14269 BT, LLC, a Florida Limited Liability Corporation v. VILLAGE OF WELLINGTON, FLORIDA, a Florida Municipal Corporation

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
14269 BT LLC, a Florida Limited Liability Corporation,
Petitioner,
v.
VILLAGE OF WELLINGTON, FLORIDA, a Florida Municipal
Corporation,
Respondent.
No. 4D17-2376
[January 17, 2018]
Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Peter D. Blanc, Joseph Marx and
Jeffrey D. Gillen, Judges; L.T. Case No. 502016CA007337XXXXMB.
Michael B. Stevens of Derrevere Stevens Black & Cozad, West Palm
Beach, for petitioner.
Laurie Stilwell Cohen and Aaron C. Dunlap, Wellington, for
respondent.
PER CURIAM.
The operator of a horse farm, 14269 BT, LLC (the “farm”), seeks
second-tier certiorari review of an administrative code enforcement order
finding that the farm violated several sections of the Village of
Wellington’s (the “village”) land development regulations (“LDR”). These
violations arose from unpermitted improvements the farm made to its
property including the construction of two barns, a storage building, a
manure bin, a driveway, and a swale. The code enforcement order
mandates several corrective actions including removing one of the barns.
The farm argues that all of its improvements are nonresidential farm
buildings and support structures, which are exempt from the village’s
LDRs pursuant to the plain language of section 604.50(1), Florida
Statutes (2016). We agree that some of the improvements, including the
two barns, the storage building, and the manure bin, are exempt under
the plain language of section 604.50(1). Therefore, we grant the petition,
in part, and quash the circuit court’s affirmance because it contravenes
the plain language of section 604.50(1).
Factual and Procedural Background
In March 2016, the village cited the farm with several code violations
in two separate cases. In the first case, the farm was cited for violating
various storm-water management regulations by failing to (i) design and
build a secondary storm-water system and (ii) obtain permits for grading
work done during the construction of the driveway and the swale.
Notably, the driveway and the swale were partially built across a public
right-of-way. The corrective actions listed for these violations included
obtaining permits for the grading work and submitting plans for a
secondary storm-water system.
In the second case, the farm was cited for failing to obtain building
permits for the two barns, the storage building, and the manure bin. The
farm was also cited for violating LDR section 6.10.12, which limits the
number of barns that can be built on lots within the farm’s zoning
district. The corrective actions listed for these violations included
obtaining the required building permits and removing the second barn.
These cases proceeded to an evidentiary hearing before a special
magistrate, who ultimately entered an amended consolidated order in
favor of the village. The farm appealed to the circuit court, and the
circuit court affirmed in an unelaborated opinion.
This petition for second-tier certiorari review follows.
Second-tier Certiorari Review
“Second-tier certiorari is not a second appeal; it is extraordinarily
limited, and narrow in scope.” Advanced Chiropractic & Rehab. Ctr. Corp.
v. United Auto Ins. Co., 103 So. 3d 866, 868 (Fla. 4th DCA 2012).
“Review is limited to whether the circuit court failed to afford petitioner
procedural due process in the appeal or departed from the essential
requirements of the law, that is, committed a grievous error which
results in a miscarriage of justice.” State Farm Mut. Auto Ins. Co. v.
Pembroke Pines MRI, Inc., 171 So. 3d 814, 816 (Fla. 4th DCA 2015).
The circuit court’s failure to obey the plain language of a statute can
form the basis for second-tier review. Nader v. Fla. Dep't of Highway
Safety & Motor Vehicles, 87 So. 3d 712, 727 (Fla. 2012) (“[S]tatutes also
constitute ‘clearly established law,’ meaning that a district court can use
second-tier certiorari to correct a circuit court decision that departed
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from the essential requirements of statutory law.”).
Applicable Law
“When a statute is clear and unambiguous, courts will not look
behind the statute’s plain language for legislative intent or resort to rules
of statutory construction to ascertain intent.” Lee Cnty. Electric Coop.,
Inc. v. Jacobs, 820 So. 2d 297, 303 (Fla. 2002). Section 604.50(1)
provides:
Notwithstanding any provision of law to the contrary, any
nonresidential farm building, farm fence, or farm sign that is
located on lands used for bona fide agricultural purposes is
exempt from the Florida Building Code and any county or
municipal code or fee, except for code provisions
implementing local, state, or federal floodplain management
regulations. A farm sign located on a public road may not be
erected, used, operated, or maintained in a manner that
violates any of the standards provided in s. 479.11(4), (5)(a),
and (6)-(8).
§ 604.50(1), Fla. Stat. (emphasis added).
Prior to 2011, this section only exempted nonresidential farm
buildings from “any county or municipal building code.” § 604.50(1), Fla.
Stat. (2010) (emphasis added). In 2011, the legislature broadened the
language of this section by removing the word building, so it now
generally applies to “any county or municipal code or fee . . . .” Ch.
2011-7, § 6, Laws of Florida.
There are no cases construing whether municipal zoning regulations,
such as LDR section 6.10.12, fall within the meaning of “any county or
municipal code.” However, in 2013, the Florida Attorney General issued
an advisory opinion directly on point, which is persuasive authority. 1
See Op. Att'y Gen. 2013-01 (2013). The opinion addresses whether the
Town of Loxahatchee Groves would be violating section 604.50(1) if it
sought to enforce zoning LDRs, specifically setback requirements,
against nonresidential farm buildings. Id. Based on the plain language
of section 604.50(1), as amended in 2011, the Attorney General
1“Although an opinion of the Attorney General is not binding on a court, it is
entitled to careful consideration and generally should be regarded as highly
persuasive.” State v. Family Bank of Hallandale, 623 So. 2d 474, 478 (Fla.
1993).
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concluded that nonresidential farm buildings are exempt from all
municipal building and zoning LDRs. 2 Id.
Discussion
It is undisputed that the farm’s property is zoned for agricultural use,
and the property is being used for a bone fide agricultural purpose. It is
also undisputed that the barns and storage facilities are nonresidential
farm buildings.
Pursuant to the plain language of section 604.50(1), nonresidential
farm buildings are exempt from “any county or municipal code or fee.”
(emphasis added). The legislature’s 2011 amendment to this section, as
outlined above, indicates an intent to expand the exemption to include
any county or municipal code rather than merely including county or
municipal building codes. As such, we conclude that the two barns, the
storage building, and the manure bin are not only exempt from the
village’s building permit requirements, but they are also exempt from the
village’s zoning regulations including LDR section 6.10.12.
The farm also contends that it is exempt from complying with the
village’s storm-water management regulations (LDR sections 8.24.6 and
8.24.9). However, these violations arose from (i) grading work done to
build a driveway and a swale, which were partially built across a public
right-of-way, and (ii) the farm’s failure to build a secondary storm-water
system. Nothing within the language of section 604.50 permits a farm
owner to encroach upon a public right-of-way without seeking approval.
Furthermore, driveways, swales, and storm-water systems do not fall
within the meaning of “nonresidential farm buildings.” 3
2 Two prior advisory opinions issued by the Attorney General concluded that
counties and municipalities are permitted to enforce zoning regulations, such
as set-backs, on the construction of nonresidential farm buildings. See Op. Fla.
Att'y Gen. 2009-26 (2009); Op. Fla. Att'y Gen. 2001-71 (2001). However, these
opinions were both issued before the legislature amended section 604.50 in
2011.
3 Under section 604.50(2)(d), a nonresidential farm building is defined as:
[A]ny temporary or permanent building or support structure that
is classified as a nonresidential farm building on a farm under s.
553.73(10)(c) or that is used primarily for agricultural purposes, is
located on land that is an integral part of a farm operation or is
classified as agricultural land under s. 193.461, and is not
intended to be used as a residential dwelling. The term may
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Finally, the farm asserts that the magistrate’s factual findings
pertaining to the violations of LDR sections 8.24.6 and 8.24.9 were not
supported by competent substantial evidence. However, second-tier
certiorari is not an appropriate mechanism for reviewing whether a lower
tribunal’s findings are supported by competent substantial evidence.
Stranahan House, Inc. v. City of Fort Lauderdale, 967 So. 2d 1121, 1128
(Fla. 4th DCA 2007).
Conclusion
Based on the foregoing, we conclude that the circuit court departed
from the essential requirements of the law because its affirmance in this
case directly contravenes the plain language of section 604.50(1). Under
the specific facts of this case, failure to correct this error would result in
a miscarriage of justice because the farm has been ordered to remove the
second barn even though it is exempt from the requirements of LDR
section 6.10.12.
Therefore, we grant the petition, in part, and quash the circuit court’s
affirmance. We deny the petition with respect to the farm’s violations of
LDR sections 8.24.6 and 8.24.9.
Granted in part and denied in part.
GROSS, CIKLIN and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
include, but is not limited to, a barn, greenhouse, shade house,
farm office, storage building, or poultry house.
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