5D06-4059 Dunlap v. Orange County

SUPREME COURT CASES

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-4059

Case Date: 12/24/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007 JAMES CRAIG DUNLAP, ET AL., Appellant, v. ORANGE COUNTY, FLORIDA, ETC., Appellee. ________________________________/ Opinion filed December 28, 2007 Appeal from the Circuit Court for Orange County, Jay Paul Cohen, Judge. Aristides J. Diaz, of Diaz & Moss, Orlando, for Appellant. Joel D. Prinsell, Deputy County Attorney and Anthony J. Cotter, Assistant County Attorney, Orlando for Appellee Orange County, Florida. Howard S. Marks and Douglas K. Gartenlaub, of Graham, Builder, Jones, Pratt & Marks, L.L.P., Winter Park, for Appellee M/I Holmes, Inc. PALMER, C.J., James and Sylvia Dunlap, Chris and Rhoni Bischoff, Cal and Carol Paris, and Dan and Katrina Rini (homeowners) appeal the final order entered by the trial court dismissing with prejudice the complaint they filed against Orange County. Determining that the trial court erred in determining (1) that the homeowners lack standing to prosecute their lawsuit, and (2) that they failed to properly preserve their legal argument, we reverse. Case No. 5D06-4059

The homeowners filed a declaratory judgment action against Orange County in connection with two construction permits which the County had issued allowing M/I Homes to build a boat ramp in a residential subdivision. The complaint sets forth the following allegations of fact. Each of the plaintiffs are homeowners residing on lake-front property on Corner Lake in Orange County. M/I Homes is developing a single-family residential development on the shores of Corner Lake. The development is known as Country

Lake Estates. M/I Homes has plans to construct a semi-private boat ramp in connection with its development of Country Lake Estates and the boat ramp will be accessed and used only by the owners of homes in Country Lake Estates. M/I Homes purchased the rights to develop Country Lake Estates from White Mark Homes, Inc. White Mark Homes had taken the subdivision through the planned development zoning process in Orange County; however, M/I Homes recorded the plat for Country Lake Estates after the plat received approval from the Orange County Board of County Commissioners (BCC) in December of 2003. In 2004, without applying for or receiving a conservation area impact permit or a boat ramp construction permit, M/I Homes started constructing a boat ramp in Country Lake Estates. Orange County fined M/I Homes for violating the permitting requirements by commencing construction of the boat ramp without obtaining the necessary permits. M/I Homes also placed signs at the entrance of Country Lakes Estates which stated that the homes were selling with access to a boat ramp. Orange County also fined M/I Homes for this advertising.

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M/I Homes then filed applications for a conservation area impact permit and a boat ramp construction permit. BCC held a public hearing on said applications and thereafter voted in favor of granting both of M/I Homes' permit applications. Once M/I Homes' permit applications were approved, the homeowners filed this lawsuit challenging BCC's approval of the permit applications. In seeking declaratory relief, the homeowners' complaint alleges that BCC's vote approving M/I Homes' permit applications was void because the boat ramp plans are inconsistent with Orange County's Comprehensive Plan. Orange County responded to the homeowners' complaint by filing a motion to dismiss. The motion alleged that dismissal of the homeowners' complaint was warranted because the homeowners failed to allege in their complaint that they had raised the issue of whether M/I Homes' boat ramp construction plans were consistent with the County's Comprehensive Plan during the public hearing . Soon thereafter, M/I Homes filed a motion to intervene in the instant lawsuit. The trial court granted the motion. M/I Homes then filed a motion to dismiss the homeowners' complaint arguing that the homeowners lacked standing to challenge BCC's permit application approvals. The parties consented to send the matter to the general magistrate for consideration of the factual issues. At the hearing held by the general magistrate, Orange County presented its waiver claim, arguing that the homeowners' complaint should be dismissed because, during BCC's public hearing, the homeowners never contended that approval of M/I Homes' permit applications would be inconsistent with Orange County's Comprehensive Plan. Counsel for the homeowners responded by

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arguing that the instant lawsuit was entitled to receive a de novo trial and, therefore, any and all issues could be raised for the first time in the trial court. Upon review, the general magistrate entered a report concluding that Orange County's motion to dismiss should be granted. report. The homeowners thereafter filed an amended complaint. Orange County responded to the homeowners' filing of their amended complaint by filing a motion to dismiss. The motion alleged that the amended complaint was subject to dismissal because it failed to set forth any allegations indicating that the homeowners had raised the issue of the alleged inconsistency between the County's Comprehensive Plan and BCC's approval of M/I Homes' permit applications during the public hearing. M/I Homes filed a separate motion to dismiss the homeowners' amended complaint. The motion joined in the waiver argument set forth by Orange County and also alleged that the complaint should be dismissed because the homeowners lack standing to challenge BCC's permit approvals "as they are only nearby citizens". The matter proceeded a second time to a hearing before the general magistrate. Upon review, the general magistrate concluded: The court finds that the amended complaint does not allege that the inconsistency was raised at the county court [sic] level. So, the motion to dismiss should be granted with prejudice. The court also finds that the intervener's motion on standing has merit and that these parties did not have standing to bring this action. For that reason also the court would dismiss complaint. The trial court ratified the general magistrate's order and dismissed the homeowners' amended complaint with prejudice. This appeal timely followed. The trial court entered an order adopting the general master's

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In challenging the instant dismissal order, the homeowners first argue that the trial court erred in dismissing their complaint on the basis that they lack standing to prosecute this lawsuit under section 163.3215 of the Florida Statutes (2004). We agree. Section 163.3215(2) of the Florida Statutes (2004) authorizes an "aggrieved or adversely affected" party to maintain an action to determine whether development orders (in this case, M/I Homes' construction permits) are consistent with a County's comprehensive plan. The statute reads, in relevant part, as follows : 163.3215. Standing to enforce local comprehensive plans through development orders *** (2) As used in this section, the term "aggrieved or adversely affected party" means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order.

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