Seminole Tribe of Florida v. Hendry County

106 So. 3d 19, 2013 WL 238231, 2013 Fla. App. LEXIS 781
CourtDistrict Court of Appeal of Florida
DecidedJanuary 23, 2013
DocketNo. 2D12-1657
StatusPublished
Cited by1 cases

This text of 106 So. 3d 19 (Seminole Tribe of Florida v. Hendry County) 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
Seminole Tribe of Florida v. Hendry County, 106 So. 3d 19, 2013 WL 238231, 2013 Fla. App. LEXIS 781 (Fla. Ct. App. 2013).

Opinion

KHOUZAM, Judge.

On September 14, 2011, the Seminole Tribe of Florida filed a petition for writ of certiorari in the circuit court seeking to quash Ordinance 2011-07 adopted by Hen-dry County on May 24, 2011. The Ordinance rezoned 3127 acres of land from general agriculture to a Planned Unit Development (PUD) for the purpose of constructing a natural gas power plant and solar energy farm. The Seminole Tribe argued that the County’s adoption of the Ordinance departed from the essential requirements of the law because it violated the Local Development Code (LDC) and because the County had avoided its responsibility to review the project’s compatibility with the Big Cypress Seminole Indian Reservation and consistency with the County’s Comprehensive Plan. The circuit court denied the petition, and the Seminole Tribe now seeks second-tier cer-[22]*22tiorari review in this court. We deny the petition.

Our review in this case is limited to determining whether the circuit court afforded procedural due process and applied the correct law in denying the Seminole Tribe’s petition:

“[W]here 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 [1] whether procedural due process is accorded, [2] whether the essential requirements of the law have been observed, and [3] 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 [1] afforded procedural due process and [2] applied the correct law.”

Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla.2000) (quoting City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982)). Notably, “the district court on second-tier certiorari review may not review the record to determine whether the agency decision is supported by competent substantial evidence.” Id. at 1093.

As a preliminary matter, we note that the circuit court incorrectly determined the Ordinance was not subject to certiorari review because the Seminole Tribe could not show irreparable injury.1 However, despite making that determination, the circuit court went on to provide a full review of each of the Seminole Tribe’s arguments. Therefore, as will be shown below, the circuit court afforded procedural due process and applied the correct law.

CONSISTENCY WITH COMPREHENSIVE PLAN

First, the Seminole Tribe argues that the Ordinance was not consistent with the comprehensive plan, in violation of LDC section 1-53-5.4(1) (2010). That section provides as follows: “Only uses which are consistent with the comprehensive plan ... may be approved as a PUD.” The circuit court properly found that section 163.3215, Florida Statutes (2011), would preclude the Seminole Tribe from raising this issue in a petition for writ of certiora-ri. That section states that it provides the exclusive methods for a party to challenge the consistency of a development order with a comprehensive plan. § 163.3215(1). It provides that an adversely affected party may maintain a de novo action for declaratory or other relief to challenge a development order. § 163.3215(3). The Seminole Tribe filed a separate action under this subsection along with its certiorari petition. Though section 163.3215(4) provides that an adversely affected party may challenge a development order solely by [23]*23filing a petition for writ of certiorari if the local government has adopted an ordinance establishing various requirements, the parties have not identified and we have been unable to locate all of these requirements in the Hendry County Code. Consequently, the circuit court afforded procedural due process and applied the correct law in refusing to hear the issue of comprehensive plan consistency on certiorari review.

APPROVAL OF INCOMPATIBLE USES

Second, the Seminole Tribe argues that the Ordinance approved uses incompatible with the adjacent Big Cypress Reservation, in violation of LDC section 1-53-5.4. Specifically, the Seminole Tribe was concerned with the impact that the approved uses would have on water, ecotourism, and wildlife on the Reservation.2 LDC section 1-53-5.4(1) provides as follows: “Only uses which ... are deemed by the board of county commissioners to be compatible with adjacent land uses may be approved as a PUD.” Section 163.3164(9), Florida Statutes (2011), defines “compatibility” as “a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.” However, LDC section l-53-5.3(c) also allows for the County to establish further requirements or conditions to ensure compliance with the comprehensive plan or the LDC.

The circuit court determined that the County has sufficiently addressed the issue of water use by conditioning the Ordinance on the approval of the South Florida Water Management District (SFWMD). The circuit court concluded that the water usage issues are within the exclusive jurisdiction of the Department of Environmental Protection or its successor, SFWMD. To support this proposition, the court pointed to section 373.217, Florida Statutes (2010), which authorizes the Department of Environmental Protection to provide programs for the issuance of permits for the consumptive use of water; states that the Florida Water Resources Act of 1972, sections 373.203-373.249, Florida Statutes (2010), provides the exclusive authority for requiring permits for the consumptive use of water; and establishes that the Florida Water Resources Act of 1972 supersedes any conflicting law or ordinance. Additionally, section 373.023, Florida Statutes (2010), provides:

(1) All waters in the state are subject to regulation under the provisions of this chapter unless specifically exempted by general or special law.
(2) No state or local government agency may enforce, except with respect to water quality, any special act, rule, regulation, or order affecting the waters in the state controlled under the provisions of this act, whether enacted or promulgated before or after the effective date of this act, until such special act, rule, regulation, or order has been filed with the department.

These statutory sections indicate that the water impact will be addressed by SFWMD and that the County ensured compatibility by conditioning the Ordinance on SFWMD’s approval.

As to ecotourism, the circuit court found that there was competent, substantial evidence to support the County’s determination that the power plant project and the [24]*24Seminole Tribe’s use of the Reservation “can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by” the other. See § 163.3164(9).

As to wildlife, the circuit court determined that the County had satisfied its obligation to ensure compatibility by requiring approval by the appropriate state and federal agencies having jurisdiction over water, wetlands, and wildlife habitat.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Seminole Tribe of Florida v. Hendry County
114 So. 3d 1073 (District Court of Appeal of Florida, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
106 So. 3d 19, 2013 WL 238231, 2013 Fla. App. LEXIS 781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seminole-tribe-of-florida-v-hendry-county-fladistctapp-2013.