Monroe County v. Hemisphere Equity Realty, Inc., 93-2306

• Decision Date: 29 March 1994
• Docket Number: No. 93-2306,93-2306
• Citation: 634 So.2d 745
• Parties: 19 Fla. L. Weekly D706 MONROE COUNTY, Appellant, v. HEMISPHERE EQUITY REALTY, INC., and Texas Largo, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 745

634 So.2d 745

19 Fla. L. Weekly D706

MONROE COUNTY, Appellant, v. HEMISPHERE EQUITY REALTY, INC., and Texas Largo, Inc., Appellees.

No. 93-2306.

District Court of Appeal of Florida,

Third District.

March 29, 1994.

Rehearing Denied May 3, 1994.

Joseph H. Kelinson, Asst. County Atty., Key West, for appellant.

Mattson & Tobin and James S. Mattson, Key Largo, for appellees.

Before BASKIN, JORGENSON and LEVY, JJ.

JORGENSON, Judge.

Monroe County appeals from a final judgment determining the development rights of Hemisphere Equity Realty and Texas Largo, Inc., and enjoining Monroe County from impeding the development. For the following reasons, we reverse.

In 1986, a developer known as Tamarind Cove obtained final development approval for a project in the Upper Keys. Hemisphere Realty acted as Tamarind's agent. When the project was approved, the Monroe County Code required that construction be commenced within one year, and completed within two years of the final approval. ¹ In May, 1987, Tamarind's attorney received a letter from the Monroe County Planning Director in response to inquiries about obtaining dock permits; although the letter emphasized the one-year start-up deadline, it did not mention the two-year rule. In November, 1987, Tamarind sold its realty and development rights to Texas Largo; Hemisphere Realty was Texas Largo's local agent. Seven months remained to complete construction within the two-year build-out limitation period. Texas Largo did not seek an extension of the two-year period and did not apply for relief under the new Monroe County Code, which provided that a project "in the pipeline" could, upon application, be granted vested rights to complete the project.

On February 8, 1989, the County's Building Department posted a stop work order, halting construction activity because the original building permit had expired. Five weeks later, an Upper Keys Building Department employee "reissued" a building permit even though the two-year period had expired.

The County attempted to inspect the site at various times, found no work in progress, and observed only one or two poured concrete slabs. When Texas Largo applied in 1990 for a permit to operate a waste sewage treatment facility, the County realized that the development permits had long expired and sent Texas Largo written notice that the major development approval had expired. Texas Largo and Hemisphere filed administrative appeals seeking to reinstate project approval. The Planning Commission denied the relief sought; the Board of County Commissioners approved the Planning Commission's action.

Hemisphere and Texas Largo filed suit in Monroe Circuit Court seeking certiorari review of the County Commission's denial of project reinstatement, and alleging that the County was estopped from enforcing its two-year build-out provision. On the certiorari count, the trial court granted the relief sought by the developer and reinstated the expired development orders. This court granted review and quashed the order of the trial court. "It is apparent that, as a matter of law, the board and the commission correctly decided that the respondents' admitted failure to complete the project within two years after its development plan was approved resulted in the termination of the permit." Monroe County v. Hemisphere Equity Realty, 613 So.2d 550 (Fla. 3d DCA 1993). This court then remanded "for further appropriate proceedings" as to the remaining count--that the County was equitably estopped from enforcing the two-year build-out provision. ² The trial court, following a bench trial, issued a 22-page order in which it found that Monroe County had a fifteen-year history of not enforcing the two-year build-out rule; that Monroe County had, through Planning Director Pattison's letter to Tamarind's attorney in 1987, not reminded the original developer of the two-year limitation; that Monroe County had issued a second building permit after the two years had expired; and that Monroe County had not inspected the site regularly so as to ensure compliance with the time limitations. The trial court declared that Texas Largo and Hemisphere had acquired vested rights in the development approval, and that Monroe County was equitably estopped from "enforcing ... any ... provision of law to terminate, delay, restrict, or impede the development...." The trial court further ruled that Texas Largo had three years to complete the development.

The trial court erred in ruling that Monroe County was equitably estopped from enforcing its regulations that established a completion period for major development. The evidence, viewed in a light most favorable to the developer, does not support a finding of estoppel.

Equitable estoppel is to be applied against the state only in rare instances and under exceptional circumstances. To sustain a claim of estoppel against the state or one of its subdivisions, there must be (1) a representation as to some material fact by the party estopped to the party claiming estoppel; (2) reliance upon the representation by the party claiming estoppel; and (3) a change in such party's position caused by his reliance on the representation to his detriment. Furthermore, the act on which the aggrieved party relied must be one on which he had a right to rely.

Calusa Golf, Inc. v. Dade County, 426 So.2d 1165, 1167 (Fla. 3d DCA 1983) (citations omitted). No such rare instance or unusual circumstance exists in this case. Even if the County had been lax in its enforcement of its regulation as against other developers, Texas Largo was not entitled to rely on the County's failure to enforce its regulations against third parties....