IN THE SUPREME COURT OF FLORIDA CASE NO. SC. TOWN OF PONCE INLET, Petitioner, PACETTA, LLC, ET AL. Respondents. LOWER CASE NUMBER: 5D

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC TOWN OF PONCE INLET, Petitioner, v. PACETTA, LLC, ET AL. Respondents. LOWER CASE NUMBER: 5D On Discretionary Review From The District Court Of Appeal, Fifth District of Florida PETITIONER S BRIEF ON JURISDICTION (With Appendix Attached) Clifford B. Shepard Florida Bar No Shepard, Smith, & Cassady, P.A Maitland Center Parkway Suite 100 Maitland, FL Tel: (407) Fax: (407) cshepard@shepardfirm.com Attorneys for Petitioner, Town of Ponce Inlet, Florida

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS... iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT WHETHER THE FIFTH DISTRICT COURT OF APPEALS DECISION TO UNILATERALLY DENY APPELLANT THE FAIRLY DEBATEABLE STANDARD OF REVIEW APPLICABLE TO ALL LEGISLATIVE DECISIONS OF A MUNICIPAL GOVERNMENT EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISION IN MARTIN COUNTY V. YUSEM, 690 SO. 2D 1288 (FLA. 1997) WHETHER THE FIFTH DISTRICT COURT OF APPEALS DECISION TO CONSIDER THE LEGISLATIVE MOTIVE OF THE TOWN COUNCIL IN ADOPTING LEGISLATION EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISIONS IN CITY OF POMPANO BEACH V. BIG DADDY S, 375 SO. 2D 281 (FLA. 1979) AND CITY OF CORAL GABLES V. CORAL GABLES, INC., 160 SO. 476 (FLA. 1935) CONCLUSION...10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE...12 APPENDIX...13 i

3 TABLE OF CITATIONS Cases Angle v. Chicago, St. P., M. & O. R. Co., 151 U.S. 1; 14 S. Ct. 240 (1894)...10 City of Coral Gables v. Coral Gables, Inc., 160 So. 476 (Fla.1935)... 4, 6, 7, 8, 10 City of Miami Beach v. Schauer, 104 So.2d 129 (Fla. 3d DCA 1958)... 9 City of Pompano Beach v. Big Daddy s, 375 So.2d 281 (Fla. 1979)... 4, 6, 7, 8, 10 Izaak Walton League of America v. Monroe County, 448 So.2d 1170 (Fla. 3d DCA 1984)... 9 Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997)... 4, 5, 6, 10 Statutes Fla. Stat , et seq. (2008)... 1 Fla. Stat (12) (2008)... 2, 3, 5 Fla. Stat (2008)... 1 Fla. Stat (2008)... 2 ii

4 STATEMENT OF THE CASE AND FACTS This dispute arose over the Ponce Inlet Town Council s adoption of a comprehensive plan amendment following the approval of a citizen initiated charter amendment by over 60% of the Town s voters in early November The relevant jurisdictional facts follow. In 2007 and 2008, the Town began reviewing its comprehensive plan pursuant to the Local Government Comprehensive Planning and Development Regulation Act ( Growth Management Act ), Fla. Stat , et seq. (2008). In March, 2008, after many public hearings, the Town Council approved a proposed plan amendment on first reading (Ordinance ). The proposed plan amendment would have permitted dry boat stacks and in certain limited circumstances would have permitted commercial dry storage buildings greater than 5,000 square feet in the Riverfront Overlay District ( ROD ), a particular zoning district of the Town where they had previously been completely restricted. The proposed amendment was transmitted to the Department of Community Affairs for review after March 19, Transmittal to the Department of Community Affairs ( DCA ) after approval upon first reading by the Town Council is the first required review of a comprehensive amendment by that Agency. See Fla. Stat (2008). It is also reviewed by DCA a second time after final adoption by the Town Council at the second and final reading. Id. The proposed amendment in this case was found to be consistent and in compliance with all rules by DCA upon each such review. 1

5 Soon after the transmittal of Ordinance to the Department of Community Affairs, a group of Ponce Inlet citizens formed a corporation, Citizens for Property Rights, Inc. ( CFPR ), and initiated a petition to amend the Town s Charter pursuant to Fla. Stat (2008). The proposed charter amendment sought to maintain both the dry boat stack prohibition and the 2003 comprehensive plan s 5,000 square foot limitation of buildings in the ROD. Appellee thereafter sought to enjoin submission of the proposed charter amendment to the electorate but failed in that effort. In its Amended Complaint for injunctive and declaratory relief, Appellee alleged, inter alia, that Pacetta L.L.C, together with its wholly owned corporations Mar-Tim, Inc, and Down the Hatch, Inc., collectively owns and controls more than 15 contiguous acres of land comprising in the aggregate five or fewer parcels, within the Town of Ponce Inlet. This allegation was central to its claim that the proposed charter amendment violated Fla. Stat (12) (2008), which prohibits an initiative or referendum process in regard to any local comprehensive plan amendment that affects five or fewer parcels of land. (Emphasis added). In the midst of this ongoing dispute between CFPR and Appellee over the proposed charter amendment, the Town Council decided to delay final adoption of the proposed comp plan amendment until after the November 4th election, when 2

6 voters could approve or reject the proposed charter measure. On election day, approximately 62% of the voters approved the charter amendment, thereby enacting Charter section 7.03, which effectively endorsed maintaining the status quo in both the Town s comprehensive plan and its land use development code, which already restricted dry boat storage facilities and commercial buildings over 5,000 square feet in the ROD. Following the passage of the charter amendment, on November 14, 2008, the Town Council held its final public hearing regarding comprehensive plan amendment (Ordinance ) and adopted Policy of the Future Land Use Element, prohibiting dry boat storage facilities in the ROD and limiting the square footage of buildings in the ROD to 5,000 square feet. Thereafter, both the Town and Appellee filed motions for summary judgment. The trial court granted Appellee s Motion for Summary Judgment and invalidated both the Charter amendment and the comprehensive plan amendment (Ordinance ), finding that the Charter amendment was in regard to five or fewer parcels, in violation of Fla. Stat (12). The Fifth District Court of Appeals upheld this ruling on appeal by refusing to apply the fairly debateable standard of review mandated by this Court when reviewing a municipality s decision to amend its comprehensive plan. Petitioner s Motion for Rehearing, Rehearing En Banc and Request for Certification was denied on June 23,

7 SUMMARY OF THE ARGUMENT The district court erred by not applying the fairly debatable standard when reviewing the Town s legislative decision to amend its comprehensive plan as mandated by this Court in Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997) and should have followed this Court s decisions in City of Pompano Beach v. Big Daddy s, 375 So.2d 281 (Fla. 1979), and City of Coral Gables v. Coral Gables, Inc., 160 So. 476 (Fla.1935), which mandate that the motives of a particular Council member or members in making a purely legislative decision are irrelevant so long as the legislation itself is fairly debatable. 4

8 ARGUMENT 1. WHETHER THE FIFTH DISTRICT COURT OF APPEALS DECISION TO UNILATERALLY DENY APPELLANT THE FAIRLY DEBATEABLE STANDARD OF REVIEW APPLICABLE TO ALL LEGISLATIVE DECISIONS OF A MUNICIPAL GOVERNMENT EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISION IN MARTIN COUNTY V. YUSEM, 690 SO. 2D 1288 (FLA. 1997). The Fifth District Court of Appeal refused to apply the Florida Supreme Court mandated and highly deferential fairly debatable standard of review to its examination of the Ponce Inlet Town Council s decision to amend its comprehensive development plan. Instead, the district court issued an opinion affirming a summary judgment entered by the trial court invalidating both a citizen initiated charter referendum and a comprehensive development plan amendment adopted by the Town Council following passage of the charter referendum. The district court held [w]ith respect to the ordinance conforming the comprehensive plan to the referendum, it only makes sense to hold the ordinance invalid as well -- as this would be the only way to give effect to section (12). In reaching this conclusion, we have considered and rejected the Town s argument that even if the referendum is declared invalid, the court is powerless to invalidate a legislative action of the board under the fairly debatable standard typically applicable to this type of board action. See Appendix at

9 The decision directly and expressly conflicts with this Court s opinion in Martin County v. Yusem, 690 So.2d 1288 (Fla. 1997) holding that all comprehensive plan amendments are legislative decisions subject to the fairly debatable standard of review. Yusem at In its opinion in Yusem, this Court settled with finality the longstanding question of whether a comprehensive plan amendment is quasi-judicial or legislative in nature. In reaching its conclusion that all comprehensive plan amendments are legislative, this Court noted that the applicable fairly debateable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety. Id. The fairly debateable standard of review has never been applied to the amendment at issue and the district court s decision offends the discretion afforded to municipal governments to enact laws and be protected by the fairly debatable standard of review. 2. WHETHER THE FIFTH DISTRICT COURT OF APPEALS DECISION TO CONSIDER THE LEGISLATIVE MOTIVE OF THE TOWN COUNCIL IN ADOPTING LEGISLATION EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISIONS IN CITY OF POMPANO BEACH V. BIG DADDY S, 375 SO. 2D 281 (FLA. 1979) AND CITY OF CORAL GABLES V. CORAL GABLES, INC., 160 SO. 476 (FLA. 1935). 6

10 The district court focused on the motives of Town Council members in passing the comprehensive plan amendment and found as a matter of fact, 2 that the Board was taking the only course of action which appeared open to it by adopting a comprehensive plan amendment that mirrored the referendum enacted by the electorate. The Board had nothing to debate, and its perfunctory action of adopting the ordinance does not merit the deference that would be afforded to a board s legislative determination that one of multiple available courses of action would best serve the needs of the public. (Emphasis added). See Appendix at 5. This decision directly and expressly conflicts with this Court s opinions in City of Pompano Beach v. Big Daddy s, 375 So.2d 281 (Fla. 1979), and City of Coral Gables v. Coral Gables, Inc., 160 So. 476 (Fla.1935). In Big Daddy s this Court set forth the long recognized rule by which municipal officials all over this state have adopted the laws and ordinances by which we all must abide. It is a 2 The record on appeal contains no affidavits or depositions of the members of the Town Council in which any of them testified as to why they voted as they did, and this Court has made it clear such testimony would be irrelevant in any event. See City of Pompano Beach v. Big Daddy s, 375 So. 2d 281, 282 (Fla. 1979) (fundamental tenet of municipal law that motives and reasons of commission in passage of legislative ordinance are irrelevant). Based upon the district court s ruling, Appellant s counsel has been placed in the difficult position of not having provided record testimony as to why the members of the Town Council voted in favor of the comp plan amendment because of counsel s reliance on the cited opinions. However, for argument s sake it is plausible that they did so, not because they had no choice, but because they wished to respond to the concerns of their constituents as expressed at the ballot box. 7

11 fundamental tenet of municipal law that when a municipal ordinance of legislative character is challenged in court, the motives of the commission and the reasons before it which induced passage of the ordinance are irrelevant. City of Pompano Beach v. Big Daddy s, 375 So.2d 281, 282 (Fla. 1979). Similarly in City of Coral Gables this Court recognized that [i]t is settled that courts will not inquire into the motives of the legislature in enacting laws. And by analogy to this rule it is very generally held that the courts cannot inquire into the motives of members of a municipal council for the purpose of determining the validity of ordinances enacted by them. City of Coral Gables at 282. By imputing Town Council s legislative motive for voting in favor of the comprehensive plan amendment (that Council was taking the only course of action which appeared open ) and using that imputed motive to eschew the application of the otherwise plainly applicable fairly debatable standard of review, a de novo standard, the district court impermissibly created a new level of judicial scrutiny for legislative decisions. The Fifth District court now has the latitude to impute whether the legislators believed they were taking the only course of action which appeared open in adopting a piece of legislation, or it can impute that the legislators had no other options open to them. In either event, the reviewing court can ignore the fairly debatable standard mandated by this Court, 8

12 regardless of whether the legislation can be, or was fairly debated, as it clearly was here. By considering what it imputed was the legislative motive for the Town Council s vote in favor of the comprehensive plan amendment (i.e. that it had no choice), the district court made new law that cannot be harmonized with nor distinguished from existing precedent. In so doing, it never considered, de novo, whether the comprehensive plan amendment passed by the Town Council was fairly debatable. The district court impermissibly overstepped the boundaries separating the legislative and judicial branches and created uncertainty regarding a previously well-settled tenet of municipal law that all otherwise properly adopted 3 legislative decisions, unless induced by fraud or corruption, are only reviewable to determine whether they are fairly debatable. See, e.g., Izaak Walton League of America v. Monroe County, 448 So.2d 1170, 1171 (Fla. 3d DCA 1984) ( the basic doctrine of separation of governmental powers precludes judicial interference with the vote even of a commissioner with an identifiable personal interest in the particular issue ); City of Miami Beach v. Schauer, 104 So.2d 129, 132 (Fla. 3d DCA 1958) ( when legislative rather than quasi-judicial 3 While Appellant contends that all required notices and hearings incident to the adoption of the comprehensive plan amendment were proper, the order granting summary judgment specifically avoided examining those issues as the trial court recognized such would require factual determinations through a trial and were inappropriate for summary judgment. 9

13 action is involved, the authorities appear uniform in holding that, in the absence of a showing of fraud, the motives of a city council will not be subject to judicial scrutiny ). In so doing, the district court has cast significant doubt on the important principal of legislative independence recognized by the United States Supreme Court: The rule, briefly stated, is that whenever an act of legislature is challenged in court the inquiry is limited to the question of power, and does not extend to the matter of expediency, the motives of the legislators, or the reasons which were spread before them to induce the passage of the act. This principle rests upon the independence of the legislature as one of the co-ordinate departments of the government. It would not be seemly for either of the three departments to be instituting an inquiry as to whether another acted wisely, intelligently, or corruptly. Angle v. Chicago, St. P., M. & O. R. Co., 151 U.S. 1, 18; 14 S. Ct. 240, 247 (1894). CONCLUSION This Court should accept jurisdiction to review this cause and reconcile its fairly debatable standard of review as established in Yusem, where legislative motives are irrelevant under Big Daddy s and City of Coral Gables, with the new standard concocted by the Fifth District which permits it to impute a legislator s motives in passing legislation when considering whether the legislation can stand. 10

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail this day of July, 2011, to the parties listed below. C. Allen Watts, Esq. Michael J. Woods, Esq. 351 East New York Avenue Suite 200 Deland, FL Clifford B. Shepard Florida Bar No Shepard, Smith & Cassady, P.A Maitland Center Pkwy. Suite 100 Maitland, FL Tel.: (407) Fax: (407) cshepard@shepardfirm.com Attorney for Petitioner, Town of Ponce Inlet 11

15 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that Times New Roman 14-point was the font size used for Petitioner s Brief on Jurisdiction in compliance with Florida Rule of Appellate Procedure on this day of July, Clifford B. Shepard 12

16 APPENDIX Conformed copy of the Opinion of the Fifth District Court of Appeal. 13