Land Use and Local Government Law and Litigation

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First DCA - Circuit Court can't Apply Equitable Estoppel in Cert Review

In Clay County v. Kendall Land Development, Inc., the First District quashed a circuit court decision that overturned a local concurrency-based denial on estoppel grounds.

This is one of those cases where the facts may disguise the real problem. Clay County has a fairly restrictive concurrency provision, and a concurrency certificate issued for a plat application has to be "vested" by gaining preliminary plat approval within 6 months and final plat approval within 2 years. The developer got a concurrency certificate, but didn't get the preliminary plat done within 6 months (which was December 2004), basically claiming that it could keep its certificate by meeting only the latter condition. One of its employees queried the County in January 2005 (after or on the preliminary plat deadline) and a general "OK' on the concurrency issue. As the platting process moved forward, the developer was told that concurrency would be a problem. The difference: fair share payments of over $600,000 instead of just below $192,000.

The developer administratively appealed the determination that it did not have concurrency and would have to pay the higher amount and lost. The circuit court, however, found that the county had misapplied the law of estoppel and should have been estopped by the January 2005 to the limited extent that the County was required to allow the developer to proceed based upon the fair share that would have been due then, if the developer had been told to reapply in January rather than in September 2006 when the whole issue came to light.

Now, there are bad facts here for estoppel law, but the circuit court was trying to do fundamental justice on the basis that if the developer lost the opportunity to apply for a new concurrency certificate when it would have been much cheaper because the County appeared to go along with its interpretation of the timing requirement.

The Fifth District has none of it. Repeatedly indicating that it was dealing with "an experienced developer," the District court destroys the lower court's jurisdiction to deal with equitable issues that are mishandled at the administrative level:

As we have noted, one “clearly established principle of law” is that, on first-tier certiorari review, a circuit court is limited to determining whether the administrative findings and judgment are supported by competent substantial evidence. Whether the record also contains competent substantial evidence that would support some other result is irrelevant. E.g., Dusseau v. Metro. Dade County Bd. of County Comm’rs, 794 So. 2d 1270, 1275 (Fla. 2001) (quoting from Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1093 (Fla. 2000)); G.B.V. Int’l, 787 So. 2d at 845; Educ. Dev. Ctr., Inc. v. City of West Palm Beach Zoning Bd. of Appeals, 541 So. 2d 106, 108 (Fla. 1989). Here, rather than merely determining whether the hearing
officer’s findings that Kendale did not reasonably rely on the January 2005
misstatement by the Chief Planner or any other act or omission of the County
and his decision that Kendale had failed to prove entitlement to the defense
of equitable estoppel were supported by competent substantial evidence, the
trial court conducted an independent review of the record, concluding that
competent substantial evidence supported a conclusion that the County was
equitably estopped to deny Kendale a CRC. This constituted “a violation of a
clearly established principle of law resulting in a miscarriage of justice” and, therefore, a departure from the essential requirements of law. G.B.V. Int’l, 787 So. 2d at 845; Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1093 (Fla. 2000).

We have also noted that another “clearly established principle of law” is that, when
considering a petition for writ of certiorari, a court has only two options--it may either deny the petition or grant it, and quash the order at which the petition is directed. G.B.V. Int’l, 787 So. 2d at 843-44 (citing cases). The court may not enter any judgment on the merits of the underlying controversy, or direct the lower
tribunal to enter any particular order. Id. Here, the trial court entered judgment on the merits, fashioning what it believed to be an equitable remedy. This, too, constituted “a violation of a clearly established principle of law resulting in a miscarriage of justice” and, therefore, a departure from the essential requirements of law. G.B.V. Int’l, 787 So. 2d at 845; Fla. Power & Light Co., 761 So. 2d at 1093.
The problem is that the lower court was actually saying that the hearing officer misconstrued the scope of his authority to deal with the equitable estoppel claim made by the developer and therefore departed from the essential requirements of law in not providing appropriate relief.

That kind of determination requires the reviewing court to examine the record closely to see if it was applied properly to the law. This is a particular problem when (a) equitable principles -which are inherently fact based-- are involved, and (b) where there are confusing or overlapping legal principles. Under the First District's holding, it doesn't matter if the lower tribunal got the law wrong so long as there is competent substantial evidence to support its decision under the wrong legal interpretation.

This difficult (crazy?) result flows from the simple fact that certiorari is flatly insufficient to provide the "one means of effective judicial review" that due process guarantees.

Said it once, said it twice and again. We need a statute providing effective judicial review under the model of 120.68, and we also need a statute that provides minimum standards for the conduct of local hearings and the issuance of administrative orders.

PRACTICE TIP: Get your case out of the administrative process and into circuit court as a declaratory or injunctive action. In this case, for example, the developer could have filed a declaratory action to determine the scope of the ability of the hearing officer to consider and apply equitable estoppel principles, and arguably to estopp the county (note: equitable powers per se are beyond the jurisdication and power of admininstrative officers).

It was the inadquacy of cert review and the resulting multiplicity of suits on different grounds under the pre-1972 APA that led to its amendment and the provision of the "rich arsenal of remedies" under the modern act. It very well may be that only an explosion of suits in circuit court attacking the jurisdiction of local boards, the processes in local ordinances, asking local procedures to be determined inadequate, and suing for prohibition, quo waranto and related writs will demonstrate the clear need for legislative reform.

This is not a "pro-developer" or "pro-neighbor" issue: noone gets a fair shake under the current system.

Finally, be aware: In the last year we've seen two cases that involved concurrency and fair share issues-this case and the D.R. Horton case from Jacksonville . They are the tip of the iceberg. Local governments statewide refuse to either fund their adopted level of service or lower them to affordable levels. The state's funding for non-SIES roads is dramatically inadequate. In the next two years we will see concurrency become a political and economic crisis on the scale of the 2004 hurrican season, and the result is going to be hundreds of lawsuits.

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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.