made arrangements to conclude the purchase of the first half of the tract and commence the construction of Phase I of a complex to be known as Sea Pines. Acquisition and construction money in the total sum of $5,000,000 was committed by appellee on several conditions, among them:

*1071 9. PURPOSE OF LOAN: The proceeds of the loan will be used to acquire fee simple title to a tract of land containing approximately 24.7 acres ...; to develop for apartment use approximately 13.5 acres of said tract and to construct thereon a minimum of 253 garden and mid-rise apartment units; and to develop for apartment use the remaining portion of the security tract.
10. SECURITY: The loan will be secured by:
a. A first mortgage encumbering approximately 13.5 acres of the following-described tract of land [and encumbering the entire tract after the Phase II land is acquired].
11. DISBURSEMENTS:
a. Approximately $550,000 shall be disbursed at closing to pay the acquisition cost of Phase I land, costs incidental to closing, a portion of the loan brokerage fees and a portion of the additional interest on subject loan.
b. Approximately $375,000 shall be disbursed at the time the Phase II tract of land is acquired by borrower, at which time lender's mortgage will be modified to include the Phase II tract in the land encumbered thereby.
16. SUPPORTING DOCUMENTS: As soon as practicable, and in any event prior to the making of any disbursements for construction or development purposes, lender shall be furnished for approval with any of the following items it has not yet received:
a. Site Plan: A Site Plan for subject project, which plan if required by local law, must have been approved on its face by all of the appropriate public authorities.
b. Building Permits: Building permits from appropriate public officials.
17. SUPPORTING DOCUMENTS FOR CLOSING REQUIREMENTS: As soon as practicable, and in any event prior to closing, lender shall be furnished for approval with any of the following items it has not yet received:
f. Zoning: Evidence satisfactory to lender that the proposed project complies with the relevant building and zoning code including a copy of the relevant ordinances.

The loan escrow closed in July, 1973, and Financial Corp. completed the purchase of the Phase I plot. At no time, either prior or subsequent to the consummation of the purchase, did Financial Corp. obtain or even apply for any building permits. At that time any developer desiring building permits for a Pinellas County project first had to obtain approval by the Board of Commissioners of a preliminary site plan, then obtain approval of a final site plan, then obtain a land-use permit and then apply for a building permit. Assuming final approval of a site plan, building permits would automatically issue so long as consistent with such site plan AND prevailing building, electric and other such codes, together with elevation and setback requirements.

The mortgage executed by Financial Corp. in favor of appellee provided in part:

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Jones v. First Virginia Mortgage & Real Estate Investment Trust
399 So. 2d 1068 (District Court of Appeal of Florida, 1981)

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Bluebook (online)
399 So. 2d 1068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-first-virginia-mtg-fladistctapp-1981.