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COLUMNS
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Florida Caselaw Update |
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Gary K. Hunter,
Jr. & D. Kent Safriet |
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Condominium construction enjoined where developer lacked right to waive
the development’s restrictive covenants.
Gulf Bay Land Investments, Inc. v. Trecker, 32 Fla. L. Weekly D925 (Fla. 2d
DCA Apr. 11, 2007).
The Second DCA upheld an injunction in a suit filed against a Collier County
developer two years after it began construction on a residential condominium
high-rise. Residents of previously completed buildings on the project site
asserted that the new construction violated the minimum setback requirements in
the development’s restrictive covenants. The Developer argued that a successor
corporation to the land’s original developer, who had retained rights to approve
waivers to the restrictive covenants, had waived the setback requirements. The
trial court, however, found that the documentation relied on by the Developer
did not establish corporate succession, nor did it specifically approve any
reduction in the required setbacks. The DCA found that the record supported the
trial court’s factual findings and, concluded that the trial court did not abuse
its discretion in enjoining further construction of the condominium. The DCA
also rejected the Developer’s argument that the Residents waived their rights to
injunctive relief because they had waited two years after construction began to
file suit.
DCA remands for application of “dual rational nexus test” to determine
propriety of County’s sewer impact fee.
Save Our Septic Systems Comm., Inc. v. Sarasota County, 32 Fla. L. Weekly
D1119 (Fla. 2d DCA Apr. 27, 2007).
Residents challenged the County’s requirement that they abandon the use of
individual septic systems, connect to the County’s central sewage system and pay
the “impact fees” associated with the mandated connections. Following a grant of
summary judgment in the County’s favor, the Residents appealed, arguing that the
County intended to use the monies generated by the impact fee improperly because
the County intended to repay existing indebtedness, which would benefit existing
customers, rather than use those monies to absorb the impact of new hookups. The
County asserted that it was necessary to pay existing debt in order to finance
the expansion of the sewer system and therefore the impact fee was applied
appropriately. Both sides filed factually complex affidavits regarding the need
for the fee, the calculation of the fee, the anticipated revenue generated by
the fee, and the County’s understanding of how it may spend the revenue. The
Second DCA reversed finding that the record contained disputed issues of
material fact precluding summary judgment.
While the DCA indicated that it was inclined to reject the resident’s arguments
that the revenues from an impact fee could never be used to pay existing
indebtedness or that the amount of the impact fee could not be based, in part,
on a recognized need for future capacity, the DCA did not rule on that issue as
it was constrained by prior Supreme Court precedent. Thus, on remand, the trial
court must review the calculation of the impact fee and the intended
expenditures of the generated revenue to assess whether the fee meets the “dual
rational nexus test” adopted by the Florida Supreme Court in St. Johns County v.
N.E. Fla. Builder’s Ass’n, 583 So. 2d 635 (Fla. 1991). This test requires that
the County demonstrate a reasonable connection between the need for additional
capital facilities because of the addition of users to the system, and a
reasonable connection between the intended expenditure of the collected funds
and benefits accruing to the new users.
City awarded new trial in breach of development contract case.
City of Hollywood v. Diamond Parking, Inc., 950 So. 2d 472 (Fla. 4th DCA
2007).
The City appealed a judgment awarding a Developer damages in the amount of one
million dollars in a breach of contract suit. The City argued that the trial
court erred when it excluded evidence that the Developer did not meet its
deadline for providing a financing commitment. The Fourth DCA reversed and
ordered a new trial.
The development contract required the Developer to obtain a financing commitment
for the $40 million project within one year, or either party could terminate. On
the final day of the year-long period, the Developer produced a conditional
commitment that the City determined ultimately was invalid and terminated the
contract. However, the DCA determined that the provisions of the contract that
required the City to provide the Developer with notice and an opportunity to
cure any defects in the Developer’s purported commitment, was a “material term”
of the contract. The City’s failure to provide the notice and opportunity to
cure was the basis for the trial court’s finding of liability. During discovery,
however, the City obtained information that suggested that the Developer had not
taken the necessary steps to obtain a valid commitment before expiration of the
financing period. This information, which was excluded at trial, was relevant to
the issue of whether the developer met its one year deadline for the commitment.
Accordingly, the DCA reversed and ordered a new trial.
Independent special district did not have standing to object to property
owner’s dock on basis of compliance with riparian setback requirement.
Board of Commissioners of Jupiter Inlet Dist. v. Thibadeau, 2007 WL 142
7461(Fla. 4th DCA).
A residential property owner applied to the DEP for a noticed general permit (“NGP”)
to construct a dock from his property into the Loxahatchee River. The DEP
approved the NGP. Thereafter, the Jupiter Inlet District (“JID”), an independent
special district charged by Florida’s Board of Trustees of the Internal
Improvement Trust Fund (“the Board”) to maintain an open and safe navigation
system and to protect the natural resources and public recreational value of the
river, requested a section 120.57, F.S., administrative hearing challenging the
NGP.
The ALJ found that JID had standing to challenge the NGP because it had “broad
navigational and at least limited environmental responsibilities” in the river,
and that its interests were substantially affected by the proposed dock.
Following the hearing, the ALJ issued a recommended order finding that the
property owner should be permitted to construct the dock pursuant to the NGP
with some added conditions. JID then filed exceptions to the ALJ’s findings,
challenging, among other things, the determination that the dock complied with
Rule 18-21.004(3), F.A.C., which requires that all structures be set back at
least 25 feet inside the property owner’s riparian rights line.
The DEP denied the exceptions finding that the ALJ’s determination that the JID
had standing to object to the setback requirement was “unclear” because the ALJ
had found that JID’s standing arose from its navigational and environmental
responsibilities. Nonetheless, DEP determined that the proposed dock, with
imposition of the ALJ’s additional conditions, satisfied all relevant criteria.
JID then appealed asserting its standing to challenge the setback requirement
and that the dock complied with the same.
The Fourth DCA affirmed without comment as to the findings concerning the dock’s
compliance with relevant rules and criteria, but addressed the question of JID’s
administrative or judicial standing. A majority of the court held that JID had
standing to participate in the section 120.57 hearing because its management
contract with the Board “clearly afford[ed] JID the right and ability to oppose
any activity that would impede navigation or public recreation or harm natural
resources in the areas governed by the agreement.” But, the court was unanimous
in its decision that JID did not have standing on appeal to challenge DEP’s
suggestion that the JID did not have standing to object to the ALJ’s findings or
challenge the dock’s compliance with the setback requirement, because JID could
not demonstrate that it was adversely affected by either ruling. JID was not
adversely affected by DEP’s concerns with its standing to object to the
administrative ruling because the DEP ultimately considered the merits of JID’s
arguments. And, JID could not be adversely affected by the manner in which the
riparian line was drawn or the dock’s compliance with the riparian line setback
requirement because it does not own property adjoining the property where the
dock was proposed,. In Florida, riparian rights lines are drawn so as to
apportion access to open waters between adjoining property owners.
Municipal annexation ordinance quashed; annexed property not “reasonably
compact.”
City of Center Hill v. McBryde, 952 So. 2d 599 (Fla. 5th DCA 2007).
Property owners successfully challenged the annexation of a 1,235-acre tract of
land in unincorporated Sumter County, arguing that the annexed property did not
meet the statutory requirement of “reasonable compactness” because it created a
100-acre “pocket” of unincorporated territory. In quashing the annexation
ordinance, the trial court found that whether “small” or “big,” a pocket of
unincorporated property violates the section 171.0131(12) requirement for
compactness. The Fifth DCA denied certiorari but reiterated its previous
determination in City of Sanford v. Seminole County, 538 So. 2d 113 (Fla. 5th
DCA 1989), that a pocket is “a small isolated area or group.” The DCA then
clarified that the determination of whether a pocket of property is small and
isolated is “relative” to the “overall scope and configuration of the parcel in
question and the surrounding municipal property.” While a 100-acre parcel is not
insignificant in absolute terms, relative to the 1,235 acre annexation in this
case, an impermissible pocket was created. Accordingly, the DCA denied
certiorari.
Gary K. Hunter, Jr. is a Shareholder with Hopping Green & Sams, P.A. in
Tallahassee, Florida. He received his B.B.A. and J.D. from the University of
Georgia. D. Kent Safriet is a Shareholder with Hopping Green & Sams, P.A. in
Tallahassee, Florida. He received his B.S. from Clemson University and his J.D.
from the University of South Carolina.
