IN THE SUPREME COURT OF FLORIDA CARILLON COMMUNITY RESIDENTIAL ASSOCIATION, INC., and KEN HOFER, Petitioners, vs. SEMINOLE COUNTY, FLORIDA, AHG GROUP, LLC, and UNIVERSITY OF CENTRAL FLORIDA FOUNDATION, INC., Respondents. / CASE NO. SC10-2215 DCA Case No. 5D09-3789 Cir. Ct. Case No. 09-19AP RESPONDENT, SEMINOLE COUNTY S ANSWER BRIEF ON JURISDICTION ROBERT A. MCMILLAN County Attorney for Seminole County, Florida Florida Bar No: 0182655 BY: KATHLEEN FUREY-TRAN Assistant County Attorney Florida Bar No. 0089486 Seminole County Services Building 1101 East First Street Sanford, Florida 32771 Telephone: (407) 665-7254 Facsimile: (407) 665-7272 E-mail: KTran@seminolecountyfl.gov Attorneys for Seminole County
TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... ii ISSUE PRESENTED... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 2 JURISDICTION IS ABSENT BECAUSE THE DECISION DOES NOT CONFLICT WITH A DECISION OF THIS COURT OR ANOTHER DISTRICT COURT... 2 A. NO CONFLICT JURISDICTION EXISTS... 3 B. FAILURE TO COMPLY WITH RULE 9.120... 9 CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE... 12 i
TABLE OF AUTHORITIES CASES PAGE Board of County Comm rs of Hillsborough County v. Casa Development, Ltd. 332 So.2d 651 (Fla. 2d DCA 1976)... 6 Boucher v. Novotny 102 So.2d 132 (Fla. 1958)... 8 Connor v. Town of Palm Beach 398 So.2d 952 (Fla. 4th DCA 1981)... 6 Coral Reef Nurseries, Inc. v. Babcock Co. 410 So.2d 648 (Fla.3d DCA 1982)... 4, 5 Florida Power & Light Co. v. City of Dania 761 So.2d 1089 (Fla. 2000)... 7 Harris v. Goff 151 So.2d 642 (Fla. 1st DCA 1963)... 6 Jennings v. Dade County 589 So.2d 1337 (Fla. 3d DCA 1991) rev. den. 598 So.2d 75 (Fla. 1992)... 2, 3, 4 Joshua v. City of Gainesville 768 So.2d 432 (Fla. 2000)... 5, 8 Kupke v. Orange County 838 So.2d 598 (Fla. 5th DCA 2003)... 6 Kyle v. Kyle 139 So.2d 885 (Fla. 1962)... 8 Lee County v. Sunbelt Equities, II, Ltd. Partnership 619 So.2d 996 (Fla. 2d DCA 1993)... 6 Martin County Conservation Alliance v. Martin County ---So.3d---, 35 Fla. L. Weekly D1386, 2010 WL 2472197 (Case No. 1D09-4956) (Fla. 1st DCA June 21, 2010)... 10 Mathews v. Eldridge 424 U.S. 319 (1976)... 5, 8 Reaves v. State 485 So.2d 829 (Fla. 1986)... 9 ii
CASES (con't) PAGE Renard v. Dade County 261 So.2d 832 (Fla. 1972)... 7, 8 Sanders v. City of Orlando 997 So.2d 1089 (Fla. 2008)... 9 Seminole Entertainment, Inc. v. City of Casselberry 811 So.2d 693 (Fla. 5th DCA 2001)... 6 Trustees of Internal Imp. Fund v. Lobean 127 So.2d 98 (Fla. 1961)... 9 Walgreen Co. v. Polk County 524 So.2d 1119 (Fla. 2d DCA 1988)... 6 STATUTES, CODES and RULES Article V, Section 3(b)(3), Florida Constitution... 2 Florida Rule Appellate Procedure 9.030(a)(2)(A)(iv)... 2 Florida Rule of Appellate Procedure 9.120(d)... 9 Section 163.3215, Florida Statutes (2010)... 7, 8, 10 Section 163.3215(1), Florida Statutes (2010)... 8 RELATED CASES Carillon Community Residential, etc., et al., v. Seminole County, Florida, AHG Group, LLC., et al. 45 So.3d 7, 35 Fla. L. Weekly D1467 (Fla. 5th DCA 2010) reh. den. Oct. 6, 2010 (The Decision)... passim Carillon Community Homeowners Association et.al. v. Seminole County, et.al., Case Number 09-CA-1735-16-W, Eighteenth Judicial Circuit Court, Seminole County... 10 iii
ISSUE PRESENTED The issue before this Court is whether, in a quasi-judicial zoning proceeding, limiting the right to cross-examine witnesses by participants, who are not the applicant or the local government, is in express and direct conflict with the oft- repeated dictum that parties must be able to cross-examine witnesses. STATEMENT OF THE CASE AND FACTS The Seminole County Board of County Commissioners ("BCC") recently amended existing land use entitlements allowing a mixed use development on private property. The BCC approved the major amendment on January 27, 2009. On February 26, 2009, Petitioners filed a petition for writ of certiorari in the Circuit Court for the Eighteenth Judicial District and an amended petition on April 29, 2009. On August 29, 2009, Circuit Court denied the amended petition. On October 26, 2009, Petitioners filed a petition for writ of certiorari at the Fifth District Court of Appeal (the "Fifth DCA"). On July 2, 2010, the Fifth DCA rendered a per curiam decision with discussion ("the Decision" hereinafter cited as "D at #"). On October 6, 2010, the Fifth DCA denied Petitioners motion for rehearing, rehearing en banc and certification to the Supreme Court of Florida. These orders, subject to four-corners review in this Court, are in Petitioners Appendix. 1
Petitioners now seek discretionary review, alleging an express and direct conflict with "a decision of several other district court decisions" regarding the "right of 'affected' or 'interested' parties". Petitioners Brief at 6 (hereinafter PB at #). Petitioners also claim conflict jurisdiction under Article V, Section 3(b)(3), Florida Constitution. PB at 3. SUMMARY OF ARGUMENT There is no express and direct conflict on the same question of law as required by Article V, Section 3(b)(3), Florida Constitution. The Decision clearly distinguishes between process that is due parties in a quasi-judicial proceeding, such as the government and the applicant, from the analysis of what process is due other participants, which includes neighboring property owners such as Petitioners. Therefore, there is no basis for conflict jurisdiction. ARGUMENT JURISDICTION IS ABSENT BECAUSE THE DECISION DOES NOT CONFLICT WITH A DECISION OF THIS COURT OR ANOTHER DISTRICT COURT. Petitioners attempt to invoke discretionary jurisdiction based on Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv), alleging that "Contrary to Jennings [Jennings v. Dade County, 589 So.2d 1337 (Fla. 3d DCA 1991) rev. den. 598 So.2d 75 (Fla. 1992)], the Fifth DCA held that adjoining landowners, like the Petitioners, do not have a due process right to cross-examine 2
witnesses during a quasi-judicial zoning hearing." PB at 5 (citation added). The Fifth DCA states, "To the contrary, Jennings states, in dictum, the general proposition that parties to quasi-judicial hearings 'must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts.'" D at 5-6 (emphasis in the original). "When applying these general due process principles to the specific context of quasi-judicial administrative hearings, it is important to distinguish between parties and participants." D at 3. Further, the Decision expressly found Petitioners cases not in conflict and distinguishable on the facts as involving parties, not participants, or based upon specific due process rights conferred by local ordinances. "Petitioners incorrectly assert that Florida law requires that all participants in quasijudicial proceedings be allowed to cross-examine witnesses. Florida law has no such requirement." D at 4-5; "... many cases asserted by Petitioners... involved parties, not participants." D at 5. Therefore, Petitioners cases do not expressly and directly conflict with the Decision. A. NO CONFLICT JURISDICTION EXISTS The decisional point of law dispositive in Jennings did not involve the rights of participants in a quasi-judicial hearing to cross-examination. Jennings held that an ex-parte 3
communication creates a presumption of prejudice. Jennings, 589 So.2d at 1339. Jennings mentions cross-examination one time, in dictum, in a general discussion about quasi-judicial hearings unrelated to the holding. See Jennings, 589 So.2d at 1340. The Jennings rule of ex-parte communication is not disturbed nor overruled by a party s right to cross-examination. Jennings attributes the quote that parties are entitled to cross-examination in quasi-judicial hearings to Coral Reef Nurseries, Inc. v. Babcock Co., 410 So.2d 648, 652 (Fla. 3d DCA 1982). Jennings, 589 So.2d at 1340. The Coral Reef case was subject to local ordinances expressly affording "interested parties" the right to cross-examine witnesses. See D at 6, note 1. In the concurring opinion in Jennings, 589 So.2d at 1345, Judge Ferguson cited the Dade County Charter in note 5 which explicitly affords rights of cross-examination to "a party or his counsel". Jennings, 589 So.2d at 1345, n.5. There was no local ordinance affording cross-examination in a quasi-judicial hearing in the case at bar, which distinguishes it from Coral Reef. See D at 6, note 1. Coral Reef and, by reference, Jennings are not directly and expressly in conflict with the Decision because Coral Reef addressed local ordinances. D at 5, at 6, note 1. See Coral Reef, 410 So.2d at 652; Jennings, 589 So.2d at 1340. 4
Coral Reef also did not "hold that an adjoining landowner has a due process right to cross-examine witnesses in a quasijudicial rezoning hearing". D at 5. The Decision does not overturn Coral Reef. See Coral Reef, 410 So.2d at 652 (held: a commission s determination that res judicata did not apply to a rezoning application was not an abuse of discretion). Not only is there no conflict jurisdiction but the Decision is strongly supported by the Supreme Courts of the United States and Florida. "Quasi-judicial hearing generally meets basic due process requirements if parties are provided notice of hearing and opportunity to be heard." Joshua v. City of Gainesville, 768 So.2d 432, 438 (Fla. 2000). A court must first decide whether the complaining party has been deprived of a constitutionally protected liberty or property interest. See Id., 768 So.2d at 438. Absent such a deprivation, there can be no denial of due process. Id. See also Mathews v. Eldridge, 424 U.S. 319, 334 (1976)(factors to be weighed in analyzing whether due process is constitutionally sufficient). Participants may not be entitled to cross-examination even though they are entitled to some due process based on the Mathews test. See Mathews, 424 U.S. at 334. The Decision was clear that parties are entitled to cross-examination and other interests must be weighed to determine the amount of process that is due. D at 7. 5
The Fifth DCA distinguished between due process due parties, as opposed to participants in a quasi-judicial zoning proceeding and therefore Petitioners cases are distinguishable. In, Kupke v. Orange County, 838 So.2d 598 (Fla. 5th DCA 2003), Mr. Kupke was a farmer and a party with property rights (equipment) at risk in a code enforcement hearing. D at 4, 5. Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So.2d 996 (Fla. 2d DCA 1993), involved a property owner/party who was denied rezoning of his property. See Id. at 1001. Seminole Entertainment, Inc. v. City of Casselberry, 811 So.2d 693, 696 (Fla. 5th DCA 2001), involved a party s, not a participant s, business license revocation. D at 4. The Decision also points out that Bd. of County Comm rs of Hillsborough County v. Casa Development, Ltd., 332 So.2d 651 (Fla. 2d DCA 1976), involves parties not participants. D at 5. Casa Development, Ltd. was an applicant/party denied a water and sewer franchise. In Harris v. Goff, 151 So.2d 642(Fla. 1st DCA 1963), the landowners directly subject to a zoning change sought review. These landowners were parties. D at 5. Connor v. Town of Palm Beach, 398 So.2d 952 (Fla. 4th DCA 1981), involved a party/police officer s hearing in which he was denied disability benefits. In Walgreen Co., a pharmacy, the applicant/party, was denied a variance. See Walgreen Co. v. Polk County, 524 So.2d 1119 (Fla. 2d DCA 1988). These cases are distinguishable because 6
the decisions related to parties, not participants, and the character of the proceeding is factually opposed. Petitioners Brief at 6, note 4, argues "third parties" should have due process rights equal to parties in a quasijudicial proceeding. However, the Florida Power & Light case, is referring to the right of appeal on certiorari, rather than as a party in the quasi-judicial proceeding. Any other person or entity affected by the quasi-judicial decision, i.e. a "third party", other than the parties of the applicant and the government, may bring a certiorari appeal. See Florida Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla. 2000). These cases support the premise that where substantial property interests are at risk, parties are entitled to crossexamination. These cases cannot be read so broadly to support the premise that participants are also entitled to crossexamination. Therefore, the Decision is not in conflict with any of the above cases. See D at 5. Petitioners reliance on Renard v. Dade County, 261 So.2d 832 (Fla. 1972), as a basis for conflict is misplaced in that Renard has been abrogated, for many years, by Section 163.3215, Florida Statutes (2010). The Renard court clarified standing of citizens in the community by distinguishing between a sitespecific zoning matter (similar to our facts) and challenging an ordinance with wide application (distinguishable from our 7
facts). The holding of Renard limited the rights of aggrieved or adversely affected persons challenging a zoning matter by increasing their burden of proof to "a definite interest exceeding the general interest in community". Renard, 261 So.2d at 837 citing Boucher v. Novotny, 102 So.2d 132, 135 (Fla. 1958). The legislature broadened this standard under Section 163.3215, Florida Statutes (2010). This statutory provision is the exclusive method for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan. See 163.3215(1), Fla. Stat. (2010). Renard also held that when challenging a zoning ordinance that has wide application over the community, an affected party has standing to challenge such an ordinance. See Renard, 261 So.2d at 836. This case did not challenge a general zoning ordinance. Since the term "affected party" relates to challenging a wider zoning ordinance, the cases are distinguishable. Further, use of the term "party" in "affected party" is not dispositive to the scope of sufficient due process without engaging in analysis of the respective property rights. See Joshua, 768 So.2d at 438; See also Mathews, 424 U.S. at 334. The conflict must be such that the later decision would have the effect of overruling the earlier one. See Kyle v. Kyle, 139 So.2d 885, 887 (Fla. 1962). The conflict must be obvious 8
and patently reflected in the decisions relied on and result from an application of law to facts which are in essence on all fours. See Trustees of Internal Imp. Fund v. Lobean, 127 So.2d 98, 101 (1961) (emphasis added). B. FAILURE TO COMPLY WITH RULE 9.120 Petitioners Brief on Jurisdiction does not comply with the Florida Rule of Appellate Procedure 9.120(d) requirement to be "limited solely to the issue of the supreme court's jurisdiction". In order to glean the appearance of a conflict, Petitioners engaged in argument which violates this Court's "four corners" rule by including discussion of "affected parties" which exceeds the limited nature of the discussion relevant to jurisdictional analysis. See Reaves v. State, 485 So.2d 829, n.3 (Fla. 1986); See Sanders v. City of Orlando, 997 So.2d 1089, 1097 (Fla. 2008)(Cantero, J., dissenting)(interpretation of a separate subsection of a statute should not constitute a conflict). Petitioner's presentation of the case, suggesting that this is a matter of great public importance, PB at 1, note 2, or that the decision was unfair, PB at 1, note 1, PB at 6, note 5, and PB at 9, also suffers from being argumentative, rather than factual and is improper as a basis for conflict jurisdiction. The Fifth DCA determined this case is not worthy of 9
certification as a matter of great public importance. See the Orders. Petitioners argument that they are denied a right to create a complete record is irrelevant to the analysis of conflict jurisdiction. See PB at 9. Further, the premise that Petitioners offer as a basis for this argument is patently false: "the only opportunity affected parties have to create a record and to impugn the credibility is during the quasijudicial zoning hearing itself". PB at 9. For many years, the legislature has provided, in Section 163.3215, Florida Statutes (2010), a statutory avenue of de novo review by "affected parties" in a comprehensive plan consistency challenge, which is also appellate in nature. 163.3215, Fla. Stat. (2010); See Martin County Conservation Alliance v. Martin County, --So.3d--, 35 Fla. L. Weekly D1386 (Case No. 1D09-4956)(Fla. 1st DCA 2010)(not yet released for publication), limiting the application of "affected parties" to Section 163.3215, Florida Statutes (2010). Petitioners have availed themselves of this advantage in a separate case currently pending in Circuit Court. For these reasons, this Court should deny review. CONCLUSION This Court should find that conflict jurisdiction does not exist and deny review. 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail this 3rd day of December, 2010 to the addressees named below: David A. Theriaque, Esq. 433 North Magnolia Drive Tallahassee, FL 32308 Attorney for Petitioners Michael V. Elsberry, Esq. P.O. Box 2809 Orlando, FL 32802-2809 Attorney for Co-Respondents Michael W. Woodward, Esq. P. O. Box 92 Interlachen, FL 32148 Putnam Citizens Alliance, Inc. and Putnam County Environmental Council, Inc. Nancy E. Stroud, Esq. 1900 Glades Road, Suite 251 Boca Raton, FL 33431 American Planning Association, Florida Chapter Daniel J. Lobeck, Esq. 2033 Main Street, Suite 301 Sarasota, FL 34237 Sorrento Ranches Homeowners Association, Inc. Ralf G. Brookes, Esq. 1217 E. Cape Coral Pky, #107 Cape Coral, FL 33904 Florida Audubon Society, Inc. Preston T. Robertson, Esq. P. O. Box 6870 Tallahassee, FL 32314 Florida Wildlife Federation, Inc. William L. Earl, Esq. 1422 Ranchero Drive Sarasota, FL 34240 Sarasota County Council of Neighborhood Associations, Inc. 11
Robert K. Lincoln, Esq. 2033 Main Street, Suite 600 Sarasota, FL 34237 Robert K. Lincoln, Esq. Tracey I. Arpen, Jr. 3489 Lorretto Road Jacksonville, FL 32223-1910 Attorney for Scenic America-Florida Chapter, Inc. C. Allen Watts, Esq. 351 E. New York Avenue Suite 200 Deland, FL 32724-5509 1000 Friends of Florida, Inc. Patrick C. Howell, Esq. 150 N. Westmonte Drive Altamonte Springs, FL 32714 Lake Forest Master Community Association, Inc. ROBERT A. McMILLAN County Attorney for Seminole County, Florida Florida Bar No: 0182655 Seminole County Services Building 1101 East First Street Sanford, Florida 32771 Telephone: (407) 665-5736 Facsimile: (407) 665-5749 Attorney for Seminole County By:/s/Kathleen Furey-Tran KATHLEEN FUREY-TRAN Assistant County Attorney Florida Bar No.: 0089486 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this motion complies with the font requirements of Rule 9.100(l) Rules of Appellate Procedure. By: /s/kathleen Furey-Tran KATHLEEN FUREY-TRAN Assistant County Attorney Florida Bar No.: 0089486 p:\users\kfurey-tran\litigation\carillon v. sc, ahg, ucf\fl supreme court\seminole county's jurisdictional answer brief.docx 12