10 Fla. L. Weekly Supp. 967a
Counties -- Developments of regional impact -- Mixed use planned development --
Developers seeking review of board of commissioners' decision, following appeal
affirming circuit court order quashing board's prior denial of application, again
denying approval of construction of several multi-family units in DRI and seeking
writ of mandamus directing board to approve project -- Board was required by law
of case doctrine to utilize same method to count multi-family dwelling units at
hearing of application following appeal as method used in prior hearing, and
adoption of new method resulted in denial of due process and failure to follow
essential requirements of law -- Board's denial of application on basis of substantial
harm to public health was supported by competent substantial evidence where there
was evidence that new development plan will aggravate preexisting condition of
large number of calls for police service at previously completed phase of
development -- No merit to argument that there must be competent substantial
evidence that development plan would constitute new, imminent, and substantial
peril to deny permit on basis of public harm -- Board's denial of application on basis
of negative impact on quality of life of area residents is supported by competent
substantial evidence of residents' factual testimony -- Petition for writ of certiorari
granted due to due process violation -- Mandamus -- Court may not direct board to
approve development plan through writ of mandamus
STEFAN DAVIS AND DAVIS & SONS CONSTRUCTION COMPANY, Petitioner, v.
ORANGE COUNTY, FLORIDA, Respondent. Circuit Court, 9th Judicial Circuit
(Appellate) in and for Orange County. Case No. 2001-CA-5463-O. Writ No. 01-44. July
7, 2003. Petition from the Orange County Board of County Commissioners. Counsel:
Thomas T. Ross and Eric B. Marks, for Petitioner. Joel Prinsell, for Respondent. William
Simonet, for Intervenors.
(Before GRIDLEY, KIRKWOOD, and CONRAD, JJ.)
FINAL ORDER GRANTING PETITION FOR
WRIT OF CERTIORARI AND DENYING PETITION FOR
WRIT OF MANDAMUS
(PER CURIAM.) Petitioners, Stefan Davis and Davis & Sons Construction Company
(“Petitioner”), seek certiorari review of a decision of the Orange County Board of County
Commissioners (“the Board”) denying approval of their Development Plan for Knights
Krossing Phase IV. Petitioner also asks the Court to issue a writ of mandamus directing
the Board to approve its Development Plan. This Court has jurisdiction pursuant to
Florida Rule of Appellate Procedure 9.030(c)(3), and Article V, Section 5(b) of the
Procedural and Factual Background
This matter is before the Court for the second time. On August 7, 2000, this court entered
its Order Granting the Petition for Writ of Certiorari and Writ of Mandamus. Quadrangle
Dev. v. Orange County, No.CI99-2929 (Fla. 9th Cir. Ct. Aug. 7, 2000) [7 Fla. L. Weekly
Supp. 762a] (hereinafter“Davis I”). The Fifth District subsequently issued an opinion
agreeing with this Court regarding the petition for writ of certiorari, but quashing the
issuance of the writ of mandamus. Orange County v. Quadrangle Dev. Co., 780 So. 2d
994 (Fla. 5th DCA 2001) (hereinafter“Davis II”).
The Quadrangle is a Development of Regional Impact (“DRI”) located in unincorporated
Orange County, Florida. Parcel 5, the land in question, is located within The Quadrangle.
Petitioner was the original developer of the existing three phases of Knights Krossing, the
apartment complexes located within The Quadrangle, and is the developer of the
proposed fourth phase (“Phase IV”).
Located across Alafaya Trail from the University of Central Florida, Knights Krossing
caters almost exclusively to students attending UCF or Valencia Community College.
Currently, the first three phases of Knights Krossing are owned by the UCF Foundation.
Petitioner does not own or manage any of the existing phases of Knights Krossing.
Beginning in 1994, Petitioner went through two different change determinations to add
multifamily dwelling units to the project. In 1997, 1250 multifamily dwelling units were
permitted within The Quadrangle.
Knights Krossing is the only multifamily development in The Quadrangle. After
subtracting the currently existing units, constructed in the first three phases of Knights
Krossing, an additional 502 multifamily dwelling units may be added to The Quadrangle,
217 of which have been allocated to Parcel 5.
The county attorney stated that it was the practice and custom of Orange County from
time in memoriam to determine multifamily dwelling units based upon counting the
number of kitchens. This was confirmed by the zoning director for Orange County. Using
this method, Petitioner may add the 217 multifamily dwelling units on Parcel 5.
After initially considering the Phase IV Development Plan on November 19, 1998, the
Development Review Committee (“DRC”) met again on February 11, 1999, to consider
Petitioner's application. The DRC concluded that the Phase IV Development Plan was
“consistent with the approved Quadrangle Planned Development Land Use Plan and is
consistent with the Comprehensive Policy Plan.” (Am. App. B at 2.) Consequently, the
DRC approved the Phase IV Development Plan subject to six conditions, all consistent
with projects of this type and to which Petitioner consented.
Linda Dorian, a resident of a nearby neighborhood, appealed the DRC's approval of the
Development Plan to the Orange County Commission. After a hearing held on March 23,
1999, the Board issued a final order granting Dorian's appeal and denying the approval of
the Development Plan.
In denying the Development Plan in 1999, the Board stated that a crime and nuisance
problem existed at Knights Krossing Phases I, II, and III, which could constitute an
emergency situation, and that presented a health, safety, and welfare problem. Petitioner
petitioned this Court for a writ of certiorari quashing the order and a writ of mandamus
directing the Board to approve the Development Plan.
In issuing the writs, this Court noted that the Knights Krossing problem dealt with large
parties, underage drinking, and the associated noise, traffic and disorderly conduct of
students living in the apartments and their weekend visitors, not crime. Davis I, at 3 n.1.
The Court concluded that there was no competent substantial evidence presented that the
Development Plan was not in compliance with the applicable code, and the only issue
raised was the alleged crime problem in Knights Krossing. Davis I, at 6.
This Court reasoned that in order for the Board to base its decision on the public health,
safety and welfare, the Board would need to have before it competent substantial
evidence that Knights Krossing Phase IV would aggravate the pre-existing condition.
Davis I, at 8. Because there was not substantial competent evidence that the Development
Plan would have any significant impact upon the current condition, the circuit court
issued the writs. Id.
On September 5, 2000, Orange County challenged this Court's decision in Davis I by
filing a Petition for Writ of Certiorari with the Fifth District Court of Appeal. The Fifth
District concluded that the circuit court applied the correct law in deciding there was not
competent substantial evidence to support the Board's denial of the Phase IV
Development Plan. Davis II, 780 So. 2d at 996. The Fifth District also concluded that this
Court used the correct standard of review in finding that there was no evidence of an
emergency situation or substantial harm to the public health in relation to the proposed
The Fifth District held that this Court misapplied the law in issuing the writ of
mandamus, however, because certiorari, not mandamus, was the proper remedy. Id.
Therefore, the writ of mandamus was quashed, and in all other respects the County's
petition was denied. Id.
Following the decision in Davis II, on June 5, 2001, the Board held a second hearing on
Dorian's appeal of the DRC's approval of the Development Plan.
At the 2001 hearing, the Director of Public Safety stated that there has never been what
the Orange County Sheriff's Office would consider a significant crime problem, but there
certainly is significant police activity. Captain Weathersby of the Orange County
Sheriff's Office presented figures from 1999-2000, which demonstrate that the only
significant category of major crime where there was an increase was residential
burglaries. The other categories of homicide, robbery, sexual battery, lewd acts, auto
theft, and auto burglary actually decreased.
Captain Weathersby concluded that as far as significant crime categories, the numbers do
not bear out the fact that there is a severe crime problem at Knights Krossing. As far as
nuisance-type calls, loud parties, disorderly intoxication, and open containers, there is a
significant number of calls.
Calls for police service in 1998, 1999, and 2000, increased from 705 to 1651 to 2158,
respectively. In 2000, of those 2158 calls, 652 calls for service were actually for towing
vehicles. Another 315 of those 2158 calls were for residential alarms in the apartments,
which a deputy handles.
The correlation between the number of apartments at Knights Krossing and the number
of service calls is .97, or 97%. This means that there is a strong statistical relationship
between the number of apartments at Knights Krossing and the number of calls for
service. There is also a correlation between density and the number of calls for service.
The level of calls goes up dramatically in correlation to the density of the development.
Also at the 2001 hearing, the Board decided that separately leased bedrooms each
constitute distinct multifamily dwelling units even if those bedrooms are attached to a
single kitchen. Consequently, this new method of counting multifamily dwelling units
leaves Petitioner with no units to develop, because the quota has been met.
On June 5, 2001, the Board entered a Final Order denying Petitioner's Development Plan.
The Final Order listed the following three reasons for denying approval of the
1. That the County's determination of a unit should be based on the number of leased
bedrooms rather than the number of kitchens, and therefore, that the number of existing
units within the PD have exceeded the overall number of units approved for the PD, the
approval of additional units is incompatible and inconsistent with the PD and the land use
2. The appellant has presented substantial competent evidence that the levels of crime and
nuisance in the existing PD are excessive, thereby creating a public health and safety
issue. Additionally, the volume of calls for service create [sic] a demand on the sheriff's
office that decreases the efficiency and availability of those resources to the public at
3. The appellant has presented overwhelming evidence that approval of the proposed
project would negatively impact the quality of life for area residents because of the nature
of activity within the project and its density.
(Am. App. P.) There is no indication that the Board considered only one of the above
reasons sufficient to deny approval of the Development Plan. Instead, the final order
indicates that the Board relied upon all three of the reasons to support its decision.
On July 5, 2001, Petitioner filed a Second Petition for Writ of Certiorari and Writ of
Mandamus. The Court granted the neighboring residents permission to intervene, and
their response to the Second Petition is also before the Court.
Petition for Writ of Certiorari
In reviewing a quasi-judicial decision of an administrative board, this Court's certiorari
review is limited to the following determinations: 1) whether the board accorded
Petitioner procedural due process; 2) whether the board complied with the essential
requirements of law; and 3) whether there was competent substantial evidence to support
the board's decision. See Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995);
DeGroot v. Sheffield, 95 So. 2d 912 (Fla. 1957).
At the second hearing before the Board regarding approval of the Development Plan, the
Board decided, for the first time, to count multifamily dwelling units in a Planned
Development based upon the number of leased bedrooms. In the past, the Board counted
the number of kitchens to determine the number of multifamily dwelling units. Using the
new formula, the Board concluded (by recounting all units previously approved and
constructed) that The Quadrangle had already exceeded its quota of multifamily dwelling
Petitioner asserts that it did not receive procedural due process, that the essential
requirements of law were not observed, and that the findings of the Board are not
supported by competent substantial evidence, due to the Board's use of this new method
of calculating multifamily dwelling units. In addition, Petitioner argues that the law of the
case doctrine precluded Respondent from changing the way it determines the number of
multifamily dwelling units when the Development Plan came up for approval before the
Board for the second time.
In response, Respondent states that the Board is the final arbiter in determining the
meaning of a term used in the Orange County Code. In addition, Respondent argues that
the issue of changing the methodology of counting multifamily dwelling units was raised
at the 1999 hearing, and at that hearing the County Chairman stated that he would review
the issue, so Petitioner could not have been surprised by the issue being raised again at
the 2001 hearing.
The law of the case doctrine “requires that questions of law actually decided on appeal
must govern the case in the same court and the trial court, through all subsequent stages
of the proceedings.” Florida Dep't of Transp. v. Juliano, 801 So. 2d 101, 102 (Fla. 2001).
The doctrine does apply in certiorari proceedings. Parker Family Trust I v. City of
Jacksonville, 804 So. 2d 493, 498 (Fla. 1st DCA 2001). It applies when “successive
appeals are taken in the same case.” Id. Thus, the Board was required to follow the
rulings in Davis I and Davis II unless the facts or issues changed. Parker Family Trust I,
804 So. 2d at 498.
In Davis I, this Court concluded that the Development Plan met all requirements for
approval. Davis I, at 6. The Court also noted that the parties appeared to agree that
Petitioner was otherwise entitled to build the apartments. Id. Due to the fact that the
Development Plan did not change, under the law of the case doctrine the Board was
required to follow this ruling when the Development Plan came before them again. The
Board could not ignore this determination by using a new and different method to count
the number of multifamily dwelling units. In addition, Orange County has been using the
number of kitchens to calculate the number of multifamily dwelling units, including
student housing projects, for years. Thus, the Board's adoption of a new method to count
multifamily dwelling units at the 2001 hearing resulted in a denial of due process to
Petitioner and a failure to follow the essential requirements of the law.
Petitioner also argues that the reasons for denying approval of the Development Plan
were not supported by substantial competent evidence.
The second basis for denying approval of the Development Plan was that Dorian
presented substantial competent evidence that the levels of crime and nuisance in the
existing PD are excessive, thereby creating a public health and safety issue. Additionally,
the volume of calls for service create [sic] a demand on the sheriff's office that decreases
the efficiency and availability of those resources to the public at large.
(Am. App. P.)
In Davis I, this Court stated, “In order to base its decision on an impact on the public
health the Board would need to have before it evidence that the proposed project would
aggravate the pre-existing condition.” Davis I, at 8. Since the Board based its decision to
deny approval of the Development Plan based on the impact on public health, as set forth
in the second reason listed in the final order, the Board needed substantial competent
evidence that the Development Plan would aggravate the pre-existing condition.
At the hearing, Dorian presented the testimony of Stanley Gerberer, who has been a
professional analyst of statistics for twenty years. Gerberer reviewed the number of calls
for police service1 from Knights Krossing during the years 1996 through 2000. Gerberer
stated the following:
The correlation between the number of apartments at Knights Krossing and the number
of crime reports is .97. Ninety-seven percent. This means that there's a very strong
statistical relationship between the number of apartments at Knights Krossing and the
number of crimes. The data demonstrates that if the commission were to approve
additional units it would also be approving an increase in the number of crimes that will
(Am. App. A at 71-72.)
This evidence constitutes substantial competent evidence that the Development Plan will
aggravate the pre-existing condition of the large number of calls for police service to The
Quadrangle. Therefore, at the June 2001 public hearing, unlike the March 1999 Hearing,
the Board had before it competent substantial evidence showing that the “Knights
Krossing Operational Plan” adopted shortly before the March 1999 public hearing that
was hoped would cure the existing crime problems had not succeeded and that approving
the development plan for Knights Krossing Phase IV would “aggravate the current
problems faced by the Knights Krossing.” Davis I. Thus,the Board did have substantial
competent evidence to support denying approval of the Development Plan based on the
second reason stated in the final order.
The third reason stated in the final order for denying approval of the Development Plan is
that Dorian “presented overwhelming evidence that approval of the proposed project
would negatively impact the quality of life for area residents because of the nature of
activity within the project and its density.” (Am. App. P.) At the 2001 hearing, several
area residents testified as to the diminishment of their quality of life due to the residents
of Knights Krossing.
In Zaragoza, Inc. v. Orange County, No. CI0-00-3439 (Fla. 9th Cir. Ct. Oct. 29, 2001),
this Court held that lay testimony may constitute competent substantial evidence
regarding how a land use proposal would negatively impact an area, citing to
Metropolitan Dade County v. Blumenthal, 675 So. 2d 598 (Fla. 3d DCA 1995). In
addition, factual evidence presented by citizens should be considered by the Board.
Pollard v. Palm Beach County, 560 So. 2d 1358, 1358 (Fla. 4th DCA 1990). But, lay-
person opinion testimony, unsubstantiated by any competent facts, should not be
considered competent substantial evidence. Id.
At the hearing, the residents of surrounding neighborhoods testified regarding their
quality of life. This testimony contained factual statements. For example, Dana Jones, the
president of a nearby homeowners' association, testified that calls for police service have
gone unanswered and that traffic on the nearby roads has increased and become
hazardous. Jones also stated that the perimeter brick wall to her neighborhood has been
knocked down repeatedly since Knights Krossing was built and inhabited. Beth Beatty
testified that she has no buffer between her home and Knights Krossing. She hears the
parties and screeching tires from Knights Krossing. This testimony constitutes competent
substantial evidence that area residents' quality of life would be negatively impacted by
approval of the Development Plan, which would add more students to the area.
As demonstrated above, competent substantial evidence does support the Board's second
and third reasons for denying approval of the Development Plan. Therefore, the Court
rejects this argument for granting the petition for writ of certiorari.
Petitioner's final argument is that the Board applied the incorrect law when it used a
standard of public harm that was substantially below the criteria contemplated by Florida
law. Petitioner states that under Metropolitan Dade County v. Rossell Construction
Corp., 297 So. 2d 46 (Fla. 3d DCA 1974) and Texas Co. v. Town of Miami Springs, 44
So. 2d 808 (Fla. 1950), public harm should only be used as a basis to deny a vested right
in the most unusual and rare circumstances and that at a minimum, competent substantial
evidence must be produced to illustrate that the perceived peril is new, imminent, and
substantial. In addition, Petitioner asserts that there must be a causal connection between
the issuance of the permit and the perceived harm.
Contrary to Petitioner's argument, however, this Court held in Davis I that if the County
denies approval of the Development Plan because of the impact on the public health, then
the County needs competent substantial evidence that the Development Plan will
aggravate the pre-existing condition. Davis I, at 8. The Court did not find that there must
be competent substantial evidence that the Development Plan would constitute a new,
imminent and substantial peril. The documents before the Court demonstrate that the
County did not apply an incorrect standard for a finding of public harm, and therefore the
Court rejects Petitioner's argument.
Although Respondent prevails on the second and third issues raised in the Second
Petition for Writ of Certiorari, the Board did violate Petitioner's due process rights and
depart from the essential requirements of the law when it changed the way it determines
the number of multifamily dwelling units after this Court previously determined that the
Development Plan met all requirements for approval. Therefore, the Court must grant the
petition for writ of certiorari.
Petition for Writ of Mandamus
Petitioner asks the Court to issue a writ of mandamus directing the Board to approve the
Development Plan. The Fifth District specifically held in Davis II that this Court may not
direct the Board to approve Petitioner's Development Plan. Davis II, 780 So. 2d at 996.
The Fifth District clearly stated:
The circuit court misapplied the law, however, in issuing the writ of mandamus.
Certiorari, not mandamus, was the proper remedy in the instant case, since the Board's
quasi-judicial proceeding was being reviewed. See Park of Commerce Assoc. v. City of
Delray Beach, 636 So. 2d 12 (Fla. 1994); Bd. of County Comm'rs v. Snyder, 627 So. 2d
469 (Fla. 1993). Mandamus is generally not available to control the discretionary
authority of a governmental board. Garvin v. Baker, 59 So. 2d 360 (Fla. 1952).
Moreover, mandamus is not available if there is another adequate remedy. See Dep't of
Health & Rehabilitative Servs. v. Hartsfield, 399 So. 2d 1019 (Fla. 1st DCA 1981). In the
instant case, certiorari provided an adequate remedy. When a decision is quashed by
certiorari, the court should not direct that any specific action be taken. See Seminole
County Bd. of County Comm'rs v. Eden Park Vill., Inc., 699 So. 2d 334 (Fla. 5th DCA
1997). Therefore, the circuit court erred when it directed the Board to approve the final
Thus, the Court is bound by the law of the case doctrine and Florida law to deny the
request for a writ of mandamus.
Due to the fact that the Board violated Petitioner's due process rights and failed to follow
the essential requirements of the law by using a new method to determine the number of
multifamily dwelling units, this Court grants the petition for writ of certiorari. The
request for a petition for writ of mandamus is denied, however, because the Fifth District
has already held that in this case, such relief is not available.
Accordingly, it is hereby ORDERED and ADJUDGED that:
1. Stefan Davis and Davis and Sons Construction Company's Petition for Writ of
Certiorari is GRANTED.
2. The Orange County Board of County Commissioner's order denying approval of
Petitioner Stefan Davis' Development Plan, filed with the Board's deputy clerk on June
13, 2001, is QUASHED.
3. Stefan Davis and Davis and Sons Construction Company's Petition for Writ of
Mandamus is DENIED.
Calls for police service do not necessarily indicate the crime rate, as a call for police
service may not reflect the commission of an actual crime or an arrest for criminal