IV. THE POSSIBLE ESTOPPEL EFFECT OF COLLIER COUNTY'S APPROVAL OF
ACCEPTANCE OF THE GOLDEN GATE ESTATES CANAL SYSTEM DEDICATION
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
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
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
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
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
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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