County of Volusia v. City of Deltona

925 So. 2d 340, 2006 Fla. App. LEXIS 460, 2006 WL 140380
CourtDistrict Court of Appeal of Florida
DecidedJanuary 20, 2006
Docket5D05-1032
StatusPublished
Cited by8 cases

This text of 925 So. 2d 340 (County of Volusia v. City of Deltona) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
County of Volusia v. City of Deltona, 925 So. 2d 340, 2006 Fla. App. LEXIS 460, 2006 WL 140380 (Fla. Ct. App. 2006).

Opinion

925 So.2d 340 (2006)

COUNTY OF VOLUSIA, Petitioner,
v.
CITY OF DELTONA, et al., Respondents.

No. 5D05-1032.

District Court of Appeal of Florida, Fifth District.

January 20, 2006.
Rehearing Denied April 7, 2006.

*341 Randell H. Rowe, III, and Michael G. Dyer, Assistant County Attorney, DeLand, for Petitioner.

Lonnie N. Groot of Stenstrom, McIntosh, Colbert, Whigham, Reischmann & Partlow, P.A., Sanford, Amicus Curiae, for City of Lake Helen.

Albert J. Hadeed of Albert J. Hadeed, P.A., Flagler Beach, Amicus Curiae, for Environmental Council of Volusia and Flagler Counties, Inc.

L. Roland Blossom, City Attorney and George Trovato, Assistant City Attorney, Deltona, for Respondent, City of Deltona.

C. Allen Watts of Cobb & Cole, P.A., DeLand, for Respondent, Leffler Co.

THOMPSON, J.

The County of Volusia ("County") seeks certiorari review of an order from the circuit court, sitting in its appellate capacity, which denied certiorari review of an annexation ordinance passed by the City of Deltona ("City").[1] At issue in this case is the proper procedure for property owners seeking voluntary annexation. The County contends that the circuit court applied the incorrect law when it held that section 171.021, Florida Statutes (2003), did not apply to voluntary annexations and that the criteria set forth in sections 171.0413, 171.042, and 171.043 apply only to involuntary annexations. We quash the order of the circuit court that denied certiorari review and remand for further proceedings in accordance with this opinion.

The annexation involves three tracts of land identified in the County's comprehensive plan as part of a critical environmental systems corridor. The largest tract consists of 4626 acres owned by Leffler Co. ("Leffler"). Another tract of 339 acres is owned by Joseph and Venus Lao, Trustees. The third tract is a narrow ten-acre parcel owned by Roger L. Gray, Trustee. The circuit court made the following factual and procedural findings:

On March 1, 2004, the City Commission adopted Ordinance No. 02-2004, voluntarily annexing approximately 4,975 acres located in unincorporated Volusia County, Florida, pursuant to *342 Florida Statutes § 171.044 of the Municipal Annexation or Contraction Act. The issues before this Court concern the validity of that voluntary annexation.
The owners of the three (3) parcels consisting of 10,339, and 4,626 acres, respectively, filed petitions proposing that their parcels be included within the City boundaries and requesting that the City consider their petitions as a unified request to annex all of their properties together. Pursuant to ... § 171.044(2), Florida Statutes, the City Commission verified the signatures of the property owners and held two (2) hearings on the ordinance. The public was given an opportunity to speak at both hearings.
The Leffler Company ("Leffler"), owner of the vast majority of the land proposed for annexation, submitted a "Pre-Annexation Agreement" ("Agreement") to the City as its petition for voluntary annexation of its 4,626 acres. The Agreement addressed future planning and development of the property and was unsigned by the City at the first reading. The Agreement was subsequently submitted to the City Commission as a proposed contract between Leffler and the City, and was approved by the Commission as a separate agenda item prior to the final adoption of the voluntary annexation ordinance.
At the final public hearing on the annexation ordinance, the Director of Growth and Resource Management for Volusia County ("Director") presented a letter of objection from the County and provided to each of the City Commissioners a copy of a twenty-nine (29) page report from a hired "expert" to the Commissioners. The Director also presented an affidavit from the expert, but the expert did not testify and the Director did not read the report or any of its contents into the record. Following public comments, discussion by the Commissioners, and inquiries of City staff by the Commissioners, the Commissioners voted 6 to 1 in favor of annexing the subject parcels, pursuant to Fla. Stat. § 171.044.
Subsequent to the filing of the County's certiorari petition, this Court granted permission to appear as amicus curiae to the City of Lake Helen, Deltona residents Jack Hoyt and Harlan Reed Parsons, and the following entities: Environmental Council of Volusia and Flagler Counties, Volusia-Flagler Sierra Club, Osteen Preservation Society, Inc., Enterprise Preservation Society, Inc., Wetlands Alert, Inc. and Flagler Environmental Action Committee, Inc. These entities and individuals filed briefs and participated in oral argument in support of the County's position.
Leffler, the primary property owner, also participated in this action and oral argument. Leffler had sought entry into this proceeding as an indispensable party and filed a motion to dismiss. This Court rejected Leffler's claimed status as an indispensable party and denied its motion to dismiss. Leffler sought review of that ruling by filing a Petition for Writ of Prohibition in the Fifth District Court of Appeal. On October 26, 2004, the Fifth District Court of Appeal entered an Order denying Leffler's petition on the merits, with prejudice. Leffler subsequently filed a request to intervene in this proceeding. At the hearing on its request, Leffler expressly conceded to this Court that its status as an intervener [sic] would be subordinate to, and in recognition of, the propriety of the main proceeding, pursuant to Florida Rules of Civil Procedure, Rule 1.230. This Court, in recognition of Levler's [sic] justiciable interest in this cause and in the interest of judicial *343 economy, permitted Leffler's intervention.

The circuit court asserted jurisdiction to review the validity of the annexation ordinance under section 171.081. The County timely petitioned for certiorari review of the circuit court's decision.

Circuit courts review annexation ordinances by certiorari under section 171.081. See City of Auburndale v. Town of Polk City, 898 So.2d 1101, 1102 (Fla. 2d DCA 2005); City of Tallahassee v. Kovach, 733 So.2d 576, 577-78 (Fla. 1st DCA 1999). In this first-tier review, the court determines only: whether the lower tribunal afforded the parties procedural due process; whether the essential requirements of law were observed; and whether the lower tribunal's action was supported by competent, substantial evidence. See Broward County v. G.B.V. Int'l, Ltd., 787 So.2d 838, 842-44 (Fla.2001); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). The court may not reweigh the evidence or substitute its judgment for that of the agency. Haines City Cmty. Dev., 658 So.2d at 529 (citing Educ. Dev. Ctr. v. City of West Palm Beach Zoning Bd. of Appeals, 541 So.2d 106, 108-109 (Fla.1989)).

Review of the circuit court's decision is by certiorari in the district court and is limited to determining whether the circuit court afforded procedural due process and applied the correct law or, stated differently, whether the circuit court departed from the essential requirements of law. See G.B.V., 787 So.2d at 843; Haines City Cmty. Dev., 658 So.2d at 530-31; City of Auburndale, 898 So.2d at 1102.

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925 So. 2d 340, 2006 Fla. App. LEXIS 460, 2006 WL 140380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-of-volusia-v-city-of-deltona-fladistctapp-2006.