STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FINAL ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by Zoom teleconference at sites in Tallahassee and Marathon, Florida, on November 2 through 6, 2020.

APPEARANCES

For Petitioner: Irain J. Gonzalez, Esquire

Daniel C. Fors, Esquire Hinshaw & Culbertson, LLP

2525 Ponce de Leon Boulevard, 4th Floor Coral Gables, Florida 33134-6044

For Respondent: Peter H. Morris, Esquire

Monroe County Attorney’s Office

1111 12th Street, Suite 408 Key West, Florida 33040

For Intervenors: Robert W. Wilkins, Esquire

Jones Foster, P.A.

Flagler Center Tower, Suite 1100 505 South Flagler Drive

West Palm Beach, Florida 32401-5950

Andrew M. Tobin, Esquire Andrew M. Tobin, P.A. Post Office Box 620

Tavernier, Florida 33070-0620

STATEMENT OF THE ISSUES

Reduced to its essence, the question presented in these consolidated appeals is whether the Building Official, who also serves as the County’s Floodplain Administrator, followed applicable law in deciding to issue building/floodplain development permits to Intervenors, which permits authorize the construction of a nonconforming single-family residence in an area of special flood hazard, based on the official’s determination that Intervenors had acquired vested rights pursuant to an old, but unexpired, building permit approving a different, albeit superficially similar, design.

PRELIMINARY STATEMENT

On June 16, 2017, Petitioner Dalk Land, LP, filed an appeal with Respondent Monroe County pursuant to Monroe County Land Development Code section 122-9, contesting the Building Official’s decision to approve Intervenors’ application for a revision of Building Permit 09100217, which caused the issuance of a revised building permit authorizing the construction, at 16780 Old State Road 4A, Monroe County, Florida, of a single-family residence, swimming pool, and spa deck, as described in a set of plans known as Revision C. Petitioner alleged that the proposed pool and deck were not compliant with either Respondent’s floodplain management regulations; the federal requirements and technical guidance incorporated therein; or the 2014 Florida Building Code.

On June 20, 2017, Respondent referred Petitioner’s administrative appeal to the Division of Administrative Hearings (“DOAH”), requesting that an administrative law judge be assigned to hear the matter. This appeal was docketed as DOAH Case

No. 17-3578 and assigned to Judge Donald R. Alexander.

On November 9, 2017, Petitioner amended its appeal to include allegations that the single-family residence proposed in Revision C also failed to comply with the applicable codes. Meanwhile, Intervenors submitted to Respondent’s Building Department their application for approval of a Revision D to the subject building permit, which, although substantially similar to Revision C, proposed to modify (primarily) the pool deck and patio. On January 17, 2018, Respondent issued a revised permit authorizing the work described in Revision D. Consequently, Petitioner again amended its appeal, combining all issues arising from both Revision C and Revision D. Petitioner’s Second Amended Appeal was filed on March 2, 2018, and this is the operative pleading in DOAH Case No. 17-3578.

On April 8, 2020, Petitioner separately appealed Respondent’s approvals of two elevation certificates associated with the single-family residence at issue in DOAH Case No. 17-3578. Respondent referred this appeal to DOAH on April 27, 2020, and DOAH Case No. 20-2039 was opened. On July 10, 2020, the undersigned, having been assigned to hear DOAH Case No. 17-3578 upon Judge Alexander’s retirement,

issued an Order consolidating the appeals. The operative pleading in DOAH Case No. 20-2039 is Petitioner’s Amended Administrative Appeal deemed filed on July 23, 2020, which alleges that Respondent’s approvals of the subject elevation certificates were improper because (i) these administrative actions violated the automatic stay provision of the Land Development Code, which prohibits all permit activity in

furtherance of administrative actions that are already the subject of a pending appeal; and (ii) the elevation certificates, in any event, are deficient and should have been rejected.

The undersigned scheduled the consolidated appeals for a five-day hearing commencing on November 2, 2020. The hearing took place on these days, and all parties were present throughout. Petitioner presented its case-in-chief first, calling eight witnesses, namely: Paul Lin; Mary Wingate; Neil Hedrick; Carl Schror; David Herron; John Carroll, PE, CGC; Brandon Mintz, PhD, PE; and Stephen Boehning, PE, CFM. Petitioner's Exhibits 1-3; 5-7; 9; 10; 12; 13; 15; 18; 20-23; 27-30; 32-37; 40; 42-45;

54; 63-65; 67-70; 75; 78-84; 86; 90; 92; 96-100; 104; 107-109; 112; 113; 119; 138;

and 166, were received in evidence in their entirety. Designated portions of

Petitioner’s Exhibits 117 (DALK 000667-679); 124 (DALK 000761-770); 168 (DALK

005028); 172 (DALK 005669-70; 005672-84); and 176 (DALK 006823-6824) were also

received in evidence. Petitioner’s Exhibits 148-153; 155; and 157-165 were officially recognized.

In its case, Intervenors presented Mr. Schror (who had testified previously), Douglas Harvey, Rick Griffin, John Pepper, and Pete Giampaoli. Intervenors' Exhibits 12; 13; 17; 19; 20; 22-26; 28; 38; 46; 47; 49; 51; 52; 65; and 69-71 were admitted.

Respondent, being closely aligned with Intervenors, did not put on a case or offer any evidence.

The final hearing transcript, filling 1,715 pages, was filed on December 11, 2020.

At Intervenors’ request, the undersigned enlarged the time for the submission of proposed orders, making them due on January 8, 2021. The parties’ proposed orders, which were timely filed, have been considered in the preparation of this Final Order.

Unless otherwise indicated, citations to the official statute law of the State of Florida refer to Florida Statutes 2020.

FINDINGS OF FACT

Introduction

1. For more than ten years, and at all times material to this proceeding, Intervenors Peter G. Giampaoli and Elizabeth C. Giampaoli, Individually and as Trustees of the Giampaoli Family Trust (collectively, “Giampaoli”), have been engaged in an ongoing effort to build a single-family residence (“SFR”) on their oceanfront parcel located at 16820 Old State Road 4A, Sugarloaf Key, Florida 33042 (the “Property”). The trust is largely under the control of trustee Peter Giampaoli, who will be referred to herein as “Mr. Giampaoli” when he, individually, as opposed to the collective litigant, is the relevant actor in the narrative.

2. Respondent Monroe County (the “County”), a political subdivision of the state, has regulatory jurisdiction over the development of the Property, which is situated within the County’s territorial boundaries.

3. Petitioner Dalk Land, LP. (“Dalk”), which is effectively controlled by its principal, Neil Hedrick (“Hedrick”), owns the parcel directly adjacent to the

   Property’s southwest border. Dalk opposes the development of the Property, at least as presently permitted, and has appealed the County’s administrative actions authorizing Giampaoli to proceed.

4. On April 9, 2010, the County issued a building permit, numbered 09100217, which authorized Giampaoli to construct an SFR (the “DAS House”) pursuant to construction documents prepared by an architectural firm called D’Asign Source. Permit 09100217 has been open and active at all times material hereto. In 2017 and early 2018, however, the County’s Building Official, Rick Griffin, approved revisions to Permit 09100217, which resulted in the substitution of new construction documents in place of the original construction documents. The relevant revisions are known, respectively, as Revision C and Revision D. The separate permits by which the Building Official approved the work described in Revision C and

   Revision D will sometimes be referred to collectively as the “Revised Permit.” The Revised Permit authorized the construction of an SFR (the “Schror House”) designed by Carl H. Schror, a Florida licensed professional engineer.

5. By retaining the same building permit number for the Revised Permit, the Building Official made clear that, as far as he is concerned, Permit 09100217 may remain open as a single, separately identifiable instrument, operating without interruption from April 9, 2010, until closed. In fact, however, the Revised Permit describes a different project from that approved in the “Original Permit” issued in 2010. The Schror House is similar in some respects to, but is, nevertheless, readily distinguishable from, the DAS House, which latter was never built. In contrast, as of the final hearing in this case, the Schror House had been substantially completed. The important point is that, while Permit 09100217 has been continuously in effect throughout the past decade, the Original Permit and the Revised Permit, respectively, are separate licenses substantively, traveling under the same number formally.

6. The significance of this point lies in the fact that, as might be expected, the laws governing construction in the County changed substantially between 2010 and 2017. The DAS House was designed to comply with the County’s LAND DEVELOPMENT CODE (“LDC”), including the flood management provisions (“FMP”) thereof, as it existed in 2010, as well as the 2007 FLORIDA BUILDING CODE (“FBC”), which was then in effect. The Original Permit authorized Giampaoli to build an SFR conforming to the 2010 FMP and the 2007 FBC. For simplicity’s sake, the 2010 FMP and the 2007 FBC will sometimes be referred to collectively as the “2010 Rules.”

7. Unlike the DAS House, the Schror House was designed—according to the construction documents approved by the County—to conform to FBC 2014 and the 2017 FMP (collectively, the “2017 Rules”). The trouble is, contrary to what is plainly stated on the face of the construction documents, and in the public records comprising the permit file, the Schror House was not, in fact, designed to meet all the requirements of the 2017 Rules, nor does it, as built. This startling fact is undisputed. See, e.g., INTERVENORS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (“IPFO”) at 26 (“That [Mr. Schor’s] plans [for Revisions C and D] are not

   fully compliant with the 2014 FBC [and the rules and regulations in effect when the

   revisions were approved] is not in dispute.”).

8. The issue at the heart of this appeal is whether the Building Official erred in approving the Revised Permit, based on his determination that the development authorized thereunder, i.e., the Schror House, did not need to conform to the

   2017 Rules, but rather needed only to comply with the 2010 Rules. If the Schror House were required, as a matter of law, to conform to the 2017 Rules, then the Building Official erred in issuing the Revised Permit because, as a matter of undisputed fact, the structure does not conform to the 2017 Rules. Because the

   Schror House’s noncompliance with the 2017 Rules is undisputed, moreover, it is not necessary, for purposes of this case, to make findings of fact as to how, specifically, the Schror House fails to meet the 2017 Rules. If the decision to approve the Revised Permit is reversed, it will be up to the County in the first instance to determine what must be done thereafter to bring the nonconforming structure now situated on the Property into compliance, including potentially demolishing the structure.

9. The parties have tended to frame the dispositive question of law as being whether the Revised Permit is governed by the 2010 Rules (Giampaoli’s position) or, alternatively, the 2017 Rules (Dalk’s position). More accurately stated, however, the question is whether the permitted work (construction of the Schror House) is governed by the laws in effect at the time the Building Official authorized the construction of this building, which would be the 2017 Rules; or, alternatively, by the laws in effect as of April 9, 2010, when the Original Permit for the DAS House was issued, which would be the 2010 Rules. Giampaoli and the County contend that the 2017 Rules cannot be applied retroactively to the Schror House, because the project, which is superficially similar to the DAS House, is entitled to be

   “grandfathered in” under the Original Permit. See, e.g., IPFO at 11. Dalk contends, in opposition, that the 2017 Rules govern the Schror House, because the DAS House was never built (making the outdated 2010 Rules irrelevant), and the 2017 Rules

   were in effect at the time the Building Official made the decision to authorize the proposed development.

10. Whether the application of the 2017 Rules to the Schror House would be “retroactive” depends on what the “controlling moment” is. If the issuance of the Original Permit were the “controlling moment” for purpose of determining the governing law vis-à-vis the Schror House, then applying the 2017 Rules to the

    Schror House would be a retroactive operation because the 2017 Rules did not exist in April 2010.

11. The question of “which law” applies—an earlier or a later enactment—is not a discretionary matter, but one of law, albeit one that might also involve disputed issues of material fact. In this case, however, the facts material to determining the governing law are not in dispute. Giampaoli and the County argue that the County’s Building Official had the “discretion” to decide that the 2010 Rules governed the Schror House. They convinced a predecessor judge in this case that the “determination as to which code applies is made by the Building Official.” See ORDER ON SCOPE OF FINAL HEARING, at 5.1 This might sometimes be somewhat so—but only where the question of “which law” applies turns on a provision of the County code (or the FBC) that the Building Official is charged with administering, and then only where the operative provision is ambiguous and in need of interpretation.2 In such circumstances, the Building Official’s interpretation of an outcome determinative, ambiguous code provision might be upheld if not clearly erroneous, under the principle of deference. In this instance, however, as will be seen, there are no ambiguous code provisions bearing on the question of whether

    
    

    1 The undersigned, to whom this appeal was transferred upon his predecessor’s retirement, disagreed with, and ultimately vacated, this interlocutory Order. See ORDER DENYING MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND VACATING ORDER ON SCOPE OF FINAL HEARING (Oct. 26, 2020).

    
    

    2 And even then, the Building Official’s interpretation of the law for purposes of implementing or enforcing the law is not a discretionary act, but a quasi-judicial act. The Building Official, after all, is not a lawmaker or a policy-maker. He does not enact law, he carries out law, and if he must interpret the law, his role then is to ascertain the legislative intent, not to impose his own will (which is the sine qua non of discretion).

    the 2010 Rules govern the Schror House. The Building Official’s opinion on this

    legal issue is, therefore, neither relevant nor entitled to deference.

12. This case presents another question regarding the applicability of the 2017 Rules, which is unrelated to any potential concern about retroactivity. As mentioned, the Building Official approved Mr. Schror’s construction documents

    when he issued the Revised Permit. These engineering plans, as approved, explicitly and unambiguously represent that all work on the Schror House will “strictly conform” to FBC 2014 and all “applicable” County codes, i.e., the ones currently in effect.3 Giampaoli and the County concede that the Building Official knew that the Schror House did not fully conform to the 2017 Rules when he approved the Revised Permit; they even assert that his approval was not a mistake but a “reasoned, conscious, and deliberative decision,” IPFO at 19, taken with full awareness that Mr. Schror’s certification of compliance with the 2017 Rules was materially false, id. at 21. In short, Giampaoli and the County contend that the Building Official authorized the construction of the Schror House with the understanding that the structure would be built to conform to the 2010 Rules; that he executed this decision by issuing the Revised Permit approving Mr. Schror’s construction documents, which unambiguously certify that all work will be done in compliance with the

    2017 Rules; and that he issued this permit despite knowing that the proposed development actually did not meet many of the requirements of the 2017 Rules. Left unanswered is why the Building Official would issue a permit that he knew said one thing, if he had decided another.

13. The immediate question that these undisputed facts raise is whether a building permit that clearly authorizes (and hence requires) work to be done according to rules in effect at one point in time (here, 2017) is conclusive as to the governing law, or rather is merely some proof thereof. Giampaoli and the County argue that the subjective, mutual intention of the permit holder and the Building Official that the Schror House be constructed in accordance with a set of rules

    
    

    3 It is undisputed that Mr. Schror’s construction plans certified the project’s compliance with all laws

    in effect at the time Giampaoli applied for the Revised Permit. See infra at ¶ 34.

    different from the ones stated unambiguously in the building permit provides better evidence of the governing law than the plain language of the permit; indeed, they contend that their subjective intent that the 2010 Rules apply establishes that the 2010 Rules apply, at least where (as they argue is true here, but which is genuinely in dispute) the development could otherwise lawfully be built pursuant to the 2010 Rules.

14. But even if an unambiguous permit may be reformed to conform to the undisclosed subjective intentions of the applicant and the Building Official, which is effectively what Giampaoli and the County are asking the undersigned to do,4 the next question would be whether the undersigned has jurisdiction, in this appeal, to reform the building permit. This is because, unless the Revised Permit is a reformable instrument; and unless the undersigned has jurisdiction to reform the Revised Permit to conform to the undisclosed subjective intent of the Building Official, then the Revised Permit is not simply some evidence that the 2017 Rules apply. Rather, unless reformed, the permit must be followed and enforced, like any valid permit, according to its plain language, which requires that the Schror House be built in compliance with the 2017 Rules.

15. This is an appeal from the issuance of the Revised Permit, however, not an enforcement proceeding. The question here, if the permit must be followed and enforced as written, would be whether it was error for the Building Official to approve the Revised Permit with knowledge that the “real” conditions thereof were not expressed therein, and were, in fact, in conflict therewith.

    Findings

16. On January 15, 2009, Giampaoli applied for a building permit to construct an SFR on its Property. The Original Permit, numbered 09100217, was issued on April 9, 2010, and authorized the construction of the DAS House, identified above.

    
    

    4 To be clear, neither Giampaoli nor the County has used the term “reformation” in describing the relief sought. What they seem to want is for the undersigned simply to overlook the plain language of the Revised Permit, in favor of their subjective intention. Doing so, however, would be tantamount to a reformation of the instrument.

17. Ordinarily, work under a building permit must commence within six months after its issuance, or else the permit becomes null and void. See MONROE CTY. CODE (“MCC”) § 6-103(b). State legislation enacted in 2010, however, resulted in a two- year extension of Giampaoli’s Original Permit. See Ch. 2010-147, § 46(1), at 89, Laws of Fla. The County determined that this enactment extended the Original Permit to October 9, 2012. Giampaoli took advantage of this extension and performed no work authorized by the Original Permit during this period.5

18. In 2011, the legislature passed another two-year extension (not to exceed four years in total, when added to previous extensions) for certain building permits, a class which included the Original Permit. See Ch. 2011-139, § 79(1), at 189, Laws of Fla. Giampaoli took advantage of this extension as well, which pushed back the expiration date of the Original Permit to October 9, 2014, as calculated by the County.

19. Both pieces of legislation just mentioned, which enacted statewide permit extensions, contained an identical provision regarding the law governing affected permits:

    Permits extended under this section shall continue to be governed by the rules in effect at the time the permit was issued … .[6] This provision applies to any modification of the plans, terms, and conditions of the permit which lessens the environmental impact, except that any such modification does not extend the time limit beyond 2 additional years.

    
    

    Ch. 2011-139, § 79(5), at 190, Laws of Fla.; ch. 2010-147, § 46(5), at 90, Laws of Fla. None of the parties ever took the position, either during this proceeding or contemporaneously with the administrative actions under review, that the foregoing provision applied to the Original Permit, or that it applies to the Revised Permit.

    
    

    5 It is not clear whether Giampaoli gave written notice to the County of its intent to use this extension, as required under section 46(3), Laws of Florida, but, because Dalk has not challenged this two-year extension, or the one which followed, the question is irrelevant.

    
    

    6 There is an exception to this provision, but it probably would not have applied to the Original Permit and, in any event, need not be addressed.

20. To meet the legislatively extended deadline, Giampaoli needed to commence “work” authorized by the Original Permit no later than October 9, 2014. The installation of a temporary electrical pole, which was inspected on or about

    October 7, 2014, sufficed to meet this deadline and keep the permit open and active beyond October 9.

21. The plans for the DAS House called for a substantial amount of fill to be placed on the Property—more than 3,000 cubic yards. In or around September of 2014, one of Giampaoli’s contractors began hauling fill onto the site, a large operation which required hundreds of truck loads. The fill was a flash point for Dalk’s principal, Hedrick, who lives next-door to the Property. Hedrick objected

    initially, among other things, to the mess coming onto his property from dust, mud, and vehicular traffic. He later became concerned that the fill might be contaminated with dangerous chemicals. Testing of the soil confirmed Hedrick’s suspicion, as he advised Giampaoli in March of 2015. Eventually, Giampaoli would remove the fill, which was indeed polluted, after Dalk brought a lawsuit in circuit court citing this and other issues. The details of the civil litigation are not relevant here. The controversy over the fill, however, was a factor which contributed to Giampaoli’s dissatisfaction with the DAS House design and with the architect responsible for it, D’Asign Source, which, in turn, led Giampaoli to consider alternatives to both.

22. In or around June of 2015, more than five years after the Original Permit had been issued, Giampaoli met Mr. Schror, the engineer, and asked him to review the plans for the DAS House, on which construction had yet to begin. In Mr. Schror’s opinion, the DAS House had been “over designed” and thus would be more expensive to build than a comparable structure, which he could design using what he called “value engineering” to keep costs down. Over the next several months, as Giampaoli’s relationship with D’Asign Source soured, Mr. Schror stepped up his involvement in the project. In or around September, Giampaoli and

    D’Asign Source parted ways. On October 8, 2015, Giampaoli asked Mr. Schror about

    getting started on a “4368sf house/pool/decks plan.”

23. Mr. Schror immediately began working in earnest on the plans for an SFR, i.e., the Schror House, to be built instead of the DAS House. From the outset, Giampaoli had concerns about the possibility that a new building permit might be required, and—from the beginning—Mr. Schror assured Giampaoli that they “would be modifying the existing permit by submitting [the new plans] as a revision,” which could be approved in “about 30 days.” It is worth pausing to note that, as will be discussed further below, there is nothing special, from a legal standpoint, about a permit “revision.” The holder of an existing building permit who wishes to “revise” the permit must apply for issuance of a “revised permit” and receive the Building Official’s approval before proceeding with work under the “revised permit.” The question of whether the Building Official, in deciding to approve or reject a proposed permit revision, must apply the law in effect at the time this decision is made, i.e., the current law, as opposed to applying the law in

    effect at the time the prior decision (to approve the existing permit) was made, if the law has changed in the interim, is not determined simply by labeling the new permit a “revision.”

24. Mr. Schror, however, seemed to have no doubt that the Original Permit entitled Giampaoli to build a “revised” version of the DAS House, which need not meet current codes. In an email to Giampaoli dated December 16, 2015, for example, written more than one year before Revision C was submitted to the County, Mr. Schror explained that, under current codes (as amended since 2010), elevated pools, such as the one approved in the Original Permit, were no longer allowed. But, he said, by characterizing Revision C as a “revision to the original plan,” the Schror House “would be ‘grandfathered’ in with the elevated pool and the fill” and thus be exempt from the current, more stringent code provisions. The logical flaw in Mr. Schror’s reasoning was that he begged the question, by assuming (without support) that permit “revisions” are automatically “grandfathered.” At no

    time in this proceeding has any party cited any law to the undersigned which supports the proposition that permit “revisions” are automatically “grandfathered.”7

25. As part of the same email thread, Mr. Schror stated that “[y]our new plans [meaning the plans Mr. Schror was then drafting] meet the regulations and codes of the old plans [meaning the 2010 Rules].” He then listed the following examples of design changes that would need to be made if the new plans “went by ‘new code’”:

    You would have your pool on the ground.

    You would have no infinity edge [on the pool].

    You would have only 3 feet of fill max (even this might not be approved).

    You would have your paver brick deck in the back on the ground.

    You would have your porte cochere on the ground. You would have no landscaping walls.

    All your porches would have railings.

    Your house would be on columns with no walls below except the 295 sq.ft. enclosure.

    You would be able to see from the front yard to the back yard through the house.

    
    

    Mr. Giampaoli did not want to build his house to meet the more restrictive FMP. He told Mr. Schror: “Hope we do not come under the new code. Really different house and setting. … Total FEMA ever [sic] kill or are there really solid reasons behind

    such regs?”

26. As it happened, at about this same time, on September 16, 2015, the Board of County Commissioners (“BOCC”) passed a series of resolutions, which—by adopting specifically referenced FEMA8 guidance documents and technical bulletins, and

    
    

    7 It bears keeping in mind that a “grandfathered” structure is, by definition, a nonconformity; a “grandfathered” use or structure is one which, having been in existence prior to the enactment of current legal requirements, is allowed to continue in existence despite not meeting such requirements. “Grandfathered” structures are not favored; they are tolerated as lawful,

    nonconforming uses. The LDC specifically addresses nonconformities in chapter 102, article III. As expressed therein, the County’s stated goal is to “bring about [the] eventual elimination” of nonconforming uses and structures. See LDC § 102-54.

    
    

    8 “FEMA” is the acronym by which the Federal Emergency Management Agency is commonly known. FEMA is responsible for coordinating the U.S. government’s responses to natural disasters such as hurricanes and major floods. FEMA develops the flood zone maps that are used in administering the

    other standards relating to floodplain management, including FBC 2014 and construction requirements established by the American Society of Civil Engineers (“ASCE”)9—effectively bolstered the County’s FMP, because the Building Official would be required, henceforth, to follow these incorporated materials.

27. In 2016, Giampaoli’s first attempt to obtain a revised permit failed, and the project got bogged down in a back-and-forth with the County over whether the newly designed SFR, or any portion thereof, would come within the “VE 15” flood zone. Mr. Schror continued to revise and refine the plans in an attempt to overcome concerns raised by the Building Official. The details are not relevant. The upshot is that the application for approval of Revision C was not submitted in 2016, nor was construction on the Schror House commenced that year.

28. What did happen in 2016 of significance to this appeal was the amendment, by the BOCC, of LDC chapter 122. The current version of the FMP took effect on April 13, 2016—nearly a year before Giampaoli sought a permit for Revision C—and thus is part of the 2017 Rules.

29. In January 2017, Mr. Giampaoli and his attorneys met with the Building Official and other County staff to discuss the SFR that Mr. Schror had designed, which Giampaoli hoped the County would approve as Revision C to the Original Permit. At this point, Giampaoli had not yet filed an application for approval of Revision C. Mr. Griffin, the Building Official, rejected the new set of plans at this juncture, because they represented a complete change from the DAS House.

    Mr. Griffin informed Mr. Giampaoli that the only structure he could build under the Original Permit would be the DAS House, as previously permitted. The Building Official did request, however, that Mr. Schror submit a letter describing the scope of the proposed revisions, thereby leaving the door open.

    
    

    National Flood Insurance Program. FEMA’s regulations are hugely influential in shaping local

    floodplain management decisions, especially in high-risk coastal areas.

    
    

    9 To repeat, it is not necessary to examine the details of these provisions, although the parties (especially Dalk) have done so in their respective cases. This is because there is no dispute that the Schror House does not meet, and was not designed to meet, many of these requirements.

30. Mr. Schror and Mr. Giampaoli drafted a letter dated February 20, 2017, which was delivered to Mr. Griffin around that time. The letter provides an overview of Revision C, and its contents, reproduced in full below, are informative:

    The entire house with the porte cochere, driveway, porches and pool deck have [sic] been redesigned to meet FEMA’s requirement for “free-of-obstruction” requirements and all retaining walls and fill have been removed from the support of these structures. The infinity edge pool is exempt from FEMA’s regulations. The elevated infinity edge pool and jacuzzi are approximately the same size, location and elevation as the original approved set of permitted plans.

    
    

    The pool deck on the original set of approved plans had a retaining wall and fill under the deck. The retaining wall and fill has [sic] been completely removed. A new foundation has been designed with beams and columns supporting the concrete deck. Because of the massive amount of Engineering changes to free-support this deck, there were some Architectural changes to simplify this area. The changes will allow flood waters to flow directly under the deck without being impeded by the original approved retaining walls and will also allow the removal of approximately 2,000 yards of fill.

    
    

    The front porte corchere and connected walkway is the approximate size, location and elevation as the original set of plans. The retaining walls and fill have been completely removed. The porte corchere and the driveway have a new self-supported foundation with columns, beams and slabs. The flood waters will flow directly under this area without being impeded by retaining walls and approximately 1,000 yards of fill.

    
    

    The foundation and supporting structures for the main house have been redesigned to improve the structural safety and integrity of the dwelling. There are minor alterations to the floor plan of the home for structural simplicity. The home in general is the same size and elevation as the original approved plans.

    As this letter makes clear, the Schror House was a new creation, the result of

    Mr. Schror’s “redesign[ing]” the “entire” DAS House. While the differences between the “floor plan” of the Schror House and “floor plan” of the DAS House might have been “minor,” the Schror House would be built upon a completely different foundation, which required a “massive amount” of engineering changes. Regardless of whether it is reasonable to refer to the Schror House as a “revision” of the DAS House, which is ultimately a matter of semantics, the Schror House is, in fact, a very different structure, as, again, the foregoing letter shows.

31. On February 28, 2017, Mr. Giampaoli, as an “owner builder,” submitted a Building–Floodplain–Development Permit Application (“BFD Application”) seeking approval of Revision C. As part of the application, Mr. Giampaoli executed an affidavit attesting, among other things, that “all of the foregoing information is accurate and that all work will be done in compliance with all applicable laws regarding construction and zoning.” The “foregoing information” included a required description of the scope of work, wherein Mr. Giampaoli had written, in longhand, “Revised plans to meet current FBC 2014.” This statement is neither vague, nor poorly worded,10 but a clear and unambiguous declaration that Mr. Schror had “revised [the] plans,” meaning, obviously, the original, DAS House design, to ensure that the new plans (i.e., for the Schror House) would meet the then current FBC 2014—not the version which had been in effect in 2010, when the Original Permit was issued. It was an intentionally deceptive, false statement, as Mr. Giampaoli knew. Not only had the plans for the Schror House—by deliberate choice—not been revised to meet the requirements of FBC 2014, but Mr. Giampaoli, in fact, had no intention of complying with FBC 2014 if he could help it.11

    
    

    10 At hearing, Mr. Giampaoli testified that he could have “said” this “better.” The problem, however,

    isn’t that what he said wasn’t truly clear; the problem is that what he said wasn’t clearly true.

    11 Mr. Giampaoli has been forthright about his intentions in this regard. As he testified by affidavit: My intent was clearly expressed throughout this entire time, and

    Mr. Griffin acknowledged his understanding, that I did not want to

    make any changes that they [the Building Department] would consider

32. Asked at hearing about his patently false statement of the revised plan’s compliance with FBC 2014, Mr. Giampaoli’s explanation was that Mr. Schror had told him to write this. Interestingly, when pressed, Mr. Giampaoli did not deny that the statement had been made for the purpose of preserving the parcel’s existing ROGO12 allocation but, rather, professed not to know one way or the other if this

    
    

    to be substantial enough to require an upgrade to the 2014 Florida Building Code. I was clear at all times that I only intended to have my permit controlled by the 2007 Florida Building Code and the rules and regulations that were in existence in April 2010 when the [Original] Permit was issued.

    
    

    See AFF. OF PETER G. GIAMPAOLI (hereafter “PGG AFF”) ¶34 (Filed 10/8/2020, as Exhibit “1” to INTERVENORS’ RESPONSE IN OPPOSITION TO DALK’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING POOL STRUCTURE’S FAILURE TO MEET FLOODPLAIN DESIGN AND CONSTRUCTION

    REQUIREMENTS) (emphasis added). See also, id. at ¶3 (“Any revisions … to comply with the 2014 Florida Building Code and ASCE 24 would [have] eliminate[d] by [sic] ability to have an elevated pool and[, therefore,] were completely unacceptable to me.”).

    
    

    12 “ROGO” is shorthand for the County’s Rate of Growth Ordinance, which is found in LDC chapter 138 and places restrictions on the number of building permits that can be issued in a given year. Without getting into unnecessary details, a building permit applicant generally must also

    apply to the County’s Planning and Environmental Resources Department (“Planning Department”) for a ROGO “allocation,” and this can be a time-consuming process. At hearing, Mr. Griffin testified that subsequent modifications to previously permitted construction plans can result in the loss of a ROGO allocation, requiring the owner to start over in the ROGO process, and that, because of this, he felt constrained to apply the 2010 Rules to the Schror House. Yet, on paper, Revision C purports to reflect revisions made to conform to FBC 2014; clearly, these changes would constitute a modification of the permitted DAS House plans, which if approved might cost Giampaoli the parcel’s ROGO award. What was going on here? The answer might be found in LDC section 138-25(k), which mandates that construction plans be modified to the extent (but no more than) necessary to comply with a newer version of the FBC, if the code is amended between the time a ROGO application is submitted and the time a building permit is issued with respect to such plans. Failure to timely submit such plan revisions results in the forfeiture of any ROGO allocation award. In this case, the FBC was amended, post-allocation, prior to issuance of the Revised Permit, and thus, at least arguably (if not certainly), section 138-25(k) required that the revised plans for the Schror House meet FBC 2014. In sum, then, Giampaoli wanted to make modifications to the permitted plans that were neither necessary to bring the project into compliance with FBC 2014, nor sufficient to meet that version of the code, which threatened the prior ROGO award; and, at the same time, Giampaoli intended not to make all the plan modifications that would be necessary to bring the Schror House into compliance with FBC 2014, even though such compliance was arguably (perhaps likely) a condition of keeping the ROGO allocation. Thus, Mr. Giamapoli’s false statement that the plans had been revised to meet FBC 2014 looks suspiciously like an effort to square the circle by creating the appearance of following section 138-25(k), in hopes of preserving a ROGO allocation that might have been in jeopardy from nonconforming plan revisions.

    had been the reason, which is implausible.13 The undersigned infers that a desire to protect the Property’s ROGO award was at least one reason for his and Mr. Schror’s false statements about complying with FBC 2014. Whatever the motivation, however, it is clear that Mr. Schror and Mr. Giampaoli intentionally concealed the fact that the Schror House did not comply with the 2017 Rules, a deception which is inconsistent with the notion that Giampaoli had the right, as Giampaoli and the County have insisted throughout this proceeding, to “grandfather in” the newly designed structure via the County’s permitting of nonconforming plan revisions.

    Why hide the fact that the Schror House was designed to conform to the outdated 2010 Rules, if doing so was perfectly legal and aboveboard?14

33. The plans for the Schror House, which were submitted with the application for a building permit authorizing Revision C, corroborate and amplify

    Mr. Giampaoli’s false statement that the proposed work would conform to FBC

    
    

    13 Mr. Giampaoli is in the home-building business himself, as a contractor in California. Throughout these proceedings, he has demonstrated a sophisticated understanding of the LDC, the FBC, and the County’s permitting process. The undersigned does not believe that Mr. Giampaoli was clueless about the significance of his statement that the proposed work complied with FBC 2014. More likely than not, he knew exactly what he and Mr. Schror were doing, and why they were doing it.

    
    

    14 Mr. Giampaoli testified that he thought “everybody knew” the Schror House did not totally comply with FBC 2014. There is no evidence, however, that the Planning Department, for one, which makes ROGO allocations among other important decisions affecting development, knew that Revision C did not conform to FBC 2014. To the contrary, the permit record contains a note dated March 6, 2017, which states, “Planning approval for Revision C to revise plans to meet current FBC 2014 Code … .” This note continues:

    
    

    Such approval is based upon the information, representation(s), and document(s) provided by the applicant(s). If, at some later date, the County determines that such information, representation(s), and/or document(s) contain(ed) false or misleading information material to the County’s consideration and assent to issuance of such permit, the County reserves the right, in its discretion, to revoke such consideration and assent and to rescind this permit … .

    
    

    Approval of this permit does not deem all development as conforming or deem unlawful development as lawful. The Planning and Environmental Resources Department reserves the right to require that such development be brought into compliance through the proper approval process or [be] terminated upon future discovery.

    
    

    (Original text in all caps). The Planning Department appears to have assented to Revision C based upon the false representation that the proposed Schror House met FBC 2014.

    2014. In these construction documents, which Mr. Schror signed and sealed as the project engineer, Mr. Schror stated unambiguously that “all work shall strictly conform to the following building codes latest edition, and with all applicable laws, codes and ordinances of the city, county, state, utility companies and any other governing agencies,” including specifically, but not limited to, FBC 2014, and that the SFR was “designed with the FBC 2014 Building Code.”

34. To be clear, Mr. Schror certified, without qualifications or exceptions, that the newly designed Schror House would meet all current code provisions, including the County’s FMP. This material fact is undisputed. Mr. Giampaoli testified by affidavit that “[t]he plans submitted with Revisions C and D certify that the applications for the permit revisions were designed to conform to the 2014 Florida Building Code and then applicable laws, codes and ordinances in effect on the date of the applications for the Revisions.” See AFF. OF PETER G. GIAMPAOLI ¶4 (Filed Oct. 7, 2020).

35. Mr. Schror testified that these false statements of material fact in the construction documents were automatically included by his engineering software, which he claims defaults to such representations of compliance with current law, and that he merely made a mistake in not manually revising these “general

    specifications” to clarify that, in fact, the work would conform only to the 2010 Rules. This excuse is not credible, for several reasons, and is rejected.

36. First, Mr. Giampaoli testified that Mr. Schror had told him to represent in the permit application that the plans had been revised to meet “current

    FBC 2014.” Now, on the one hand, this testimony self-servingly seeks to minimize Mr. Giampaoli’s personal culpability for the lie, which makes it suspect; but, on the other hand, placing the lie on the lips of the project engineer, who should know best which version of the FBC was used for the design, is clearly unhelpful to

    Giampaoli’s interests overall. Therefore, Mr. Giampaoli’s testimony in this regard has been credited. Given that Mr. Schror instructed Mr. Giampaoli to falsely represent Revision C’s compliance with FBC 2014 in the permit application, it is highly unlikely that Mr. Schror’s contemporaneous statements to similar effect in

    the very construction documents for which the permit was being sought were included by error.

37. Second, the question of whether the nonconforming Revision C plans would be “grandfathered in” under the 2010 Rules was a major issue, if not the issue, which had preoccupied Mr. Giampaoli and Mr. Schror for more than a year prior to this application. The notion that Mr. Schror somehow overlooked the language in the construction plans that speaks directly to this critical point is literally unbelievable.

38. Third, while the certifications of compliance with current law contained in the “general specifications” might be boilerplate, they nevertheless constitute statements of material fact, and Mr. Schror had a professional responsibility to make sure that the representations, however routine, were true and correct. Florida Administrative Code Rule 61G15-30.003(1), which was promulgated by the Florida Board of Professional Engineers, provides that “[w]hen prepared for inclusion with an application for a general building permit, the [Engineering] Documents shall … be of sufficient clarity to indicate the location, nature and extent of the work proposed and show in detail that the proposed work will conform to all applicable standards, codes, laws, ordinances, rules and regulations in effect at the time the Documents are sealed, signed and dated, as determined by the [Authority Having Jurisdiction].” (Emphasis added). This rule further states that “[i]f the Engineering Documents are intended to comply with requirements of any edition of federal, state, municipal, or county standards, codes, ordinances, laws, or rules, other than those currently in effect, the Engineering Documents must clearly state the edition and effective dates the Documents are intended to conform to.” Fla. Admin. Code

    R. 61G15-30.003(1)(b) (emphasis added).

39. Throughout this proceeding, Messrs. Schror and Giampaoli have been adamant that Revision C and Revision D were always intended to comply, not with the 2017 Rules then “currently in effect,” but with other requirements, namely the 2010 Rules. As rule 61G15-30.003(1)(b) makes clear, such an intention must be

    disclosed in detail on the face of the construction documents.15 It is highly improbable that an experienced engineer such as Mr. Schror, who was keenly aware of (and shared) his client’s expectation that the redesigned SFR would be

    “grandfathered in” under the 2010 Rules, and who knew by this time that the Building Official was skeptical at best about permitting the proposed SFR unless it conformed to the 2017 Rules, “accidentally” forgot to revise the default language in the “general specifications” certifying compliance with the then-current FBC 2014, and that he likewise “mistakenly” neglected to mention, as he was required to do, that Revision C was intended to comply with the 2010 Rules, which were not then “currently in effect.” These matters were simply too important and too visible—not just to the project at hand but also to the general practice of engineering—to have been forgotten.

40. It is found that, whatever motivations were behind the false and misleading statements in the “general specifications” section of the construction plans for the Schror House, these misrepresentations were not included by mistake.

41. Following routine practice, Giampaoli’s BFD Application for Revision C was routed to Floodplain Management, an office in the County’s Building Department, which reviews proposed construction for compliance with the FMP. The task of reviewing this application fell to Mary Wingate, then a senior floodplain coordinator.16 Ms. Wingate recognized that the Schror House was a different house from the one authorized under the Original Permit, and she identified a handful of items that did not conform to the current FMP. Ms. Wingate concluded that Revision C could not be approved as submitted.

42. Mr. Giampaoli spoke with Ms. Wingate by telephone on March 22, 2017. She

    told Mr. Giampaoli “that she would not approve Carl Schror’s plans for Revision C

    
    

    15 Sealing an engineering document in violation of this rule constitutes “fraud or deceit, negligence,

    incompetence, or misconduct, in the practice of engineering.” See § 471.033(1)(g), Fla. Stat.

    
    

    16 The County’s Floodplain Administrator was Mr. Griffin, the Building Official, who held both titles

    at the time, as he still did as of the final hearing.

    because [the new design] was not the same house that was originally approved.” PGG AFF ¶6. “Specifically, Mary Wingate said the plans did not comply with the 2014 Florida Building Code; did not meet FEMA’s Free of Obstruction Rules; and did not meet base flood requirements.” Id. at ¶7. Ms. Wingate informed

    Mr. Giampaoli that she had “turned the file over to Rick Griffin for his decision.” Id.

    at ¶6.

43. Mr. Giampaoli met with Mr. Griffin on March 24, 2017. At this meeting, Mr. Griffin reminded Mr. Giampaoli that, as he had previously advised, the new plans would need to meet all current codes, if there were any changes from the original design unrelated to addressing safety issues. Although Mr. Griffin had not yet reviewed Revision C himself, he had been informed by Ms. Wingate that the Schror House was, in fact, a different structure, and, therefore, that the plan must meet current codes. Mr. Griffin told Mr. Giampaoli that he could build the original DAS House, as approved, or submit a new plan that conformed to the 2017 Rules. Although, to this point, Mr. Griffin seems to have been consistent in his refusal to permit a new, nonconforming design, Mr. Giampaoli reported soon afterwards to Mr. Schror and his legal team that Mr. Griffin had also said during this meeting that he (Mr. Griffin) wanted to approve the new plan but for his concerns about the changes to the house’s foundation as reflected in Revision C.

44. On March 27, 2017, Mr. Griffin and Ms. Wingate called Mr. Giampaoli to inform him that Mr. Schror’s construction plans were too different from the previously approved, D’Asign Source plans to be permitted without meeting current regulations, which the Schror House clearly did not do. Mr. Griffin again told

    Mr. Giampaoli that he could build the DAS House per the Original Permit, even though that design called for the use of more than 3,000 cubic yards of fill, which would not be allowable under the 2017 Rules. That same day, the Building Official sent Giampaoli a letter formally advising that “Revision [C] [could] not be approved as applied” because “new construction must meet the current regulations for

    structures in a velocity zone,” and the unbuilt Schror House, whose plans reflected

    “a change of SFR design and construction” would be new construction.17

45. Mr. Giampaoli was surprised by what he viewed as a “flip flop in

    Mr. Griffin’s statements between Friday [March 24] and Monday [March 27].”

    PGG AFF ¶11. Indeed, Mr. Giampaoli “was furious that Mr. Griffin’s [sic] was taking the position that Revision C would not be approved and that [he would have] to build the house with the 3,120 square [sic] yards of fill.” Id. at ¶12 (emphasis added). Upon receiving the denial letter, Mr. Giampaoli—who was determined that “under these circumstances [he] was not going to sit idly by and get further pushed around,” id. at ¶14—immediately contacted Mr. Griffin to schedule a face-to-face meeting.

46. The two men met on or about March 30, 2017, in Mr. Griffin’s office.

    Mr. Giampaoli tried to persuade the Building Official that the changes reflected in Revision C were minor and mostly driven by the desire to avoid using thousands of cubic yards of fill and to make the design better in terms of safety and floodplain management issues. This was somewhat disingenuous because, in fact, the contemporaneous correspondence between Mr. Giampaoli and Mr. Schror shows that Mr. Giampaoli’s overriding concern was to reign in construction costs, which Mr. Schror promised to do by using “value engineering” to substitute cheaper alternatives for what he viewed as unnecessary, expensive-to-build design features in the original D’Asign Source plans. This, as seen above, required, in Mr. Schror’s words, a “massive amount” of engineering changes to the original design.

    Mr. Giampaoli also informed Mr. Griffin that, if Revision C were not approved, he would proceed to build the DAS House. This was probably meant as a kind of threat because, as they both knew, the DAS House would be even more noncompliant with the 2017 Rules than the Schror House. Mr. Griffin heard Mr. Giampaoli out but, evidently, made no commitments.

    
    

    17 As Giampaoli accurately states, “The County specified in detail in the [March 27, 2017,] letter that Revision C did not meet the 2014 FBC, nor the 2015 floodplain management requirements.” IPFO

    at 20.

47. Mr. Giampaoli testified that he “left the meeting on March 30, 2017, with Mr. Griffin’s agreement that [he, i.e., Mr. Giampaoli] would stop by [Mr. Griffin’s] office at 8:30 a.m. on April 17, 2017, so that [they] could finalize Revision C.” PGG AFF ¶16.

48. Giampaoli argues, currently, that, after the March 30, 2017, meeting, “the Building Official had to decide whether to require the SFR to be constructed as designed in the permitted plans, which included 3,120 cubic yards of structural fill that would not be allowed under the 2014 FBC and floodplain management regulations adopted by the County in 2015, or to approve Revision C as a revision to the originally permitted plans governed by[: (i)] the law in effect when the [Original] [P]ermit was issued; [(ii)] the 2007 FBC and [(iii)] whatever floodplain management regulations existed in 2010.” IPFO at 19. Notice that this frames the issue as a compulsory choice between only two alternatives, namely, allowing one or the other of two structures to be built (the DAS House or the Schror House), both of which were designed to conform to the outdated 2010 Rules, and neither of which complied with the then-current 2017 Rules. This is a false dichotomy, which moreover assumes, without establishing, that the 2010 Rules necessarily governed the

    decision to approve or disapprove Giampaoli’s pending permit application—the single most hotly contested issue in this case.

49. The real issue was whether the Building Offical could permit the future construction of the Schror House even though it had been designed to be a nonconforming structure and thus, if built, would never be conforming unless subsequently renovated. In other words, the issue was not whether a once conforming, but now outdated and nonconforming, structure should be allowed to continue (i.e., “grandfathered”); it was whether to allow Giampaoli to build, from already outdated plans, a structure that would be nonconforming from the get-go. Obviously, one alternative—a third option that Giampaoli’s argument omits—was to deny Giampaoli’s application for a permit to build the nonconforming Schror House, as the Building Official already had done, on the grounds that any future construction—certainly any construction for which no permit, revised or otherwise,

    had ever been issued—must comply with current codes. The independent question of whether Giampaoli should still be permitted to build the DAS House, which would also be a nonconformity from day one, was not the immediate issue confronting the Building Official.18

50. After the March 30 meeting, Mr. Griffin made the stunning decision to approve Giampaoli’s application after all, against Ms. Wingate’s advice.19 He communicated this bombshell to Mr. Giampaoli in an email dated April 17, 2017, which stated:

    Pete, I have spoken to both [assistant county attorney] Steve Williams and Mary Wingate, we will accept the revisions for your proposed residence with the modifications and the pool will be accepted as it was approved previously. This means the new revisions will just show the location of the pool and the pool construction is from the previous design. If this is agreeable to you please submit the revised house plans as discussed.

    
    

    (Emphasis added).20 Mr. Giampaoli was understandably surprised (and elated) by this unlikely turnabout, as reflected in his contemporaneous email message to Mr. Schror: “Wow, did we get approved???”

51. Thereafter, on April 27, 2017, as Mr. Giampaoli put it, Giampaoli “submitted Revision C with the understanding and consent [that] Revision C would be controlled by the original permit.” PGG AFF ¶ 19. Astonishingly, Mr. Giampaoli

    
    

    18 Relatedly, denying Giampaoli’s permit application to build Revision C would not have been tantamount to requiring Giampaoli to build the DAS House, as Giampaoli’s argument perhaps implies. Denial of Revision C would have left Giampaoli such other options as, e.g., redesigning the Schror House to meet the 2017 Rules or selling the Property and looking for another house.

    
    

    19 Ms. Wingate was simultaneously relieved of further duty with respect to the Schror House. Mr. Griffin assumed the sole responsibility for the Building Department and Floodplain Management’s decisions relating to this development.

    
    

    20 It is not clear what Mr. Griffin meant when he said the pool would be shown in “the new revisions” as approved previously. In fact, Mr. Schror had redesigned the pool, too, making it “much safer” in his opinion. Mr. Schror’s design might (or might not) be “safer,” but it is certainly not the same design as the originally permitted pool.

    went so far as to say that he had made an agreement with Mr. Griffin that the 2017 Rules would not apply to the Schror House:

    [It] was never my intent and it was never the agreement I made with Rick Griffin, the Monroe County Building Official” that “Revision C & D … were intended by me and the County to upgrade my home to fully comply with the 2014 Florida Building Code and the applicable rules and regulations in place when the Revisions were approved.”

    
    

    Id. at 2 (emphasis added).

52. Mr. Griffin’s 180-degree change in position vis-à-vis Revision C is the single most important event in the history of this project. The possibility that the Revised Permit was issued pursuant to an agreement between Mr. Giampaoli and

    Mr. Griffin—as Mr. Giampaoli states—is, for the undersigned, the most disturbing aspect of this case.21 To be sure, at hearing, Mr. Griffin testified that he did not remember making such an agreement with Mr. Giampaoli, and, eventually, he more or less denied having done so. Moreover, Dalk has not alleged, sought to prove, nor argued that Mr. Griffin received anything of value in exchange for reversing himself and issuing the Revised Permit. The undersigned does not find, nor does he believe, that any corrupt or unlawful activity occurred here, and this should not be read as implying such.

53. Still, the fact remains that Mr. Giampaoli believed he had some sort of

    “agreement” with Mr. Griffin, and (consistent with Mr. Giampaoli’s belief)

    Mr. Griffin’s April 17, 2017, email does read like an offer—or, at least, can reasonably be read as such. Yet, even with that, which is problematic, if the parties’ “understanding” that the Schror House was intended to comply with the requirements of the 2010 Rules rather than the 2017 Rules had been clearly stated in the engineering documents and in the Revised Permit conditions, then

    
    

    21 Though it hardly needs to be said, “agreements,” in the legal sense, must be supported by

    consideration. When unauthorized consideration is given to a public servant in exchange for the

    latter’s official act, it is called a “bribe,” and such conduct is unlawful in Florida. See § 838.016, Fla. Stat. The undersigned cannot help but be troubled by testimony describing conduct that, even if not unlawful, is not entirely inconsistent with illegal behavior, either.

    Mr. Giampaoli’s reference to an “agreement” might be written off as merely an unfortunate choice of words. But this “understanding” is not expressed in the official public documents, nor in any contemporaneous writing, for that matter. Worse, the official public documents unambiguously contradict the so-called “understanding” or “agreement.” Under these circumstances, the appearance of impropriety is impossible to overlook, and the conduct simply cannot be condoned.

54. The undersigned’s discomfort with the parties’ unwritten “understanding” is amplified by Giampaoli’s recitation of terms of the “agreement”:

    Implicit in the County’s change in position is the following:

    1. the County no longer considered Revision C to be “new construction” that would have to comply with the 2014 FBC and ASCE 24-05 adopted in the 2014 FBC [preventing an above ground pool]; (2) Revision C would not be governed by the 2015 floodplain management resolutions by which the County adopted FEMA’s rules, regulations, technical bulletins, and interpretive documents because Revision C was being approved even though it clearly did not meet many of those requirements; and (3) Revision C was approved despite the fact that the General Specifications in the plans for Revision C certified that they complied with all applicable standards, codes, laws, ordinances, rules and regulations in effect at the time the plans were signed, sealed and certified.

       
       

       IPFO at 20 (emphasis added). In other words, Mr. Griffin “agreed” to issue a permit for work that did not need to comply with—and would not meet many of the requirements of—the standards, etc., specified in the sealed engineering documents, even though, as Mr. Griffin knew, the plans unambiguously certified, without exception, that the proposed work would satisfy such requirements. At a minimum, Mr. Griffin’s action can fairly be described as irregular and unacceptable.

55. To underscore this latter observation, the undersigned again quotes Giampaoli:

    Aware of the certification in the General Specifications [that the work would strictly comply with the 2017 Rules], Mr. Griffin exercised his discretion and approved Revision C based on the entire history of the project,

    including numerous meetings and discussions with Mr. Giampaoli as well as Ms. Wingate and the assistant County Attorney[, on the grounds] that Revision C is a revision to the originally permitted plans and governed by the laws and regulations in effect in April 2010 when the permit was approved.

    
    

    Id. at 21 (emphasis added). Reduced to its essence, the so-called “agreement” is

    Mr. Griffin’s decision that, notwithstanding the many public statements to the contrary on the face of the engineering documents and the permit record, which will lead reasonable people unfamiliar with the “entire history of the project” to conclude that the Schror House complies with the 2017 Rules, the work shall be secretly governed by the 2010 Rules, for this vital information will not be publicly disclosed anywhere in the engineering documents; the permit record; or the Revised Permit itself. Given that the ultimate issue in this case is whether Mr. Griffin, on behalf of the County, erred in making that decision (or, more accurately, the several decisions behind the issuance of the Revised Permit), it cannot be stressed enough just how bad the optics are here, where the important decisions were hidden from everyone except those directly involved in making them.22

56. The permit for Revision C was issued on May 19, 2017. Section 107.3.1 of FBC 2014, which was then in effect, provides as follows:

    
    

    22 Giampaoli contends that there is a “simple fix” which will rectify the deceptive documents, namely a “clarification” of the permitted construction plans “to reflect the correct version of the FBC and the referenced standards the SFR was designed” to meet. IPFO at 24. This is a semantically slippery argument because the permitted plans are not “unclear” in any sense; they unambiguously state that the Schror House was designed to meet FBC 2014 and all other then-current (i.e., 2017) requirements. Amending the plans to state that the structure was designed to meet the substantially less stringent 2010 Rules strikes the undersigned as a material substantive change, not a “simple Plan Clarification,” as Giampaoli would have it. Id. Indeed, if given the effect Giampaoli hopes for, such a “clarified” permit would be, in substance, an after-the-fact permit, retroactively approving work already completed, which was not permitted when performed. Regardless, prior to the final hearing, Giampaoli submitted a BFD Application for a permit to build Revision F, which would “clarif[y] that the SFR was designed under the 2007 FBC Residential and the applicable standards in effect in April 2010.” Id. No administrative action of the County respecting Revision F is currently before the undersigned for review, and thus no further findings or conclusions regarding that matter are required at this time.

    When the building official issues a permit, the construction documents shall be approved, in writing, or by stamp, as “Reviewed for Code Compliance.” One set of construction documents so reviewed shall be retained by the building official. The other set shall be returned to the applicant, shall be kept at the work site and shall be open to inspection by the building official or a duly authorized representative.[23]

    
    

    Mr. Schror’s construction documents for Revision C, which certify that all work will strictly conform to FBC 2014 and all other current requirements, were duly stamped as compliant with FBC 2014:

    
    

    The stamp signifies that the Building Official has fulfilled his duties to examine the construction documents, or cause them to be examined, and to ascertain that “the construction indicated and described is in accordance with the requirements of this code and other pertinent laws or ordinances.” FBC 2014 § 107.3; accord FBC 2007

    § 107.3.

57. On June 16, 2017, pursuant to LDC section 122-9(b), Dalk filed the first of its appeals from the County’s administrative actions approving the construction of the Schror House on Giampaoli’s Property, this one challenging the May 19, 2017, issuance of the permit for Revision C. Dalk’s appeal led to the commencement of DOAH Case No. 17-3578. The filing of an appeal under section 122-9 automatically suspends further activity on the permitted work, by operation of law. According to section 122-9(d), “[t]he filing of a notice of appeal shall stay all permit activity and

    
    

    23 The words are italicized in the original text to indicate that the emphasized term is specifically defined in the Code. FBC 2007’s version of section 107.3.1 expresses the same semantic content using somewhat different language.

    any proceedings in furtherance of the action appealed,” subject to a narrow exception which does not apply here.

58. Despite Dalk’s appeal, however, construction on the Schror House commenced on July 30, 2017, after Mr. Giampaoli had signed contracts for foundation augers, as well as the columns and beams to support the foundation, and further prepared for construction by paying a staging fee and having several tons of rebar and cement delivered to the site, along with augers, forms, and related equipment. See PGG Aff ¶ 22. The foundation, footings, pilings, and augers for the SFR were inspected for compliance with FBC 2014 on August 15, 2017.24 This was the first permanent construction of an SFR to take place on the Property.

59. The County did not enforce the automatic stay as a prohibition against the construction of the SFR because, on or about August 17, 2017, it entered into a written agreement with Giampaoli, which provided, in relevant part, as follows:

    Since the original building permit was issued in 2010, was not appealed, and [Dalk’s June 16, 2017,] appeal only goes to Revision C, we have agreed that any work regarding the pool, spa, deck and the referenced fill are stayed and no work on those areas shall proceed until the appeal is completed and contingent upon the extent to which the administrative proceedings uphold Revision C. Work on the other areas of the home unaffected by the appeal may continue.

    
    

    This agreement was signed by attorneys for Giampaoli and the County. Dalk was not a party to this agreement, is obviously not bound by it, and consistently has objected to the County’s failure (as Dalk sees it) to observe the automatic stay.

60. It is not clear that the August 17, 2017, agreement to partially lift the automatic stay constituted an “administrative action” appealable under LDC section 122-9, and in any event, Dalk did not appeal it as such. The undersigned,

    
    

    24 An engineering firm performed site inspections of the work on the County’s behalf, as a private provider. According to the firm’s construction manager, whose testimony in this regard was not rebutted, the inspectors enforced FBC 2014 on this project, to the best of his knowledge. Given that the construction plans certified compliance with FBC 2014, it is most likely true that the inspectors used FBC 2014 as the authoritative source of controlling standards.

    therefore, will not rule directly on the legality of the agreement or its enforceability. Moreover, for reasons that need not be discussed herein, the undersigned lacks jurisdiction to enforce the section 122-9(d) automatic stay. What the undersigned finds, as a matter of relevant fact, is that Giampaoli proceeded to build the Schror House with actual knowledge that it was doing so at its own risk, given that Dalk’s appeal, if successful, might result in the revocation of the Revised Permit—an outcome which would jeopardize the continued existence of the SFR as a legal structure. Having deliberately and knowingly eschewed the conservative approach of waiting for a decision on Dalk’s appeal before building a structure that might need to be demolished if it is ultimately determined that the County should not have permitted the work, Giampaoli should not later be heard to complain that the consequences are too harsh, in the event that the Revised Permit is vacated.

61. On October 16, 2017, Giampaoli submitted a BFD Application seeking a building permit for the work referred to as Revision D. The scope of this work was mostly limited to the pool deck and patio, both of which were completely redesigned; significantly, whereas Revision C called for the use of 800 cubic yards of structural fill to support the pool and deck, and required the deck to be attached to the home itself, the redesigned deck and patio would be supported exclusively by columns and beams (eliminating the fill), and, under Revision D, the newly modified pool deck would be separated from the SFR, so that the two would be structurally independent.25 Mr. Schror’s construction documents for Revision D, which he signed

    
    

    25 At hearing, Dalk presented extensive and detailed expert testimony to the effect that the foundation of the Schror House, as built, is unsafe due to construction defects. Giampaoli’s expert witness agreed that some of the residence’s foundation columns were “overstressed” because of “screwup[s]” by the contractor. While the experts for Dalk and Giampaoli, respectively, have competing opinions regarding the severity of the problem, they concurred that the Schror House, as built, presents some stability concerns that will need to be addressed. As a result, Mr. Schror has prepared plans to “reattach” the pool deck to the SFR as a means of resolving the structural issues that have been identified. (This proposed work reflects a return to the design set forth in Revision C, which utilized an attached deck.) At the time of the hearing, Mr. Schror’s plans for reattaching the pool deck were under review by the County as Revision G, for which Giampaoli is seeking a building permit. No administrative actions of the County respecting Revision G (or any other issue connected to construction defects) are currently before the undersigned on appeal, and thus no further findings or conclusions concerning the structural deficiencies affecting the as-built SFR are required at this time.

    and sealed, certify that the work will strictly conform to the 2017 Rules, in the same manner as the Revision C plans. The County issued the permit for Revision D on January 17, 2018. (As a reminder, the permits for Revision C and Revision D are referred to herein, collectively, as the “Revised Permit.” The Revised Permit comprises an instrument distinguishable from the “Original Permit” authorizing construction of the DAS House, which latter, recall, was issued on April 9, 2010.)

62. LDC section 122-3(e) requires the permit holder to submit an elevation certificate to the Building Official “upon placement of the lowest horizontal structural members of the lowest floor.” The purpose of this certificate is to establish that the structure meets the minimum elevation requirement for the applicable flood zone. The Building Official must “review the floor elevation survey data submitted” and note any deficiencies. “Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to further progressive work being permitted to proceed. Failure to submit the survey or failure to make the corrections required hereby shall be causes to issue a stop-work order for the project.” Id.

63. Giampaoli submitted its initial elevation certificate on February 21, 2018, which the Building Official eventually rejected, prompting Giampaoli to file a revised certificate on July 30, 2018. The Building Official approved the second elevation certificate, and Dalk appealed, giving rise to a separate proceeding, DOAH Case No. 18-5255, wherein Dalk ultimately prevailed. As a result, on January 20, 2020, and on March 10, 2020, Giampaoli filed a new elevation certificate and an “edited” version thereof, respectively, both of which were deemed compliant by the Building Official. Dalk appealed the County’s approvals of these elevation certificates, commencing DOAH Case No. 20-2039, which was soon thereafter consolidated with DOAH Case No. 17-3578.

64. Dalk’s main argument regarding the most recent elevation certificates is that the County’s approval of them violated the automatic stay, which was triggered in 2017 by the filing of the first appeal. Dalk argues, further, that the certificates should not have been approved because, among other things, the lowest structural

    member of the Schror House is (without dispute) 13.60 feet above the base flood elevation, which is below the minimum elevation prescribed in ASCE 24-05 (adopted in FBC 2014). Because there is no dispute that the SFR and the adjacent pool structure were not designed to comply with ASCE 24-05, the elevation certificates should not be approved, unless the 2010 Rules govern the work authorized in the Revised Permit. If the 2017 Rules govern, then neither the Revised Permit nor the elevation certificates can stand.

65. Since the issuance of the Revised Permit, work on the SFR has proceeded apace, to the point that, as of the final hearing, the residence was nearly finished. The pool and related structures, however, had not been constructed.

    CONCLUSION OF LAW

66. Jurisdiction in this proceeding derives from LDC section 122-9(a), which provides that DOAH “shall have the authority to hear and decide appeals from administrative actions regarding the floodplain management provisions of this Land Development Code.”

67. The term “appeal,” as used in section 122-9, was not intended to restrict the scope of decision to a mere review of prior administrative actions. In contrast to appeals to the Planning Commission, which arise under LDC section 102-185,26 and which are governed by explicit provisions providing for, respectively, a de novo evidentiary hearing (before the Planning Commission acting as the trier of fact) and, if requested, a briefing schedule followed by an oral argument (before a

    
    

    26 Section 102-185(a) authorizes the Planning Commission “to hear and decide appeals from any decision, determination or interpretation by any administrative official with respect to the provisions of [the LDC] … except for … appeals from administrative actions regarding the floodplain management provisions.” When the Planning Commission has jurisdiction over an appeal arising under section 102-185(a), that body must hold a public hearing at which “all parties to the appeal shall have the opportunity to present evidence and create a record.” LDC § 102-185(e). In other words, when acting pursuant to section 102-185, the Planning Commission must afford the parties to the appeal an evidentiary hearing to resolve disputed facts. The Planning Commission’s appellate decision is, in turn, appealable to a hearing officer pursuant to section 102-185(f). Appeals under section 102-185(f) are governed by LDC sections 102-213 through 102-220. It is plain from these provisions that a hearing-officer appeal is a traditional review-type proceeding, based on a closed evidentiary record (from the Planning Commission appeal), involving formal briefs and an oral argument. The hearing officer’s appellate decision, when issued, constitutes “the final administrative action of the county.” LDC § 102-218(c).

    hearing officer acting in a review capacity), section 122-9(e) simply states that “DOAH shall consider the appeal pursuant to Rule 28-106.201(3) F.A.C.” Tellingly, the referenced rule governs the referral to DOAH of petitions for hearings involving disputed issues of material fact pursuant to sections 120.569 and 120.57(1), Florida Statutes.

68. In the absence of clear instructions to the contrary, the plain directive to follow rule 28-106.201(3) persuades the undersigned that appeals under

    section 122-9 are meant to afford parties an opportunity to present evidence and create a record, in the same way that appeals to the Planning Commission under section 102-185 provides such an opportunity.

69. Another sign that appeals such as this afford an opportunity to try disputed issues of fact, de novo, is the lack of any prescribed standards of review

    in section 122-9. (That said, however, in enacting section 122-9, the BOCC probably did not intend to authorize administrative law judges to second-guess a decision- maker, such as the Building Official, with respect to matters of involving discretion that the LDC specifically commits to the judgment of the local officer. Such authorized discretionary decisions might properly be reviewed for abuse of discretion, but the issue is academic in this case because, contrary to Giampaoli’s contention, the administrative actions under review were not discretionary in nature.)

70. Section 122-9(b) provides, in pertinent part, that “[a]n appeal may be initiated by an owner, applicant, adjacent property owner, any aggrieved or adversely affected person, … or any resident of real property, from administrative actions regarding the floodplain management provisions of this Land Development Code.” As the adjacent property owner, Dalk has standing to contest the actions at issue.

71. Dalk has the burden of proof as regards the facts material to the administrative actions under review. See § 120.569(2)(p), Fla. Stat. To support a finding of fact, evidence must meet the preponderance standard. See § 120.57(1)(j), Fla. Stat.

72. The undersigned has final order authority in this matter. Although section 122-9 does not specifically address the point, such authority may be reasonably inferred from the absence of any language directing that a

    recommendation be issued to another decision-maker having final order authority.

73. At the root of the Building Official’s decision to issue the Revised Permit is his belief, which Giampaoli shares, that Giampaoli’s possession of the Original Permit created the vested right to build either (i) the DAS House in accordance with the approved, D’Asign Source plans or (ii) any other structure that is approximately the same size, shape, and overall appearance as the DAS House. Moreover, the Building Official believes, again in accord with Giampaoli’s view, that the Original Permit has given Giampaoli a vested right, during the life of Permit 09100217, not just to build either the DAS House or a comparable structure, but to construct an SFR that conforms to the 2010 Rules, which were in effect when the Original Permit was issued on April 9, 2010, regardless of any subsequent changes to the FBC or the FMP. Neither the County, nor Giampaoli, however, has cited any law in support of these foundational beliefs. The reason, the undersigned has determined, is that there is none.

74. The Building Official’s solicitous protection of Giampaoli’s putative rights flies in the face of the common law. Contrary to their mistaken belief that a building permit confers vested rights upon the permittee,

    Florida law since 1945 has been clear that possession of a building permit does not create a vested right, and that a permit may be revoked where the zoning law has been amended subsequent to the issuance of the permit in the absence of circumstances which would give rise to equitable estoppel.

    
    

    City of Boynton Beach v. Carroll, 272 So. 2d 171, 173 (Fla. 4th DCA 1973).

75. To repeat for emphasis, because the point is critical, a building permit does not create a vested right in a permit holder who merely possesses it. Therefore, “a permit may be revoked where the zoning law has been amended subsequent to the issuance of the permit.” City of Hollywood v. Hollywood Beach Hotel Co., 283 So. 2d

    867, 869 (Fla. 4th DCA 1973), aff’d in part, rev’d in part on other grounds, Hollywood Beach Hotel Co. v. City of Hollywood, 329 So. 2d 10 (Fla. 1976). The only time the holder of a permit acquires a vested right to build pursuant to previously approved plans despite an intervening change in the governing law, which would preclude the proposed development, is “where … circumstances that give rise to the doctrine of equitable estoppel are present,” namely when the permittee:

    1. in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right he acquired.

       
       

       Id. at 15-16.

76. As the court explained in the City of Key West v. R.L.J.S. Corporation, 537 So. 2d 641, 646 (Fla. 3d DCA 1989):

    The usual vested right claim involves a change of mind, a broken promise: a city issues a building permit imposing one requirement and in the course of construction imposes a different requirement. In a sense, the building permit assures the builder that he may go forward and build in accordance with the approved plans. When a new building requirement is thereafter imposed, it can be readily said that the city had changed its mind and that the rights vested in the builder by virtue of the permit have been unfairly disturbed.

    
    

    (Emphasis added). Thus, “[i]n most cases [where] the equitable estoppel doctrine has been applied[,] … the landowner has actually begun physical construction on the property.” City of Hollywood, 283 So. 2d at 869.27

77. The remedy available at common law to a permit holder who has detrimentally relied upon a building permit authorizing him to develop his property in a particular way is to bring a suit in equity seeking to enjoin and invalidate

    
    

    27 If physical construction has not commenced, “other substantial changes in position or extensive obligations such as exercising an option to purchase land or expending substantial sums of money in preparation for construction” might suffice to establish detrimental reliance. Id. at 870.

    governmental action rescinding the permit. Villas of Lake Jackson, Ltd. v. Leon Cty., 796 F. Supp. 1477, 1485 (N.D. Fla. 1992). Even if Giampaoli had made such a plea for equitable relief, however, which it has not, this proceeding could not lead to a determination of vested rights. As a quasi-judicial officer sitting in a semi- appellate capacity having the authority only to review administrative actions regarding the County’s FMP as provided in LDC section 122-9, the undersigned simply does not have jurisdiction to entertain a claim based on a theory of estoppel- based vested rights, which would require the exercise of a traditional judicial power.

78. From the rule that possession of an unexpired building permit is insufficient to create vested rights, there follows closely behind the related principle that the controlling moment, for purposes of determining “which law” applies, is not the issuance of the permit, but rather the performance of the last act necessary to invest the permittee with legally cognizable rights. Once again, Carroll is instructive. There, the court reversed a writ of mandamus compelling the issuance of a building permit because (i) the ordinance in effect at the time of the writ’s issuance, which forbade the proposed work, was the governing law, not the ordinance in effect when the permit was applied for, under which the proposed building would have been conforming; and (ii) the appellees (applicants) had no vested rights under the permit application as a matter of law, nor had they made a claim of equitable estoppel. Carroll, 272 So. 2d at 172-73 (“[I]f the possession of a building permit does not create a vested right, [as is well settled,] then a mere application for a building permit cannot create a vested right.”). In summary, the court wrote:

    In the instant case, no claim of equitable estoppel has been presented by the appellees. Therefore, no vested right was created by the appellees' application for a building permit prior to the adoption of the height limitation amendment. In the absence of a vested right, the appellees cannot claim that the ordinance in effect at the time of the application controls and we must therefore apply the ordinance in effect at the time the final decision was rendered, under

    which, as stated above, the City was under no duty to issue the building permit.

    
    

    Id. at 173.

79. The common law is clear: Giampaoli acquired no vested rights upon the issuance of the Original Permit and, in the absence of a vested right, cannot succeed with a claim that the 2010 Rules control the work permitted thereunder. That is, unless Giampaoli has a vested right to build under the Original Permit, the application of the 2017 Rules thereto is not retroactive but prospective and, indeed, mandatory. But Giampaoli’s position is even worse than that, because it is not seeking to build according to the plans approved in the Original Permit. Thus, even if Giampaoli had established a vested right to construct the DAS House under the Original Permit, which it has not done, there would still be the question of whether this right may be enlarged to embrace different plans such as, e.g., the ones comprising Revisions C and D. The undersigned has not seen a single Florida case, and the parties have cited none, in which a permittee’s estoppel-based vested rights in one set of approved plans were deemed transferable to another set of construction plans, thereby giving the permittee the right to start building a nonconforming structure, on which work had yet to begin. Such a ruling, in addition to being novel, would contradict the longstanding principle that administrative officials are not empowered to issue permits contrary to existing legislation.

80. It is important to keep in mind that building permits are supposed to “facilitate authorized uses,” i.e., those which comply with existing laws. Thomson v. Vill. of Tequesta Bd. of Adjustment, 546 So. 2d 457, 458 (Fla. 4th DCA 1989). Permits are distinguishable from variances in this regard, because the purpose of a variance, in contrast to a permit, is to give approval for an otherwise nonconforming use. That is why an unexpired building permit, without more, cannot be treated as a de facto variance, forever exempting the permittee from compliance with current law, regardless of subsequent legislation that materially changes the requirements that were in effect when the permit was issued; and, further, why a permittee without vested rights must be required to build in accordance with existing statutes

    and ordinances, not outdated requirements. As the Third District Court of Appeal explained in an oft-quoted passage:

    While at first blush it seems that the application of the rule may be harsh, it would be inconceivable that public officials could issue a [building] permit, either inadvertently, through error, or intentionally, by design, which would sanction a violation of an ordinance adopted by the legislative branch of the government. Only the duly constituted members of the … County Commission enjoy that prerogative and then only in accordance with established procedure.

    
    

    Dade Cty. v. Gayer, 388 So. 2d 1292, 1294 (Fla. 3d DCA 1980).

81. The idea that a public official may not sanction a violation of existing ordinances is a familiar concept in administrative law, usually brought up in connection with business and professional licenses. In Lavernia v. Department of Professional Regulation, 616 So. 2d 53, 53-54 (Fla. 1st DCA), rev. denied, 624 So. 2d 267 (1993), the court observed:

    Florida follows the general rule that a change in a licensure statute that occurs during the pendency of an application for licensure is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the license should be granted.

    
    

    The logic behind this general rule, the court explained, is as follows:

    [J]ust as a change in the law between a nisi prius and an appellate decision requires the appellate court to apply the changed law, so, by like token, a change of law pending an administrative hearing or act must be followed in relation to a permit for the doing of a future act. Otherwise, … the administrative body would be issuing a permit contrary to existing legislation.

    Lavernia, 616 So. 2d at 54; see Ziffrin, Inc. v. U.S., 318 U.S. 73, 78, 63 S. Ct. 465,

    469 (1943).

82. A building permit is a license.28 Building permits differ from professional licenses, to be sure, in that the latter, upon being issued by final agency action, invest licensees with a protected property interest,29 whereas building permits, as we have seen, do not confer such vested rights upon issuance. What both types of license have in common, however, is that, as Gayer and Lavernia make clear, public administrators (and reviewing courts) must give effect to a change of law that occurs before vested rights are created. In the case of a building permit, vested rights are not created until the permittee has relied to his detriment on the permit, thereby estopping the issuing authority from precluding his moving forward with the work described in the approved plans—although, even then, the permittee’s rights are limited to building in accordance with the approved plans.

83. The question of whether Giampaoli acquired vested rights to build the DAS House under the Original Permit need not and cannot be decided in this case.

    Assuming for argument’s sake that Giampaoli had such rights, however, the case law is clear that Giampaoli could not have acquired any vested rights in the Schror House—for which Giampaoli did not even possess a permit until 2017—much less any right to build that SFR in accordance with the 2010 Rules. Obviously, Giampaoli could not have relied to its detriment on the Revised Permit prior to its issuance, and thus as a matter of logic Giampaoli could not possibly have obtained vested rights in the Schror House via equitable estoppel. Florida common law

    
    

    28 MCC section 6-103(a) provides that “[a] permit issued shall be construed to be a license to proceed with the work and not as authority to violate, cancel, alter or set aside any of the provisions of the Florida Building Code and other technical codes. Nor shall issuance of a permit prevent the building official from thereafter requiring a correction of errors in plans, construction, or violations of this Code.” (Emphasis added).

    
    

    29 See, e.g., Presmy v. Smith, 69 So. 3d 383, 387 n.1 (Fla. 1st DCA 2011) (“A professional has

    a property interest in his license to practice his profession protected by the due process clauses of the state and federal constitutions.”). In contrast to one who is already licensed, however, an applicant for professional licensure holds no property interest in the license he or she seeks. See, e.g., Fla. Dep’t of Child. & Fams. v. Davis Fam. Day Care Home, 160 So. 3d 854, 857 (Fla. 2015).

    compels the conclusion that the 2017 Rules control the Revised Permit and all work authorized thereunder, not the 2010 Rules.

84. In theory, the BOCC could adopt ordinances in derogation of the common- law principles discussed above. As it happens, this legislative body has not done so. The County’s ordinances are consistent with the case law discussed above.

85. Before examining the ordinances, it is noted that these enactments are subject to the same rules of interpretation as state statutes. See, e.g., Shamrock- Shamrock, Inc. v. City of Daytona Beach, 169 So. 3d 1253, 1256 (Fla. 5th DCA 2015). The First DCA recently summarized the basic principles of statutory construction, which the undersigned follows:

    “In interpreting the statutes, we follow the ‘supremacy-of- text principle’—namely, the principle that ‘[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’ ” Ham v. Portfolio Recovery Assocs., LLC, 46 Fla. L. Weekly S9, *4 (Fla. Dec. 31, 2020) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)). As instructed by the Florida Supreme Court, we further embrace Justice Joseph Story's view that “every word employed in [a legal text] is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it.” Id. (quoting Advisory Op. to Governor re Implementation of Amendment 4, the Voting Restoration Amendment, 288 So. 3d 1070, 1078 (Fla. 2020)).

    
    

    The objective of statutory interpretation is to reach a “ ‘fair reading’ of the text by ‘determining the application of [the] text to given facts on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.’ ” Id. (quoting Scalia & Garner, Reading Law at 33). “This requires a methodical and consistent approach involving ‘faithful reliance upon the natural or reasonable meanings of language’ and ‘choosing always a meaning that the text will sensibly bear by the fair use of language.’ ” Id. (quoting Frederick J. de Sloovère, Textual Interpretation of Statutes, 11 N.Y.U. L.Q.

    Rev. 538, 541 (1934), quoted in Scalia & Garner, Reading Law at 34).

    
    

    “A statute that is clear and unambiguous on its face requires no construction and should be applied in a manner consistent with its plain meaning.” Geico Indem. Co. v. Accident & Injury Clinic, Inc., 290 So. 3d 980, 983 (Fla. 5th DCA 2019). In other words, where the language of the statute is clear it should be given its plain meaning, and the court will not look behind the statute's plain meaning to determine legislative intent or resort to the rules of statutory construction. Halifax Hosp. Med. Ctr. v. State, 278 So. 3d 545, 547 (Fla. 2019); Ganzemuller v. Omega Ins.

    Co., 244 So. 3d 1189, 1190 (Fla. 2d DCA 2018).

    
    

    Dozier v. Duval Cty. Sch. Bd., 2021 WL 630094, at *3-4 (Fla. 1st DCA Feb. 18, 2021).

86. Giampaoli and the County argue that the undersigned, in reviewing the administrative decisions at issue, must defer to the Building Official’s interpretations of the LDC and the FBC, because the Building Official is responsible for their administration and is the local officer charged with interpreting these laws as part of his ordinary duties. See, e.g., Palm Beach Polo, Inc. v. The Vill. of Wellington, 918 So. 2d 988, 995-96 (Fla. 4th DCA 2006) (“It is particularly appropriate [for a reviewing court] to rely upon the [zoning director’s] interpretation of the [zoning ordinances.]”). Because the undersigned is sitting in a semi-review capacity pursuant to jurisdiction arising, not from the Administrative Procedure Act, but from LDC section 122-9; and because a final order must be issued either affirming or reversing the County’s decisions, which were, in fact, made by the Building Official in the exercise of his duty to administer the FMP, the undersigned accedes to the County’s request that the Building Official’s

    interpretation of an ambiguous ordinance be accorded deference and allowed to stand unless clearly erroneous.30

87. The LDC is codified in part II of the MCC. The LDC is divided into

    17 chapters. These chapters are further subdivided, respectively, into articles, divisions, subdivisions, and sections, in that order. The FMP comprise LDC chapter 122, which chapter is subdivided into nine sections, with no articles or divisions.

88. Chapter 101 contains the LDC’s “general provisions.” This chapter has six sections, no divisions, and no articles. LDC section 101-4(a) mandates (subject to

    some limited exceptions), that “[n]o development shall be undertaken without prior approval and issuance of a development permit under the provisions of this Land Development Code and other applicable laws and regulations.” (Emphasis added).

89. Section 101-1 of LDC chapter 101 contains the definitions of certain “words, terms and phrases,” which, as “used in this chapter,” i.e., chapter 101, “shall have the meanings ascribed to them in this section,” i.e., section 101-1, “except where the context clearly indicates a different meaning.” As relevant to section 101-4(a), section 101-1 defines the terms “development” and “development permit” as follows:

    Development means the carrying out of any building activity, the making of any material change in the use or appearance of any structure on land or water, or the subdividing of land into two or more parcels. …

    
    

    * * *

    
    

    Development permit means any building permit, plat approval, conditional use permit, subdivision approval, rezoning, variance, special exception, or any other official

    
    

    30 Article V, section 21 of the Florida Constitution, which abrogates the deference doctrine vis-à-vis state statutes and rules in “administrative action[s heard] pursuant to general law,” is inapplicable here because county ordinances are not state statutes or rules, and this proceeding is not being heard “pursuant to general law.” See Evans Rowing Club, LLC v. City of Jacksonville, 300 So. 3d 1249, 1249 (Fla. 1st DCA 2020) (Wolf, J., concurring).

    action of Monroe County having the effect of permitting the development of land.

    
    

90. Section 101-4(b)(1) provides, as an “exception” to the LDC’s general applicability, that the current version of the LDC will not apply retroactively to a development that was previously approved under an earlier version of the LDC. It states:

    The provisions of this Land Development Code and any amendments hereto shall not affect the validity of any previously and lawfully issued and effective building permit, provided that construction authorized by such permit has been commenced prior to the effective date of any amending ordinance from, and provided that construction continues without interruption until development is complete. In the event a building permit expires, then all further development shall be permitted in conformance with the requirements of the comprehensive plan and the Land Development Code.

    
    

91. Section 101-4(b)(1) is less an exception than a definition of the “controlling moment,” meaning the point in time when the implicating event occurs, which triggers (and hence becomes subject to) the LDC’s operation. Under section 101- 4(b)(1), the controlling version of the LDC is the one in effect when the last of these two acts occurs: (i) An effective building permit is lawfully issued and

    (ii) construction authorized by such permit commences.

92. Regarding the second of these, section 101-1 defines the required activity as follows:

    Commencement of construction means the first placement of permanent evidence of a structure on a site pursuant to a duly issued building permit, such as the pouring of slabs or footings or any work beyond the state of excavation, including the relocation of the structure. Permanent construction does not include the installation of streets or sidewalks within the right-of-way.

    
    

93. Under section 101-4(b)(1), the permit holder does not have an absolute right to complete a permitted development in compliance with the version of the LDC in

    effect when the controlling moment occurs, notwithstanding the later enactment of any stricter (or simply different) requirements. Rather, this right is subject to two conditions subsequent, namely that (i) the construction continue without interruption until completion and (ii) the permit not expire. The failure of either condition divests the permit holder of the right to proceed under an earlier version of the LDC.

94. LDC chapter 122, containing the FMP, was substantially amended effective April 13, 2016. In LDC section 122-2(a), the BOCC unambiguously expressed its intention regarding the applicability of the updated floodplain management provisions, by mandating that “no structure or manufactured home hereafter [i.e., after April 13, 2016,] shall be located, extended, converted or structurally altered, and no development shall occur, without full compliance with the terms of this chapter [i.e., the updated FMP] in addition to other applicable regulations, including, but not limited to, 44 CFR 60.3(a)(2).”31 (Emphases added).

95. Along the same line, section 122-4(a) provides stresses that “[n]o building permit for proposed construction or development activity within an area of special flood hazard shall be granted, by the Building Official or the floodplain administrator, unless the proposed new construction is in compliance with the standards set forth in this chapter.” The term “new construction” is defined in section 122-3(a) for purposes of the FMP as meaning “those structures for which the start of construction commenced on or after January 1, 1975.” (Emphasis added). Construction of the Schror House necessarily started after January 1, 1975, as the structure was not even an idea until 2015. Nevertheless, the definition of “start of construction” set forth in section 122-3(a) is instructive:

    Start of construction means (for other than new construction or substantial improvements under the Coastal Barrier Resources Act) includes substantial improvements, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement or other improvement was within 180 days of the permit

    
    

    31 There is one exception to this mandate, but it is irrelevant to the instant case.

    date. … The actual start [of construction] means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure.

    
    

    (Emphasis added). As defined here, the term “actual start of construction” is plainly synonymous with the term “commencement of construction” as defined in LDC section 101-1. See supra ¶ 91. Clearly, too, under LDC section 122-3(a), the term “start of construction” has a different meaning from that of “actual start of construction”—the adjective actual being the semantic difference-maker. It follows, then, that the term “start of construction” is not equal to “commencement of construction,” which latter equals “actual start of construction.”

96. Two other definitions illumine the BOCC’s intention to make the current FMP applicable even to those buildings under construction whose “start of construction” date (i.e., the date the building permit was issued, provided construction timely commenced) preceded April 13, 2016. These are:

    Illegal structure or use means a structure or use that is not a legal structure or legal use as defined in this chapter.

    
    

    Legal structure means a structure that was [1] permitted by the floodplain regulation in effect at the time construction commenced on the structure in its current configuration and [2] received a permit or final inspection or certificate of occupancy for the structure in its current configuration.

    
    

    LDC § 122-3(a). Pausing to apply these definitions to the Schror House, which as a matter of undisputed fact was not permitted by the FMP in effect when construction

    commenced on the SFR in its current configuration, it is readily apparent that the Schror House fails to meet the foregoing definition of a “legal structure” and hence is, by definition, an “illegal structure” for purposes of chapter 122.

97. Read together, in pari materia, sections 122-2(a), 122-4(a), and 122-3(a) comprise a mandate that the latest enacted, i.e. current, version of the FMP be applied to all structures and developments, permitted after January 1, 1975, which have not been completed (that is, received a “final inspection or certificate of occupancy for the structure in its current configuration”) prior to the effective date of the current FMP. These sections of chapter 122 partially eliminate the conditional right to assert nonretroactivity, established as a general principle in section 101-4(b)(1), with respect only to the FMP. This fair reading of the text is consistent with (i) the plain language of the referenced sections; (ii) the general rule that possession of a building permit does not create a vested right;32 and (iii) the directive, in section 101-2(1)b. that “[w]here any provision of this Land Development Code imposes greater restrictions upon the subject matter than a general provision imposed by this Code or another provision of this Land Development Code, the provision imposing the greater restriction or regulation

    shall be deemed to be controlling.”

98. Dalk, however, has not pressed for such an interpretation. Instead, Dalk argues that Giampaoli did not “commence construction” on the SFR, as that concept is defined in section 101-1, until August 2017, when holes were drilled for the foundational pilings. As Dalk sees it, the controlling moment, under section 101- 4(b)(1), occurred after the effective date (April 13, 2016) of the current floodplain management provisions of the LDC, and after the BOCC’s adaption of resolutions in September 2015, which immediately made the FMP more stringent. Without question, the initial work on the SFR’s foundation constituted “permanent evidence of a structure” within section 101-1’s definition of “commencement of construction.”

    
    

    32 See, e.g., City of Boynton Beach v. Carroll, 272 So. 2d 171, 173 (Fla. 4th DCA 1973).

    Giampaoli has not disputed that this was, in fact, the first permanent construction on the site.

99. Giampaoli argues, in response, not that permanent construction occurred before August 2017, but that the definition of “commencement of construction” provided in section 101-1 is inapplicable, making the question of when permanent construction began irrelevant. Giampaoli’s argument in this regard is premised on several assertions. First, Giampaoli maintains that, under section 101-4(b)(1), later- enacted provisions of the LDC do not apply retroactively to a building permit after construction has commenced pursuant to such permit. Second, in Giampaoli’s opinion, the Building Official correctly “interpreted” MCC section 6-103(b) as being the controlling ordinance for determining when construction has commenced for purposes of invoking LDC section 101-4(b)(1)’s qualified nonretroactivity protection.

    Third, Giampaoli agrees with the Building Official “interpretation” of MCC section 6-103(b) as providing that the inspection of a temporary electric pole is enough to commence work under a building permit. Based on these premises, Giampaoli contends (i) that “work” on the DAS House pursuant to the Original

    Permit commenced, as required under MCC section 6-103(b), in October 2010—more than two years before LDC section 101-1’s effective date of April 13, 2016—when the County inspected a temporary power pole that had been placed on-site; and hence (ii) that LDC section 101-1 is not retroactively applicable to Revisions C

    and D.

100. There are a few problems with Giampaoli’s argument. To begin, it assumes without persuasively establishing that section 101-4(b)(1) operates as a limitation on the applicability of the FMP, which is debatable. That aside, if section 101-4(b)(1) applies, it must be applied according to its terms, which include the phrase

     “construction … has been commenced.” As mentioned, section 101-1 defines words and phrases used in chapter 101, including section 101-4. One of the terms defined therein is “commencement of construction,” whose prescribed meaning is clearly controlling for purposes of understanding and applying section 101-4(b)(1). This

     conclusion requires no “interpretation” of either section 101-1 or section 101-4; the plain language of both sections is unambiguous in this regard.

101. MCC section 6-103(b), in contrast, has nothing to do either with LDC section 101-4(b)(1); the FMP specifically; or the LDC generally. MCC section 6- 103(b) provides, in relevant part, as follows:

     Permit time limitations. Every [building] permit issued shall become null and void unless the work authorized by such permit is commenced within six months after its issuance, or if the work authorized by such permit is suspended or abandoned for a period of six months after the time the work is commenced. Work is considered commenced if it has received an approved initial inspection pursuant to permit requirements or an approved temporary electrical inspection. Any valid permit, for which construction has commenced, must progress in a timely fashion.

     
     

     (Emphasis added).

102. In plain and unambiguous language, MCC section 6-103(b) specifies the conditions for keeping a building permit from expiring. It plainly does not prescribe the requirements for commencing construction for purposes of LDC section 101- 4(b)(1). Clearly, too, the term “work” as used here is more inclusive than the term “construction” as used in LDC chapter 101, because “work”—which unambiguously includes temporary electrical installations—plainly does not require permanent evidence of a structure. If the drafters of LDC section 101-4(b)(1) had intended to condition nonretroactivity on merely commencing “work” as described in MCC section 6-103(b), they would have used the word “work” instead of the word “construction,” since these are terms of art as used in MCC section 6-103 and LDC section 101-4, respectively.

103. The semantic distinction between “work” and “construction” in these two

     different contexts makes sense, moreover, because the stakes are different. It is one

     thing simply to keep a permit alive;33 it is another to excuse a development from compliance with the latest provisions of the LDC. The former does not create any vested rights in the permitholder. The latter probably does. Consistent with the common law, LDC section 101-4(b)(1) ensures that, before a permitholder can claim nonretroactivity as of right, it must substantially change its position in reliance on the permit, by making permanent improvements to a site.

104. The bottom line is that MCC section 6-103(b), which is unambiguous, does not need to be interpreted by the Building Official or by the undersigned. To the extent the Building Official “interpreted” MCC section 6-103(b) as defining commencement of construction for purposes of LDC section 101-4(b)(1), his interpretation contravenes the plain meaning of both sections and is, for that reason, clearly erroneous. Moreover, although the undersigned has no reason to doubt that the inspection of a temporary electrical pole is sufficient “work” to keep alive a permit pursuant to MCC section 6-103(b), such work, which does not entail permanent construction, is clearly not sufficient to commence “construction” under the plain meaning of LDC section 101-4’s definition of “commencement of construction” and, thus, is insufficient to vest any rights under LDC section 101- 4(b)(1). To the extent the Building Official “interpreted” these ordinances otherwise, such interpretation is clearly erroneous.

105. Based on the plain language of the ordinance, it is concluded that construction on the Schror House commenced, for purposes of section 101-4(b)(1), in or around August 2017 when concrete was poured for the foundation of the structure—an activity that plainly constitutes the “commencement of construction” under section 101-1 when, as here, it is the first instance of permanent construction

     
     

     33 Indeed, possession of an effective, unexpired building permit is both a condition precedent and a condition subsequent of the qualified right not to conform to current provisions of the LDC. Timely commencing “work” is necessary to keep a permit from expiring, but doing so will not necessarily be sufficient to commence “construction” for purposes of section 101-4(b)(1). Likewise, while commencing “construction” is necessary to claim the exception under section 101-4(b)(1), and while that would almost certainly be sufficient to keep a permit from expiring under section 6-103(b), it is

     not necessary to commence “construction” within six months after a permit’s issuance merely to keep

     the permit alive.

     on-site. By August 2017, the current, April 2016 version of the LDC, including the FMP, was in effect. Therefore, because construction under the Revised Permit did not commence prior to April 13, 2016, the nonretroactivity “exception” in section 101-4(b)(1) does not excuse Giampaoli from constructing the SFR in conformance to the current version of the LDC, even if section 101-4(b)(1) applies to the FMP notwithstanding the arguably more restrictive language of section 122-2(a).

     Giampaoli’s compliance with current provisions of the LDC is mandated by the clear

     and unambiguous language of section 101-4(a) and section 122-2(a).

106. The Building Official violated the plain language of the LDC when he approved the applications for Revisions C and D. The issuance of the Revised Permit in contravention of existing legislation constitutes reversible error.

107. The evidence shows that, as a practical matter, if Giampaoli had opted to build the DAS House pursuant to the Original Permit, the Building Official would not have required the development to meet the current provisions of the LDC. Because that is not what happened, it is unnecessary to decide whether it would have been error to allow Giampaoli to proceed under the Original Permit without applying for, and obtaining, a vested rights determination pursuant to the LDC. Review of the pertinent ordinances shows, however, that if Giampaoli had filed an application with the County for a determination of vested rights as a means of getting approval for the issuance of the Revised Permit, the application would have been doomed to failure. This lends additional support to the foregoing conclusion that the Revised Permit was issued in error, and it demonstrates the untenability of Mr. Giampaoli and Mr. Schror’s persistent belief, which Mr. Griffin came to accept, that Mr. Schror’s plans were due to be “grandfathered in” as mere permit

     “revisions.”

108. To begin, there is no language in the LDC or the MCC giving a permit

     holder the right to “revise” previously approved, but presently nonconforming construction plans, and to be issued a revised permit (i) approving such modified plans and (ii) authorizing the building of a nonconforming structure. Indeed, while the LDC defines the terms “nonconforming uses” and “nonconforming structure,” it

     does not use or define the term nonconforming plans (or language to that effect). If Giampaoli had built the DAS House in 2017, the resulting SFR would have been a “nonconforming structure” as defined in LDC section 101-1, i.e., “a structure which does not conform to a current provision or regulation provided in the Comprehensive Plan and/or this LDC.” The Schror House, as designed and built, is clearly a nonconforming structure, a fact that no one disputes.

109. Section 101-1 defines the term “nonconforming structure, lawful” as “a structure which does not conform to a current provision or regulation provided in the Comprehensive Plan and/or this LDC, but was permitted, or otherwise in existence lawfully, prior to the effective date of the ordinance adopting the current provision or regulation that rendered the structure nonconforming.” Had the DAS House been built, it might have been a “nonconforming structure, lawful,” and, for purposes of this discussion, it may be assumed, arguendo, that the DAS House would have been a lawful nonconforming structure. The Schror House, in contrast, which does not conform to the 2017 Rules, was neither permitted nor in existence prior to April 2016; thus, this building fails to meet the definition of a

     “nonconforming structure, lawful,” under any circumstances.

110. The only way the Schror House could possibly have been “grandfathered” would have been via an application for a vested rights determination, which Giampaoli did not pursue. Had such relief properly been sought, however, there is no way Giampaoli could have prevailed, for, like the common law, the LDC does not authorize the creation of new rights in the guise of establishing vested rights.

111. As an alternative to judicial proceedings, the County makes available a full- blown administrative remedy for the protection of vested development rights, which effectively codifies the common-law doctrine of estoppel-based vested rights. The administrative remedy, which includes a de novo hearing before an impartial magistrate, is set forth in LDC article IV, division III, sections 102-134

     through 102-137.

112. Section 102-134(a) provides that, “[n]otwithstanding any other provision of this Land Development Code, an application for a permit may be approved if an

     applicant has demonstrated development expectations that are vested under the standards of section 102-136.”

113. Section 102-135 prescribes the procedure for determining a claim of vested rights:

     An applicant for vested rights determination will be afforded a quasi-judicial, evidentiary hearing in front of a special magistrate who will make a proposed determination and a statement of what rights are vested. Interested persons will be afforded the opportunity to appear and introduce evidence and argument for or against the determination during the evidentiary hearing. The special magistrate’s proposed determination shall be forwarded to the BOCC for final approval.

     
     

114. Section 102-136(b) sets forth the standards and criteria that a special magistrate must consider in deciding whether an applicant has acquired vested rights in its development expectations. These criteria, which the applicant has the burden to prove, correspond to the familiar principles of equitable estoppel.

115. Significantly, section 102-136(a) states that, even if the applicant is

     successful, “[t]he vested rights determination shall be limited to rights acquired prior to adoption of the Comprehensive Plan or Land Development Code in effect at the time of filing of the vested rights application and shall vest only that development specifically and expressly contemplated by the valid, unexpired official act of the county.” This language could not be clearer. The only vested rights Giampaoli could have acquired under the Original Permit would have been limited to the development “specifically and expressly contemplated” by the Original Permit, i.e., the DAS House—not a “revision” thereof, not even a so-called “minor” revision. This is entirely in keeping with the common law. See R.L.J.S. Corp., 537 So. 2d at 644.

116. Finally, it bears repeating that the ultimate decision-maker responsible for approving or rejecting a claim of vested rights brought pursuant to the LDC is the BOCC. The BOCC plainly does not want the Building Official, or anyone else for that matter, making a unilateral, summary decision on the fact-intensive question

     of whether a permit holder has the vested right to continue building a project that no longer conforms to all applicable codes. Yet, in this case, Mr. Griffin not only made a de facto vested rights determination in Giampaoli’s favor, but he also awarded Giampaoli more rights than section 102-136(a) allows when the permit holder, following the prescribed process, adduces sufficient evidence at a hearing to prove that he reasonably relied to his detriment upon a valid, unexpired building permit.

117. Because the LDC does not grant the Building Official the authority to determine whether or when a permit holder’s rights have vested because of having demonstrated reasonable development expectations whose destruction would be highly inequitable and unjust, Mr. Griffin’s decisions to approve Revisions C and D are ultra vires and void ab initio. See Corona Props. of Fla., Inc. v. Monroe Cty., 485 So. 2d 1314, 1317 (Fla. 3d DCA 1986). For these additional reasons, the actions were erroneous and must be reversed.

118. As mentioned previously, in the introduction above, this case presents a separate problem stemming from the undisputed fact that the Building Official knowingly issued the Revised Permit approving plans certifying the project’s strict compliance with the 2017 Rules, despite having decided, in concert with Giampaoli, that the SFR would be required to meet, not the 2017 Rules, but the less stringent standards in the 2010 Rules. In other words, the Revised Permit says one thing for public consumption, while Giampaoli and the Building Official have a private “understanding” or “agreement” that Giampaoli may do something else.

119. Neither Giampaoli nor the County has cited any law providing support for this strange arrangement, and the undersigned has found none. Their argument is that the false statements contained in the construction plans were put there by mistake, and that, accordingly, these material misrepresentations should just be disregarded in favor of the parties’ intent that the 2010 Rules would govern the Revised Permit and the work performed thereunder. Although not stated in so many words, Giampaoli and the County are asking the undersigned to reform the

     Revised Permit to conform to their intent to travel under the 2010 Rules, which is not reflected in (and indeed is contradicted by) the instrument’s plain language.

120. It is easy to see why Giampaoli and the County want a de facto reformation of the Revised Permit as opposed to Giampaoli’s applying for an amended permit. “A reformation relates back to the time the instrument was originally executed and

     simply corrects the document’s language to read as it should have read all along.” Providence Square Ass’n, Inc. v. Biancardi, 507 So. 2d 1366, 1371 (Fla. 1987). An amended permit, in contrast, would operate prospectively, which is why Giampaoli’s Revision F is not the “simple fix” it might appear to be at first blush.

121. It is highly doubtful that reformation principles can be applied to building permits because these instruments are probably best viewed as “unilaterally generated legal documents which are noncontractual by nature.” Id. at 1370. Such unilaterally created documents are “not subject to reformation on the ground of mutual mistake.” Id.

122. Further, building permits have legal significance and effect precisely because they constitute official action by a public official with authority to approve development, not because they reflect the parties’ “true agreement.” As an example of what this means, consider LDC section 102-55, which deals with the identification and registration of lawful nonconforming structures and uses. These are the nonconformities that may continue, subject to restrictions and limitations. The duty to determine whether a nonconformity can be accepted as a lawful nonconforming structure or use falls to the Planning Director, who “shall review available documents to determine if a body of evidence exists supporting the lawful establishment of a use or structure prior to the change in regulation that deemed the use or structure nonconforming.” LDC § 102-55(b).34

     
     

     34 Note that only nonconforming uses and structures may be deemed lawful (where they were established or in existence prior to the enactment of the ordinance rendering such uses or structures nonconforming). There is no such thing under the LDC as a “nonconforming design,” which might be declared lawful in order that a permit holder would be able, thereafter, to bring a proposed nonconforming structure into existence.

123. If there is a building permit, however, it is conclusive, and the Planning Director must follow the permit. As section 102-55(b) goes on to state, “[a]ny issued Monroe County building permit(s) for the original establishment or construction of the use or structure, confirming its approval and existence prior to the change in regulation that deemed the use or structure nonconforming, can stand as the only piece of evidence.” (Emphasis added).

124. In determining whether a nonconforming use is lawful, therefore, the Planning Director must accept a building permit at face value because, unlike a contract or an agreement, it is an official governmental act. The undersigned is skeptical that official governmental acts, as opposed to private bilateral agreements, are reformable by courts of equity.

125. Even if the Revised Permit is reformable in a suit in equity, however, the undersigned lacks equitable jurisdiction to maintain such a suit and reform the Revised Permit. It is courts of equity, after all, which traditionally exercise the power to reform written instruments. See Biancardi, 507 So. 2d at 1369. As a historic judicial function, equitable reformation of documents is not likely a task that can be assigned to an administrative officer such as the undersigned. In any event, LDC section 122-9 does not purport to confer such jurisdiction upon an administrative law judge hearing an appeal concerning the County’s FMP. Consequently, the undersigned declines to reform the Revised Permit, either expressly or implicitly, by giving priority to the intention of Giampaoli and

     Mr. Griffin that the 2010 Rules would apply.

126. Ultimately, like the Planning Director in making a nonconforming use determination, the undersigned must take the building permit at face value, and the Revised Permit, as everyone agrees, unambiguously requires that the Schror House be built in strict compliance with the 2017 Rules. Mr. Griffin committed reversible error when he approved the issuance of permits authorizing work on the Schror House to be done pursuant to construction documents which, he knew, contained the engineer’s false certifications of compliance with the 2017 Rules, and which he also knew, for that very reason, were irreconcilably in conflict with

     the personal “understanding” he and the permit holder had reached, to the effect that the work would need only to meet the less rigorous 2010 Rules. It was error for the Building Official to decide one thing and issue a permit stating another.

127. Because the 2017 Rules govern the construction work underway at the Property, by operation of the LDC and as stated on the face of the Revised Permit, the approval of elevation certificates filed on January 20, 2020, and March 10, 2020, based on a review for compliance with the 2010 Rules, was error. These elevation certificates must be reviewed for compliance with the 2017 Rules, and, if any deficiencies are noted, such deficiencies must be corrected.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. The decision to issue the permit for Revision C is reversed, and the permit issued on May 19, 2017, is vacated.

2. The decision to issue the permit for Revision D is reversed, and the permit issued on January 17, 2018, is vacated.

3. The decisions to deem the elevation certificates filed by Giampaoli on January 20, 2020, and March 10, 2020, are reversed.

DONE AND ORDERED this 26th day of February, 2021, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

Administrative Law Judge 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings this 26th day of February, 2021.

COPIES FURNISHED:

NOTICE OF RIGHT TO JUDICIAL REVIEW

Any aggrieved party, including Monroe County, may have appellate rights with regard to this Final Order. Common-law certiorari has been made available to review quasi-judicial orders of local agencies and boards not made subject to the Administrative Procedure Act when no other method of review is provided. A party may seek certiorari review in circuit court, i.e., “first-tier” certiorari review.

Although termed “certiorari” review, review at this level is not discretionary but rather is a matter of right and is akin in many respects to a plenary appeal. Review proceedings are governed by the Florida Rules of Appellate Procedure. The original appellate jurisdiction of the circuit court is invoked by filing a petition, accompanied by any filing fees prescribed by law, with the clerk of the court within 30 days of rendition of the order to be reviewed.

Docket for Case No: 20-002039

Orders for Case No: 20-002039