CopyCited 6 times | Published | Florida 5th District Court of Appeal
...Finding no hardship, the Board of Adjustment denied his variance request. Appellee chose to seek review de novo in the circuit court as permitted by section 163.250, Florida Statutes. After hearing the evidence presented, the trial court concluded that: *1031 (a) Section 163.04, Florida Statutes (1981), [3] was applicable and controlling....
...The court then granted the variances and imposed certain conditions for construction of the windmill. It subsequently awarded attorney's fees and costs to appellee. The City appeals and raises several issues which we shall touch upon. The City first contends that section 163.04, Florida Statutes, cannot operate against a board of adjustment because that board does not adopt ordinances. We find this argument specious. The legislative intent is clearly expressed in section 163.04, when it says: "......
...llation of ... energy devices based on renewable resources... ." If the denial of a necessary variance prohibits or has the effect of prohibiting the energy device, then such "measure" is prohibited by the statute. We agree with the trial court that section 163.04 applies here....
...hardship exists. [5] No attempt was made below to prove any hardship as to the ordinance's height or set back requirements. In fact, the final judgment finds that "Petitioner ... testified that his only hardship was to attempt to save electricity." Section 163.04 eliminates the need to prove a hardship as a basis for the property owner's desire to install the energy device, but it does not, however, mean that appellee can place the windmill where he pleases or to such height as he pleases....
...The testimony below was that the location and height were necessary for "optimum" performance of the windmill, but that alone does not entitle petitioner to a variance. He may not be entitled to "optimum" performance, if something less than that produces satisfactory performance of the windmill. [6] The inhibition of section 163.04 is that no regulation prohibit or have the effect of prohibiting the operation of the windmill....
...We reverse the judgment insofar as it grants the height and sideyard variance, and remand the cause for further proceedings consistent herewith. We also set aside the awards of costs and attorney's fees to await a final determination by the trial court as to who is the "prevailing party." § 163.04....
...shall be governed by the Florida Appellate Rules. The election of remedies shall lie with the appellant. [2] §
196.012(13), Fla. Stat. (1981): "Renewable energy source device" or "device" means any of the following equipment ...: (J) Windmills [3] §
163.04, Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 2992, 2006 WL 503292
...to the Sorrentinos. On appeal, the Sorrentinos argue that they are entitled to a reasonable attorney's fee award as the prevailing party, and that the trial court breached its discretion in failing to make an award pursuant to sections
718.303, and
163.04(3), as well as provision 18.2 of the Declaration of Condominium....
...ion's responsibility for the roof as a common element. The Sorrentinos responded with a letter to the Board dated December 2, 2002. Apparently, for the first time, they informed the Board that the skylights were solar collectors and that pursuant to section 163.04 they did not need the Board's approval to install them. The letter enclosed a copy of the statute. It provides in part: 163.04....
...termination does not impair the effective operation of the solar collectors. (3) In any litigation arising under the provisions of this section, the prevailing party shall be entitled to costs and reasonable attorney fees. Seemingly unimpressed with section 163.04 and not addressing it, the attorney for the Association sent a letter to the Sorrentinos dated December 31, 2002....
...The Sorrentinos' pleadings in response to the complaint are not in the record, but they filed a motion for summary judgment, apparently based on them. They asserted that the skylights are solar collectors and thus constitute an "energy saving device based on renewable resources," pursuant to section 163.04(2)....
...Attached to the motion were affidavits from experts that establish the two skylights are protected devices and that their installation had had no negative effect on the building where the unit is located. The Association deposed one of the Sorrentinos' experts and presented the court with a legal memorandum asserting that section 163.04 is unconstitutional....
...*1064 The pre-trial order states that the issues to be tried were: 1. Did the Association have the right to mandate approval of the installation of a tubular skylight in the roof of a condominium unit; 2. Is it an energy-saving device within the meaning of section 163.04; 3. Did the Sorrenintos have the right to install the skylight after the Association denied their request; 4. Is section 163.04 unconstitutional; 5. Award of attorney's fees. At trial, the parties stipulated that the skylights were energy-saving devices pursuant to section 163.04, Florida Statutes; that the Sorrentinos installed the skylights after being denied approval by the Association; and that since the skylights were installed, three hurricanes occurred and the skylights did not fail in any material way. The issue regarding the constitutionality of section 163.04 was apparently dropped by the Association. The order rendered after the trial enjoined the Association from requiring the Sorrentinos to remove the skylights because the skylights are protected by section 163.04....
...skylights and found that the Association's initial denial of permission was reasonable. It specifically found that neither was "the prevailing" party. The court explained why it thought there was no prevailing party. First it said it did not rely on section 163.04 in arriving at its decision....
...It was also concerned about the tension between the condominium restrictions, which require Association approval before common elements are altered and the statute, which declares an Association cannot prohibit installation of energy-saving devices, pursuant to section 163.04. The court concluded that pursuant to section 163.04, an Association could not unreasonably deny permission to install a section 163.04 device and that a unit owner must first obtain permission of the Association before installing one, or must be able to establish that the Association acted unreasonably in refusing permission. We agree with this analysis, as far as it goes. If this case had involved a lawsuit by the Sorrentinos against the Association to mandate its permission to install a section 163.04 device at a stage when the Sorrentinos had failed to inform the Association the skylights were such devices and had failed to provide the Association with information requested of them about their installation by a reputable, licensed, roofing company, the Sorrentinos should lose and we would conclude that the Association prevailed. If the Sorrentinos had provided the Association with all the needed information to establish that the devices were protected by section 163.04, that the installation was to be done by a reputable, competent, licensed, roofing company and had been denied permission, then, in a lawsuit to mandate the Association's permission, or even after installation in defense to a suit to mandate removal, the Sorrentinos should win, and they would be the prevailing *1065 party. In sum, if the device is one protected by section 163.04, the Association cannot unreasonably deny permission to install it in a condominium unit or common element, but an Association can require information and assurance that the device will be properly installed....
...rmission, why did the Sorrentinos not ask why, and try to supply whatever information the Board thought it needed? However, the lawsuit was filed by the Association after it was put on notice that the devices had been installed and were protected by section 163.04, and that under the terms of the statute it could not arbitrarily refuse permission to install them....
...Contrary to the arguments asserted by the Association, the Association's remedy at that point was not limited to filing a lawsuit for a mandatory injunction. It could have required the Sorrentinos to submit documentation and proof that the devices were under the umbrella of section 163.04, and it could have obtained a roof inspection to determine the quality and competency of the installation, at the Sorrentinos' expense. At trial, the Association stipulated as to both of these facts; the skylights were protected by section 163.04, and they had been properly installed....
...In such cases this Court applies the abuse of discretion standard of review because there may be no prevailing party, or some question as to which one actually prevailed. In this case, the Sorrentinos prevailed on all of the significant issues raised in this litigation: the constitutionality of section 163.04; the applicability of section 163.04 to the skylights; the proper installation of the skylights; and the Association's right and power to require removal of the skylights....
...And the Sorrentinos obtained the result they sought in this litigation to prevent the Association from requiring removal of the skylights. The Association failed to obtain the result it sought removal of the skylights. There are three possible sources for an award of prevailing party attorney fees. One quoted above is section 163.04....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 4770, 1991 WL 86810
PER CURIAM. Appellants-homeowners appeal the trial court's determination that section 163.04, Florida Statutes (1987), was inapplicable to a real estate development’s declaration of covenants and restrictions, the enforcement of which was the responsibility of appellee-homeowners association....
...d for entry of partial summary judgment on the ground that section 163.-04, Florida Statutes (1987), was inapplicable to appellee. The trial court granted appellee’s motion and subsequently entered final judgment upon that single issue, saying: 1. Section 163.04, Florida Statutes (1987), does not prohibit the enforcement of the Declaration of Covenants and Restrictions for the RIDGE OF THE BLUFFS, and in particular the Declaration’s application and approval requirements. Section 163.04, Florida Statutes (1987), provides: 163.04 Energy devices based on renewable resources....
