MT. PLYMOUTH LAND OWNERS' LEAGUE, INC. AND VANESSA LYNNE THORNTON, Petitioners,
LAKE COUNTY, FLORIDA, Respondent.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Petition for Certiorari Review of Order from the Circuit
Court for Lake County, Lawrence J. Semento, Judge.
A. Theriaque and S. Brent Spain, of Theriaque & Spain,
Tallahassee, for Petitioners.
Melanie Marsh, County Attorney, Tavares, for Respondent.
JACOBUS, B.W., Senior Judge.
second-tier certiorari petition concerns the planned
construction on county-owned land of a 350-foot public safety
communications tower by the Lake County Office of Public
Safety and the county's rezoning application, filed in
April 2018, which also requested waivers of mandatory setback
requirements from residences and other communications towers.
The setbacks were mandated by the Lake County Land
Development Regulations (LDRs) 3.13.09(B)(4) and 3.13.10(A).
The rezoning application was opposed by the Mt. Plymouth Land
Owners' League and Vanessa Lynne Thornton (Petitioners)
on aesthetic grounds and the undisputed fact that it did not
comply with the mandatory setbacks. It was first considered
by the Lake County Planning and Zoning Board, which
recommended it be denied even though its staff had
recommended approval. In September 2018, the Lake County
Board of Commissioners promulgated an ordinance granting the
rezoning application along with the waiver of the mandatory
setbacks. The ordinance reduced the setbacks to the actual
distances between the proposed tower and the nearest
residence and the proposed tower and the nearest
sought certiorari relief in the circuit court arguing, among
other things, that the rezoning application departed from the
essential requirements of law by violating the mandatory
setbacks in the LDRs and that the Board of Commissioners was
not authorized to grant variances, as that power was
expressly given solely to the Lake County Board of Adjustment
by LDRs 13.03.01(B) and 14.15.01. The circuit court denied the
petition, finding that relief from the mandatory setbacks
could be granted through a variance. It held that the plain
language in the third sentence of LDR 14.15.01, specifically
the word "authorized," did not deprive the Board of
Commissioners of the power to grant variances, but
"implies merely the authorization" of the Board of
Adjustment to grant them as well. The circuit court relied on
the definition of "authorize" in Black's Law
Dictionary, which is "to empower another,
" and the fact that "authorize" is
synonymous with "license."
instant petition for second-tier certiorari reasserts that
the LDRs vested the Board of Adjustment with sole authority
to grant variances from the mandatory setbacks. The petition
concludes that the Board of Commissioners lacked that power
because it is bound by its own LDRs. We grant the petition
and quash the order below.
review on second-tier certiorari is narrower than the circuit
court was permitted on the first-tier petition in that there
is no review for competent, substantial evidence. Custer
Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092
(Fla. 2010) (quoting Haines City Cmty. Dev. v.
Heggs, 658 So.2d 523, 530 (Fla. 1995)). Second-tier
certiorari review "'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." Id.; accord Nader v. Dep't of
High. Saf. & Motor Veh., 87 So.3d 712, 723 (Fla.
2012) (quoting Heggs, 658 So.2d at 530-31). A
second-tier certiorari petition should only be granted
"when the lower tribunal has violated a clearly
established principle of law resulting in a miscarriage of
justice." Custer Med. Ctr., 62 So.3d at 1092
(citing Allstate Ins. Co. v. Kaklamanos, 843 So.2d
885, 889 (Fla. 2003)).
1993, the Board of Commissioners adopted the LDRs by
ordinance as required by section 163.3202, Florida Statutes
(1993). LDR 13.01.01 reserves the power to amend the LDRs and
the zoning map to the Board of Commissioners. Therefore, the
Board of Commissioners has the power to grant rezoning with
or without conditions. LDR 14.00.04(D). But the power to
rezone is distinct from the power to grant zoning variances
and waivers. See Orlando v. Comtois, 223 So.2d 560,
560-61 (Fla. 1st DCA 1969) (citing Josephson v.
Autrey, 96 So.2d 784, 787 (Fla. 1957) (en banc)). LDR
13.01.01 contains no mention of the power to grant variances
and waivers. Nor is there any mention of this power belonging
to the Board of Commissioners elsewhere in the LDRs. Instead,
LDRs 13.03.01 and 14.15.01 give the Board of Adjustment,
which is appointed by the Board of Commissioners, the power
to grant variances and waivers from the requirements imposed
by the LDRs. LDR 14.15.05 requires that applications for
variances and waivers shall be filed with the county. It
further provides that when the application is complete, the
Board of Adjustment "[s]hall conduct a public hearing to
consider the variance application." Appellate
jurisdiction over the Board of Adjustment is given not to the
Board of Commissioners but instead to the circuit court. LDR
plain language of the LDRs, as they existed in 2018,
clearly omits any role for the Board of Commissioners in
granting variances and waivers from the requirements of the
LDRs. The second sentence in LDR 14.15.01, concerning the
findings of the Board of Commissioners, merely expresses the
Board of Commissioners' intent to adopt a procedure for
granting variances and waivers. Nothing in the plain language
of LDR 14.15.01 reserves any role for the Board of
Commissioners in that procedure. In fact, the Board of
Commissioners is cut out of the procedure altogether by LDRs
14.15.05 and 14.15.06(B), in that the Board of Adjustment is
required to hold the hearings on the applications for
variances and waivers, and the circuit court hears appeals
from the Board of Adjustment. The county is bound by the
language of its own ordinances and regulations. See
Parkway Towers Condo. Ass'n v. Metro. Dade Cty., 295
So.2d 295, 295-96 (Fla. 1974); see also Everett v. City
of Tallahassee, 840 F.Supp. 1528, 1539-41 (N.D. Fla.
1992); Miami-Dade Cty. v. Omnipoint Holdings, Inc.,
863 So.2d 375, 376 (Fla. 3d DCA 2003) ("Neither a
quasi-judicial body nor a reviewing circuit court is
permitted to add to or detract from these criteria (the local
regulations) when making its assigned determination.");
Carroll v. City of Miami Beach, 198 So.2d 643, 645
(Fla. 3d DCA 1967) ("It is our opinion that the City is
bound by the express terms of its own ordinance . . .
the petition for second-tier certiorari is granted. The
circuit court departed from the essential requirements of law
by applying the wrong law in that it disregarded the plain
and unambiguous language in LDRs 13.01.01, 13.03.01(B),
14.15.01, 14.15.05, and 14.15.06(B), and improperly construed
the word "authorized" in LDR 14.15.01 in isolation
from the other LDRs. See Halifax Hosp. Med. Ctr. v.
State, 44 Fla.L.Weekly S149, S150 (Fla. Apr. 18, 2019)
(noting that "words, phrases, clauses, sentences, and
paragraphs" of ordinances must not be construed in
isolation but must be read in context of entire provision
(quoting Trafalgar Woods Homeowners Ass'n v. City of
Cape Coral, 248 So.3d 282, 284 (Fla. 2d DCA 2018)));
see also DMB Inv. Tr. v. Islamorada, Vill. of
Islands, 225 So.3d 312, 318 (Fla. 3d DCA 2017); BMS
Enters. LLC v. City of Fort Lauderdale, 929
So.2d 9, 11 (Fla 4th DCA 2006).