IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

RACETRAC PETROLEUM,

                        Petitioner,

vs.                                                                                                        Appeal No. 00-2864-CI-88A

CITY OF LARGO, FLORIDA,

                        Respondent.

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ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

            This cause came before the Court on the Petition For Writ Of Certiorari, the Response and the Reply.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition is granted, in part, as set forth below.

            The Petitioner, Racetrac, filed its Petition for Writ of Certiorari following the determination by the City of Largo, City Commission (Commission), not to approve Racetrac’s request for a small scale amendment to the Future Land Use Map of the City of Largo’s Comprehensive Development Code (Code).  The Code was enacted pursuant to Florida Statutues, Chapter 163, Part II, the Local Government Comprehensive and Land Development Regulation Act (Act).  See Fla. Stat., §163.3161(2000).  Accordingly, any proposed amendment to the Code is evaluated on several levels of government to ensure consistency with the Act and to provide ordered development.  See Martin County v. Yusem, 690 So.2d 1288, 1294 (Fla. 1997).  The Petitioner sought to amend the land use designation of the Future Land Use Map from Residential-Office to Commercial General for a parcel of 2.41 acres of land, which is considered a small scale amendment since it involves less than 10 acres of land.  See Fla. Stat. 163.3187(1)(c)(2000).

            In appealing the Commission’s decision to disapprove Racetrac’s Future Land Use Map amendment, the Petitioner first argues that the proceedings before the Commission, during its meeting on March 21, 2000, were quasi-judicial in nature.  If so, the Commission’s decision would be properly reviewable by petition for certiorari before this Court and the decision would be upheld only if it were supported by substantial competent evidence.  See Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469, 474 (Fla. 1993).  In contrast, the Respondent, City of Largo, argues that the amendment proposal hearing before the Commission was legislative in nature, so that the Commission’s decision may only be reviewed in an original action seeking either declaratory or injunctive relief, subject to the “fairly debatable” standard of review.  See id.  The fairly debatable standard of review is a highly deferential standard that requires approval of the Commission’s actions if reasonable persons could differ as to its propriety.  See Yusem, 690 So.2d at 1295.     

            The transcript of the commission hearing reflects that the proper standard of review was also debated during the hearing and the Commission itself was unsure of whether the hearing was a quasi-judicial or legislative proceeding.  As the Florida Supreme Court pointed out in Martin County v. Yusem, this has been a confusing area in the law.  See Yusem, 690 So.2d at 1291 (quoting Judge Pariente in his dissenting opinion in Martin County v. Yusem, 664 So.2d 976 (Fla. 4th DCA 1995)).  To make this area of the law even more confusing, the City of Largo’s Code applies different standards of review within the amendment process.  The Planning Board, in preparing a recommendation to the Commission, must make specific findings on the amendment proposal based on “substantial competent evidence.”  See Code, Ch. 11, § 11100(B)(2000).  Conversely, the Commission either confirms, amends, or reverses the recommendation of the Planning Board, and may enact or defeat a proposal under consideration, if “fairly debatable.”  See id. at §11100(C)(2)(2000).

            Nonetheless, the Florida Supreme Court has expressly concluded that amendments to comprehensive land use plans are legislative decisions subject to the fairly debatable standard.  See Yusem, 690 So.2d at 1293, 1295 (declining to extend the functional, fact-intensive approach used in Snyder in determining whether amendments to comprehensive land use plans are legislative decisions).  Even with such a bright-line ruling, the Yusem Court added a footnote stating, “we do not make any findings concerning the appropriate standard of review for these small-scale development activities,” referring to Florida Statutes, section 163.3187(1)(c), under which Petitioner’s amendment proposal falls.  See id. at 1293.  However, the First District Court of Appeal recently held that decisions regarding small scale comprehensive amendments, made pursuant to Florida Statutes, section 163.3187(1)(c), are legislative in nature subject to the fairly debatable standard of review.  See Board of County Commissioners of Clay County v. Qualls, 25 Fla. L. Weekly D2094 (Fla. 1st DCA 2000). Therefore, this Court finds that the Commission’s disapproval of the Petitioner’s small scale amendment proposal was a legislative action and must be challenged in an original action in circuit court seeking either declaratory or injunctive relief.  See id.; see also Yusem, 690 So.2d at 1295. 

            However, this Court also finds that the Petitioner would not be able to properly proceed with an original action in circuit court, as the record is void of the required findings of fact and order by the Commission.  The Florida Supreme Court held in Yusem that “even with the deferential view of legislative action afforded by the fairly debatable rule, local government action still must be in accord with the procedures required by Chapter 163, part II, Florida Statutes, and local ordinances.”  See Yusem, 690 So.2d at 1295 (emphasis added).  Consequently, because the Commission failed to enter findings of fact and an order, as mandated by its own Code, the Commission’s disapproval of the proposed amendment is defective and must be set aside.  See Thomas v. Office of the Sheriff, 507 So.2d 145, 145 (Fla. 1st DCA 1987)(holding that the absence of findings of fact by the Board and its failure to determine the rules or regulations pertinent to the matter being reviewed renders its order defective and subject to reversal on due process grounds); see also Metropolitan Dade County v. Stein, 296 So.2d 643, 645 (Fla. 3d DCA 1974)(stating that the circuit court could have remanded the cause for a hearing de novo as no findings of fact had been entered); City of Apopka v. Orange County, 299 So.2d 657, 660 (Fla. 4th DCA 1974)(directing that the cause be remanded to the board of county commissioners for another de novo hearing when the board failed to enter findings of fact). 

            The City of Largo’s Code, Section 11300(B), Legislative Actions, provides that “[a] legislative action shall require a public hearing and shall be conducted in accordance with statutory requirements and the applicable requirements of this Chapter.”  Under the Public Hearings section, the Code unequivocally states that “[t]he hearing body shall prepare written findings of fact and an order . . .” and that “[t]he written findings and order shall be included in the record.” See Code, §11100(I),(J)(emphasis added); see also Code, §2000(A)(stating that the word “shall” means mandatory)This Court does not find any inconsistencies in the Code with the applicable provisions of the Florida Statutes or Rules, but does find the Commission did not properly abide by its Code, which was adopted pursuant to the Act.  See Fla. Stat., Ch. 163, Pt. II (2000)(in general), and §163.3161(9)(2000)(specifically stating that “all rules, ordinances . . . adopted under the authority of this act must be . . . implemented and applied with sensitivity for private property rights); see also Fla. Adm. C. R. 9J-11(2000)(in general). 

            Furthermore, the Commission is bound by its procedural requirements to enter findings of fact and an order, even if the Commission was not statutorily or constitutionally obliged to do so.  See Gulf & Eastern Development Corporation v. City of Fort Lauderdale, 354 So.2d 57, 61 (Fla. 1978)(holding that the city was bound by the procedural requirements imposed by its city charter and ordinances and could not renege on its promise anymore than one of its private citizens); see also Lee County v. Sunbelt Equities, 619 So.2d 996, 1001 (Fla. 2d DCA 1993)(recognizing that a legislative body is not required to make findings of fact when acting in a truly legislative function).  As it was error for the Commission to not follow its own imposed procedures, upon remand the Commission shall conduct a de novo hearing upon which it may set forth its decision.  During the de novo hearing, and in entering its findings of fact and order, the Commission must focus on the review criteria set forth in its Code.  See Code, §11100(I)(1)-(4)(2000); see also Code, §11301(B)(1)-(5)(2000).  (In remanding for a de novo hearing, this Courts notes that it has been over seven months since the Commission’s hearing on the Petitioner’s proposed amendment and the composition of the Commission has since changed).        

            Lastly, this Court observes that the Commission’s practice of starting a hearing with a motion to disapprove (or approve) an ordinance, prior to hearing testimony or taking evidence, may quell public participation and run contrary to expressed intent of the Legislature.  See Fla. Stat. 163.3181(1),(2)(2000).  Florida Statutes, section 163.3181(1), states that “[i]t is the intent of the Legislature that the public participate in the comprehensive planning process to the fullest extent possible.”  See id.  The statute also specifies that “[d]uring consideration of the proposed plan or amendment by the . . . local governing body, the procedures shall provide for broad dissemination of the proposals and alternatives, . . . provisions for open discussion, . . . and consideration of and response to public comments.”  See id

            It is therefore,

            ORDERED AND ADJUDGED that the Petition For Writ Of Certiorari is granted, in part, as set forth above.  This cause is remanded for a de novo hearing upon which the Commission shall enter findings of fact and an order, as required by its Code.  It is further

            ORDERED AND ADJUDGED that if either party seeks redress in circuit court upon the entry of the Commission’s order, it shall be brought in an original action in circuit court.  It is further

            ORDERED AND ADJUDGED that the Petitioner’s Request for Oral Argument is denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 8th day of November 2000.

 

___________________________________
CHARLES W. COPE
Circuit Judge, Appellate Division

 

Copies Furnished To:

Robert A. Williams, Esquire
Post Office Box 1438
Tampa, FL  33601
Attorney for Petitioner

Alan S. Zimmet, Esquire
2650 McCormick Drive, Suite 100
Clearwater, FL  33759
Attorney for Respondent

Staff Attorney, Appellate Division