LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

2d Makes the Vanderbilt Shores Case Worse on Remand

Back in November, the 2d DCA issued this opinion after rehearing in the Vanderbilt Shores case I blogged back in April. I haven't blogged it yet because, frankly, the result is just confusing and depressing.

The court reissued its earlier opinion and then tacked on a paragraph that held that because the plaintiffs had not sought a temporary injunction, they were barred from pursuing their claims and the court should dismiss the case with prejudice on remand. It cited Medical Arts, Inc. v. Rohrbaugh 293 So.2d 366 (Fla. 4th DCA 1974) as support for this proposition.

Medical Arts dismissed an injunction and dec action in a situation where neighbors waited for 90 days after construction had begun (and in fact had almost ended) before bringing their action. The decision turns on an "unclean hands" theory - that the plaintiffs sat on their hands and let the conduct continue without fair notice that the defendant was at risk. Compare the situation in Shidel, where there was a letter to the developer putting it on notice that an injunction would be sought.

The problem is that in this case, the 2d cites NO facts from the record that would cause this eminently fair approach to apply. Instead, there's a line to the effect that the failure to seek a temporary injunction is fatal to their cause, leaving the impression that if you can't front the dollars to support the injunction bond for a temporary injunction, you can't press an injunction case. That's not supported by Medical Arts, Shidel or any number of other cases.

And its worse in the context of the rest of the reissued opinion. The court ruled that the circuit court and the county were wrong in interpreting the plain language of the zoning code, and that the building was in violation of the setback provisions. Score one for the proposition (Dixon and other cases as well) that courts should NOT pay deference to agency interpretations where the meaning of the regulation is not ambiguous.

So the building is clearly non-conforming.

But the court held that the circuit court correctly dismissed the suit (and now should with prejudice) for failure to exhaust administrative remedies. As I wrote before, the idea that you have to go to an 'administrative determination' in order to appeal or collaterally attack an interpretation that's embedded in a development order is, well, loopy. First, the administrative determination route does not result in an enforcement action, just an interpretation. Enforcement is purely discretionary with the County officials. So administrative determinations are not a remedy against a decision that has already been taken.

OTOH - we also don't know from this opinion exactly how long the litigation and conflict had begun. We don't know what site/development plan approvals were issued prior to the building permits that might have provided a route to challenging the illegal setbacks, and whether the neighbors sat on their hands during such proceedings. So we don't know whether there were reasons not provided in the opinion that the neighbors didn't avail themselves of other administrative routes of review.

But this is a big mess regardless. You now have a development that has been judicially determined to be non-conforming and in fact illegally constructed. Maybe there's another party that can attack it who's not bound by this decision. You also have a very sloppy holding on exhaustion that could be used against almost anyone, developer or neighbor alike. And you have an opinion that flies in the face of years of cases that hold that zoning rules CAN be enforced through injunction by a neighbor who can show special damages.

And perhaps worse, you have a situation where the result may have been proper and just, but the opinion contains neither the law nor the facts to support it.

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