City of Coconut Creek v. City of Deerfield Beach

• Decision Date: 19 March 2003
• Docket Number: No. 4D02-1413.,4D02-1413.
• Parties: CITY OF COCONUT CREEK, a Florida municipal corporation, Appellant, v. CITY OF DEERFIELD BEACH, a Florida municipal corporation, and Deerfield Beach Energy Center, LLC, Appellees.
• Court: Florida District Court of Appeals

840 So.2d 389

CITY OF COCONUT CREEK, a Florida municipal corporation, Appellant, v. CITY OF DEERFIELD BEACH, a Florida municipal corporation, and Deerfield Beach Energy Center, LLC, Appellees.

No. 4D02-1413.

District Court of Appeal of Florida, Fourth District.

March 19, 2003.

Nancy E. Stroud and Mark A. Rothenberg of Weiss Serota Helfman Pastoriza & Guedes, P.A., Fort Lauderdale, and Paul Stuart, City Attorney, and Nancy A. Cousins, Assistant City Attorney, Coconut Creek, for appellant.

Andrew S. Maurodis, City Attorney, Deerfield Beach, for appellee City of Deerfield Beach.

Elliot H. Scherker of Greenberg Traurig, P.A., Miami, and Jeffrey Gilbert of Greenberg Traurig, P.A., Fort Lauderdale, for appellee Deerfield Energy Center, LLC.

MAASS, ELIZABETH T., Associate Judge.

Appellant, City of Coconut Creek ("Coconut Creek"), appeals an order dismissing with prejudice its amended complaint challenging the consistency of a development order with Broward County's Comprehensive Plan and alleging substantive and procedural due process violations in the development order approval process. We conclude that appellant failed to satisfy a statutory condition precedent to suit within the time required, and must assert its substantive and procedural due process claims through certiorari. We affirm the dismissals, but reverse solely for the dismissals as to counts II and III to be redesignated as being without prejudice.

According to Coconut Creek's amended complaint, it owns land adjacent to property owned by appellee Deerfield Beach Energy Center, L.L.C. ("Energy Center"), in Deerfield Beach, Florida. Energy Center's land was annexed by Deerfield Beach in 1990 under an act that subjected it to Broward County's Comprehensive Plan and Code of Ordinances until December 1, 2002. Coconut Creek alleges that neither Broward County's Comprehensive Plan nor its zoning code permits power plants on Energy Center's property and that on June 18, 2001, Deerfield Beach's Development Review Committee, nonetheless, granted site plan approval for Energy Center to build a power plant.

Count I of Coconut Creek's amended complaint sought to enjoin issuance of the site plan approval, under section 163.3215, Florida Statutes (2001).¹ Counts II and III sought to enjoin the approval's enforcement based on alleged substantive and procedural due process violations in the approval process.

For the purposes of this proceeding, the parties agree that the site plan approval is a "development order" as defined by section 163.3164(7), Florida Statutes (2001); that the development order is required to be consistent with the comprehensive plan under section 163.3194(1)(a), Florida Statutes (2001); and that Coconut Creek is an "aggrieved or adversely affected party" entitled to bring suit to challenge the consistency of the site plan approval with the comprehensive plan, under section 163.3215(1). Consequently, Coconut Creek's contention that the site plan approval is inconsistent with the comprehensive plan is controlled by section 163.3215. See § 163.3215(3)(b) ("Suit under this section shall be the sole action available to challenge the consistency of a development order with a comprehensive plan adopted under this part.").

Section 163.3215(4) provides that:

As a condition precedent to the institution of an action pursuant to this section, the complaining party shall first file a verified complaint with the local government whose actions are complained of setting forth the facts upon which the complaint is based and the relief sought by the complaining party. The verified complaint shall be filed no later than 30 days after the alleged inconsistent action has been taken. The local government receiving the complaint shall respond within 30 days after receipt of the complaint. Thereafter, the complaining party may institute the action authorized in this section. However, the action shall be instituted no later than 30 days after the expiration of the 30-day period which the local government has to take appropriate action. Failure to comply with this subsection shall not bar an action for a temporary restraining order to prevent immediate and irreparable harm from the actions complained of.

Site plan approval was given on June 18, 2001. The original complaint was filed in circuit court on July 13, 2001. Counsel stipulated process was served on the City of Deerfield Beach the same day. Deerfield Beach served its motion to dismiss on August 2, 2001 alleging, among other grounds, Coconut Creek's failure to comply with the statutory presuit notice requirement. After a September 13, 2001, hearing, on September 19, 2001, the trial judge entered an order dismissing the complaint. On September 28, 2001, Coconut Creek filed the amended complaint under review. Though Coconut Creek alleges it complied with all conditions precedent under section 163.3215, it acknowledges that it never filed a separate verified complaint with Deerfield Beach. The trial court dismissed the amended complaint with prejudice following a February 22, 2002, hearing, and this appeal followed.

Section 163.3215(4) is clear. A complaining party

shall first file a verified complaint with the local government whose actions are complained of setting forth the facts upon which the complaint is based and the relief sought by the complaining party. The verified complaint shall be filed no later than 30 days after the alleged inconsistent action has been taken.

It is undisputed that Coconut Creek never complied with this condition precedent.

Where the presuit notice requirement of section 163.3215(4) has not been met, case law is clear in this and every other district that has considered the issue that the action should be dismissed. See Jensen Beach Land Co. v. Citizens for Responsible Growth of the Treasure Coast, Inc., 608 So.2d 509, 510 (Fla. 4th DCA 1992) ("We understand Section 163.3215... to require that a court challenge the consistency of a zoning order with the comprehensive plan which does not merely seek a temporary restraining order to prevent immediate and irreparable harm be preceded by timely filing of a complaint with the entity that entered the order. Because this condition precedent was not met, we find that the circuit court lacked jurisdiction to hear this matter."); Lee v. St. Johns County Bd. of County Comm'rs, 776 So.2d 1110, 1112 (Fla. 5th DCA 2001) ("Legislative intent is clear that a challenge to a development order must be brought within the narrow time limits of section 163.3215 or not at all."); Brady v. City of Jacksonville, 764 So.2d 715, 715 (Fla. 1st DCA 2000) ("Because [appellants] failed to comply with a condition precedent under section 163.3215(4) ... before filing their verified complaint in circuit court, we affirm the circuit court's denial of relief."); Bal Harbour Vill. v. City of N. Miami, 678 So.2d 356, 360 (Fla. 3d DCA 1996); Bd. of Trs. of the Internal Improvement Trust Fund v. Seminole County Bd. of County Comm'rs, 623 So.2d 593, 596 (Fla. 5th DCA 1993) (complaint filed with county more than thirty days after development order rendered required dismissal).

Prior to the 1985 adoption of the Growth Management Act, the common law required that a party seeking to challenge the consistency of a development order with a comprehensive plan show that it had a legally recognized right, apart from the general public's, which was adversely affected by the order. See Citizens Growth Mgmt. Coalition, Inc. v. City of West Palm Beach, 450 So.2d 204, 208 (Fla. 1984)

. The Growth Management Act liberalized standing. See Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 200 (Fla. 4th DCA 2001),

review denied, 821 So.2d 300 (Fla.2002). Edgewater Beach Owners Ass'n v. Walton County, 833 So.2d 215, 219-20 (Fla. 1st DCA 2002). Coconut Creek's right to challenge the consistency of Energy Center's site plan approval with Broward County's Comprehensive Plan is a creature of statute. See Fla. Wildlife Fed'n v. State Dep't of Envtl. Regulation, 390 So.2d 64 (Fla.1980) (broadening of standing to seek enforcement of environmental law is substantive, not procedural). As such, the statute must be strictly construed. See Hanley v. Kajak, 661 So.2d 1248, 1248-49 (Fla. 4th DCA 1995) (holding that mechanics lien law as a creature of statute to be strictly construed).² It should be applied as written, and not modified to reflect what the deciding authority thinks it should say. See City of Hollywood v. Lombardi, 770 So.2d 1196, 1200 (Fla.2000). As this court has observed, "[i]n a special statutory proceeding ... the trial court does not have the same discretion to bend time requirements that might be allowed under the rules of civil procedure." Dracon Constr., Inc. v. Facility Constr. Mgmt., Inc., 828 So.2d 1069, 1071 (Fla. 4th DCA 2002).

The requirement that the governmental entity issuing a development order alleged to be inconsistent with its comprehensive plan be placed on notice and offered an opportunity to review its action prior to being brought to court is not specious. The procedure offers the governmental entity the chance to assess its position, without the attendant financial and political consequences of litigation. It permits an early resolution of the dispute, perhaps one without judicial intervention. See Thomas v. Suwannee County, 734 So.2d 492, 498 (Fla. 1st DCA 1999)

. It places the government on notice of the party's position and intent to pursue it. See Educ. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999).

Our courts have repeatedly affirmed that failure to comply with a statutory condition precedent, absent waiver or estoppel, requires dismissal. See Hosp. Corp. of Am. v. Lindberg, 571 So.2d 446, 449 (Fla.1990)

("We therefore hold that, in medical malpractice actions, if a presuit notice is served at the same time as a complaint is filed, the complaint is subject to dismissal with leave to amend."); Levine v. Dade...