IN THE SUPREME COURT STATE OF FLORIDA. Case No. SC BETTY JEAN MANN, Petitioner,

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA Case No. SC BETTY JEAN MANN, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF ORANGE COUNTY, FLORIDA and ORANGE COUNTY PUBLIC SCHOOLS Respondents. PETITIONER S AMENDED BRIEF ON JURISDICTION Thomas G. Pelham Florida Bar No Fowler White Boggs Banker 101 N. Monroe Street, Suite 1090 Post Office Box Tallahassee, Florida And Ted R. Brown, Esquire Florida Bar No Eric B. Marks, Esquire Florida Bar No Ackerman, Senterfitt & Eidson, P.A. P. O. Box 231 Orlando, FL 32802

2 i Counsel for Petitioner

3 TABLE OF CONTENTS TABLE OF CITATIONS... ii PRELIMINARY STATEMENT...iv STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 I. THE FIFTH DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE FIRST DISTRICT IN FRANKLIN COUNTY v. S.G.I., LIMITED CONCERNING THE APPLICATION OF THE CONSISTENCY REQUIREMENT IN SECTION , FLORIDA STATUTES. A. Misapplication Conflict... 4 B. The Fifth District Misapplied The First District s Decision in Franklin County v. S.G.I. Limited C. This Court Should Accept Jurisdiction of This Case Because It Seriously Undermines Florida s Growth Management Act and Affects the Entire State CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE ii

4 TABLE OF CITATIONS Cases Pages Acensio v. State of Florida, 497 So.2d 640 (Fla. 1986)... 4, 7 Arab Termite and Pest Control of Florida, Inc. v. Jenkins, 409 So.2d 1039 (Fla. 1982)... 4 Franklin County v. S.G.I. Limited, 728 So.2d 1210 (Fla. 1st DCA 1999)... iv,3,5,6,7,10 Gibson v. Avis Rent-a-Car Systems, Inc., 382 So.2d 520 (Fla. 1980)... 4,5 Mann v. Board of County Commissioners, 27 Fla. L. Weekly D2165 (Fla. 5th DCA, Oct. 4, 2002)...iv,2,3,5,6,7,8,9,10 Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla. 1978)... 4 Wale v. Barnes, 278 So.2d 601 (Fla. 1973)... 4 Statutes Chapter 163, Florida Statutes... 1,5,6,7,8,9 Chapter 163, Part II, Florida Statutes... iv Section (7), Florida Statutes... 1 Section (8), Florida Statutes... 1 Section (2), Florida Statutes... 1 Section (3), Florida Statutes... 1 Section (10), Florida Statutes... 1 Section , Florida Statutes...1,7 Section (1), Florida Statutes... 2 Section (13), Florida Statutes... 1,2,5,8,9 Section , Florida Statutes... 3 Section (1), Florida Statutes... 9 Section (1)(a), Florida Statutes... 3,5,6,7 Section (2) (g), Florida Statutes... 1 Other Citations Art. V, 3(b)(3), Florida Constitution... 4 Fla. R. App. P (a)(2)(A)(iv)... 4 iii

5 Kogan and Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18 Nova L. Rev. 1151, 1231 (1994)... 4 Public School Construction Commission, Final Report (December, 1997)... 8 T. Pelham, Adequate Public Facilities Requirements: Reflections on Florida s Concurrency System for Managing Growth, 19 Fla. Stat. U. L. Rev. 973 (1992)... 1 iv

6 PRELIMINARY STATEMENT The Petitioner is referred to as Mann, and the Respondent Board of County Commissioners of Orange County is referred to as the County. The First District Court of Appeal is referred to as the First District. The Fifth District Court of Appeal is referred to as the Fifth District. Florida s Growth Management Act, Chapter 163, Part II, Florida Statutes, is referred to as the Act or Chapter 163. The Fifth District s decision in Mann v. Board of County Commissioners of Orange County and Orange County Public Schools, 27 Fla. L. Weekly D2165 (Fla. 5th DCA, Oct. 4, 2002) will be referred to as Mann or the Mann decision. The First District s decision in Franklin County v. S.G.I. Limited, 728 So.2d 1210 (Fla. 1st DCA 1999) will be referred to as Franklin County or the Franklin County decision. A conformed copy of the Fifth District s decision in Mann is included in the Appendix. References to the Fifth District s Mann decision will use the pagination in the copy of the decision in the Appendix, e.g., Mann, at 3. Unless otherwise indicated, all emphases in the brief have been added. v

7 STATEMENT OF THE CASE AND FACTS This case involves the interpretation and application of Florida s Growth Management Act. This Act requires each local government to adopt a local comprehensive plan in accordance with the requirements of Chapter 163. These requirements include the concurrency requirement, i.e., development orders and permits 1 shall not be granted unless certain public facilities are adequate and available concurrent with the impacts of the development in accordance with Chapter 163. See Fla. Stat (10)(h); ; (2)(g). As a prerequisite to the implementation of the concurrency requirement, Chapter 163 mandates adoption of a financially feasible plan for constructing the facilities needed to satisfy concurrency. See Fla. Stat (2), (3)(a). 2 Of special relevance to this case, the Act provides that if a local government elects to apply the concurrency requirement to public schools, i.e., deny development orders and permits for inadequate school capacity, the local government must first comply with the requirements of section (13), Florida Statutes. Fla. Stat (1)(a) & (13). This statute sets forth comprehensive, detailed minimum requirements for school concurrency. Among other things, the statute requires the 1 The Act defines development order and development permit to include a rezoning and a zoning permit. Fla. Stat (7) & (8). 2 This statutory requirement recognizes that financial feasibility is an important issue because the premise of concurrency is that the public facilities will be provided in order to achieve and maintain the adopted level-of-service standards. Fla. Stat (13)(d); see generally Pelham, Adequate Public Facilities Requirements: A Commentary on Florida s Statewide Concurrency System for Managing Growth, 19 Fla. Stat. U. L. Rev , (1992). 1

8 local government and school district to develop and adopt a financially feasible plan for providing the necessary school facilities, and requires the county, its municipalities, and the school district to enter into an interlocal agreement describing how school concurrency is to be implemented. Fla. Stat (13)(d), (f), & (g). Orange County has adopted a Comprehensive Plan. Although the County s Plan contains a Public School Facilities Element, the Plan admittedly does not comply with the requirements of section (13), Florida Statutes, for adopting and implementing a school concurrency system. Mann, at 5. On April 5, 2000, Mann filed an application with Orange County for rezoning of her property from agricultural (A-2) to single family residential (R-1). The County denied the application. Finding that there was inadequate school capacity, the County concluded that the application was inconsistent with Future Land Use Policy and Public Schools Facilities Objective 4.3 of the Orange County Comprehensive Plan. Mann at 6. Subsequently, the circuit court denied Mann s petition for certiorari review of the County s denial of her rezoning application. The circuit court found that the County denied the application because inadequate school capacity rendered the application inconsistent with the Orange County Comprehensive Plan as interpreted by the County. The court acknowledged that the County had not adopted a school concurrency requirement in its Comprehensive Plan in accordance with section (13), Florida Statutes. Mann, at 5. Nevertheless, the court, citing Franklin County v. S.G.I. Limited, 728 So.2d 1210 (Fla. 1st DCA 1999), ruled that the County had the statutory authority under section (1)(a), Florida Statutes, to 2

9 deny the application if it was inconsistent with the objectives and policies of the comprehensive plan. Finding that the two Plan provisions cited by the County were specific enough to be used as a basis for denial, the circuit court held that the County did not depart from the essential requirements of law. Mann, at 7. Mann then filed a petition for certiorari review of the circuit court s decision in the Fifth District. Initially, the Fifth District denied the petition in a per curium order without a written opinion on February 11, After Mann filed motions for rehearing and rehearing en banc, the Fifth District on June 3, 2002 granted the motion for rehearing and vacated its earlier order. On October 4, 2002, the Fifth District entered its per curium order, again denying Mann s petition and adopting the circuit court s opinion in its entirety as the opinion of the Fifth District. On November 14, 2002, the Fifth District denied Mann s Motion to Certify Question of Great Public Importance. On December 13, 2002, Mann filed her Notice to Invoke Discretionary Jurisdiction of this Court. SUMMARY OF ARGUMENT The Fifth District s decision in Mann cites and relies on the First District s decision in Franklin County regarding the application of section (1)(a), F.S.. However, Franklin County involved a factual situation and issues that vary materially from the facts and issues in Mann. Consequently, the Fifth District misapplied Franklin County and its ruling to the facts in Mann. Therefore, because Mann expressly and directly conflicts with Franklin County, this Court has conflict jurisdiction. This Court should exercise its jurisdiction because Mann undermines Florida s Growth Management Act which affects the entire state. 3

10 ARGUMENT I. THE FIFTH DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE FIRST DISTRICT IN FRANKLIN COUNTY v. S.G.I., LIMITED CONCERNING THE APPLICATION OF THE CONSISTENCY REQUIREMENT IN SECTION , FLORIDA STATUTES. A. Misapplication Conflict This Court has discretionary jurisdiction to review the decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal... on the same question of law. Art. V, 3(b)(3), Fla. Const.; Fla. R. App. P (a)(2)(A)(iv). One type of conflict jurisdiction is misapplication conflict. Kogan and Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18 Nova L.Rev. 1151, 1231 (1994). Misapplication conflict is created when a district court misapplies the law by relying on a decision which involves a situation materially at variance with the one under review. Gibson v. Avis Rent-a-Car System, Inc., 386 So.2d 520, 521 (Fla. 1980). Misapplication conflict has been recognized in cases of erroneous extension. In such cases, the district court correctly states a rule of law but then proceeds to apply the rule to a set of facts for which it was not intended. Kogan and Waters, supra at See, for example, Acensio v. State, 497 So.2d 640 (Fla. 1986), in which this Court found misapplication conflict jurisdiction because the district court erroneously extended an established rule of law devised for one set of facts to a different factual situation to which the rule did not apply. Id. at This Court has accepted jurisdiction of numerous other cases based on misapplication conflict. See, e.g., Arab Termite and Pest Control of Florida, Inc. v. 4

11 Jenkins, 409 So.2d 1039, 1040(Fla. 1982)( The district court of appeal created express and direct conflict by misapplication of the rule announced in Wackenhut Corp v. Canty. ); Wale v. Barnes, 278 So.2d 601, 604 (1973)(A district court s express reliance on another district court s decision involving a materially distinguishable factual situation as controlling precedent constitutes a misapplication of law vesting conflict jurisdiction in the Supreme Court.). B. The Fifth District Misapplied The First District s Decision in Franklin County v. S.G.I. Limited. The Fifth District in Mann cited and relied on Franklin County v. S.G.I. Limited, 728 So.2d 1210(Fla. 1st DCA 1999) as the sole case authority for its decision. As the following analysis demonstrates, the Fifth District misapplied Franklin County, which involved a factual situation materially at variance with the one under review. Gibson, supra at 521. Accordingly, Mann conflicts with Franklin County, and this Court has conflict jurisdiction. As discussed above, Mann involved Orange County s denial of an application for a development order because the County concluded that inadequate school capacity rendered the application inconsistent with the County Comprehensive Plan. Although it had not adopted a school concurrency system in accordance with section (13), the County interpreted its Comprehensive Plan as authorizing denial of Mann s rezoning application because of inadequate school capacity. Mann challenged the County s actions, contending that the State had preempted the field of school concurrency when it enacted section (13) and that the County s actions unlawfully evaded the statutory requirements. Mann, at 4. 5

12 The Fifth District denied Mann s petition without discussing her contentions regarding the illegality of the interpretation and application of the County Plan in view of the statutory concurrency requirements in Chapter 163. Instead, the Fifth District simply held that Orange County had statutory authority for its actions, citing section (1)(a) s consistency requirement and the application of this requirement in the Franklin County case. Mann, at 5. Franklin County involved the following, materially different, factual situation. In the Franklin County case, the County partially denied an application for development approval because of potential harm to the water quality of Apalachicola Bay. Franklin County, 728 So.2d at In granting the applicant s petition for certiorari, the circuit court determined that evidence of water quality damage to the Bay was irrelevant because no lawfully adopted ordinance gave Franklin County the power to deny the application based on such evidence or concerns. Id. Based on this determination, the circuit court then concluded that the County did not have any authority to deny the application based upon general objectives and policies set forth in the [County s] Comprehensive Plan. Id. at Accordingly, the circuit court ruled that the County departed from the essential requirements of law in denying the application. Id. The First District in Franklin County quashed the circuit court s decision. Finding that the County s Comprehensive Plan is a lawfully adopted ordinance, the First District concluded that Franklin County had statutory authority under section (1)(a), Florida Statutes, to deny the application for inconsistency with the objectives and policies of the County s Comprehensive Plan. Id. Further, the First 6

13 District concluded that two objectives in the County Plan were specific enough to support a denial of the application. Id. Significantly, unlike Mann, the Franklin County case did not involve a contention that Comprehensive Plan provisions, as interpreted and applied by the County, violated Chapter 163 or improperly invaded a field that has been preempted by the State. More specifically, in contradistinction to Mann, the Franklin County case did not involve section , Florida Statutes, which establishes uniform state concurrency requirements for public facilities, including schools. It also did not involve the correct interpretation of local comprehensive plan provisions in light of the controlling school concurrency provisions of Chapter 163. Mann, on the other hand, does involve all of these facts and issues. For this reason, the factual scenario in Mann clearly varies materially from the situation in Franklin County. Accordingly, the Fifth District erroneously extended Franklin County and its ruling regarding the statutory consistency requirement to the facts of this case. It is appropriate, as in Franklin, to apply the consistency rule of section (1)(a) to a situation involving local comprehensive plan provisions which, as interpreted and applied by the local government, do not conflict with controlling state law. However, the consistency rule was never intended to be applied, as in Mann, to a situation in which a local government has interpreted and applied comprehensive plan provisions in a manner that violates state statutory requirements. 3 3 As the language of section (1)(a) expressly provides, the consistency requirement applies only [a]fter a comprehensiveplan, or element or 7

14 Therefore, the Fifth District s misapplication of the ruling in Franklin County to the materially different facts of Mann creates conflict jurisdiction in this Court. Acensio v. State, supra. C. This Court Should Accept Jurisdiction of This Case Because It Seriously Undermines Florida s Growth Management Act and Affects the Entire State. There are compelling reasons for exercise of the Supreme Court s conflict jurisdiction in this case. First, the Fifth District s decision will seriously undermine the implementation of Chapter 163. The Florida Legislature has enacted a detailed comprehensive statutory scheme which governs the denial of local government development orders based on lack of adequate school capacity. 4 With disingenious circularity, Orange County has argued that because it has not adopted a school concurrency requirement in accordance with section (13), it can deny development orders because of inadequate school capacity without complying with those statutory requirements. If Mann s acceptance of this specious reasoning is allowed to stand, it will encourage local governments and school districts to shirk their statutory responsibility to develop financially feasible plans for providing adequate portion thereof, has been adopted in conformity with this act. Orange County has not adopted school concurrency requirements into its Comprehensive Plan in conformity with the Act. 4 Section (13)-(14), F.S., was based on the recommendation of a Commission established by the Legislature to study in detail and recommend appropriate reforms related to the planning, and siting of public schools, and reforms related to school concurrency. Public Schools Construction Study Commission, Final Report, at 1 (December 1997). 8

15 public schools 5 as a prerequisite to deny development orders because of the lack of school capacity. Second, the Mann decision affects the entire state. If Orange County can deny development orders for lack of school capacity in this fashion without complying with Chapter 163, so can every other local government in the state. Furthermore, the Mann decision will permit Orange County and every other local government, through inventive drafting and interpretation of their adopted comprehensive plans, to evade other controlling state statutory requirements by simply citing the consistency requirement of section (1). Third, the Mann decision implicates important rules of statutory construction which apply to the Orange County Comprehensive Plan. Both the Fifth District and the circuit court implicitly interpreted comprehensive plan policies without discussing the applicable rules of statutory construction which they employed. The fact that the lower courts interpreted the Orange County Comprehensive Plan in a manner that conflicts with section (13) emphasizes the need for this Court s review of the Fifth District s decision. Finally, the serious substantive issues raised by Orange County s actions in this case deserve thorough appellate review and explication. Neither the circuit court nor the Fifth District addressed and discussed the serious legal issues of state preemption 5 Regarding the statutory requirements for financially feasible plans, section (13)(d), F.S. states in part: These [financial feasibility standards] were adopted to make concurrency more predictable and local governments more accountable. 9

16 and violation of Chapter 163 school concurrency requirements which were raised in Mann. Consequently, there is an urgent need for this Court to forthrightly address and resolve these issues which affect the entire state. CONCLUSION This Court has jurisdiction because the Fifth District s decision in Mann expressly and directly conflicts with the First District s decision in Franklin County. Ted R. Brown, Esquire Thomas G. Pelham Florida Bar No Florida Bar No Eric B. Marks, Esquire Fowler White Boggs Banker Florida Bar No Post Office Box Ackerman, Senterfitt & Eidson, P.A. Tallahassee, Florida P. O. Box 231 Telephone (850) Orlando, FL CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Amended Brief on Jurisdiction and Appendix have been furnished by facsimile to Carl W. Hartley, Jr., Esq. and Todd K. Norman, Esq., P. O. Box 2168, Orlando, FL 32802, Counsel for Orange County Public Schools, and Vivien J. Monaco, Esq., P. O. Box 1393, Orlando, Florida , Counsel for Orange County, this day of January, CERTIFICATE OF COMPLIANCE Attorney I hereby certify that Petitioner s Amended Brief on Jurisdiction complies with the font requirements of Rule 9.210, Florida Rules of Appellate Procedure. 10

17 Attorney 11