Title: Possible Estoppel Based On Collier County's Approval Of Subdivision Plats And Acceptance Of Roads
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Permanent Link: http://ufdc.ufl.edu/WL00003025/00001
 Material Information
Title: Possible Estoppel Based On Collier County's Approval Of Subdivision Plats And Acceptance Of Roads
Physical Description: Book
Language: English
Publisher: Frank E. Maloney, Attorney At Law
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Possible Estoppel Based On Collier County's Approval Of Subdivision Plats And Acceptance Of Roads
General Note: Box 12, Folder 5 ( Legal Ramifications of Implementation of the Interim Action Program in Golden Gate Estates, Collier County, Florida - 1979 ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003025
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



Because the Collier County Commissioners approved the subdivision

plats of Golden Gate Estates and accepted dedication of most of the

Golden Gate Estates canal system, the question is raised as to whether

the County may be stopped from raising water levels in the canal

system in conjunction with the Interim Action Program. A general

discussion of the doctrine of estoppel will precede an examination of

its applicability to the particular facts presented.

An estoppel arises when one is precluded by law from speaking

against his own act or deed. United States Casualty Co. v. Godwin,

128 Fla. 64, 27 So. 2d 612 (1946). There are three types of estoppel:

estoppel by record, estoppel by deed, and equitable estoppel. Estoppel

by record arises when one seeks to deny the truth of matters set forth

in, or founded upon, the adjudication of a competent court. Daniel v.

Dept. of Transportation, 259 So. 2d 771, 774 (Fla. 1st D.C.A. 1972).

Estoppel by record would only be relevant to the Golden Gate Estates

dispute if there had been a previous adjudication of the rights of the

parties involved.

The second type of estoppel, estoppel by deed, prevents a party

to a deed and his successors or assignees from asserting any right in

derogation of the deed, or from attempting to refute any material fact

stated in it. 12 Eal JU., Estoppel and Waiver, 9 (1957). Estoppel

by deed is generally viewed as a means by which the grantor under a

deed can be prevented from denying the title of the grantee or from

asserting that the grantee does not have the authority to convey property


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passed by the deed. E.g,, Leslie Enterprises, Inc. v. Metropolitan

Dade County, 205 So. 2d 358 (Fla. 2d D.C.A. 1967). Because Collier

County was not a party to any conveyance of lands within Golden Gate

Estates, estoppel by deed is inapplicable.

Equitable estoppel, sometimes called estoppel by representation,

is the type of estoppel which is most likely to be asserted in any attempt

to prevent the raising of water levels In the Golden Gate Estates canal

system. The elements of equitable estoppel, as It is applied in Florida,

were set forth in Quality Shell Homes and Supply v. Roley, 186 So. 2d

837 (Fla. 1st D.C.A. 1966). The question presented there was whether

certain employers, by virtue of their refusal to voluntarily pay workman's

compensation benefits, were stopped from raising the exclusiveness of

liability provisions of Florida's workmen's compensation law. The court

ruled that in order to estop the employers, the plaintiff would have to

establish by a preponderance of the evidence that: (1) a representation

was made by the party to be stopped to the party claiming the estoppel

as to some material fact, which representation Is contrary to the condition

of affairs later asserted by the stopped party; (2) the party claiming

the estoppel relied upon the representation; and (3) the party claiming

the estoppel changed his position to his detriment as a result of his

reliance on the representation. Id. at 841.

Whether an equitable estoppel will or will not lie always depends on

the particular facts and circumstances of each case and their cumulative

import to the trier of fact. Trustees of the Internal Improvement Trust

Fund v. Claughton, 86 So. 2d 775 (Fla. 1956). Predictions of probable

outcome concerning equitable estoppel are thus difficult to make. The


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difficulty, here, is further compounded because neither the approval of

subdivision plats nor the acceptance of canal dedications has been dealt

with in any reported Florida cases as to their estoppel effect upon a

governmental agency. Nevertheless, there have been claims of equitable

estoppel brought against developers based upon representations made In

subdivision plats and claims of estoppel brought against the State or its

political subdivisions as to other matters which provide some indication

of the legal considerations that would be involved.

In McCorquodale v. Keyton, 63 So. 2d 906 (Fla. 1953), suit was brought

to enjoin the operation of a snack bar in a park allegedly dedicated by

a subdivision developer to the plaintiffs, owners of lots in the subdivision.

The developer asserted that the operation of the privately owned snack bar

was consistent with the dedication. The Supreme Court of Florida rejected

this contention, reasoning that the evidence showed the plaintiffs purchased

their lots in reliance upon the land being provided as a park and expected

to have unrestricted use of It and the developer was barred from denying

the owners that which he had led them to believe they would have. The

general principle of McCorquodale is that landowners may, in certain cases,

enforce the plat and dedications provided therein. Whether the approval

of a subdivision plat by a county would preclude It from obstructing certain

rights alleged to flow from the plat is a more difficult question to answer.

A point must be emphasized about the party against whom the equitable

estoppel is claimed and its significance to a court's ultimate determination.

The doctrine of estoppel is applicable against public bodies, such as the

State, counties and municipalities, but its application is more restricted

than it is with private parties. The Florida courts have said that in order


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to raise an estoppel against the State, exceptional circumstances and
some positive act on the part of a state officer are required. T.I.I.T.F.
v. Lobean, 127 So. 2d 98 (Fla. 1961); Gay v. Inter-County Tel. Co., 60
So. 2d 22 (Fla. 1952); In re Guardianship of Irving, 297 So. 2d 331 (Fla.
2d D.C.A. 1974); Greenhut Constr. Co. v. Henry A. Knott, Inc., 247 So. 2d

517 (Fla. 1st D.C.A. 1971). In fact, it has been recognized by the Florida
Supreme Court that "the instances are rare Indeed when the doctrine of
equitable estoppel can effectively be applied against state action." Bryant
v. Peppe, 238 So. 2d 836, 838 (Fla. 1970).
The reluctance of the Florida judiciary to apply the doctrine of
equitable estoppel against governmental bodies is common to almost every
state in the Union. Several state supreme courts have ruled that municipal
and county governments are not subject to estoppel in regard to the exercise
of the police power. E.g., Milwaukee v. Leavitt, 142 N.W.2d 169 (Wisc.
1969); Ackley v. Kenyon, 207 A.2d 265 (Conn. 1965); Yellow Cab Taxi Service
v. Twin Falls, 190 P.2d 681 (Idaho 1948); State v. San Antonio, 209 S.W.2d

756 (Tex. 1948). The Kansas Supreme Court, for example, declared that in
matters relating to public welfare or any exercise of police power, a county
is not stopped to assert or protect public rights. Shriver v. Board of
County Commissioners, 370 P.2d 124 (Kan. 1962). In these jurisdictions,
the Interim Action Program proposals could not give rise to an estoppel.
In one of the few Florida cases to find an equitable estoppel against
state action, Claughton, supra, the plaintiff asserted that the Trustees
were stopped to deny the validity of his title to filled-in submerged
lands that the Trustees had previously conveyed to the plaintiff's predecessor
in title. The Court stated:


While the doctrine is not applied against the state or its
subdivisions as freely as against an individual, there is
no doubt that it may be invoked even against the exercise
of governmental powers when it is necessary to prevent
manifest injustice and wrongs to private individuals;
provided that the restraint placed upon the governmental
body does not interfere with the.exercise of governmental
power. Claughton at 789, 790.

The Court apparently felt that no Interference to the State's police power

would result from the recognition of the plaintiff's title to five acres

in Biscayne Bay. On the other hand, estoppel of the County's attempt

S to prevent the continuation of well-documented ecological problems within

Golden Gate Estates, an action clearly bearing on the health, safety and

welfare of the County's residents, would constitute a significant inter-

ference with Collier County's police power.

There are numerous other states that, like Florida, only estop the

exercise of local government police power when exceptional circumstances

exist which tilt the balance in favor of the private interest at stake

in a particular case. E.g., Gold Coast Realty Co., Inc. v. Board of Zoning

Appeals', 268 N.E.2d 280 (Ohio 1971); Thornton v. Ridgewood, Ill A.2d 899

(N.J. 1955). The Claughton principle, that the governmental entity can

only be stopped if the exercise of police powers is not thereby interfered

with, is also adhered to in other states. Eg., State ex. rel. Schwerdt v.

Reorganized School Dist., 257 S.W.2d 262 (Mo. App. 1953); Washington v.

McLawhorn, 75 S.E.2d 402 (N.C. 1953).

In T.I.I.T.F. v. Lobean, supra, Justice Drew suggested in his concurring

opinion that the doctrine of equitable estoppel should be applied against

a governmental body only when it is acting in a proprietary capacity, as in

the sale of property, and never against the exercise of purely governmental


functions. Id. at 104. Implementation of the Interim Action Program

for the purpose of halting further environmental degradation within

Collier County would certainly qualify as a governmental function of

the County and not a proprietary one. This proprietary vs. governmental

function distinction espoused in Lobean appears in many opinions from

other states and is evidently the primary consideration in many juris-

dictions when a claim of estoppel against a governmental entity is being

examined. E.g., Doloff v. Gardiner, 91 A.2d 320 (Me. 1952); Harrell v.

Lewiston, 506 P.2d 470 (Idaho 1973).

A related decision of the Minnesota Supreme Court regarding the

estoppel of governmental bodies should be discussed here. Mesaba Aviation

Div. of Halverson of Duluth, Inc. v. County of Itasca, 258 N.W.2d 877 (Minn.

1977), involved a private landowner's claim that the county was stopped

to assess property taxes on the land after the landowner had relied on the

county attorney's representation that the property would not be taxed.

Although urged to apply the proprietary vs. governmental function distinction

which had previously been the law in Minnesota, (Board of Education v. Sand,

34 N.W.2d 689 (Minn. 1948)), the Mesaba court declared that the use of this

"rigid distinction" in determining whether equitable estoppel applied was

no longer to be used. Id. at 880. In its place, the court looked to whether

the exercise of the governmental power would be otherwise impaired or the

public interest frustrated if an estoppel were found. Under the facts

before the court, it was held that the public's interest in the collection

of taxes outweighed the detrimental reliance of the landowner on the county

attorney's misrepresentation. Id.

It appears that Mesaba merely removed the presumption that governmental



functions could not be stopped, but retained the idea that the police

power can only be stopped in the most extreme circumstances. Thus,

in deciding the estoppel issue, the Minnesota court used the concepts

of "impairment of the police power" and "frustration of the public

interest" as guidelines. These same guidelines, if applied to an

equitable estoppel claim against Collier County would seem to establish

an even stronger argument for the denial of an equitable estoppel claim.

The amount of taxes that would have been lost if an estoppel was applied

in the Mesaba case is a triviality when compared to the ramifications of

continued overdrainage of Golden Gate Estates.

A Fourth District Court of Appeal decision provides an important

precedent for any case involving a claim of estoppel against a governmental

entity in Florida City of Hollywood v. Hollywood Beach Hotel Co., 283

So. 2d 867 (Fla. 4th D.C.A. 1973). The court there said that regardless

of the existence of detrimental reliance usually sufficient to invoke

the doctrine of equitable estoppel, an exception occurs If it can be shown

"that some new peril to the health, safety, morals, or general welfare"

has arisen since the act that was relied upon took place. Id. at 870,

citing Texas Co. v. Town of Miami Springs, 44 So. 2d 808 (Fla. 1950).

The court did not elaborate, however, upon the kinds of situations which

would constitute "perils". On writ of certiorari, the Florida Supreme

Court quoted the language of the lower court and said, "While we cannot

preclude the adoption of such an exception In the future, we have no reason

to consider It in the instant case." Hollywood Beach Hotel v. City of

Hollywood, 329 So. 2d 10, 16 (Fla. 1976). Thus, the high court Indicated

its support of the concept as an exception to the application of equitable


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estoppel against a governmental entity in the exercise of the police power.
K The "new peril" exception has been cited with approval in another

district court opinion. Metropolitan Dade County v. Rosell Constr. Co.,

297 So. 2d 46 (Fla. 3d D.C.A. 1974). In Rosell, a developer's building

permit was declared void by Dade County when the Pollution Control Officer

promulgated an order imposing a total hold on all building permits for any
S construction that would connect to a certain overloaded sewer line. The

order was premised on an emergency condition and the court held that the

expenditure of $21,000 by the developer for an alternative hookup was not

unreasonable in light of the potential danger to the public. Id. at 48.

The County's prior approval for connection to the sewer line was not

sufficient to overcome the peril posed by the subsequent discovery of the

overload condition. By way of analogy, new and voluminous information

concerning the situation in Golden Gate Estates would provide generous

support for the argument that a peril to the public health and welfare

requires the action described in Collier County's Interim Action Program.

The recent and controversial case of Odum v. Deltona Corp., 341 So. 2d

977 (Fla. 1977), included a finding of equitable estoppel against the

Trustees of the Internal Improvement Trust Fund as one of four grounds

outlined in the opinion. The case involved the rights and duties of the

parties in relation to certain small unmeandered lakes and ponds being

dredged by Deltona Corporation in connection with the development of two

residential communities. Deltona claimed that the defendants should be

stopped from asserting the illegality of the dredging and drainage operations

on the ground that certain public officials, acting under color of law, had

previously acquiesced in these activities. The Supreme Court held for


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Deltona and stated that the development could not be obstructed because

of the detrimental effect that an order against Deltona would have on

numerous private persons who had contracted with Deltona and relied

on the development of the.two communities. Id. at 989. While similar

reliance is evident in the context of the particular facts surrounding

the development of Golden Gate Estates, no significant threat to the

environment was present in the Odum case as it is in Collier County.

Indeed, the trial judge declared that questions of pollution or environ-

mental damage, other than the status of the small lakes and ponds, was

not an issue in Odum. See also, Moviematic Industries v. Metropolitan

Dade County, 349 So. 2d 667 (Fla. 3d D.C.A. 1977), where the rezoning

of certain lands overlying the Biscayne Aquifer from industrial to single-

family residential, a measure designed to protect the county's water supply

and natural ecosystems, was upheld as inextricably tied to the public

health and welfare.

In summary, the question of whether the doctrine of estoppel could

be applied against Collier County's attempt to implement its Interim

Action Program after accepting dedication of streets and canals in Golden

Gate Estates and approving the plat is a difficult one because no Florida

case has addressed the issue directly nor has our investigation of other

jurisdictions turned up a case involving a similar factual situation. In

several states, equitable estoppel Is never applied against the exercise

of the police power by local governments. In many jurisdictions, including

Florida, it is only applied in exceptional circumstances and only when the

police power will not be significantly impaired. While the evidentiary

showing required to establish the exceptional circumstances that will


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justify an estoppel of the County have never been elaborated into general

guidelines by a Florida court, the cases do indicate that the public

interest sought to be protected would have to be a small one and the

detrimental reliance of the private plaintiff would have to be quite

substantial. With the numerous technical reports available to document

the serious environmental problems extant in Golden Gate Estates attributable

to its canal and road system, it appears unlikely that a court would hold

that the County is stopped to prevent further environmental degradation

because of a plat approval and the acceptance of canal and road dedications

many years before the problems were foreseen. Additional support for the

County's action can be found in the developing concept of peril as an

exception to the application of equitable estoppel against governmental



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