Title: Availability Of Declaratory Relief To Collier County
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003029/00001
 Material Information
Title: Availability Of Declaratory Relief To Collier County
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 - Availability Of Declaratory Relief To Collier County
General Note: Box 12, Folder 5 ( Legal Ramifications of Implementation of the Interim Action Program in Golden Gate Estates, Collier County, Florida - 1979 ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003029
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


Declaratory relief is authorized by Chapter 86 of the Florida

Statutes in certain cases:

The circuit courts have jurisdiction to declare
rights, status and other equitable or legal re-
lations whether or not further relief is or could
be claimed. No action or procedure is open to
objection on the ground that a declaratory judg-
ment is demanded. The court's declaration has
the force and effect of a final judgment. The
court may render declaratory judgments on the
existence, or nonexistence:
(1) Of any immunity, power, privilege or
right; or

(2) Of any fact upon which the existence or
nonexistence of such immunity, power, privilege or
right does or may depend, whether such immunity,
power, privilege or right now exists or will arise
in the future. Any person seeking a declaratory
judgment may also demand additional, alternative,
coercive, subsequent or supplemental relief in the
same action. 86.011.

Any person claiming to be interested or who may be in
doubt about his rights under a deed, will, contract or
other article, memorandum or instrument in writing or
whose rights, status or other equitable or legal rela-
tions are affected by a statute, or any regulation made
under statutory authority, or by municipal ordinance,
contract, deed, will, franchise, or other article,
memorandum or instrument i.n writing may have determined
any question of construction or validity arising under
such statute, regulation, municipal ordinance, contract,
deed, will, franchise, or other article, memorandum, or
instrument in writing, or any part thereof, and obtain
a declaration of rights, status or other equitable or
legal relations thereunder. 86.021.

This broad language seems to clearly encompass an action for declaratory

relief to determine the rights and responsibilities that flow from the

platting of Golden Gate Estates, the instrument of dedication involving

the canals and roads, private contracts with lot owners, and other

matters arising from the County's plan to implement its Interim Action


Program. The express purpose of Chapter 86, Florida Statutes, is "to

settle and to afford relief from insecurity and uncertainty with respect

to rights, status and other equitable or legal relations." 86.101.

It has been held that the act is intended to aid in cases where technical

or social advances have tended to obscure or place in doubt one's rights,

immunities, status or privileges. Ready v. Safeway Rock Co., 157 Fla.

27, 24 So. 2d 808 (1946); See also, Overman v. State Board of Control,

71 So. 2d 262 (Fla. 1952).

Declaratory judgments are not permitted to foster frivolous or use-

less litigation, to answer abstract questions, to satisfy idle curiosity,

to go on a fishing expedition or to give judgments that serve no useful

purpose. Ready, supra. However, a declaratory judgment may be rendered

in anticipation of an act not yet done or an event which has not yet

happened. 86.051. Again, these principles seem tailor-made to examine

the relative rights of the persons who will be affected by implementation

of the Interim Action Program proposals.

The power of the circuit court to render a declaratory judgment has

been recognized as a discretionary power, the exercise of which is

determined on a case by case basis. May v. Holley, 59 So. 2d 636, 639

(Fla. 1952). Furthermore, the proceeding must be "judicial in nature"

in order for it to be within the constitutional powers of the Florida

courts. Fla. Const. art. V. 1; May v. Holley, supra. The elements

necessary to maintain the status of a declaratory action as judicial in

nature were enumerated by the Supreme Court of Florida in May. The

following must be clearly shown,

1) a bona fide, actual, present, practical need for the


2) the declaration deals with a present, ascertained or
ascertainable state of facts;

3) some immunity, power, privilege or right of the com-
plaining party is dependent upon the facts of the law
applicable to the facts;

4) there is some person or persons who have, or reasonably
may have an actual, present, adverse and antagonistic
interest in the subject matter, either in fact or law;

5) the antagonistic and adverse interests are all before
the court by proper process or class representation; and

6) the relief sought is not merely the giving of legal
advice by the courts or the answer to questions pro-
pounded from curiosity. May at 639.

The Supreme Court of Florida recently reaffirmed the criteria listed

above as the essential elements of a complaint for declaratory relief.

Askew v. City of Ocala, 348 So. 2d 308, 310 (Fla. 1977); Lambert v.

Justus, 335 So. 2d 818, 821 (Fla. 1976).

Since the language of Chapter 86 of the Florida Statutes is broad

and is to be liberally administered and construed (86.101), the court

in May recognized that there is almost no limit to the number and type

of cases that may arise under this statute. May at 639. Of course,

the discretionary nature of the court's power to grant declaratory

relief may be viewed as a limitation on such actions. Declaratory judg-

ments have, in fact, dealt with a wide variety of substantive issues, inT

cluding zoning ordinances, Donaldson v. City of Titusville, 345 So. 2d

800 (Fla. 4th D.C.A. 1977); title to land, May v. Holley, supra; re-

strictions on property rights, Lambert, supra; rights under a recorded

plat, Broward County v. Lerer, 203 So. 2d 672 (Fla. 4th D.C.A. 1967);

and others.

Declaratory relief has been obtained on numerous occasions by

governmental units, including counties. E.g., Coast Cities Coaches, Inc. v.



_ _~__ ____~___ II__~___ _

Dade County, 178 So. 2d 703 (Fla. 1965); Lerer, supra; Jacksonville

Expressway Authority v. Duval County 189 So. 2d 837 (Fla. 1st D.C.A.

1967). In Broward County v. Lerer, an action for declaratory relief

was brought by Broward County and the State Road Department to determine

their rights under a recorded plat. The plaintiffs contended that

reservations in the plat for ditches and roads evidenced an intention

to dedicate them to the public. A declaratory judgment was sought to

construe the plat and determine the legal rights of the plaintiffs

relative to their status, powers, privileges and use of the said land.

The trial court dismissed the action with prejudice after determining

that the plaintiffs would not prevail on the merits.

The Fourth District Court of Appeal reversed, holding that the

plaintiffs had alleged a bona fide controversy and were entitled to a

declaration of their rights whether or not they would prevail on a

final hearing. Lerer at 673. In other words, the test of the suffi-

ciency of a complaint for declaratory relief is not whether a petitioner

will receive a declaration in accordance with his contentions, but

whether he is entitled to a declaration at all. Modernage Furniture Co.

v. Miami Rug Co., 84 So. 2d 917 (Fla. 1955).

There are in fact many cases in Florida which, by analogy, would

seem to provide support for the examination of the Interim Action Pro-

gram and related matters before the Collier County Commissioners that

create a genuine doubt as to the relative rights of the parties involved.

For example, an action for declaratory relief was brought by Dade County

in Coast Cities Coaches, Inc. v. Dade County, supra, to determine the

County's powers under its Home Rule Charter. The court held that the

complaint of Dade County established a sufficient predicate for the



~I___~________ ___~__~^I____

county's doubt as to its powers under its home rule charter to extend

its bus transportation system and a summary declaratory decree was

entered in favor of the county. Coast Cities at 706.

The Florida courts have consistently upheld declaratory actions as

a means to seek clarification or adjudication of rights of property

owners under municipal ordinances and to obtain relief from the action

of zoning authorities. Two such cases are Dade County v. Benenson, 326

So. 2d 74 (Fla..3d D.C.A. 1976), cert. den. 336 So. 3d 559 (Fla. 1976);

and Donaldson v. City of Titusville, supra. In Dade County v. Benenson,

the County adopted a resolution to expand its airport which would have

resulted in a substantial reduction of the allowable height of all

structures on neighboring property under the existing zoning law. The

court granted a declaratory judgment to the property owners based on a

finding that a prima facie case of an actual doubt as to the effect of

the actions taken by the County and the property owners' rights there-

under had been stated. Doubt as to the rights of property owners under

a zoning ordinance was likewise held to be a present controversy en-

titling the property owners to declaratory relief in Donaldson v. City

of Titusville, supra.

The Supreme Court of Florida in Lambert v. Justus, supra, held

that declaratory relief is available to property owners where the inter-

pretation of restrictions on the use of property was in question. The

property owners in Lambert sought to determine the validity of certain

restrictions on the use of their property after an alleged change of

circumstances since the restrictions were placed on the property. Simi-

lar property rights and privileges are put in question by the action


called for in the Interim Action Program.

In summary, Florida's statutory authorization for the seeking of

a declaratory judgment, Chapter 86, Florida Statutes, is worded broadly

,to allow a wide range of legal controversies to be examined by the

courts. The Judiciary has exercised this authority in a similarly

Iroad manner, rendering declaratory Judgments and granting declaratory

relief on many issues identical to or closely resembling the legal

questions implicated by Collier County's Interim Action Program pro-

posals. Thus, ample precendent is available to support an inquiry on

the following matters:

1) Is the County stopped to implement the Interim Action Program
because it has approved the plat of Golden Gate Estates and
accepted dedication of streets and canals that may be affected
by the Program's proposals, or do changed circumstances,
z potential "peril" and the County's duty to protect the public
health, safety and welfare overcome the estoppel argument?

2) May the County, through exercise of its police power, implement
a program designed to reverse overdrainage and environmental
degradation within Golden Gate Estates for the purpose of
restoring and protecting the natural watershed which is part
of the Big Cypress Swamp without paying compensation to land-
owners whose lands may be flooded more frequently or for ex-
tended periods of time?

perhaps all of the issues addressed in this report could be outlined speci-

Ically for the court. The two that appear above, however, broadly state the

essentiall legal questions that face the County. It cannot be over-

Ophasized that the success of a complaint for declaratory relief may

prn on the comprehensiveness of the factual allegations set out in

Complaint. The County must exploit the numerous technical reports

documents which describe the ecological harm already caused and

reatening to continue or worsen. A court would then be more likely

Uphold the County's attempt to abate or reduce these harmful effects


_~II ~I~ _~___ls_~ Ip----~-~-L-~----__~ -8~ L_~_I_

^-i_ _U*l_. .._ 1~1.11-1..1_1..-.~~(_ I~

caused by the Golden Gate Estates canal and road systems as amply justi-

fied and necessary for the health, safety and welfare of Collier County's

citizens, and permit the proposed action without resort to eminent domain.


t- 7


~ __


University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs