IN THE SUPREME COURT OF FLORIDA CASE NO.: SC05-54 L.T. NO. 2D

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1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC05-54 L.T. NO. 2D VANDERBILT SHORES CONDOMINIUM ASSOC., INC., VANDERBILT CLUB CONDOMINIUM ASSOC., INC., VANDERBILT LANDINGS, CONDOMINIUM ASSOC., INC., VANDERBILT GULFSIDE CONDOMINIUM ASSOC., INC., MONTE CARLO CONDOMINIUM ASSOC., INC., THE MANSIONS CONDOMINIUM ASSOC., INC., GULF COVER CONDOMINIUM ASSOC., INC., AND VANDERBILT BEACH AND BAY ASSOC., INC., Petitioners, vs. COLLIER COUNTY, FLORIDA, CONOTEL, LLC AND AQUAPORT, LLC., Respondents. RESPONDENTS CONOTEL, LLC AND AQUAPORT, LLC S JURISDICTIONAL ANSWER BRIEF Respectfully submitted, Clay C. Brooker, Esq. CHEFFY PASSIDOMO WILSON & JOHNSON LLP 821 Fifth Avenue South Suite 201 Naples, Florida Lauri Waldman Ross, Esq. Florida Bar No.: LAURI WALDMAN ROSS, P.A. Two Datran Center, Suite South Dadeland Boulevard Miami, Florida (305)

2 Margaret L. Cooper, Esq. JONES FOSTER JOHNSTON & STUBBS, P.A. 505 South Flagler Drive Suite 1100 West Palm Beach, FL i

3 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES...ii OTHER AUTHORITIES...ii STATEMENT OF THE CASE & FACTS... 1 SUMMARY OF THE ARGUMENTS... 2 ARGUMENTS... 5 I. THERE IS NO EXPRESS, DIRECT CONFLICT ON THE ISSUE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES WHERE THE CASES RELIED ON TO ESTABLISH CONFLICT ARE FACTUALLY DISTINGUISHABLE... 5 II. THERE IS NO EXPRESS, DIRECT INTER- DISTRICT CONFLICT ON THE ASSOCIATIONS FAILURE TO APPLY FOR INJUNCTIVE RELIEF... 7 CONCLUSION... 9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF TYPE SIZE AND FONT...10 ii

4 TABLE OF AUTHORITIES City of Miami Beach v. Sunset Islands 3 & 4 Property Owners Ass n, 216 So. 2d 509 (Fla. 3d DCA 1968)... 3, 5, 6 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 1 Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962)... 5 Lynch v. People s Gas Systems, Inc., 267 So. 2d 81 (Fla. 1972)... 5 Medical Arts, Inc. v. Rohrbaugh, 293 So. 2d 366 (Fla. 4th DCA 1974) Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960)... 5 Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001)... 3, 4, 8 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 1 Wilson v. Southern Bell Tel. & Tel. Co., 327 So. 2d 220 (Fla. 1976)... 5 OTHER AUTHORITIES Florida Constitution Article V, 3...2, 5 Florida Rule Appellate Procedure, , , Florida Statute...4, 8 iii

5 STATEMENT OF THE CASE & FACTS 1 Vanderbilt Shores Condominium Association and others ( the associations ) seek further review of a decision of the Second District Court of Appeal, which affirmed dismissal of their suit for failure to exhaust administrative remedies. The associations resort to the underlying record, in place of the District Court s decision, (J.B. pp. 1-4) tacitly concedes that there is no basis for conflict jurisdiction. See Reaves v. State, 485 So. 2d 829 (Fla. 1986); Jenkins v. State, 385 So. 2d 1356 (Fla. 1980) (conflict jurisdiction is determined by the four corners of the district court s decision). In an abundance of caution, this new statement of the case and facts follows and is taken from the district court s decision. Aquaport LLC and Conotel, LLC ( the owners ) applied for approval of a site development plan ( SDP ) for a fifteen unit condominium. On November 15, 2001, Collier County ( the County ) approved the SDP. (App. 2) The County s Land Development Code affords procedures for administrative relief for those affected by such decisions, including the associations. (App. 2) This relief includes obtaining an official interpretation from the planning services director and 1 All references are to the Second District s decision appended to the brief (App. ), and the petitioner s jurisdictional brief (J.B. pp ). 1

6 an appeal of that interpretation to the board of zoning appeals. (App. 5) The associations had availed themselves of this remedy on a prior occasion, but failed to do so here. (App. 5-6). After the SDP was approved, on November 28, 2001, the County issued the owners a building permit. In an action for declaratory relief and mandamus, the associations challenged the approvals. (App. 2) The associations did not seek a temporary injunction, and during the pendency of their action, the entire project was completed. (App. 6). The trial court dismissed the associations action for failure to exhaust administrative remedies. (App. 5) The Second District affirmed the dismissal, concluding that: (1) the associations prior administrative action was successful and militated against any claim that exhaustion of remedies would be futile; and (2) the action was barred because the building had been completed by the time of trial, without the associations seeking temporary injunction. (App. 6) SUMMARY OF THE ARGUMENTS This Court, in its discretion, may review any decision of a district court of appeal that expressly and directly conflicts with a decision of this Court or another district court of appeal. Fla. Const. Art. V, 3(b)(3); Fla. R. App. Proc (a)(2)(A)(iv). This conflict requires the announcement of 2

7 a rule of law which conflicts with a rule of law previously announced by this Court or another district court, or the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed of by this Court or another district court of appeal. As a basis for conflict jurisdiction, the association cites two cases, which they contend produce different results from the application of similar legal principles. To the contrary, both involve different facts, and different substantive and procedural issues. City of Miami Beach v. Sunset Islands 3 & 4 Property Owners Ass n, 216 So. 2d 509 (Fla. 3d DCA 1968) recognized the general principle applied in this case: to-wit, a party must exhaust administrative remedies before proceeding to court. However, the case involved a situation where the City failed to act at all. Thus, any administrative relief was either non-existent or futile. That is not the case here. Here, Collier County acted; it interpreted its own building code and issued SDP approval and building permits. It simply did so differently than the associations suggested. The associations cannot claim that the County s interpretation of its zoning code and issuance of SDP approval was ministerial or non-discretionary, that 3

8 administrative relief would have been futile. Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001) is equally distinguishable. Pinecrest involved a Comprehensive Land Use Plan challenge to a development order brought under F.S The instant case, on the other hand, involves a simple challenge to the County s interpretation of its Land Development Code. The factual difference is significant. The Pinecrest court noted that a Comprehensive Plan challenge arises under F.S This statute expressly authorized final injunctive relief after a trial de novo without a precondition of a temporary injunction. Further, the court took note that the statute contained provisions authorizing monetary sanctions if the suit was brought for harassment, to cause unnecessary delay, etc. Pinecrest Lakes v. Shidel, 795 So. 2d at 206 n. 15. Accordingly, this particular statute operates similarly to an injunction bond; it provides the same protection to the property owner for damages caused by delays as would an injunction bond. The accepted rule is that where a party fails to avoid himself of temporary injunctive relief, that party will be estopped from seeking final relief where the property owner completes construction in reliance upon a validly issued 4

9 building permit. Pinecrest is an exception to that rule, expressly limited to Comprehensive Land Use challenges brought under F.S ARGUMENTS I. THERE IS NO EXPRESS, DIRECT CONFLICT ON THE ISSUE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES WHERE THE CASES RELIED ON TO ESTABLISH CONFLICT ARE FACTUALLY DISTINGUISHABLE The Associations seek review pursuant to Fla. Const. art. v, section 3(b)(3); Fla. R. App. Proc (a)(2)(A)(iv). These pertinent jurisdictional provisions require the District Court s decision to expressly and directly conflict with a decision of another district court of appeal or the supreme court on the same question of law. It is decisional conflict which envisions either the announcement of a rule of law which conflicts with a rule previously announced by this Court or of another district court of appeal, or the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed of by this Court or another district court of appeal. Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960). Where the cases claimed to be in conflict are distinguishable in controlling factual elements, then no 5

10 express, direct conflict can arise. Wilson v. Southern Bell Tel. & Tel. Co., 327 So. 2d 220 (Fla. 1976); Lynch v. People s Gas Systems, Inc., 267 So. 2d 81 (Fla. 1972); Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962). Such is the case here. In City of Miami Beach v. Sunset Islands 3 & 4 Property Owners Ass n, 216 So. 2d 509 (Fla. 3d DCA 1968), on which the association posits conflict, a boat manufacturing business began to use the adjacent property to store its boats in violation of a zoning code, which precluded such use. The Third District held that a writ of mandamus lay to compel the building inspector to remove the boats. In this context, the petition clearly sought to compel a ministerial act, i.e., the removal of the boats, when a building inspector failed to act at all. There is no administrative remedy for a failure to act. In contrast, this is not the case of County inaction. The County s issuance of SDP approval and the building permit hinged on its code interpretation, which simply differed from the associations interpretation. Its interpretation and decision to issue SDP approval and permits were quintessential discretionary acts, and were not ministerial in nature. If the associations intended to challenge the SDP, they had a clear duty to exhaust administrative remedies. They could not claim that such gesture would be futile, because they had 6

11 launched a successful challenge to a prior development order. These are distinguishing facts to the application of the exceptions to exhaustion of administration of remedies outlined in City of Miami Beach, supra, 216 So. 2d at 511. II. THERE IS NO EXPRESS, DIRECT INTER- DISTRICT CONFLICT ON THE ASSOCIATIONS FAILURE TO APPLY FOR INJUNCTIVE RELIEF. Here, the Second District relied upon Medical Arts, Inc. v. Rohrbaugh, 293 So. 2d 366 (Fla. 4 th DCA 1974), in ruling that the action is barred because the entire project was completed without the associations seeking a temporary injunction. In Medical Arts, the property owner was issued a building permit to enlarge its medical clinic. Then the adjacent landowners filed an action to revoke the building permit and enjoin the intended use of the property. No temporary injunction was sought, the construction was completed, and the property was in use at the time of trial. The trial court nevertheless enjoined use of part of the property. The Fourth District reversed, citing Plaintiffs failure to apply for injunctive relief. Plaintiffs were estopped by their own inaction. To quote the Fourth District, appellant had the right to rely on the validity of a building permit and did so while the Plaintiffs had no corresponding right to sit back until that reliance had been substantially manifested through 7

12 extensive construction on the land before acting. Id. at 369. Similarly, in the instant case, the Second District reasoned that the entire project [15 unit condominium high rise] has been completed here, without the association seeking a temporary injunction. (App. 6). The associations claim this ruling is in conflict with Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001). The associations are mixing apples and oranges. In Pinecrest, property owners challenged the owners land development plan, claiming it was inconsistent with the County s Comprehensive Plan. Their lawsuit was governed by , Fla. Stat. In ordering removal of the constructed building after the fact, the trial court expressly found that the developer had acted in bad faith by continuing building even after losing the consistency issue [on the first appeal]. Id. at 196. More importantly, the Fourth District relied heavily on the fact that the property owner sought relief pursuant to This statute authorizes final injunctive relief without making a temporary injunction a precondition to such final relief after a trial de novo. Further, the statute contains provisions authorizing sanctions including damages incurred to the property owner if the suit is brought for harassment, to cause unnecessary delay, etc. Pinecrest Lakes v. 8

13 Shidel, 795 So. 2d at 206, n. 15. In other words, the statute itself operates much like an injunction bond. The controlling statute, , was determinative of the outcome in Pinecrest Lakes v. Shindel. In contrast, the current case is governed by common law, and general equitable principles as set forth in Rohrbaugh. These principles require a court to balance equities before issuing equitable, injunctive relief. Where a party fails to avail himself of temporary injunctive relief, that party will be estopped from seeking final relief where the property owner completes construction in reliance upon a validly issued building permit. In the instant case, the Second District applied equitable estoppel principles, because: (1) the owners had the right to rely on their permit s validity; and (2) the associations had no corresponding right to sit back and do nothing until the building was completed. Rohrbaugh, 293 So. 2d at 369. Because Pinecrest is easily distinguishable, both on its facts (no finding of bad faith by the developer) and on the law (a statutory challenge under F.S ), there can be no conflict. CONCLUSION Once again, there is no express direct conflict warranting further review, because the cases cited involve disparate facts, 9

14 substantive and procedural issues. The owner adopts the arguments advanced by the County, as co-respondent, as to the other cases alleged to afford interdistrict conflict cases. For all of the foregoing reasons, the petition for review should be denied. Respectfully submitted, Lauri Waldman Ross, Esq. LAURI WALDMAN ROSS, P.A. Two Datran Center, Suite South Dadeland Boulevard Miami, Florida (305) And Clay C. Brooker, Esq. CHEFFY PASSIDOMO WILSON & JOHNSON, LLP 821 Fifth Avenue South Suite 201 Naples, Florida And Margaret L. Cooper, Esq. JONES, FOSTER, JOHNSTON & STUBBS, P.A. 505 South Flagler Drive, Suite 1100 West Palm Beach, FL By: Lauri Waldman Ross, Esq. (Fla. Bar No.: ) 10

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via Mail this day of April, 2005 to: David W. Rynders, Esq. Counsel for Petitioners 2375 Tamiami Trail, North, Suite 308 Naples, Florida (239) Theodore L. Tripp, Jr., Esq. Counsel for Collier County P.O. Drawer 2040 Ft. Myers, Florida By: Lauri Waldman Ross, Esq. CERTIFICATE OF TYPE SIZE AND FONT I hereby certify that the Type Size and Font utilized in this brief is Courier New, 12pt. By: Lauri Waldman Ross, Esq. 11