Petition for Writ of Certiorari to the Board of Aldermen of the Town of St. Lucie Village.

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1 IN THE CIRCUIT COURT FOR THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR ST. LUCIE COUNTY, FLORIDA. APPELLATE DIVISION Circuit Case No. 05-CA (PC) GARY L. VONCKX and CATHERINE F. VONCKX, Petitioners, Not final until time expires for filing motion v. for rehearing, and if filed, disposed of. TOWN OF ST. LUCIE VILLAGE, Respondent. / Decision filed February 11, Petition for Writ of Certiorari to the Board of Aldermen of the Town of St. Lucie Village. Thomas A. Cloud, Tracy A. Marshall and Heather M. Blom-Ramos, GrayRobinsion P.A., Orlando, and James H. (Mac) McCarty, Jr., Melville, Sowerby & McCarty, P.L., Fort Pierce, for petitioners. Richard V. Neill, Jr., Neill, Griffin, Tierney, Neill & Marquis, Fort Pierce, for respondent. PER CURIAM. This case presents two issues of first impression regarding the interpretation of the Municipal Annexation or Contraction Act, codified in Chapter 171, Florida Statutes. First, we must determine whether a landowner has a remedy under the Act to challenge a municipality s denial of a petition for contraction. If so, we must determine whether a municipality has the discretion to deny a petition for contraction when the property proposed for exclusion meets the statutory criteria and it is feasible to contract the municipal boundaries. 1

2 Procedural History The Petitioners were1 owners of a 5.78 acre parcel of real property located in St. Lucie County, just north of Fort Pierce between the Florida East Coast Railway and the Indian River. In 2002, the Petitioners applied for annexation into the Town of St. Lucie Village ( Town ) and were annexed into the Town as a condition of receiving a free connection to the City of Fort Pierce water system. However, the Petitioners became unhappy with their inclusion into the Town, because the Town provides them with virtually no services. On April 12, 2005, the Petitioners filed a Petition to Contract Municipal Boundaries with the Town, requesting that the Town pass a contraction ordinance to exclude or de-annex the Petitioner s property from the Town s territory. A hearing was held on the petition for contraction at the Town s Board of Aldermen meeting on April 19, At that hearing, Petitioner Catherine Vonckx testified that she and her husband felt coerced into applying for annexation in 2002 because they were forced to apply for annexation to receive municipal water service and avoid being deprived of any water source due to a contaminated well. Ms. Vonckx testified that the Town provides virtually no services to their property, since they receive water service from Fort Pierce, police service from the County, and must pay for their own right-of-way to the public roads over the Florida East Coast Railway. The Petitioners then called Terri Bowley, a professional urban planner, who conducted a study on behalf of the Petitioners to determine whether their property qualified for exclusion from the Town. Ms. Bowley testified that the Petitioner s property did not originally qualify for annexation and qualified for exclusion under section (1), 2

3 Florida Statutes, because the property was not contiguous to the rest of the Town, created an enclave, and was not developed for urban purposes. Ms. Bowley also testified that it would be financially feasible to exclude the Petitioner s property from the Town. The hearing was continued to May 17, 2005 to provide notice to the rest of the Town of the proposed contraction. At that hearing, the attorney for the Town, Richard Neill Jr., advised the Board that the Petitioner s property qualified for exclusion, and that it was a waste of time to conduct a feasibility study on the petition for contraction because it seems practically feasible. The Town s attorney conceded that the petitioners met the standard for contraction. However, Mr. Neill also expressed his opinion that it was within the discretion of the Board to grant or deny the petition for contraction regardless of the facts. During their deliberations, the board members expressed concern that granting the petition for contraction would lead to development of the Petitioner s property and would establish a precedent that would encourage other deannexations. Ultimately, the Board of Aldermen voted 5-0 to reject the petition for contraction. The decision appears to have been driven by considerations that had no relation to the facts or the law. Subject-matter Jurisdiction The Petitioners assert that this court has jurisdiction over this matter pursuant to section , Florida Statutes (2004), which states: No later than 30 days following the passage of an 1 In February 2006, after this appeal was filed, the Petitioners sold their property to a real estate holding company, but elected to proceed with this case. 3

4 annexation or contraction ordinance, any party affected who believes that he or she will suffer material injury by reason of the failure of the municipal governing body to comply with the procedures set forth in this chapter for annexation or contraction or to meet the requirements established for annexation or contraction as they apply to his or her property may file a petition in the circuit court... seeking review by certiorari. The plain language of the statute vests jurisdiction in the circuit court to consider a petition for writ of certiorari beginning with the passage of an annexation or contraction ordinance and ending thirty days after the passage of an ordinance. However, in this case, no contraction ordinance was passed by the Town. Instead, the Town rejected the petition for contraction. Since no contraction ordinance was passed, the jurisdictional time period has not commenced, and therefore this court has no jurisdiction to proceed under section However, this does not end our inquiry regarding subject-matter jurisdiction. Even if the statutory writ of certiorari is not available as a remedy, common-law certiorari may still be available as a basis for jurisdiction. Common-law certiorari is available as a remedy to challenge administrative action which involves the exercise of judicial power. As explained in State ex rel. Williams v. Whitman, 156 So. 705 (Fla. 1934), the right to this remedy is rooted in the Due Process clause of the U.S. Constitution: A state may, consistently with due process of law clause of the Federal Constitution (Amend. 14), create a statutory tribunal, such as the Florida state board of dental examiners, and grant to it the final determination of whether or not professional licenses of practitioners of dentistry shall be revoked for stated legal causes set forth as grounds for revocation, in a statute governing and regulating the practice of dentistry and dental surgery. And, as an incident to the setting up of such a tribunal, the Legislature may confer upon it power to determine legal questions necessarily arising in the course of its proceedings. Nor is the right of 4

5 appeal eo nomine essential to due process of law in such cases. But, where no other method of judicial review is provided for, mandamus to restore a suspended, debarred, or disfranchised person to his lawful pre-existing rights secured by law, is an available and appropriate remedy to afford relief to an aggrieved party against the action of statutory tribunals whose record of proceedings, including the testimony adduced before it, entirely fails to support charges that alone constitute legal ground for revocation or deprivation of vested legal rights, such as the right to practice a skilled art or profession, the engaging in which is regulated and controlled by the granting and withholding of special licenses therefor. Legislative developments in recent years have brought into existence administrative tribunals set up by law and vested with limited statutory powers to make and enforce rules and regulations and to render factual decisions on conflicting issues that amount in substance to delegated exercises of special legislative and executive, and sometimes judicial, functions. Thus a vast extension of the field of governmental operations and control of things heretofore left unregulated by special provisions of law has been accompanied by the creation of administrative agencies possessing the advantage of dispensing with ordinary formalities and delays usually found unavoidable in court proceedings or the ordinary functioning of the Legislature. This new system of administrative law has resulted in the indiscriminate combination in one and the same statutory body of quasi judicial with quasi legislative and quasi executive powers, with no effective independent mode of review or judicial control of those administrative decisions that in legal effect amount to a final determination of controverted issues of law and fact ordinarily considered as being within the sole province of courts of law to decide. In so far as the legal weight and effect to be accorded administrative decisions of a quasi legislative or quasi executive character is concerned, the decisions are clear that the courts will not review them for mere errors of procedure or erroneous conclusions of fact, where the administrative agency in arriving at its decision violated no rule of law and the record as an entirety does not show an abuse of the delegated authority, or arbitrary or unreasonable action. But regardless of the apparently conclusive force and effect that the courts have heretofore accorded to the findings and decisions of administrative agencies acting in a quasi legislative or quasi executive capacity, singly or in combination with each other, it is certain that the function and prerogative of deciding finally the law and the facts of an actual controversy bearing upon a vested legal right sought to be divested or 5

6 impaired in a proceeding initiated under statute before an administrative tribunal is, in its last analysis, a pure judicial power, the exercise of which is subject to review in courts of competent jurisdiction having power to issue the writs and processes whereon legal review of official acts of other tribunals or bodies can be had. Id. at 707 (citations omitted). This court recognizes that annexation proceedings are generally considered to be legislative, and not judicial, in nature. Martin County v. City of Stuart, 736 So.2d 1264, 1266 (Fla. 4th DCA 1999). However, it is not the type of proceeding but the character of the hearing that determines whether or not board action is legislative or quasi-judicial. Board of County Comm. v. Snyder, 627 So. 2d 469, 474 (Fla. 1993). Generally speaking, legislative action results in the formulation of a general rule of policy, whereas judicial action results in the application of a general rule of policy. Id. (Emphasis in original). The difference between legislative action and judicial or quasi-judicial action is explained in West Flagler Amusement Co. v. State Racing Commission, 165 So. 64 (1935): Id. at 65. A judicial or quasi-judicial act determines the rules of law applicable, and the rights affected by them, in relation to past transactions. On the other hand, a quasi-legislative or administrative order prescribes what the rule or requirement of administratively determined duty shall be with respect to transactions to be executed in the future, in order that same shall be considered lawful. But even so, quasi-legislative and quasi-executive orders, after they have already been entered, may have a quasi-judicial attribute if capable of being arrived at and provided by law to be declared by the administrative agency only after express statutory notice, hearing and consideration of evidence to be adduced as a basis for the making thereof. In this case, the Town did not proscribe a rule or requirement to be applied in the future. Instead, the Town reviewed the petition for contraction by considering whether it 6

7 met the requirements of the Municipal Annexation or Contraction Act and whether the Petitioners had a right to de-annex from the Town if they met those requirements. To perform this review, the Town held a hearing, at which testimony was received and evidence admitted into the record. We find that the character of this hearing was more judicial than legislative in nature. Therefore, we hold that the Town s decision to deny the petition for contraction is reviewable by common-law writ of certiorari. Municipal Discretion Under Section Since we find that we have jurisdiction to review the Town s decision to deny the petition for contraction via certiorari, we must now determine whether the Town had the discretion to do so. Section , Florida Statutes delineates the procedures to exclude an area from municipal boundaries. To be begin the process of contraction, a petition of 15 percent of the qualified voters in an area desiring to be excluded from the municipal boundaries, filed with the clerk of the municipal governing body, may propose such an ordinance. The municipality to which such petition is directed shall immediately undertake a study of the feasibility of such proposal and shall, within 6 months, either initiate proceedings under subsection (1) or reject the petition, specifically stating the facts upon which the rejection is based. Section (2), Fla. Stat. The Petitioners argue that this statute requires a municipality to either initiate contraction proceedings or state facts that demonstrate why the subject property does not meet the requirements for contraction. The Respondent argues that this statute gives a municipality the discretion to either accept or reject the petition for any reason, since the opening sentence of section states that a municipality may initiate contraction by following the procedures in that 7

8 section. We find the Petitioners interpretation more persuasive. Section (2) requires a municipality to undertake a feasibility study, and then either initiate contraction proceedings or reject the petition and specifically state the facts that support the decision for rejection. By requiring a municipality to state a reason, the statute demonstrates an intent not to give municipalities absolute authority to grant or deny petitions for contraction. Instead, a municipality can only reject a petition for contraction if it can specifically state why the area proposed for contraction cannot be excluded from the boundary of the municipality. Therefore, we hold that section (2) requires a municipality to initiate contraction proceedings within six months of the filing of a petition for contraction unless the municipality demonstrates that the area proposed for exclusion does not meet the criteria for exclusion or that the contraction of municipal boundaries would not be feasible. In this case, the Petitioners constitute 100% of the qualified electors on their property, so their petition for contraction meets the requirement of the first sentence of section (2). Once the Petitioners filed their petition for contraction, the Town was required under the statute to conduct a feasibility study. The Town failed to do so. In its response to the petition for writ of certiorari, the Respondent alleges that the parties waived any feasibility study, but no waiver appears in the record. The Town failed to observe the essential requirements of law by failing to conduct a feasibility study. At the May 17, 2005 hearing on the petition for contraction, the attorney for the Town admitted that the Petitioners property meets the criteria for exclusion under section (1), Florida Statutes, and admitted that excluding the Petitioners 8

9 property from the Town would be feasible and result in very little economic loss to the Town. However, instead of initiating contraction proceedings, the Town denied the petition for contraction. No factual findings were made, no legal standard applied, and no legal reason was stated as a reason for denying the petition for contraction. Instead, the Town denied the petition because it was afraid other landowners would also try to leave the city and the Petitioners property would be developed. We hold that this does not constitute competent, substantial evidence to deny a petition for contraction under the statute. The Town failed to observe the essential requirements of law by failing to initiate contraction proceedings despite uncontroverted evidence that the Petitioners property meets the statutory requirements for exclusion and it would be feasible to contract the Town s boundaries. The petition for writ of certiorari is granted. The order denying the petition for contraction is quashed with instructions to initiate contraction proceedings under section (1), Florida Statutes. Since we hold that we lack jurisdiction to consider this petition under section , the Petitioners motion for attorney s fees and costs under that statute is denied. MAKEMSON, SCHACK, and METZGER, JJ., concur. Copies of above decision were furnished to the attorneys/parties of record on the same date the decision was filed. 9