Riverside Heights Dev., LLC v. City of Tampa

313 So.3d 776

RIVERSIDE HEIGHTS DEVELOPMENT, LLC, Appellant,

v.CITY OF TAMPA and Ulele, Inc., Appellees.

Case No. 2D19-918

District Court of Appeal of Florida, Second District.

Opinion filed December 30, 2020

C. David Harper, Adam R. Alaee, and Evan M. Malloy of Foley & Lardner LLP, Tampa, for Appellant.

David E. Harvey and Kristin Ottinger, Assistant City Attorneys, Tampa, for Appellees.

BY ORDER OF THE COURT:

Riverside Heights Development, LLC's Motion for Rehearing, Clarification and/or Rehearing En Banc is granted in part, the prior opinion dated September 11, 2020, is withdrawn, and the attached opinion is issued in its place. The motion for rehearing is granted; the additional relief requested by Riverside is denied as moot. No further motions will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL, CLERK

ATKINSON, Judge.

Riverside Heights Development, LLC (Riverside), appeals a final judgment entered in favor of City of Tampa (the City) and Ulele, Inc. (Ulele) (the Defendants) in a declaratory judgment action brought by Riverside. Riverside argues that the trial court erred in finding that the notice requirements for the disposal of real property under section 163.380(3)(a), Florida Statutes (2017), do not apply to a property acquired by the City prior to the formation of the community redevelopment area within which the property is located. We agree and reverse.¹

In 1923, the City acquired the Water Works Building and the Cable Office, two adjacent buildings that are now located in the Tampa Heights Riverfront Community Redevelopment Area (CRA), which was created in 1999. On September 13, 2011, the City issued a Request for Proposals (RFP) for the acquisition and redevelopment of the Water Works Building. See § 163.380(3)(a) (requiring a municipality to give public notice and invite proposals from private redevelopers before disposing of any real property in a CRA). The RFP did not include the Cable Office.

Thereafter, the City accepted a proposal submitted by Ulele. On July 1, 2013, the City and Ulele entered into a lease agreement for an initial term of twenty years for the purpose of redeveloping the Water Works Building and operating a restaurant in that building (the Lease). The City also granted Ulele an option to purchase the Water Works Building. Additionally, the City agreed that if Ulele proposed a use for the Cable Office, the City would modify the Lease to include the Cable Office for no additional consideration. On February 28, 2017, the City and Ulele signed an amendment to the Lease, which modified the definition of the premises to incorporate the Cable Office.

Riverside is a private redeveloper in Hillsborough County and has redeveloped numerous properties within the CRA. Due to the City's failure to provide public notice of its intent to dispose of the Cable Office, Riverside claims it was denied an opportunity to submit a proposal for that property pursuant to section 163.380(3)(a). Riverside sought a judgment declaring that the Lease was void as it related to the Cable Office. In their Answer and Affirmative Defenses, the Defendants alleged that the City was not obligated to comply with section 163.380(3)(a) because the City acquired the Cable Office prior to the creation of the CRA.

Riverside then filed a motion for a judgment on the pleadings, arguing that the Defendants’ defense failed as a matter of law because the notice provisions in section 163.380(3)(a) apply to "any real property" located in the CRA without regard to the date on which the City acquired the property. The Defendants filed a response in opposition to Riverside's motion and a cross-motion for judgment on the pleadings, reiterating the argument alleged in their Answer and Affirmative Defenses. After a hearing, the trial court entered an order denying Riverside's motion and granting the Defendants’ motion and ultimately entered a final judgment in favor of the Defendants.²

A trial court's order granting a judgment on the pleadings is reviewed de novo. Syvrud v. Today Real Estate, Inc., 858 So. 2d 1125, 1129 (Fla. 2d DCA 2003) (citing Williams v. Howard, 329 So. 2d 277, 280–81 (Fla. 1976) ). A trial court's construction of a statute is also reviewed de novo. A.J.R. v. State, 206 So. 3d 140, 142 (Fla. 2d DCA 2016) (citing State v. C.M., 154 So. 3d 1177, 1178 (Fla. 4th DCA 2015) ). Statutory language must "be afforded its plain and ordinary meaning, giving due regard to the context within which it is used." Hampton v. State, 103 So. 3d 98, 110 (Fla. 2012) ; O'Hara v. State, 964 So. 2d 839, 843 (Fla. 2d DCA 2007) ("[S]tatutory language ... must be taken in context, so that its meaning may be illuminated in the light of the statutory scheme of which it is a part.").

Section 163.380 governs the "[d]isposal of property in a community redevelopment area." Under subsection (1), any municipality "may sell, lease, dispose of, or otherwise transfer real property ... acquired by it for community redevelopment in a community redevelopment area to any private person ... in accordance with the community redevelopment plan." § 163.380(1) (emphasis added). Under subsection (2), "[s]uch real property ... shall be sold, leased, or otherwise transferred, or retained at a value determined to be in the public interest in accordance with such reasonable disposal procedures as any ... municipality ... may prescribe." § 163.380(2) (emphasis added).

Subsection (3) provides, in part, the following:

Prior to disposition of any real property or interest therein in a community redevelopment area, any county, municipality, or community redevelopment agency shall give public notice of such disposition by publication in a newspaper having a general circulation in the community, at least 30 days prior to the execution of any contract to sell, lease, or otherwise transfer real property and, prior to the delivery of any instrument of conveyance with respect thereto under the provisions of this section, invite proposals from, and make all pertinent information available to, private redevelopers or any persons interested in undertaking to redevelop or rehabilitate a community redevelopment area or any part thereof. ...

The county, municipality, or community redevelopment agency may accept such proposal as it deems to be in the public interest and in furtherance of the purposes of this part. ...

Thereafter, the county, municipality, or community redevelopment agency may execute such contract in accordance with the provisions of subsection (1) and deliver deeds, leases, and other instruments and take all steps necessary to effectuate such contract.

§ 163.380(3)(a) (emphasis added).

The trial court concluded that the notice requirements for the disposal of real property under subsection (3)(a) only apply to real property acquired for community development purposes. The trial court reasoned that the notice requirements do not apply to the Cable Office because it was acquired prior to the creation of the City's CRA and thus was acquired for purposes other than community redevelopment.

The trial court noted that a 2010 Attorney General's opinion supports its interpretation. See Op. Att'y Gen. Fla. 10-47 (2010). The Attorney General was asked whether a city was subject to the notice requirements of section 163.380(3)(a) where, as here, "the city leases a portion of city-owned property located within a community redevelopment area when that property was acquired prior to the creation of the community redevelopment area and was not acquired for redevelopment purposes." Id. The Attorney General acknowledged that the term "any real property" in subsection (3)(a) "is expansive enough to include any property owned by the city regardless of the date it was acquired or the use for which it was acquired." Id. Nonetheless, the Attorney General opined that "the necessity to further the purpose of the act, i.e., eliminate and prevent the development or spread of slums and urban blight, to encourage needed community rehabilitation, and to provide for the redevelopment of slums and blighted areas, would ... limit the application of the act to real property acquired by the city for redevelopment." Id. (concluding that the notice requirements of section (3)(a) "do not apply to real property located within the city's community redevelopment area which was acquired for purposes other than community redevelopment prior to the creation of the city's community redevelopment area"); see also Op. Att'y Gen. Fla. 08-21 (2008).

Reading subsections (1), (2), and (3) of section 163.380 "together to present a comprehensive scheme for directing the disposition of property acquired for community redevelopment," the Attorney General erroneously assumed the only purposes for the provisions of subsection (3) are those that relate to the provisions of subsection (1). Op. Att'y Gen. Fla. 10-47 (2010) (emphasis added). However, there could be independent and reasonable purposes for the requirement in subsection (3) to provide notice and solicit proposals prior to the disposition of all government-owned property within a CRA, even that which was not acquired for community redevelopment.

Presumably, property situated within a CRA is anticipated to increase in value as it is redeveloped, underscoring the importance of transparency and competition in government contracting. Cf. § 163.340(8)(b), Fla. Stat. (2017) (listing as one factor in the definition of "[b]lighted area" the failure of "[a]ggregate assessed values of real property in the area ... to show any appreciable increase over the 5 years prior to the finding of such conditions"); § 287.001, Fla. Stat. (2017) (recognizing "that fair and open competition is a basic tenet of public procurement" and "that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically").

The faithful application of the...