Holden Ave. Inter-Neighborhood Council, Inc. v. Orange County, INTER-NEIGHBORHOOD

• Decision Date: 30 October 1998
• Docket Number: INTER-NEIGHBORHOOD,No. 98-1001,98-1001
• Citation: 719 So.2d 1002
• Parties: 23 Fla. L. Weekly D2472 HOLDEN AVENUECOUNCIL, INC., Petitioner, v. ORANGE COUNTY, etc., Respondent.
• Court: Florida District Court of Appeals

Page 1002

719 So.2d 1002

23 Fla. L. Weekly D2472

HOLDEN AVENUE INTER-NEIGHBORHOOD COUNCIL, INC., Petitioner, v. ORANGE COUNTY, etc., Respondent.

No. 98-1001.

District Court of Appeal of Florida,

Fifth District.

Oct. 30, 1998.

John A. Leklem of John A. Leklem, P.A., Orlando, for Petitioner.

Joel Prinsell, Senior Assistant County Attorney, Orlando, for Respondent.

PER CURIAM.

Petitioner Holden Avenue Inter-Neighborhood Counsel, Inc. ("Holden") seeks certiorari review of the order of the circuit court in its appellate capacity granting respondent Orange County's motion to dismiss. Under the circumstances presented, we grant the petition, issue the writ, and remand with instructions to deny the motion to dismiss.

On August 27, 1997, the Orange County Board of County Commissioners ("the Board") approved the Holden Cove preliminary subdivision plan. On September 5, 1997, Holden filed its notice of intention to file a petition for writ of certiorari to review the decision of the Board. The notice of intention was explicitly filed pursuant to section 30-90 of the Orange County Code, which provides in pertinent part:

Any person aggrieved by the board of county commissioners' decision on the subdivision plan or plat may file a petition for writ of certiorari as provided by the Florida Appellate Rules in the circuit court of the county, in chancery, to review the decision of the board of county commissioners.... A notice of intention to file petition for writ of certiorari shall be filed in the circuit court within ten (10) days after the decision of the board of county commissioners is filed in the office of the clerk of the board of county commissioners, and at the same time a copy shall be served on the clerk of the board of county commissioners. The petition together with the record of the proceedings including the transcript of the testimony of the witnesses, the documents and exhibits filed with the board of county commissioners, and the order of the board of county commissioners shall be filed in the circuit court within sixty (60) days after the filing of the ruling by the board to which such petition is addressed, except the court may extend the time for filing the petition and transcript for good cause shown.... (Code 1965, § 32-42; Laws of Fla. ch. 65-2015, § 12)

On October 27, 1997, Holden filed its petition for writ of certiorari in the Orange County circuit court to review the decision of the Board. It is uncontroverted that the notice of intention was filed within ten days as required by section 30-90 of the Orange County Code and that the petition for certiorari itself was timely filed within sixty days as also required by section 30-90. In response to the circuit court's show cause order, respondent Orange County filed its motion to dismiss for failure to timely file the petition.

Agreeing with Orange County, the circuit court in its appellate capacity dismissed the petition for writ of certiorari, explaining that notwithstanding the language of section 30-90 of the Orange County Code, under Florida Rule of Appellate Procedure 9.100(c)(2), a petitioner has thirty days from the rendition of an order or an action to file a petition for certiorari review. The circuit court further noted that section 30-90 itself, notwithstanding the sixty-day time limit, states that an aggrieved person "may file a petition for writ of certiorari as provided by the Florida Appellate Rules."

We agree with Orange County that Holden was not entitled to rely upon section 30-90, even though section 30-90 was promulgated pursuant to a special act of the Florida legislature, since under the Florida Constitution only the Florida Supreme Court has the authority to adopt rules of practice and procedure for Florida courts. However, we agree with Holden's ultimate position that its notice of intention was sufficient to invoke the certiorari jurisdiction of the circuit...