Battaglia Fruit Co. v. City of Maitland

• Decision Date: 21 July 1988
• Docket Number: No. 87-1296,87-1296
• Citation: 13 Fla. L. Weekly 1733,530 So.2d 940
• Parties: 13 Fla. L. Weekly 1733 BATTAGLIA FRUIT CO., etc., Petitioner, v. The CITY OF MAITLAND, etc., et al., Respondents.
• Court: Florida District Court of Appeals

Page 940

530 So.2d 940

13 Fla. L. Weekly 1733

BATTAGLIA FRUIT CO., etc., Petitioner, v. The CITY OF MAITLAND, etc., et al., Respondents.

No. 87-1296.

District Court of Appeal of Florida Fifth District.

July 21, 1988.

Rehearings Denied Sept. 15, 1988.

Scott E. Wilt of Maguire, Voorhis & Wells, P.A., Orlando, for petitioner.

Lawrence M. Watson of Carlton, Fields, Emmanuel, Smith & Cutler, P.A., Orlando, for respondent Mark Cooper and Maitland Assoc. of Homeowners, Inc.

Joseph A. Frein of Broad and Cassel, Maitland and Paul R. Gougelman, III of Reinman, Harrell, Silberhorn & Graham, Melbourne, for respondent City of Maitland.

ORFINGER, Judge.

The Orange County Board of County Commissioners approved Battaglia Fruit Company's application for rezoning of a 33.3 acre tract after finding that the proposed rezoning complied with the County's Growth Management Policy. A petition for writ of certiorari was filed by the City of Maitland in the Circuit Court, Ninth Judicial Circuit, and a similar petition for writ of certiorari was filed in the circuit court by Mark Cooper and the Maitland Association of Homeowners, Inc. ¹ These petitions were subsequently consolidated. The circuit court granted the consolidated petitions, and quashed the county commissioners' decision. Battaglia Fruit Company seeks certiorari review of the circuit court order.

Battaglia's property is located in an unincorporated area of Orange County, near the City of Maitland. Battaglia's application requested a change in zoning from low density residential to a planned development that would allow professional offices and multifamily residential units to be built on the property.

On October 21, 1985, a public hearing on Battaglia's application was held before the Board of County Commissioners. ² At that hearing, a motion was made and seconded to approve the application for rezoning; a 2-2 tie vote resulted. On October 28, 1985, the hearing was continued and the application was approved by a 3-2 vote. In their petitions for writ of certiorari filed with the circuit court, the City of Maitland and Maitland Association of Homeowners, Inc. argued that the initial tie vote should have constituted a binding denial of Battaglia's application. It was also argued that the rezoning was not consistent with the county's growth management policy and future land use policy guide map. Battaglia filed several motions to dismiss, which raised various grounds, including the arguments that Maitland Association's petition did not timely invoke the circuit court's jurisdiction, and that the City of Maitland lacked standing to file a petition for writ of certiorari in the circuit court. The circuit court refused to dismiss the petitions for writ of certiorari, ruling that petitioners demonstrated a preliminary basis for relief.

In granting the consolidated petitions, the circuit court held that petitioners' due process rights had been violated by the county commissioners' failure to abide by their initial tie vote on October 21, 1985, which under proper parliamentary procedure would have defeated the motion to approve Battaglia's application. Under the Orange County Code, an unsuccessful applicant must wait nine months before applying for another hearing concerning the same property; the circuit court reasoned that the 3-2 vote on October 28, 1985, violated this provision. The circuit court also held that the evidence before the county commissioners was insufficient to support their determination that the rezoning was consistent with the county's growth management policy.

In the petition for writ of certiorari filed with this court, Battaglia once again alleges that the petition filed by Maitland Association was untimely, and that the City of Maitland lacked standing to file a petition for writ of certiorari. Battaglia also argues that the circuit court departed from the essential requirements of law in construing the tie vote as a binding denial of the rezoning application.

Turning first to the controversy surrounding the county commissioners' initial tie vote, the Orange County Code does not contain a provision that a tie vote constitutes a final decision in a zoning matter. The circuit court stated that in the absence of a formal rule, a deliberative body must follow generally accepted rules of parliamentary procedure. We do not agree. Parliamentary rules not adopted as part of a governmental body's organic law may be waived or disregarded, and courts will not enforce their observance. See 59 Am.Jur.2d Parliamentary Law, § 4 (1987). The failure of the county commissioners to observe a general rule of parliamentary procedure did not violate any party's procedural due process rights.

We now turn to Battaglia's claim that Maitland Association failed to timely invoke the jurisdiction of the circuit court. The Orange County Zoning Code was established by a special act of the Florida Legislature. See Chapter 63-1716, Laws of Florida, Special Acts of 1963. Section 37-16 of the Code states that any person aggrieved by a decision of the county commissioners may file a petition for writ of certiorari in the Circuit Court of Orange County in the manner prescribed by the Florida appellate rules. Section 37-16 also states that a notice of intent to file a petition for writ of certiorari must be filed in the circuit court within ten days after rendition of the county commissioners' decision. The petition and transcript shall be filed in the circuit court within thirty days after rendition of the county commissioners' decision, except the circuit court may extend the time for filing the petition and transcript for good cause shown.

The county commissioners' decision was rendered on October 28, 1985. Maitland Association's notice of intent was filed on November 8, 1985, eleven days later. The petition was filed on December 2, 1985, 35 days after rendition of the county commissioners' decision. Maitland Association alleged that an employee of the clerk's office in Orange County represented that the decision of the county commissioners had not been reduced to writing and had not been filed. The circuit court, in denying Battaglia's motion to dismiss, stated that "The delay in filing the writ [sic] was occasioned in part by an agent of defendant [the Board of County Commissioners]."

Under the special act establishing the zoning code, the circuit court is not authorized to extend the 10 day period for the filing of the notice of intent. Maitland Association's notice of intent was untimely because it was filed one day late. Whereas the circuit court disregarded this infraction, we are not disposed to take such liberties with a procedural requirement enacted by the legislature. See Buck v. City of Hallandale, 85 So.2d 825 (Fla.1956). Maitland Association's petition for certiorari was also untimely. The remedy of statutory certiorari is independent and cumulative to common law certiorari. Common law certiorari is available if a statutory remedy fails. See Grady v. Lee County, 458 So.2d 1211 (Fla. 2d DCA 1984); G-W Development Corp. v. Village of North Palm Beach Zoning Board of Adjustment, 317 So.2d 828 (Fla. 4th DCA 1975). However, Maitland Association did not file its petition for certiorari within the 30 day jurisdictional period established by the special act nor within the identical jurisdictional period for common law certiorari by Florida Rule of Appellate Procedure 9.100(c). ³ The circuit court departed from the essential requirements of law by not dismissing the petition for certiorari filed by Maitland Association.

We now address Battaglia's claim that the City of Maitland lacked standing to file a petition for certiorari. Orange County gave the City of Maitland notice of the hearings concerning Battaglia's application for rezoning. At these hearings, Maitland residents who lived in subdivisions near Battaglia's property voiced opposition, but no representative of the City of Maitland appeared or spoke against the application. The fact that the City was given notice of the county hearings would not automatically establish standing. See F & R Builders, Inc. v. Durant, 390 So.2d 784 (Fla. 3d DCA 1980). See also Renard v. Dade County, 261 So.2d 832, 837 (Fla.1972).

The circuit court's certiorari review in this case was limited to the record below. See § 37-16, Orange County Code (Circuit court shall not conduct a trial de novo). The record before the circuit court was composed of the transcripts of the county hearings and exhibits considered by the county agencies and commission. The record before the circuit court did not demonstrate that the City of Maitland was a party aggrieved by the decision of the Board of County Commissioners, because the City never appeared or presented any evidence or objection. In its petition filed with the circuit court, the City of Maitland listed several interests that would be adversely affected by the planned development to demonstrate that it had a special interest exceeding the general interest of all citizens in the community. See generally Citizens Growth Management Coalition v. West Palm Beach, 450 So.2d 204, 208 (Fla.1984); Renard, supra. However, the City did not allege and prove the existence of those interests before the county agencies and commission considering Battaglia's application, so they were not part of the record before the circuit court. Therefore, the circuit court departed from the essential requirements of law in not dismissing the City's petition for lack of standing. ⁴

Whatever objections the City of Maitland had to the proposed rezoning were never made to the agency which had the power to grant or deny the rezoning request. Its complaint that the planned development would burden its municipal services and require it to furnish additional police and fire protection was never presented to the Board of County Commissioners and there is no such evidence in the administrative record. ⁵ The first time any...