Land Use and Local Government Law and Litigation

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Sometimes, a Developer Does Have a Collateral Attack on a Quasi-Judicial Denial

In Palazzo Las Olas Group LLC v. City of Ft Lauderdale, the 4th District threw out the circuit court's dismissal of a lawsuit filed by a frustrated developer over the city's denial of a site plan for a project that had been the subject of an RFP issued by the city's Community Revitalization Agency and also to long negotiations with the City.

The circuit court agreed with the city that the developer's only remedy was certiorari review of the denial. The 4th District disagreed, holding that under the facts of the case the developer had collateral estoppel and various other claims that could not have been addressed in the certiorari review process.

The facts may be pretty close to unique (if almost predictable): The City, through the CRA had a parking garage near the beach at the end of Las Olas Blvd. It wanted the property redeveloped, so put out an RFP. It seems that the terms of the RFP looked for a use of the property that would require amendments, variances, or conditions on the ultimate site plan approval from the standard terms of the zoning ordinance. The developer wins the RFP, gets the land under contract and starts negotiating the details of the site plan and conditions.

In the meantime, politics being what they are, opposition arises. Ultimately the elected mayor and some of the council are elected and clearly oppose the project. The developer claims that the mayor drove the staff to take positions that delayed staff completeness and otherwise abused the process until the opposition counsel members took office so they could vote to deny the project.

Project gets denied, cert gets denied, developer files multicount complaint, the essence of which is estoppel, bad faith, etc. Developer claims to have $5M tied up into the project based on City's representations not only that it wanted the project, but that it wanted the project in a form that required the variances/exceptions that later justified the denial.

The circuit court bought the argument that cert is the only remedy and dismissed the complaint with prejudice. The 4th, while suspecting that some of the claims will be resolved on summary judgment or judgment on the pleadings, disagreed with respect to most of the claims. Here's the language that we'll need to know for later:

While we agree that Palazzo could only obtain a reversal of the Commission’s
actual decision denying it site plan approval via a petition for writ of
certiorari, we do not believe that this bars the pursuit of other civil

First, during certiorari proceedings seeking to challenge the denial of the site plan, the issues that can be addressed are extremely limited. In such a proceeding, the circuit court would be limited "to determin[ing] (1) whether the agency afforded procedural due process; (2) whether the agency observed the essential requirements of law; and (3) whether competent, substantial evidence supported the agency’s findings and judgment." See, e.g., Powell v. City of Sarasota, 953 So. 2d 5, 6 (Fla. 2d DCA 2006). Consequently, the circuit court could never reach issues concerning whether the City had contractually agreed to waive certain permitting requirements as alleged by Palazzo or whether, based upon the City’s actions, the City was equitably estopped from denying site plan approval. Cf. Citrus County v. Fla. Rock Indus., Inc., 726 So. 2d 383, 387 (Fla. 5th DCA 1999) (holding "common law issues" concerning whether County was estopped from denying permit because of its acquiescence over the years, the permit applicant’s good faith reliance on actions of County, and the permit applicant’s commitment of resources had no place in administrative permitting process or in certiorari review of decision denying permit).

Second, much of what underlies Palazzo’s civil claims, and particularly counts I and III, is an allegation that as a consequence of the City’s own actions it is now estopped from denying site plan approval. Florida’s courts have long recognized that local government entities must deal fairly with their citizens and that, in the absence of fair dealing, the doctrine of equitable estoppel may be invoked.

. . .

Consistent with these principles, there are Florida cases suggesting that a civil suit will lie against a governmental entity where it has engaged in alleged unfair dealing. In Sundstrom v. Collier County, 385 So. 2d 1158 (Fla. 2d DCA 1980), the owner of real property obtained a building permit and spent money to commence work on the project. Thereafter, the zoning board issued a stop-work order. The property owner failed to timely seek certiorari review and, instead, filed a petition for writ of mandamus. The trial court dismissed the petition with prejudice as a consequence of the owner’s failure to timely seek review of the order via the filing of a petition for writ of certiorari. The appellate court agreed that mandamus was not the appropriate remedy, but nonetheless reversed the dismissal with prejudice because the owner should have been afforded the opportunity to "state a cause of action in equity for equitable estoppel, declaratory relief, or an injunction." Id. at 1159. And, Florida Rock Industries, 726 So. 2d at 383, Town of Largo v. Imperial Homes Corp., 309 So. 2d at 571, and Town of Longboat Key v. Mezrah, 467 So. 2d 488 (Fla. 2d DCA 1985), each involved the circumstance where a property owner/applicant brought a civil action for declaratory relief and/or an injunction, asserting that the governmental entities’ prior conduct was such that it was estopped from taking the complained-of action. And, in Florida Rock Industries, the property owner simultaneously filed a petition for writ of certiorari, seeking review of the order on its application for determination of vested rights, and a civil complaint, seeking declaratory relief and alleging equitable estoppel. 726 So. 2d at 386.

Having considered the above authorities and principals and the limitations of certiorari review, we hold that while any direct challenge seeking to overturn the Commission’s decision denying site plan approval had to be sought via the filing of a petition for writ of certiorari, this did not preclude Palazzo from bringing a civil suit, wherein it sought relief on matters beyond those appropriately addressed during the certiorari proceeding. The trial cour

Wow. The Court is holding that if you have a valid legal issue that lies outside the scope of certiorari relief, you get to plead a separate cause of action. This has long been recognized in cases involving notice, and also where the relief is under a different statute than the decision was taken under. (see Omnipoint III - the 3d DCA case on remand, and various takings cases).

The interesting fight here ultimately will be the issue of estoppel versus "you can't contract away the police power." A second issue may become the kind of "inequitable conduct" that may lead to estoppel, as the Court seems to be broadening the potential scope. Historically, good faith reliance could be founded only on a lawfully issued statement or decision. Here, the 4th DCA is permitting a "course of conduct" pleading to establish a legally sufficient basis for pleading estoppel.

It will be interesting to see whether this case settles quickly, or only after the circuit court has another go-round at the issues.

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