Pettway v. City of Jacksonville

• Decision Date: 10 August 2018
• Docket Number: No. 1D17-2279,1D17-2279
• Citation: Pettway v. City of Jacksonville, 264 So.3d 210 (Fla. App. 2018)
• Parties: Kevin PETTWAY, Jennifer Wolfe, Nancy Murrey-Settle, and Fred Pope, Petitioners, v. CITY OF JACKSONVILLE, a Municipal Corporation, and Saleebas-2216 Oak Street, LLC, Respondents.
• Court: Florida District Court of Appeals

264 So.3d 210

Kevin PETTWAY, Jennifer Wolfe, Nancy Murrey-Settle, and Fred Pope, Petitioners,

v.CITY OF JACKSONVILLE, a Municipal Corporation, and Saleebas-2216 Oak Street, LLC, Respondents.

No. 1D17-2279

District Court of Appeal of Florida, First District.

August 10, 2018

Bryan S. Gowdy of Creed and Gowdy, P.A., Jacksonville, and Barry A. Bobek of Barry A. Bobek, P.A., Jacksonville, for Petitioners.

Craig D. Feiser, Assistant General Counsel of the Office of General Counsel, Jacksonville, for Respondent City of Jacksonville; Paul M. Harden, Jacksonville, for RespondentSaleebas-2216 Oak Street, LLC.

Per Curiam.

ON MOTION FOR REHEARING AND CLARIFICATION^*

"Rendition" of an order, in legal parlance, is the triggering final event that starts the jurisdictional stopwatch for seeking appellate relief.In this case, at issue is whether the City Council of the Consolidated City of Jacksonville has the authority to determine the finality of the City's process for ordinances arising from its formal quasi-judicial proceedings, which in this case is a rezoning matter.

Kevin Pettway and others residing in his Riverside neighborhood ("Pettway") opposed the rezoning of nearby property to allow for a new restaurant, to be known as "The Roost."The property owner, "Saleebas-2216 Oak Street LLC"("Saleebas"), filed rezoning applications that were reviewed first by the Jacksonville Planning and Development Department, which thereafter issued a report with conditions that was sent to the Jacksonville Planning Commission for review.A lengthy public hearing was held, after which the Commission issued its recommendation of approval.

Pursuant to the City's municipal code, Pettway requested a formal quasi-judicial hearing in front of the Land Use and Zoning Committee of the Jacksonville City Council, resulting in another lengthy hearing and ultimately the Committee's recommendation to approve the application.The final step was for the full nineteen-member City Council to consider the Committee's recommendation and to approve an ordinance allowing the rezoning, which it ultimately did on May 24, 2016.

That did not end the City's legislative process for this quasi-judicial matter.The City's rules on the topic—entitled "Final Order"—say that the type of ordinance at issue, involving "Formal Quasi-Judicial Procedures," must be executed by the Council President and Council Secretary and thereafter sent by certified mail to the "applicant and affected parties."JACKSONVILLE , FLA ., PROCEDURES GOVERNING QUASI-JUDICIAL ACTIONS Ch. 6, Rule 6.310.According to Dr. Cheryl Brown, the City Council's Secretary, the ordinance was signed by the Council President and herself, after which it was provided to the Office of Legislative Services and made available for public review on May 25, 2016(and posted online that day).The signed ordinance was then filed in the "Jacksonville ordinance book" by "Legislative Staff" on June 14, 2016.Finally, as City rules require, the "Legislative Staff mailed a certified copy of the enacted ordinance with a cover letter to all property owners within 350 feet" of the rezoned property on June 20, 2016.

Under City Rule 6.310, the "date of rendition of the order shall be the date of mailing" of the ordinance to the applicant and affected parties, thereby establishing the finality of the order on that date.For that reason, Pettway sought review of the ordinance by filing a petition for certiorari with the circuit court on July 20, 2016, the last day within the thirty-day jurisdictional window under Florida appellate rules.Fla. R. App. P. 9.100(c)(2).They were advised by the City Council's Secretary that June 20, 2016, was the date of rendition of the ordinance, and an attorney with the general counsel noted that, due to a delay in the certified mailings being sent, the timing of an appeal would be affected due to the City's rendition rule.

Saleebas moved to dismiss Pettway's petition, claiming it was untimely filed for two reasons, one of which related to a snafu in the circuit court clerk's office that resulted in Pettway's petition being docketed and date-stamped as filed initially on July 20, 2016, but later changed to July 25, 2016, due to the clerk rejecting the petition for lack of an appendix.Pettway's appendix was made a part of the petition that was filed, but the appellate rules require a separately filed appendix.Fla. R. App. P. 9.220(c).For this reason, Pettway's petition was put in a "Pending Queue" and not deemed filed until July 25, 2016, when the matter was straightened out.The clerk, however, had a ministerial duty to accept and file the petition when it was received on July 20, 2016, thereby making that date the correct one for purposes of calculating the time for Pettway to file his petition.SeeState v. Johnson , 139 So.3d 968, 969(Fla. 1st DCA2014)(holding that notice of appeal was timely filed electronically, despite clerk of court placing it in "e-filing portal queue" for correction by filing party).The trial court dismissed Pettway's petition on other grounds, deeming whether it was filed on July 20th or 25th as moot.But, as Pettway points out, the legally correct date of filing was July 20th, when his petition was received by the clerk's office.This matters because Pettway's petition is untimely if deemed filed on the 25th, but—as discussed below—would be timely under City Rule 6.310.

As to the date of the ordinance's rendition, the trial court turned to Florida Rule of Appellate Procedure 9.020(i), which states that an "order is rendered when a signed, written order is filed with the clerk of the lower tribunal" and concluded that "[i]n the case of a quasi-judicial proceeding, the filing of the ordinance at issue with a government clerk or the person ‘... who most closely resembles a clerk in functions performed ’ determines the date of ‘rendition.’ "(quotingPresidents' Council of SD, Inc. v. Walton Cty. , 36 So.3d 764(Fla. 1st DCA2010) ).The trial court agreed with Saleebas that rendition of the ordinance occurred on May 25, 2016, because the ordinance was "filed" on that date with "the City's Office of Legislative Services and available for public review on the City's website."The trial court specifically rejected the applicability of City Rule 6.310.

Pettway urges—and we agree—that City Rule 6.310 should be given effect.The City—which sides with Pettway on this procedural point—says that the date upon which certified mail is sent has always been...