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
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
a Florida Corporation,
vs. Appeal No.06-0004AP-88B
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
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
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
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 (
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.
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.
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, 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
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. 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 (
Annexed Property Was Contiguous to City’s Boundaries
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
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
Therefore, it is,
ORDERED AND ADJUDGED that the Amended Petition for Writ of Certiorari is hereby denied.
AND ORDERED in Chambers, at
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
Alan S. Zimmet, Esquire
Post Office Box 15309
 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.
 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.
 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).
 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.”
 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.