Blair Nurseries, Inc. v. Baker County, Florida, A Political etc.

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
BLAIR NURSERIES, INC., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-0423
BAKER COUNTY, FLORIDA, A
POLITICAL SUBDIVISION OF
THE STATE OF FLORIDA, AND
THE BOARD OF COUNTY
COMMISSIONERS OF BAKER
COUNTY, FLORIDA,
Respondents.
___________________________/
Opinion filed September 13, 2016.
Petition for Writ of Certiorari.
T.R. Hainline, Jr., Emily G. Pierce, and Cristine M. Russell of Rogers Towers,
P.A., Jacksonville, for Petitioner.
Richard C. Komando of Kopelousos, Bradley & Garrison, P.A., Orange Park, for
Respondents.
MAKAR, J.
Blair Nurseries owns rural acreage in Baker County, Florida, which it
subdivided in 2002 into twenty-two five-acre residential lots known as Smoke Rise II,
a planned community for horse owners. In 2003, Celeste Reynolds purchased a lot and
built a home, but no other lots have been sold, leaving her property adjoining native
undeveloped lands for over a decade in the defunct equestrian community.
In 2014, Blair Nurseries filed an application with Baker County to vacate the
subdivision plat (excepting Reynolds’s lot) so its property could be returned to acreage
for agricultural purposes. The Baker County planning staff and the County’s
Development Review Committee recommended approval of the application and the
County’s Director of Zoning and Planning stated that the application satisfied all
requirements.
The applicable statute required Blair Nurseries to show three things: (1) that it
owned the property “covered by the plat sought to be vacated;” (2) that “the vacation
[of the plat] by the governing body of the county will not affect the ownership . . . of
other persons owning other parts of the subdivision,” and (3) that vacation “will not
affect the . . . right of convenient access” of such persons. § 177.101(3), Fla. Stat.
(2014) (emphasis added). No dispute exists that Blair Nurseries owns the platted
property and that access to Reynolds’s home would be unaffected by vacation of the
plat because her home directly abuts and accesses Mud Lake Road, which forms the
southern border of much of the platted property. Instead, the only question—one that
arose later in the process—was whether vacating the plat would affect Reynolds’s
“ownership” of her property within the meaning of the emphasized statutory language
above.
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The Baker County Board of County Commissioners held a public hearing on the
matter at which Reynolds spoke. She opposed reversion, believing it would reduce the
value of her home. A discussion arose about whether a potential reduction in value of
her home was a sufficient legal justification to deny the application. Legal counsel for
Blair Nurseries pointed out that Reynolds’s ownership of her property would be
unaffected, but some commissioners posited that the potential for reduced value was
akin to “affect[ing] the ownership” of the property. In the end, the Commission
unanimously denied Blair Nurseries’ application.
Blair Nurseries sought certiorari and mandamus relief in the circuit court,
arguing that the County failed to observe the essential requirements of law in denying
the application; because its application met all criteria in the statute and county code,
no basis existed to deny it. In addition, the County’s consideration of the “value” of
Reynolds’s property as a basis for denial was legal error because the statute only
permits consideration of whether vacation of a plat will “affect the ownership” of
others who own property in the subdivision. The trial court issued a written order
denying relief, but did not reach the value/ownership issue. Instead, it concluded that it
lacked the judicial power to do so because the County’s decision was a discretionary
one:
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[B]ecause both the applicable statute [section 177.101(3)] and county
code provision [section 8.06.01 1] use the permissive ‘may’ and do not
include any words requiring a board to reach a particular decision if
certain criteria are met, Petitioner has not demonstrated entitlement to
mandamus or certiorari relief, and the court need not reach the testimonial
or valuation issues.
Because it viewed the Board as having essentially unreviewable discretion to grant or
deny an application, it thereby foreclosed any judicial relief whatsoever.
On second-tier certiorari review in this Court, Blair Nurseries is correct that the
trial court violated a clearly established principle of law that resulted in a miscarriage
of justice by concluding that the word “may” in section 177.101(3), precludes any
judicial review of the Board’s decision. Nader v. Fla. Dep’t of High. Saf. & Motor
Veh., 87 So. 3d 712, 727 (Fla. 2012). The statute plainly does not grant unreviewable
discretion; and clearly established law limits the discretion to deny a facially valid plat
application.
To begin, the Board’s decision is a discretionary one within the confines of the
statutory criteria, but it is also one subject to judicial review. In contrast, the trial court
believed that the term “may” was the Legislature’s way of saying that the Commission
had discretion to do whatever it wants without judicial oversight. But that overlooks
the remainder of the statute as well as caselaw and opinions of Florida’s Attorney
1
Section 8.06.01 of the Clay County Development Code provides only that the County
may require a survey or improvements for “equivalent access,” but does not speak in
terms of what discretion the Board may wield. As such, it is not relevant as to the
issues raised in this proceeding.
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General contradicting such a conclusion. First of all, the word “may” in section
177.101(3) is used primarily as a legislative grant of authority to a local governing
body to be able to vacate plats under specified circumstances. The purpose of Part I of
Chapter 177, Florida Statutes (entitled “Platting”), is to “to establish consistent
minimum requirements, and to create such additional powers in local governing
bodies, as herein provided to regulate and control the platting of lands. This part
establishes minimum requirements and does not exclude additional provisions or
regulations by local ordinance, laws, or regulations.” § 177.011, Fla. Stat. (2014)
(emphasis added).
As the italicized language makes clear, a central purpose of the “Platting”
statutes is to grant “additional powers” to local government, which is precisely what
section 177.101(3) does, stating: “The governing bodies of the counties of the state
may adopt resolutions vacating plats in whole or in part of subdivisions in said
counties, returning the property covered by such plats either in whole or in part into
acreage.” § 177.101(3), Fla. Stat. As the Attorney General has noted in construing this
section, the “power of a county or municipality to vacate property dedicated to a
public use is controlled by statute.” Op. Att’y Gen. Fla. 2005-11 (2005) (emphasis
added). A county is powerless to vacate a subdivision plat absent compliance with the
statute, which requires an application from the landowner. See Op. Att’y Gen. Fla. 72-
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169 (1972) (“[T]here is no authority whatsoever under §177.101 . . . for a board of
county commissioners to vacate, upon its own motion, a subdivision plat.”).
Far from conferring unreviewable discretion, section 177.101(3) is a narrow
grant of authority by which local governing bodies must govern their actions. It is
restricted to those circumstances where a person owning platted property shows that
vacation of the plat “will not affect the ownership or right of convenient access of
persons owning other parts of the subdivision.” § 177.101(3), Fla. Stat. Local
governing bodies do not have unbridled discretion to do what they want or believe is
justified; instead, upon a showing of the statutory requirements (and, if applicable,
local code-based requirements), the Commission has a legal responsibility to grant the
vacation request unless they prove non-compliance with applicable law. As our
supreme court has said: “To deny a plat application, a local government agency must
show by competent substantial evidence that the application does not meet the
published criteria.” Broward Cnty. v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 842 (Fla.
2001). In other words, the burden is upon the local governing body to demonstrate by
competent, substantial evidence that an applicant is not entitled to the requested
action; whatever discretion the local governing body has is limited and not
unbounded.
Further, the conclusion that local governing bodies lack broad, unreviewable
discretion in their processing of plat vacation applications is buttressed by the
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statutory requirement that grants and denials of plats “must be uniformly
administered.” Id.; see also § 177.101, Fla. Stat. (establishing “consistent minimum
requirements” as to platting). Discretion is constrained where official action must be
uniformly administered pursuant to consistent standards.
Finally, the trial court’s denial of judicial review is a miscarriage of justice, akin
to a denial of due process, because it foreclosed any judicial review of the
Commission’s rejection of the plat vacation application. To be upheld, the denial of the
application required that the Commission demonstrate by competent, substantial
evidence that Blair Nurseries did not meet the statutory requirements, an inquiry that
the trial court did not undertake (i.e., “the court need not reach the testimonial or
valuation issues”). It is hard to imagine anything more manifestly unjust than a
complete denial of judicial review when it should otherwise have been provided as a
matter of right. G.B.V., 787 So. 2d at 843 (“[F]irst-tier certiorari review is not
discretionary but rather is a matter of right and is akin in many respects to a plenary
appeal . . . .”). For these reasons, and because our role “is to halt the miscarriage of
justice, nothing more,” id., we quash the circuit court’s decision.
ROWE, J., CONCURS; BILBREY, J. DISSENTS WITH OPINION.
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BILBREY, J., dissenting.
I respectfully dissent. The trial court did not err in its denial of first-tier
certiorari relief, and even if it had, such an error did not constitute a miscarriage of
justice warranting second-tier certiorari relief.
The controlling procedure was set forth over thirty years ago in City of Deerfield
Beach v. Valliant, 419 So. 2d 624, 626 (Fla. 1982), as follows:
where full review of administrative action is given in the
circuit court as a matter of right, one appealing the circuit
court's judgment is not entitled to a second full review in the
district court. Where a party is entitled as a matter of right
to seek review in the circuit court from administrative
action, the circuit court must determine whether procedural
due process is accorded, whether the essential requirements
of the law have been observed, and whether the
administrative findings and judgment are supported by
competent substantial evidence. The district court, upon
review of the circuit court's judgment, then determines
whether the circuit court afforded procedural due process
and applied the correct law.[2]
In Valliant, the Florida Supreme Court essentially equated the certiorari review
afforded by a circuit court with the appellate review exercised by a district court. Id.Implicit in such an equation is the notion that second-tier certiorari review should be
sparingly granted. As the Supreme Court has explained:
a balance must be struck between respecting the finality of
appellate review provided by the circuit court's appellate
2 The phrase applying the correct law is synonymous with observing the essential
requirements of law. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla.
1995).
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counties, returning the property covered by such plats either
in whole or in part into acreage. Before such resolution of
vacating any plat either in whole or in part shall be entered
by the governing body of a county, it must be shown that
the persons making application for said vacation own the
fee simple title to the whole or that part of the tract covere
decision [on first-tier certiorari review] and the necessity of
having the availability of certiorari to use in a narrow group
of cases, which “merit the extra review and safeguard
provided by certiorari.”
Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 727 (Fla.
2012) (quoting Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 531 (Fla. 1995)).
Since Valliant, the Florida Supreme Court repeatedly has made it clear that
second-tier certiorari relief is a remedy appropriate only in very narrow circumstances.
Such a narrow circumstance does not include disagreement with a circuit court’s
evaluation of evidence. Educ. Dev. Ctr., Inc. v. City of W. Palm Beach Zoning Bd. of
Appeals, 541 So. 2d 106 (Fla. 1989). Further, second-tier certiorari jurisdiction cannot
be invoked “where the decision below [on first-tier certiorari review] recognizes the
correct general law and applies the correct law to a new set of facts to which it has not
been previously applied. In such a situation, the law at issue is not a clearly established
principle of law.” Nader, 87 So. 3d at 723 (citing Ivey v. Allstate Ins. Co., 774 So. 2d
679, 682-83 (Fla. 2000)).
Here, the circuit court certainly applied the correct law when it considered
chapter 177, Florida Statutes, and section 8.06.01 of the Baker County Land
Development Regulations. Construing these provisions, the circuit court concluded in
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pertinent part that “because both the applicable statute and county code provision use
the permissive ‘may’ and do not include any words requiring a board to reach a
particular decision if certain criteria are met, [Blair Nurseries] has not demonstrated
entitlement to mandamus or certiorari relief.” Section 177.101(3) provides:
(3) The governing bodies of the counties of the state may adopt
resolutions vacating plats in whole or in part of subdivisions in said d by
the plat sought to be vacated, and it must be further shown that the
vacation by the governing body of the county will not affect the
ownership or right of convenient access of persons owning other parts of
the subdivision.
(Emphasis added).
The majority reads this provision as setting forth the complete requirements for
vacating a plat map. Thus, if two requirements are met – (i) demonstration of fee
simple title and (ii) demonstration that ownership or right of access by other owners
will not be affected – then, a county must vacate the plat. I read section 177.101(3) as
instead only imposing minimal requirements before a request to vacate a plat can even
be considered. Indeed, that is exactly what section 177.011, quoted by the majority,
states: “[Part I of Chapter 177] establishes minimum requirements and does not
exclude additional provisions or regulations by local ordinance, laws, or regulations.”
(Emphasis added). In other words, the elements of standing to seek a change in a plat
map are stated in section 177.101(3); entitlement to such a change is a succeeding
inquiry. That the minimum standards should be uniform is a fact which hardly
dispossesses a local authority from exercising certain discretion over land-use
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planning.
There is ample case law holding that the use of the term “may” ordinarily
denotes discretionary or permissive authority. See, e.g., The Fla. Bar v. Trazenfeld,
833 So. 2d 734, 738 (Fla. 2002) (“The word ‘may’ when given its ordinary meaning
denotes a permissive term rather than the mandatory connotation of the word ‘shall.’”);
Sanders v. City of Orlando, 997 So. 2d 1089 (Fla. 2008). The majority does not offer a
compelling reason for not construing the term “may” in its ordinary sense, and it is
imminently reasonable that a local authority be given a measure of discretion over land
use.
Assuming for the sake of argument that the circuit court did err in construction
of chapter 177, it still does not follow that second-tier certiorari relief is warranted. As
indicated, legal error, in and of itself, is not a basis for granting certiorari review.
Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So. 3d 344, 351 (Fla. 2012).
Indeed, the Florida Supreme Court has repeatedly emphasized that it is the
“seriousness of the error” and not the mere existence of error which is the
determinative factor. See Ivey, 774 So. 2d at 682 (quoting Combs v. State, 436 So. 2d
93, 95 (Fla. 1983)). Moreover, it is the seriousness of error allegedly committed by the
court on first-tier certiorari which is the object of focus for a district court considering
second-tier certiorari review — not any error which may have been made by the local
authority (or county court) in the first instance, Valliant, nor even the erroneous
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application of the correct law to the facts of the case, Ivey. Here, the trial court applied
the correct law, chapter 177, to the facts of the case. That the majority would have
reached a different result had it conducted first-tier certiorari review is of no moment.
See Futch v. Fla. Dep’t of Highway Safety & Motor Vehicles, 189 So. 3d 131 (Fla.
2016); Educ. Dev. Ctr., Inc.; Ivey.
Importantly, I submit that it is not correct to say, as the majority does, that the
circuit court denied judicial review. It considered the applicable law and found that the
County acted within the authority permitted to it by this law. Statutory construction
does constitute judicial review, even if it results in an affirmance of the action taken
below. See, for example, Mendenhall v. State, 48 So. 3d 740 (Fla. 2010). The
majority simply disagrees with the result reached by the County and then by the circuit
court. As Blair Nurseries cannot point to a denial of procedural due process and as the
circuit court considered the arguments raised in the certiorari petition and rejected
those arguments upon an application of the controlling law to the facts of the case,
there can be no reasonable assertion that a manifest injustice occurred. See Custer
Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010) (“when a district
court considers a petition for second-tier certiorari review, the ‘inquiry is limited to
whether the circuit court afforded procedural due process and whether the circuit court
applied the correct law,’ or, as otherwise stated, departed from the essential
requirements of law”); Heggs.
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By granting second-tier certiorari, this court is granting a second appeal. Such is
an improper use of certiorari. Ivey, 774 So. 2d at 683. As the Florida Supreme Court
has explained, improper expansion of certiorari jurisdiction would “afford a litigant
two appeals from a court of limited jurisdiction, while limiting a litigant to only one
appeal in cases originating in a trial court of general jurisdiction.” Nader, 87 So. 3d at
723 (quoting Custer, 62 So. 3d at 1093).
Under the relaxed standard employed by the majority, certiorari is available to
any party who could prevail if a direct appeal were available, contrary to well-
established precedent which holds that “appellate courts must exercise caution not to
expand certiorari jurisdiction to review the correctness of the circuit court's decision.”
Nader, 87 So. 3d at 723. Such a relaxed standard improperly “invite[s] certiorari
review of a large number of the appellate decisions issued by circuit courts.” Ivey, 774
So. 2d at 683 (quoting Stilson v. Allstate Ins. Co., 692 So. 2d 979, 982-83 (Fla. 2d
DCA 1997)). Second-tier certiorari review is an “extraordinary power,” Stilson, 692
So. 2d at 982, and as such, it should be invoked sparingly and cautiously.
In sum, I would deny the petition.
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