Martin County Conservation Alliance v. Martin County

• Decision Date: 14 December 2010
• Docket Number: CASE NO. 1D09-4956
• Parties: MARTIN COUNTY CONSERVATION ALLIANCE and 1000 FRIENDS OF FLORIDA, INC., Appellants, v. MARTIN COUNTY, DEPARTMENT OF COMMUNITY AFFAIRS, MARTIN ISLAND WAY, LLC, and ISLAND WAY, LC, Appellees.
• Court: Florida District Court of Appeals

MARTIN COUNTY CONSERVATION ALLIANCEand 1000 FRIENDS OF FLORIDA, INC., Appellants,

v. MARTIN COUNTY, DEPARTMENT OFCOMMUNITY AFFAIRS, MARTIN ISLAND WAY, LLC, and ISLAND WAY, LC, Appellees.

CASE NO. 1D09-4956

DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

Opinion filed: December 14, 2010.

An appeal from the Department of Community Affairs. Charles Gauthier, Director, Division of Community Planning.

Richard Grosso, Jason Totoiu, and Robert Hartsell of Everglades Law Center, Inc., Ft. Lauderdale, for Appellants.

Stephen Fry, County Attorney, and David A. Acton, Senior Assistant County Attorney, Stuart, for Appellee Martin County.

Richard Shine and L. Mary Thomas, Assistant General Counsels, Department of Community Affairs, Tallahassee, for Appellee Department of Community Affairs.

William L. Hyde of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellees/Intervenors Martin Island Way, LLC, and Island Way, LC.

ORDER

PER CURIAM.

We previously dismissed this appeal, finding "[t]he appellants have not demonstrated that their interests or the interests of the substantial number of members are 'adversely affected' by the challenged order, so as to give them standing to appeal." Martin County Conservation Alliance v. Martin County, Dep't of Cmty. Affairs, 35 Fla. L. Weekly D1386 (Fla. 1st DCA June 21, 2010). We then issued an order to Appellants and Appellants' counsel, stating, "Appellants are ordered to show cause why sanctions should not be imposed upon them pursuant to section 57.105(1), Florida Statutes, for the filing of an appeal for which standing clearly is not present." (Emphasis added.) We now hold that this appeal was filed in contravention of section 57.105(1), Florida Statutes, and we impose sanctions against Appellants and their counsel for the following two reasons.

The first reason we find that sanctions must be awarded under section 57.105, Florida Statutes, is because we have also determined to award attorney's fees and costs to Intervenors Martin Island Way, L.L.C., and Island Way, under section 120.595(5), Florida Statutes. That statute authorizes judicial discretion to award attorney's fees and reasonable costs to the prevailing party "if the court finds that the appeal was frivolous, meritless, or an abuse of the appellateprocess[.]" Because we have found that this appeal was frivolous, then by logical necessity, we must also conclude that this appeal was without merit under section 57.105, as that statute does not require a finding of frivolousness, but only a finding that the claim lacked a basis in "material facts" or then-existing law. Long v. AvMed, Inc., 14 So. 3d 1264, 1265 (Fla. 1st DCA 2009) ("Importantly, section 57.105 'does not require a party seeking fees to show the complete absence of a justiciable issue of fact or law, but permits fees to be recovered for any claim or defense that is insufficiently supported.'") (citing Gopman v. Dep't of Educ., 974 So. 2d 1208, 1210 (Fla. 1st DCA 2008), and Wendy's of N.E. Fla., Inc. v. Vandergriff, 865 So. 2d 520, 523 (Fla. 1st DCA 2003)).

The second reason we impose sanctions under section 57.105 is that this appeal is nothing more than an attempt to retry facts determined adversely to Appellants. Thus, there are no "material facts" supporting an appeal, because Appellants do not even assert that the Administrative Law Judge's findings are unsupported by competent, substantial evidence. If an opposing party submits superior factual evidence, and factual findings are based on that evidence, then the non-prevailing party cannot escape sanctions under section 57.105 by merely arguing on appeal that its evidence should have prevailed. Tradewinds Mfg. Co. v. Cox, 541 So. 2d 667 (Fla. 1st DCA 1989) (holding that where there is CSE to support the factfinder, it is irrelevant whether there is CSE to support a contraryfinding). While this may be sufficient to avoid the imposition of sanctions in an administrative proceeding, see Albritton v. Ferrera, 913 So. 2d 5, n.1 (Fla. 1st DCA 2005), such an assertion is not sufficient to avoid sanctions when attempting to meet the higher burden of demonstrating the right to seek judicial review under section 120.68. This is especially true where the operative facts go to whether a party has standing to appeal. If there is no standing, then sanctions are appropriate, as the prevailing party should never have been required to undergo the expense and delay inherent in the appellate process.

This is not the first occasion when Martin County Conservation Alliance and its counsel have pursued an appeal which was later dismissed due to lack of appellate standing. See O'Connell v. Dep't of Cmty. Affairs, 874 So. 2d 673 (Fla. 4th DCA 2004); Melzer v. Dep't of Cmty. Affairs, 881 So. 2d 623 (Fla. 4th DCA 2004). Appellants and their attorney would have been well advised to learn from their experience in the Fourth District before filing yet another appeal under section 120.68, where no adverse effects flowed from the Department of Community Affairs' (the Agency) final action. Certainly, these previous cases establish beyond any doubt that Appellants and their counsel knew or should have known that no material facts justified their appeal here, and they made no good faith effort to modify the relevant law by failing to even address appellate standing in their Initial Brief.

Facts and History Below

The Martin County Commission passed ordinances 777 and 781 in 2007 amending the Martin County Comprehensive Growth Management Plan (Plan). The first amendment is known as the Land Protection Incentives Amendment ("Land Protection Amendment"); the second is the Secondary Urban Services District Amendment ("Urban Services Amendment"). Both amendments were submitted to the Department of Community Affairs ("Agency"), which issued a notice of intent to find the Land Protection Amendment not in compliance with state law regarding growth management, but to find the Urban Services Amendment in compliance.

The Martin County Plan establishes a primary and a secondary urban service district to congregate public services and facilities, thereby minimizing urban sprawl. In the primary urban service district, residential density is set at two or more dwellings per acre; in the secondary service district, residential density is set at one dwelling per acre. Land not in either type of service district is primarily classified for agricultural use, with the residential density requirement of one dwelling per five to twenty acres. The Land Protection Amendment allows landowners outside of urban service districts to develop in clusters of smaller lots, if 50% of an entire tract is set aside for conservation, open space, or agricultural use.

After Appellants challenged adoption of the ordinances, the Administrative Law Judge (ALJ) found that the Land Protection Amendment "does not allow for more development than is allowed under the Plan currently." (Emphasis added.) This is primarily because, although the Land Protection Amendment decreased the minimum lot size from 20 acres to over 2 acres, it clustered the smaller lots rather than allowing an equal number of larger lots spread throughout the entire land tract.

The Land Protection Amendment created a new opportunity for owners of at least 500 acres of rural land to develop home sites without dividing the property into very large lots, but the Amendment required developers to set aside at least 50% of the land to be protected from further development by creating easements for agricultural, conservation, or public open space uses. These easements would be permanently held by public entities. In addition to resulting in the same density as currently allowed by the Plan, the Land Protection Amendment also leaves large tracts of land available for continued agricultural uses or for surface water management projects needed for the Everglades Restoration Project and related efforts.

With regard to the Urban Services Amendment, the ALJ found:

It amends the text of the future land use element, the sanitary sewer services element, and the potable water services element of the Plan. As amended, the Plan would allow owners of real property within the [urban service district] to apply for connection to regional water andsewer service rather than be limited to using individual potable water wells and individual septic tanks, provided all costs of connection to the public services would be paid by the owner.

Appellants did not challenge below the benefits of extending water and sewer service into the secondary urban services district, nor did they dispute the ALJ's numerous factual findings that the amendments would positively affect the environment, fire safety, and drinking water quality, and that taxpayers would not be adversely affected. As noted by Martin Island Way,

[T]here is nothing in the record... below, and not even any... evidence establishing that [Urban Services] amendment will have any effect on [Appellants] interests whatsoever, much less an 'adverse affect.'... [The] intervenors' two subdivisions, which were already platted and could be legally developed under the preexisting... land use requirements with individual potable water wells and septic tanks, are now instead going to be on regional water and waste water systems to the considerable benefit of the environment generally.... It is this proposition that... is proof positive that [Appellants] have no logical basis for pursuing an appeal as 'adversely affected' parties pursuant to section 120.68(1), Florida Statutes.

While the administrative case was pending, Martin County amended the Land Protection Amendment, and in response, the Agency found it to be in compliance; thereafter, Appellants moved to challenge both the Land Protection Amendment as well as the Urban Services Amendment that Appellants had previously challenged.

Following a four-day evidentiary hearing, the ALJ issued a Recommended Order which held that Appellants...