Posted by: Patricia Salkin | October 20, 2011

Florida Appeals Court Allows Equal Protection Claim to Proceed

Land owners bought a parcel of land in a Florida city for the purposes of building high-rise condominiums.  The parcel of land was zoned for high-rise apartments but also part of a historic district.  The builder was, thus, required not only to get building approval from the city but also from the Architectural Review Commission (ARC) which has separate guidelines for aesthetics.    Once the land owners obtained city approval, they sought certification from ARC.  Following neighborhood association opposition to the construction, the city re-interpreted its zoning laws to require, for the first time, greater front-yard setbacks and a reduced height, and the ARC ultimately rejected the proposal.

During litigation challenging the City’s denial of their appeal, the land owners learned that the city had approved building of high-rise projects in the area that were even larger than the land owner’s proposal.  Subsequently, they asserted an equal protection claim, arguing that there was no rational basis for the city’s denial and that the land owners were treated differently from other similarly situated builders. The Circuit Court, sitting in its appellate capacity, dismissed the action holding that 42 USC § 1983 does not permit an action based on interpretation of the zoning laws.  The District Court, however, held that federal courts have consistently held that “a property owner may raise an equal protection claim based on the application of a land use regulation” and thus, plaintiff may bring this type of claim.  Here, the court points out, the land owners have alleged differential treatment from other builders with no justifiable reason.  This is a cognizable claim under § 1983. 

Since the circuit court had initially held that there was sufficient evidence to explain the city’s determination, the city argued that this finding is dispositive of the case under the doctrine of the law of the case.  The doctrine of the law of the case applies, explained the court, where there are multiple appeals within one case and decisions made by an appellate court become the law of the case.  The court found this rule inapplicable here, however, because the facts had changed since the court first heard the case.  Specifically, the land owners alleged additional facts in their third amended complaint that the court indicated could support a claim for equal protection.  Thus, the determination by the court that there was evidence to support the city’s denial does not preclude the equal protection claim. 

City Nat’l Bank of FL v. City of Tampa, 67 So.3d 293 (Fla. 2d Dist. Ct. App. 4/6/2011)

The opinion can be accessed at:,%202011/2D10-332.pdf

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