Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ANNEXATION – unincorporated territory – contiguous boundaries - Florida Statutes, section 171.0413, requires three criteria be met prior to annexation:  area to be annexed must not contain any electors; more than 50% of total acreage must be owned by persons who have consented to the annexation, and; more than 50% of the total number of parcels must be owned by persons who have consented to annexation – competent substantial evidence in record to show criteria had been met – property owner can enter into contract to have property annexed - nothing in the record to show that Annexation Agreements were invalid or illusory – a valid contract can contain a clause which provides for a municipality’s unilateral termination of the contractual relationship – it was within the City Commission’s discretion to treat the Annexation Agreements as valid contracts – City Commission met its statutory burden to demonstrate that property to be annexed was contiguous to the municipalities’ boundaries – Petition denied. Eva-Tone, Inc. v. City of Largo, Appeal No. 06-0004AP-88B (Fla. 6th Cir. App. Ct. Oct. 5, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

EVA-TONE, INC.,

a Florida Corporation,

                                    Petitioner,

 

vs.                                                                                                Appeal No.06-0004AP-88B

                                                                                                    UCN522006AP000004XXXXCV

CITY OF LARGO, FLORIDA

                                    Respondent.

__________________________________________/

 

ORDER DENYING AMENDED PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Amended Petition for Writ of Certiorari, the Response, and the Reply.  Upon consideration of the briefs, the record and being otherwise fully advised, the Court finds that the Amended Petition must be denied as set forth below.

            The Petitioner, Eva-Tone, Inc., a Florida Corporation, seeks review of Ordinance 2005-28, adopted on December 6, 2005, by the City Commission of the Respondent, City of  Largo (City).  The City does not dispute that Eva-Tone has standing to seek certiorari review of Ordinance 2005-28.  In reviewing the administrative action taken in the proceedings below, the Court must consider whether Eva-Tone was afforded procedural due process, whether the essential requirements of law were observed and whether the Ordinance is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action); see also County of Volusia v. City of Deltona, 925 So.2d 340, 343 (Fla. 5th DCA 2006).[1] 

            Florida Statutes, Chapter 171, provides the procedures and requirements whereby a municipality may annex unincorporated territory.  On or about July 19, 2005, the City of Largo began official proceedings to adopt Ordinance No. 2005-28, pursuant to Florida Statutes, Section 171.0413, to voluntarily annex 25 parcels consisting of approximately 90.26 acres.  Three criteria were applicable to this annexation pursuant to Section 171.0413(5) and (6):  (1) the area to be annexed must not include any electors; (2) more than 50 % of the total acreage must be owned by persons who have consented to the annexation, and; (3) more than 50 % of the total number of parcels must be owned by persons who have consented to the annexation.  Further, Sections 171.0413(1) and 171.043, require that the proposed annexed area be contiguous to the municipality’s boundaries. 

Section 171.0413(1) requires two advertised public hearings to be held on a proposed annexation.  The City Commission held five hearings on Ordinance 2005-28, the first four of which were held as public hearings.  The hearing dates were July 19, 2005, August 2, 2005, September 6, 2005, November 1, 2005, and December 6, 2005.  At the hearings, the City Commission considered evidence and testimony submitted by both parties.  Among other documents, the City submitted a Memo prepared by City staff, dated July 28, 2005, and a letter prepared by the Director of the Pinellas Planning Council, dated March 22, 2005, which stated that voluntary petitions for annexation had been submitted by persons owning more than 50 % of the total acreage for the proposed annexation and that voluntary petitions for annexation were submitted by persons owning more than 50 % of the total number of parcels proposed for annexation, or 13 out of 25 parcels. 

            During the hearings, the City Commission also considered a document titled “Ability to Serve Annexation Report,” prepared in March 2005, which also verified that the 50 %-plus thresholds had been met and further certified that the proposed area to be annexed was contiguous with the municipalities’ boundaries.  The Pinellas County Supervisor of Elections confirmed that no registered voters resided on the land proposed for annexation.  Ordinance No. 2005-28 was approved by the City Commission on the first reading, August 2, 2005.  On December 6, 2005, the City Commission voted to approve ordinance 2005-28 on a second and final reading by a vote of 6 to 1. 

Eva-Tone argues that it was denied due process in the proceedings below, that the City departed from the essential requirements of law, and that the Ordinance is not supported by competent substantial evidence.  Specifically, Eva-Tone asserts that the City failed to obtain consent from more than 50 % of the Property Owners, because the Annexation Agreements are invalid and/or the Property Owners rescinded the Agreements, and that the annexation is invalid because there was not competent substantial evidence presented to support the finding that the subject property was contiguous with the municipal boundaries of the City of Largo.

            Before addressing each issue, the Court reiterates that in conducting certiorari review of the underlying action it has neither the duty nor the authority to decide whether it is good public policy to allow the City of Largo to annex Eva-Tone.  Rather, as set forth in Haines City, this Court’s review is governed by a three-part standard:  whether procedural due process has been accorded; whether the essential requirements of law were observed; and, whether the findings and judgment are supported by competent substantial evidence.  See Haines City, 658 So.2d at 530.  In applying the procedural due process prong, the Court must consider whether Eva-Tone was provided with fair notice and an opportunity to be heard.  See Keys Citizen for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940, 938 (Fla. 2001)(explaining the parameters of due process within an administrative proceeding). 

            In determining whether the City observed the essential requirements of law, the Court must consider whether an error occurred and, if so, whether such error resulted in a gross miscarriage of justice.  See Haines, 658 So.2d at 527; see also Housing Authority of the City of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004)(explaining that in determining whether there has been a departure from the essential requirements of law, the appellate court “should not be as concerned with the mere existence of legal error as much as with the seriousness of the error”). 

            In evaluating the last prong of review, competent substantial evidence has been described as evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.”  See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002)(citing De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957).  The Court is not entitled to reweigh the evidence or substitute its judgment for that of the agency.  See id.    As aptly explained by the Florida Supreme Court in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001), the certiorari standard of review requires this Court to defer to the City’s “superior technical expertise and special vantage point” in its policy determinations and factual findings.  As Dusseau further clarified,

The issue before this court is not whether the agency’s decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency.  The circuit court has no training or experience – and is inherently unsuited – to sit as a roving “super agency” with plenary oversight of such matters.

 

            With that standard in mind, the Court reaches the following decision as to each issue.  

 

Validity of the Annexation Agreements

 

The power to annex property must be exercised in strict accord with the statute.  See Town of Mangonia Park v. Homan, 118 So.2d 585, 588 (Fla. 2d DCA 1960).  Florida Statute, Sections 171.0413(5) and (6), states that if the area to be annexed does not have any registered electors on the date the ordinance is adopted, then a referendum is unnecessary as long as the municipality obtains the consent of more than 50 % of persons that own the total acreage to be annexed and the consent of more than 50 % of persons that own the total number of parcels to the annexed.  Neither party challenges the constitutionality of this statute or the authority of the City of Largo to annex property pursuant to Chapter 171. 

            There is no dispute that the proposed area did not have any registered electors so that a referendum was unnecessary and that the ordinance could lawfully be passed with the appropriate percentage of consenting property owners subject to the annexation.  As set forth in its Amended Petition, Eva-Tone states that the City entered into Annexation Agreements with the owners of more than 50 % of the parcels, or 13 out of 25 parcels, and identifies those property owners.  It is undisputed that those same property owners cumulatively make up more than 50 % of the total acreage proposed to be annexed.  Eva-Tone argues that the City did not meet the 50 %-plus threshold as three of these property owners, specifically Barbara Bailey, James T. Paul, and Jim Morton, subsequently rescinded their Annexation Agreements by sending letters to the City stating each was withdrawing his/her consent.  Eva-Tone also argues that the Annexation Agreements are invalid as they fail for want of consideration, are illusory, are the result of bribery, and that the City fraudulently induced the property owners into signing the Annexation Agreement.[2]

In response, the City states that there is competent substantial evidence in the record to demonstrate that the 50 %-plus thresholds were met, that the purported rescissions were ineffectual, that there was valid consideration to support the Annexation Agreements, that Eva-Tone failed to preserve its argument that the Annexation Agreements are illusory (or, in any case, are not illusory), and, to the extent any of the subject property owners believe that there has been a breach of contract, his/her remedy would be to seek the appropriate relief in court.

            The Court finds that the finding by the City that the 50%-plus thresholds were met is supported by competent substantial evidence in the record.  The City considered the comprehensive Ability to Serve Annexation Report, prepared by the City’s Staff as required by Florida Statute, section 171.042, which established that the City had collected all the necessary documentation, including the Annexation Agreements, and that 51 % of the total acreage and total parcels were owned by persons who had submitted voluntary petitions for annexation.  The City also considered the letter by the Pinellas Planning Council, dated March 22, 2005, approving the Annexation Report.  According to the minutes of the first reading, the Planners Advisory Committee also approved the Annexation Report. 

Indeed, Eva-Tone concedes that the City obtained the consent of at least 50 % of the subject owners, but argues that the Annexation Agreements should have been invalidated for a number of reasons, including that the Annexation Agreements are illusory.   While Eva-Tone did not properly preserve the illusory contract argument,[3] the Court finds that even if this argument had been preserved, there is nothing in the Annexation Agreements to suggest that the contracts are not mutually enforceable.  See Pullam v. Hercules Incorporated, 711 So.2d 72, 74 (Fla. 1st DCA 1998).  Courts in Florida have recognized that a valid contract can contain a clause which provides for a municipality’s unilateral termination of the contractual relationship.  See Rollins Services v. Metropolitan Dade County, 218 So.520, 521 (Fla. 3d DCA 1973).

The Court declines to address the remaining points that Eva-Tone argues as a basis for this Court to strike down the Annexation Agreements.  Fundamentally, the Court finds that the property owners did not merely consent to the annexation, but that each entered into contracts whereby he/she agreed to have their respective property annexed.  The Court finds that the contracts, Annexation Agreements, are valid on their face.  There has been no mutual rescission nor have the parties secured a judgment rescinding the contracts.[4]  The Court concludes that it was within the discretion of the City Commission to treat the Annexation Agreements as valid.  See City of Ocala v. O.J. Nye, 608 So.2d 15, 17 (Fla. 1992)(recognizing that every municipality has the authority to conduct its government and to perform municipal services as long as its authority is exercised for valid municipal purposes); see also Dusseau, 794 So.2d at 1276 (emphasizing that the Court is not entitled to reweigh the evidence or substitute its judgment for that of the City and must defer to the City’s “superior technical expertise and special vantage point”).[5] 

Annexed Property Was Contiguous to City’s Boundaries

            Section 171.031(11) defines contiguous as “a substantial part of a boundary of the territory sought to be annexed by a municipality [that] is coterminous with a part of the boundary of the municipality.”  The definition also provides that the separation of the territory sought to be annexed from the annexing municipality by a right-of-way for a highway or road will not prevent annexation.  See Fla. Stat. 171.031(11); see also County of Volusia v. City of Deltona, 925 So.2d 340, 343-44 (Fla. 5th DCA 2006)(explaining the application of section 171.031(11) to an annexation proceeding).  Eva-Tone argues that the strip of land located between the FDOT property and the Newby property, clearly identified on the maps before the City Commission by two black, parallel lines, was not annexed along with the surrounding property and that this narrow strip separates that property to be annexed from the boundaries of the City of Largo. 

            While Eva-Tone did not raise this argument during the proceedings below, the Court finds that it was the City’s burden to provide evidence that all the statutory criteria for annexation were met.  The Court finds that the City met this burden.  The comprehensive Annexation Report states:  “Pursuant to Chapter 171.043, F.S., the City certifies that the area to be annexed currently is contiguous to the municipality’s boundaries as defined in Chapter 171.031(11), F.S., at the time the annexation proceedings began (see Maps A and B).”  As set forth above, the definition for “contiguous” specifically encompasses right-of-ways or other geographical divisions and that such divisions do not prevent the annexation of the territory.

            The Annexation Report, approved by the Pinellas Planning Council and the Planners Advisory Committee, is competent substantial evidence to support the conclusion that the property to be annexed is contiguous to the boundaries of the City of Largo and that there are no impermissible divisions.  The Court finds that if Eva-Tone disputed this evidence, it should have objected during the proceedings below.  See Scritchfield, supra. 

            Lastly, the Court finds that there is no support for Eva-Tone’s argument that it was denied due process.  It is clear that Eva-Tone had notice of all the hearings and actively participated in the proceedings below.  While Eva-Tone objects to the annexation of its property, Chapter 171 gives the City of Largo the authortiy to annex its property since the City has met the statutory requirements. 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Amended Petition for Writ of Certiorari is hereby denied.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of October 2006.

 

 

                                                   _________________________________

                                                   DAVID A. DEMERS

                                                   Circuit Judge, Appellate Division

 

 

 

 

 

 

_______________________________                      ______________________________

PETER RAMSBERGER                                          ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

 

 

 

 

 

Copies furnished to:

 

Hala Sandridge, Esquire

Robert Williams, Esquire

Meredith Sherman, Esquire

Post Office Box 1438

Tampa, FL  33601

 

Alan S. Zimmet, Esquire

Post Office Box 15309

Clearwater, FL  33766-5309

 



[1] As a preliminary matter, the Court must strike several of the City’s exhibits, as requested by Eva-Tone, as these exhibits were not developed as part of the record below.  See Altchiler v. Department of Professional Regulation, 442 So.2d 349 (Fla. 1st DCA 1983)(stating that when a party on appeal includes in an appendix material or matters outside of the record, or refers to such material or matters in its brief, it is proper for the court to strike the same).  These exhibits are the Affidavits of Michael Staffopoulos, Valerie O’Brien, and Kimball Adams, identified in the City’s Appendix as # 9, # 10, and # 11, respectively. 

 

[2] It is notable that none of the property owners that entered into the subject Annexation Agreements joined Eva-Tone in this action or separately sought certiorari review.

[3] See Scritchfield v. Dept. of Highway Safety and Motor Vehicles, 648 So.2d 1246, 1247 (Fla. 2d DCA 1995)(stating that without objection the argument has been waived). 

 

[4] The Annexation Agreements contain language which provides that contract disputes will be litigated at the trial court level, to wit:  “The PARTIES agree that mandamus, specific performance, or injunctive relief . . . are the appropriate remedies in the event of breach, whether actual or anticipatory, of this AGREEMENT.” 

[5] The Court questions whether Eva-Tone even has standing to challenge the validity of contracts to which it is not a party.  This issue was not raised by the City.