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Inc. v. Lake County

Florida Court of Appeals, Fifth District

October 4, 2019



          Petition for Certiorari Review of Order from the Circuit Court for Lake County, Lawrence J. Semento, Judge.

          David A. Theriaque and S. Brent Spain, of Theriaque & Spain, Tallahassee, for Petitioners.

          Melanie Marsh, County Attorney, Tavares, for Respondent.

          JACOBUS, B.W., Senior Judge.

         This 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 communications tower.

         Petitioners 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)[1] and 14.15.01.[2] 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, "[3] and the fact that "authorize" is synonymous with "license."

         The 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.

         Our 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)).

         In 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 14.15.06(B).

         The plain language of the LDRs, as they existed in 2018, [4] 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 . . . .").

         Accordingly, 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).[5]

         PETITION GRANTED; ...

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