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. 

3d DCA - Equitable Estoppel Protects 25 Year Old Encroaching Addition

In a case that demonstrates why we really need specialized land use courts in this state, the 3d DCA issued an opinion that (correctly, in my view) holds that equitable estoppel prevents the County from code enforcement against a family room added 25 years ago, which now (and maybe then) violates rear setback requirements. The case is Castro v. Miami-Dade.

The facts are pretty clear, though the law isn't. Since 1983, the Castros have owned a townhouse that was built in 1980 . The townhouse came with an addition in the form of a family room that comes to about 5 feet from the rear setback. The County granted building permits to the prior owner in 1980 or '81 to build the addition, and to the Castros in 1993 to reroof the family room after it was damaged by Hurricane Andrew.

The law is where this case becomes problematic. It "appears" that the "older" zoning required 14 foot rear setbacks; everyone seems to assume that the addition had to have violated them. No one appears to have looked at the zoning resolution/special exceptions that permitted the entire development to see if they provided different setbacks. Then, in 2003, the County adopted new setback requirements of 25 feet.

An Code Enforcement inspector cited the Castros for building in violation of the Code. When they proved that the addition had proper permits, and the zoning staff recommended no enforcement, he went back and charged them with "maintaining" the family room illegally in violation of the NEW 2003 zoning regulations. The hearing examiner agreed and found them in violation, and the Castros appealed.

The circuit court (without a written majority opinion, apparently) concluded that the Castros couldn't claim equitable estoppel because it appeared that the family room was always illegal. The 3d DCA reversed, finding that the circuit court departed from the essential requirements of law in refusing to apply equitable estoppel.

This opinion was written by Judge Rothenberg, who wrote the opinion affirming the denial of cert by the circuit court without an order to show cause where she found that the petition could not establish "undue hardship" in Fine v. Coral Gables, and who dissented in the "truck" case, Kuven v. Coral Gables. I want to state that I think Judge Rothenberg is a good judge and is trying hard to figure out the right way to handle these cases, and is relying on good law. I also want to say that her opinions (in my opinion) demonstrate how and why land uses cases are so hard, and why they need a special set of courts.

The problem in this case is the range of complicating issues that simply aren't discussed at all, because (clearly) neither the circuit court nor the district court understands them.
  • Exactly how do Miami-Dade's "nonconforming" building regulations work? The district court opinion appears to indicate that they thought that the 2003 code provided no "grandfathering" at all. Was that the case, or was the problem that the County maintains that the structure could not be grandfathered because any permits granted to it were granted illegally?
  • There is NO discussion in the opinion of how the "illegality" exception to vested rights/equitable estoppel should or should not be applied. Instead, the opinion goes straight to fairness. Fine, insofar as it goes, but as any kind of precedent, the unanswered questions may swallow the holding.
  • Is the court holding that local governments are also estopped from claiming illegality as a defense at some point in the future when they have issued building permits? Is there some presumption that the government acted legally and that there was some earlier interpretation of the earlier zoning regulations that has to be presumed unless conclusively disputed? If I cite this case, I will say that it stands for that proposition, but the opinion doesn't say this clearly.
Let's be clear: I think the basis outcome is right. For the county to come back almost 30 years after it granted a building permit and claim that it had to be illegal is vile, and it puts the burden unfairly on the homeowner.

I see this frequently now: for example, local governments are running around and looking at ponds or ditches that may have been installed 30 or 40 years ago prior to local or state regulation and citing them with code enforcement violations for not having permits. They then try to make the landowner prove that the ditch/pond was permitted when it might have be installed prior to permitting. Unless the landowner can find aerials or some other evidence that the ditch/pond was there prior to the regulations, the landowner is fined for violating the ordinance, even if there is proof that the pond existed for years before the landowner bought the property.

Judge Rothenberg and the other members of the panel clearly see the fairness problem, but because they don't know zoning and land use, the opinion doesn't clarify the law the way it should. We need judges that "get" land use hearing land use cases.

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.