IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA Vanderbilt Shores Condominium Association, Inc.,Vanderbilt Club Condominium Association, Inc., Vanderbilt Landings condominium Case No. SC05-54 Association, Inc., Vanderbilt Gulfside Condominium Association, Inc., Monte Carlo Condominium Association, Inc., The Mansions Condominium Association, Inc., Gulf Cove Condominium Association, Inc., and Vanderbilt Beach and Bay Association, Inc., Petitioners, v. Lower Tribunal Case #: 2D Collier County, Florida, Conotel, LLC, and Aquaport, LLC, Respondents ON DISCRETIONARY REVIEW FROM A DECISION OF THE SECOND DISTRICT COURT OF APPEAL PETITIONERS= BRIEF ON JURISDICTION David W. Rynders, Esq. Fla. Bar No Tamiami Trail N., Suite 308 Naples, Florida Telephone:(239) Facsimile: (239) Counsel for the Petitioners

2 TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF CITIATIONS... ii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF ARGUMENT...4 ARGUMENT The Second District=s Holding That The Petitioners Had To Exhaust Their Administrative Remedies Prior To Seeking the Issuance of an Alternative or Peremptory Writ of Mandamus expressly and directly conflicts with decisions of This Court and Other District Courts of Appeal on the Same Question of Law The Second District=s Holding That The Petitioners Had To Seek a Temporary Injunction to Prevent the Completion of the Illegally Setback Building in order to obtain mandatory injunctive relief expressly and directly conflicts with decisions of This Court and Other District Courts of Appeal on the Same Question of Law...8 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE... 11

3 TABLE OF CITATIONS Florida Statutes '125.15, F.S...6 Florida Cases City of Miami Beach v. Sunset Islands 3 & 4 Property Owners Association, Inc., 216 So. 2d 509 (Fla. App. 3 rd DCA 1968)...5, 6 Pinecrest Lakes, Inc., v. Shidel, 795 So. 2d 191 (Fla. App. 4 th DCA 2001), rev. den. 821 So. 2d 300 (Fla. 2002)...5, 8, 9, 10 Reedy Creek Improvement District v. DER, et al., 486 So. 2d 642 (Fla. App. 1 st DCA 1986)...10 Sakolshy v. City of Coral Gables, 151 So. 2d 433, 436 (Fla. 1963)...10 Spey, et al. v. Hayes, et al., 4306 So. 2d 1176 (Fla. App. 1 st DCA 1981)...10 County Ordinances Collier County LDC, Section Division 1.9 of the County=s LDC, entitled "Enforcement", ' iii

4 STATEMENT OF THE CASE AND FACTS The eight condominium association Petitioners shall be referred to as the Respondent Collier county shall be referred to as the and the Respondent property owner-developers shall be referred to as the or by their proper names. This case concerns a Petition for Writ of Mandamus by the Petitioners and a subsequent Alternative Writ of Mandamus issued to all Respondents by the trial court, the purpose of which was to enforce a setback provision in the County=s Land Development Code (the ALDC@) requiring setbacks equal to one-half of the height of the building. The suit included a separate count for a declaratory decree and injunctive relief to require compliance with the setback. The initial complaint - including a Petition for Certiorari that was later dropped - was filed 29 days after the County issued a building permit to Respondent Aquaport, LLC, to build a condominium nearly 100 feet tall with setbacks of only 30 feet. R-Vol. II, p Aquaport, LLC, immediately intervened along with Conotel, LLC, claiming to be the owners and Developers of the project. R-Vol. II, p The Petitioners added a Petition for Mandamus in their Second Amended Petition and Complaint filed on February 27, R-Vol. II, pp The moment the Developers started construction, Petitioners filed an "Emergency Motion for Alternative and Peremptory Writs of Mandamus" with a Memorandum of Law on March 11, R-Vol. II, pp A hearing on May 2, 2002, concluded with the trial court issuing an Alternative Writ of iv

5 Mandamus to all Respondents, R-Vol. II, p , finding that the Petition for Mandamus showed good cause and ordering the Respondents to show cause why a Peremptory Writ of Mandamus should not be granted. Id. Despite receiving the trial court=s Alternative Writ of Mandamus and the vigorously prosecuted suit by the Petitioners, the Developers hastened construction along toward completion. A trial on the Alternative Writ, Complaint, Returns and answers on file was held on February 10th and 11th, After Petitioners Aclosed@ their case, the Respondents moved for involuntary dismissal. The trial court granted the motion and a AFinal Judgement of Involuntary Dismissal@was entered on February 26, [Volumes I, II or III of the Record do not mention the Final Judgement but it is noted on the "Civil Action Progress Docket"] On appeal below, the District Court disagreed with the trial court=s finding that the Respondents= Ainterpretation [of the setback language] was not unreasonable or clearly erroneous@ and in an excellent display of reasoning showed how Petitioners= interpretation of the setback=s application to the Developers= building had been correct from the outset while the Respondents= interpretation was Aclearly erroneous@. See Appendix, pp A3-5". Despite finding that Developers= building setback did violate the LCD, the panel=s opinion went on to hold that Petitioners had Afailed to exhaust administrative remedies@ and so their action had correctly been dismissed by the trial court. See Appendix, p A6-7". The Petitioners filed a timely Motion for Rehearing arguing that the Aadministrative remedies@ suggested initially by the lower court in its first, now withdrawn, Opinion: (i) complaining to the County=s Code Enforcement Department, (ii) the State Attorney or (iii) applying for an Aadministrative interpretation@ by the County were either Athird-party remedies@ in which Petitioners 2

6 lacked party status or in view of the County=s opposition to the Alternative Writ. Eight months later, the Second District withdrew its first Opinion and substituted the Opinion in the Appendix. The only changes made were in (i) omitting any remedies, (ii) holding that the specific Aadministrative of applying for an from the County should have been exhausted, and - while acknowledging that Anormally@ failure to exhaust Awould mean only that the case was prematurely filed@ - (iii) holding that: ABecause the entire project has been completed here, without the associations seeking a temporary injunction, we conclude that their action is barred. See Med. Arts, Inc. V. Rohrbaugh, 293 So. 2d 366 (Fla. 4 th DCA 1974).@ Necessary Factual Background to the Present Case: The reason the lower court gave for insisting on Aexhaustion@ was that 5 of the same Petitioners had previously sued the identical Respondents under Section , F.S., in December, 2001, when the Developers obtained site plan approval for a building that was outwardly identical to the present condominium but intended to be a hotel with 68 units, a density inconsistent with the County=s Comprehensive Plan. See Vanderbilt Shores, et al. v. Collier County, et al., 20th Jud. Cir., Case # CA. At the last of several public hearings held by the County Commission on the Petitioners= AVerified Complaint@ in that case, the Commissioners focused on the same setback language at the core of this case, and on May 22, 2003, the County Commission voted 5 to 0 approving Petitioners= interpretation of the setback (i.e., identical to the lower court=s interpretation) and revoked site plan approval and the building permit issued for the hotel. R-Exhibit-20 introduced at trial, p 202. In the conflicted Opinion here, the District Court noted: AThis previous success demonstrates that pursuit of administrative remedies would 3

7 not have been Appendix, p A6". In that case, however, the County had been sued under Section , F. S., in the circuit court and was not making an Aadministrative interpretaion@ under the LDC. However, the Petitioners did believe that on May, 22, 2003, the Board of County Commissioners removed all doubt, all reason for dispute and any question about how to apply the setback rule to an identical structure proposed by the same Developers on the same site. Thus, when 7 months later the County - for whatever reasons - inexplicably approved a nearly identical site plan and building permit violating the setback rule again in the same manner, they filed a Petition for a Writ of Mandamus. In addition, the Respondent County, by approving a setback violation so soon after a previous Board of County Commissioners voted to reject an identical violation and by denying in its 2003 Return on the Alternative Writ of Mandamus that any setback violation existed, persuaded the Petitioners, at least, that an application to the Respondent County for an Ainterpretation@ of the setback would be futile. SUMMARY OF ARGUMENT Summary on Issue 1: Issue 1:The Second District=s Holding That The Petitioners Had To Exhaust Their Administrative Remedies Prior To Seeking the Issuance of an Alternative or Peremptory Writ of Mandamus expressly and directly conflicts with decisions of This Court and Other District Courts of Appeal on the Same Question of Law. This holding expressly and directly conflicts with City of Miami Beach v. Sunset Islands 3 & 4 Property Owners Association, Inc., 216 So. 2d 509 (Fla. App. 3 rd DCA 1968) and other cases. Summary on Issue 2: 4

8 Issue 2:The Second District=s Holding That The Petitioners Had To Seek a Temporary Injunction to Prevent the Completion of the Illegally Setback Building in order to obtain mandatory injunctive relief expressly and directly conflicts with decisions of This Court and Other District Courts of Appeal on the Same Question of Law. This holding expressly and directly conflicts with Pinecrest Lakes, Inc., v. Shidel, 795 So. 2d 191 (Fla. App. 4 th DCA 2001), rev. den. 821 So. 2d 300 (Fla. 2002). Moreover, this second holding - coupled with the holding first above - creates a classic ACatch-22" for Acitizen@ enforcement of local codes: if adversely affected neighbors cannot file suit for an injunction until Aafter@ they have made a formal application to the local government for an Ainterpretation@ of a setback rule they believe is presently being violated - and these applications normally take months especially if an appeal to the County Commission is necessary 1 - the developer violating a setback ordinance need only hasten to complete his project so that - as the law stands now within the jurisdiction of the Second District Court of Appeal - any subsequent suit for an injunction will be Abarred@. ARGUMENT Issue 1: In City of Miami Beach v. Sunset Islands 3 & 4 Property Owners Association, Inc., 216 So. 2d 509 (Fla. App. 3 rd DCA 1968), the Court stated: AThere is no requirement that a relator exhaust his administrative remedies prior to seeking the issuance of an alternative writ of mandamus, when it is apparent that either such a gesture would be a futile one or that there is no discretion to be exercised by the official involved under the clear wording of either a 1 See Collier County LDC, Section : otice of Interpretation.... For interpretations affecting a specific parcel of land, notice of interpretation and appeal time frame shall be advertised... and mail notice of the interpretation shall sent to all property owners within 300 feet..." This provides a sense of how lengthy the process c be. 5

9 statute or an ordinance designating him as the authoritative person to respond thereunder. [cites Id., at 511. (Emphasis added.) Division 1.9 of the County=s LDC, entitled "Enforcement", '1.9.1, states: "The provisions of this code shall be enforced by... (2) the board of county commissioners through its authority to enjoin and restrain any person violating the code, or (3) by Collier County through the prosecution of violations in the name of the State of Florida pursuant to the authority granted by F.S. ' " (Emphasis added.) (Note: under '125.15, F.S., the "county commissioners shall sue and be sued in the name of the county of which they are commissioners".) It is clear from mandatory word "shall" that the duty of the County to enforce its code is purely ministerial. Second, on May, 22, 2003, the Board of County Commissioners removed all doubt, all reason for dispute and any question about how to apply the setback rule at issue below to an identical structure proposed by the same Developers on the same site. Third, by it=s Answer to the Complaint and denial in its 2003 Return to the Alternative Writ of Mandamus issued by the trial court that any setback violation existed, the County demonstrated that a formal application to the same Respondent County for an Ainterpretation@ of the setback would be futile. Moreover, obtaining an Ainterpretation@ is distinct from obtaining Aenforcement@. An Ainterpretation@ does not automatically cure a violation: it is just an Ainterpretation@. A developer violating the code is not required to make himself a party to his neighbors= application for an Ainterpretation@ and so when the interpretation is provided, other action is still required. The actions required to enforce the codes against the developer himself constitute an entirely different proceeding, either for the neighbor or the local government body. In fact, the Aadministrative interpretation@ process is not designed for neighbors offended by code violations but for developers to find out how the code 6

10 affects their ability to develop their land. An appeal to the Board of County Commissioners is permitted if one is dissatisfied with the zoning administrator=s Nevertheless, what one obtains at the end of this process is merely an interpretation, not automatic enforcement of the interpretation provided. It is nothing short of hallucinatory for the lower court to imagine that this requirement prior to suing for an injunction is workable, especially coupled with their second holding that if the building is completed by the time an is obtained, an action for injunction is then In every such case, a developer will hasten his project along sufficiently during the months-long Aadministrative interpretation@ process that most local zoning codes provide so that the developer will have obtained vested rights. No law or precedent suggests that while neighbors pursue the Aadministrative remedy@ of applying for an Ainterpretation@ of a setback ordinance to the local government, the developer=s ongoing labor and expenses do not vest his rights to complete the project as originally and officially approved. In addition, since the local government initially approved the permits under which the developer is constructing his project, it is unlikely that the local government will find that it made any error in initially applying the setback rules. In the case here, even after a former County Commission voted 5 to 0 in agreement with the Petitioners about how the County=s setback provision should be applied to the same Developers on the same site, it took only 7 months or so for the County government to reverse itself 180 degrees. Nothing so illuminates the absurdity of this decision than the last sentence of the District court=s opinion: that if neighbors do not obtain an injunction before the project is complete, their subsequent suit for an injunction after they obtained an Ainterpretation@ will be Abarred@. This is a horrific public policy blunder and while 7

11 the Second District only covers about a fifth of the State, the effect of its decision within this jurisdiction will make Acitizen@enforcement of land development codes impossible from Pasco to Collier counties. Issue 2: In Pinecrest Lakes, Inc., v. Shidel, 795 So. 2d 191 (Fla. App. 4 th DCA 2001), rev. den. 821 So. 2d 300 (Fla. 2002), the developer raised exactly this same question and the Fourth District held in response that: AIn this case the alleged inequity could have been entirely avoided if the developer had simply awaited the exhaustion of all legal remedies before undertaking construction. Shidel let the developer know when it was just beginning construction of the first building that she would seek demolition if the court found the project inconsistent. When the developer decided to proceed..., the developer was quite able to foresee that it might lose the action in court.@ Id. In the present case, the trial court issued an Alternative Writ of Mandamus on May 22, 2003, to the Developers and the County stating that the Petitioners= Petition for Writ of Mandamus showed good cause for granting the relief requested (i.e., requiring the building to comply with the setback provision), so the Developers faced an adverse court ruling at the very outset of construction. Just like the Pinecrest court found in its case, the Developers here were Aquite able to forsee@ that they might lose the action in court. Accordingly, the Second District=s opinion that Petitioners= failure to obtain a temporary injunction - instead of the Developers failure to await the outcome of the litigation - Abarred their action@ directly and expressly conflicts with Pinecrest, supra. This direct and express conflict exists even if temporary injunctions were, as the Second District=s opinion implies, simply handed out like a summons at the courthouse without first meeting strictly imposed criteria and did not impose a 8

12 significant cost on the citizen attempting to enforce a setback ordinance. But it is well known that the cost of a bond for an injunction in a case like this, involving a multi-million dollar project, will ALWAYS and in every event exceed what an adversely affected neighbor can reasonably afford. Under this precedent, if one can=t get an injunction until a developer has had time to vest his rights and his vested rights then Abarrs@ an action for injunction, Acitizen enforcement@ of land development codes will become a thing of the past. The lower court=s decision is simply not a workable policy under the AGrowth Management Act@. That is why Pinecrest, supra, held to the contrary: the ENTIRE comprehensive planning and growth management policy of the State is utterly dependent upon Acitizen enforcement@. The State of Florida lacks the resources to insure that every local land development code ordinance or comprehensive plan is complied with. Thus affected parties have standing, like Acitizen attorneys general@, to enforce them. See Pinecrest, supra. Last, many other cases have held that the filing of a lawsuit puts a developer on notice that he proceeds at his own risk when a timely judicial challenge is filed alleging the violation of zoning setback code. See Sakolshy v. City of Coral Gables, 151 So. 2d 433, 436 (Fla. 1963), a decision by this Supreme Court holding that Aknowledge of pending litigation directly attacking the validity of a permit will serve as a warning or Ared flag@ to one seeking to establish estoppel@ (directly and expressly conflicting with the Second District=s second holding above); and Reedy Creek Improvement District v. DER, et al., 486 So. 2d 642 (Fla. App. 1 st DCA 1986); and Spey, et al. v. Hayes, et al., 4306 So. 2d 1176 (Fla. App. 1 st DCA 1981) for additional direct and express conflict. CONCLUSION WHEREFORE the Petitioners respectfully request that this Court accept 9

13 Discretionary Jurisdiction in this matter. Respectfully submitted this day of January, CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished by U.S. Mail to Clay C. Brooker, Esq., 801 Laurel Oak Drive, Suite 300, Naples, FL 34108, and to Theodore L. Tripp, Jr., Esq., P.O. Drawer 2040, Ft. Myers, FL this day of January, David W. Rynders, Esq. Attorney for Petitioners Fla. Bar No N. Tamiami Tr., Ste. 308 Naples, Florida Ph:(239) Fax: (239) CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the Petitioners' Jurisdictional Brief complies with Fla.R.App.P., Rules 9.100(1) and 9.210(a)(2), and was prepared with WordPerfect 5.2 for Windows word processing software using Times New Roman 14-point font. Attached is a 3 1/2" diskette of the Jurisdictional Brief. David W. Rynders, Esq. 10