Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ANNEXATION – City was required to comply strictly with the procedures established by the Municipal Annexation or Contraction Act (the Act), Florida Statutes Chapter 171. Annexed area was sufficiently “compact” under the Act despite the area’s separation into two parts by Madonna Boulevard. Annexed area was contiguous to the City despite separation by the Intracoastal Waterway. Petitioners did not demonstrate that the submerged lands belonging to the State of Florida were a “parcel of land” requiring owner consent before splitting, and State waived any such objections. City did not violate the notice requirements and afforded the public the requisite opportunity to be heard consistent with procedural due process. City’s failure to comply with its own Comprehensive Plan in its untimely notice to the Pinellas County Property Appraiser’s Office was not a basis for overturning the ordinance under Chapter 171. Petitioners’ argument that the City failed to obtain consent of the property owners prior to final adoption of the annexation ordinance was without merit. City’s annexation report met the requirements of § 171.042(1) Florida Statutes. Petitioners failed to sustain their burden of proving that they were denied procedural due process, that the City failed to observe the essential requirements of law, or that the annexation was not supported by competent, substantial evidence -- Petitions denied. Tierra Verde Community Association, Inc. v. City of St. Petersburg, Florida, No. 08-000050-AP-88B (Fla. 6th Cir. App. Ct. April 7, 2011).
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
TIERRA VERDE COMMUNITY
Petitioner, Ref. No.: 08-000050AP-88B
v. UCN: 522008AP000050XXXXCV
CITY OF ST. PETERSBURG,
PINELLAS COUNTY, FLORIDA,
OF ST. PETERSBURG,
ORDER DENYING PETITIONS FOR WRIT OF CERTIORARI
THIS CAUSE is before the Court on the Petition for Writ of Certiorari filed by the Tierra Verde Community Association (“TVCA”) on December 22, 2008; the Petition for Writ of Certiorari filed by Pinellas County, Florida (“Pinellas County” or “the County”), on April 2, 2009; and the supporting appendices. Pursuant to section 171.08, Florida Statutes (2008), TVCA and Pinellas County challenge the adoption of Ordinance No. 867-G (“the Ordinance”) by the Respondent City of St. Petersburg, Florida (“the City”), purporting to annex certain properties on the north end of Tierra Verde, on November 21, 2008. The City filed Responses to these Petitions, to which the Petitioners filed Replies. The Court denies the requests for oral argument.
I. FACTUAL BACKGROUND
The current boundary line between the City of St. Petersburg and Tierra Verde essentially runs along the center line of the main channel of the Intracoastal Waterway. They are connected by a two-lane drawbridge approximately one mile in length.
In late 2008, after prior annexation attempts and at the request of the Intervenors, the City initiated proceedings to annex “18.25 acres of upland and 10.07 acres of submerged land to the south of the City limits in Boca Ciega Bay and west of Pinellas Bayway in Tierra Verde.” City App., Exh. J. This annexation area includes the properties of Marina Holdings and A&S; a vacant commercial lot and five vacant residential lots; and four developed commercial properties, including a 7-Eleven convenience store. The current annexation excludes the dock/marina area of A&S property where people live on their docked boats and Madonna Boulevard, a county road running between the Marina Holdings and A&S properties. The City provided pre-annexation notices to the owners of the properties to be annexed. It did not, however, provide notices to those living on boats, nor did it hold a referendum election.
The City of St. Petersburg City Council (“City Council”) held meetings on November 6 and 17, 2008. The notice for the November 17, 2008, public hearing contained the exact language from the ordinance itself:
AN ORDINANCE OF THE CITY OF ST. PETERSBURG, FLORIDA, ANNEXING INTO THE CITY CERTAIN LANDS GENERALLY LOCATED SOUTH OF BOCA CIEGA BAY AND TO THE WEST OF THE PINELLAS BAYWAY IN TIERRA VERDE; FINDING THAT THE AREA BEING ANNEXED IS REASONABLY COMPACT AND CONTIGUOUS TO THE CITY, THAT THE ANNEXATION OF THE AREA DOES NOT CREATE AN ENCLAVE, AND THE ANNEXATION OF THE PROPERTY OTHERWISE COMPLIES WITH FLORIDA LAW FOR THE REASONS SET FORTH HEREIN; AMENDING THE BOUNDARY LINES OF THE CITY AND AMENDING THE BOUNDARY PROVISIONS OF CITY MAPS, CHARTERS, ORDINANCES AND REGULATIONS; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE.
City App., Exh. K. The notice further stated that “all interested parties may appear at the meeting and be heard by City Council with respect to the proposed ordinance. . . .” Id.
At the first hearing conducted on the morning of November 6, 2008, David Goodwin, the City’s Economic Development Director, and Assistant City Attorney Jeanne Hoffman presented comments on behalf of the City in favor of annexation. The City Council opened the meeting for public comment. Several attendees provided input, including Gordon Beardsley of the Pinellas County Planning Department, President Paul Murray of the TVCA, Barbara Heck of the Council of Neighborhood Associations, counsel for TVCA, and several Tierra Verde residents. Assistant City Attorney Hoffman, City Attorney John Wolfe, and Mr. Goodwin responded to questions from Council Members, with occasional responses from audience members.
The November 17, 2008, hearing began with a presentation by Mr. Goodwin on behalf of the City in favor of annexation. At the end of his opening remarks, he stated, “. . . I want to remind you that no action is scheduled today, that it is simply the public hearing. Upon conclusion we would ask that you close the hearing and then schedule continued – the action items for November 21st, this Friday at 8:30.” City App., Exh. B at 23. The City Council posed one question to the City and then opened the hearing to the public.
Counsel for TVCA made a statement and answered questions from Council Members. Pinellas County Planning Director Brian Smith, Gordon Beardsley, and Assistant County Attorney David Sadowsky also made statements to, and fielded questions from, the City Council concerning issues such as compactness, contiguity, and delivery of services. Mr. Murray read a “Petition against St. Petersburg’s Proposed Annexation of a part of Tierra Verde”; Ms. Heck, counsel for the TVCA, Mr. Smith and Mr. Beardsley, and numerous residents of Tierra Verde and St. Petersburg spoke in opposition to annexation. Mack Cope, the TVCA’s expert in land use planning, presented his affidavit to the City Council. The Chief of Police and the Fire Chief of the City of St. Petersburg opined as to the City’s ability to provide services. Some of the Council Members and Mayor Rick Baker addressed the audience.
After the Chairman of the City Council closed the public hearing, he indicated that the next meeting was scheduled for Friday, November 21, 2008, at which time the City Council would have the results from the Pinellas Planning Council meeting and would then conduct a final vote. Mr. Goodwin stated, “All the items will be before your consideration to vote on that day, the Ordinance, the Agreement and the Resolution Initiating Land Use and Zoning.” Id. at 190.
The agenda for the November 21, 2008, City Council meeting included the Tierra Verde Annexation in a section entitled, “Reports,” but no public hearing on the annexation was listed. Early in the proceedings, Assistant City Attorney Hoffmann announced: “And just as a reminder, the public hearing, we did close the public hearing on Monday.” City App., Exh. C.
At the November 21, 2008, meeting, the City Council heard from Mr. Goodwin, who provided a history of the annexation, presented the annexation agreements for approval, and provided the City Council with additional information that was also reflected in a memorandum to the City Council dated November 20, 2008. Specifically, Mr. Goodwin advised that the legal description of the annexation was modified to exclude leasehold property not part of the agreement. He also provided refined numbers of estimated revenues to the City that reflect current conditions of property, and he presented figures for potential tax revenues under hypothetical redevelopment scenarios. Mr. Goodwin further reported that the Pinellas Planning Council, contrary to the recommendations of its staff, voted on November 19, 2008, to recommend to the City that the City does not have the ability to serve the North Tierra Verde Annexation. Mayor Baker addressed the City Council and described his efforts to address the height and density requirements of development through meetings with developers and residents. After comment and questions to Mr. Goodwin, Council Members voted 5 to 2 to adopt Ordinance 867-G, the annexation agreement resolution, and the resolution initiating future land use and zoning designations.
In their Petitions, both the TVCA and the County argue that the City violated procedural due process and departed from the essential requirements of law in adopting Ordinance 867-G and annexing a portion of Tierra Verde. Petitioners assert that the City failed to give proper notice and the opportunity to be heard to the residents living aboard boats docked at A&S property, to the Pinellas County Property Appraiser, and to the general public. In particular, Petitioners claim that the City failed to give the statutorily required notice of the November 21, 2008, meeting or hold a public hearing, even though the Ordinance was actually considered and adopted during this meeting. Petitioners further challenge the City’s ability to fund and provide law enforcement, fire protection, and other urban services to the annexation area. Additionally, Petitioners further assert that the annexation area failed to meet compactness and contiguity requirements and is not developed for urban purposes, and that the City failed to obtain the consent of the State of Florida to split a parcel of land, i.e., the submerged lands owned by the State. Finally, Petitioners contend that the City improperly adopted the Ordinance prior to its approval of the Marina Holdings and A&S Annexation agreements.
II. STANDARD OF REVIEW
In its consideration of the Petitions and the responses thereto, this Court must determine: 1) whether the parties were accorded procedural due process; 2) whether the essential requirements of law were observed; and 3) whether competent, substantial evidence supported the action. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982); Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); Manatee County v. City of Bradenton, 828 So. 2d 1083, 1084 (Fla. 2d DCA 2002). “Procedural due process requires both fair notice and a real opportunity to be heard . . . ‘at a meaningful time and in a meaningful manner.’” Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aquaduct Auth., 795 So. 2d 940, 948 (Fla. 2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
The Municipal Annexation or Contraction Act (“the Act”), Florida Statutes chapter 171, governs the Respondent’s adoption of Ordinance No. 867-G and establishes the following procedures:
(1) An ordinance proposing to annex an area of contiguous, compact, unincorporated territory shall be adopted by the governing body of the annexing municipality pursuant to the procedure for the adoption of a nonemergency ordinance established by s. 166.041. Prior to the adoption of the ordinance of annexation, the local governing body shall hold at least two advertised public hearings. The first public hearing shall be on a weekday at least 7 days after the day that the first advertisement is published. The second public hearing shall be held on a weekday at least 5 days after the day that the second advertisement is published. . . .
§ 171.0413, Fla. Stat. (2008).
It is well-settled that “[t]he power to extend municipal boundaries must be exercised in strict accord with the statute conferring it.” 37 Am. Jur. Mun. Corps. § 24, cited in Town of Crystal River v. Springs O’Paradise, Inc., 154 So. 2d 727, 729 (Fla. 2d DCA 1963); Town of Mangonia Park v. Homan, 118 So. 2d 585, 588 (Fla. 2d DCA 1963); Smith v. Ayres, 174 So. 2d 727 (Fla. 1965). The plain language of the Act clearly and unambiguously establishes the procedures for public notice and comment prior to municipal annexation. An ordinance is null and void if it is not strictly enacted pursuant to the requirements of section 166.041, Florida Statutes. David v. City of Dunedin, 473 So. 2d 304, 306 (Fla. 2d DCA 1985).
A. COMPACTNESS/CONTIGUITY/URBAN PURPOSES
Petitioners argue that the annexation area is insufficiently compact, contiguous, or developed for urban purposes to satisfy the requirements of the Act. Section 171.043(1) provides:
The total area to be annexed must be contiguous to the municipality's boundaries at the time the annexation proceeding is begun and reasonably compact, and no part of the area shall be included within the boundary of another incorporated municipality. . . . Part or all of the area to be annexed must be developed for urban purposes.
§ 171.043(1), (2), Fla. Stat. (2008). The statute defines “compactness” as a “concentration of a piece of property in a single area and precludes any action which would create enclaves, pockets, or finger areas in serpentine patterns.” § 171.011(12), Fla. Stat. (2008). “‘Contiguous’ means that a substantial part of a boundary of the territory sought to be annexed by a municipality is coterminous with a part of the boundary of the municipality.” § 171.011(11), Fla. Stat. (2008).
Petitioners rely on the opinions of Mack Cope, Brian Smith, and Gordon Beardsley that the annexation area is neither contiguous nor reasonably compact to meet statutory requirement. In particular, Petitioners argue that the City and Tierra Verde are separated by the Intracoastal Waterway, a large body of water that prevents Tierra Verde and the City from becoming a unified whole and instead created an incorporated enclave. Moreover, they assert that the annexation area is actually two parts separated by Madonna Boulevard and is therefore not compact.
The Act expressly provides:
The separation of the territory sought to be annexed from the annexing municipality by . . . a body of water, watercourse, or other minor geographical division of a similar nature, running parallel with and between the territory sought to be annexed and the annexing municipality, shall not prevent annexation under this act, provided the presence of such a division does not, as a practical matter, prevent the territory sought to be practical matter, prevent the territory sought to be annexed and the annexing municipality from becoming a unified whole with respect to municipal services or prevent their inhabitants from fully associating and trading with each other, socially and economically.
§ 171.011(11), Fla. Stat. (2008). Petitioners suggest that the Intracoastal Waterway is a “major” body of water that prevents annexation, but they offer no authority for this interpretation that would defeat contiguity. Rather, the Intracoastal Waterway is, under the plain language of the statute, a body of water, watercourse, or other minor geographical division of a similar nature, running parallel with and between the northern end of Tierra Verde and the City of St. Petersburg, that shall not prevent annexation. Petitioners have otherwise failed to demonstrate that the annexation area is not compact as defined by the Act.
B. SPLITTING OF A PARCEL
Petitioners argue that the City failed to obtain consent from the State of Florida in order to split a parcel as required by Florida Statutes § 171.0413(3). However, Petitioners have not demonstrated that the submerged lands belonging to the State of Florida are a “parcel of land” as used in this statutory provision and that any consent from the State is required. At any rate, any objections to annexation appear to have been waived by the State by virtue of the State not seeking to join in this action.
C. LACK OF NOTICE OF THIRD MEETING
The Petitioners do not challenge the manner in which the two public hearings were noticed for and conducted on November 6 and 17, 2008; however, they assert that the City failed to give statutorily required notice of the November 21, 2008, City Council meeting. While generally noticed and open to the public, the November 21 meeting was not advertised as a public hearing or open for public comment regarding the annexation matter. The City emphasizes that the statute does not require a third public hearing, and it characterizes the matters addressed during the November 21 proceedings as “administrative matters” at which Council members could pose questions to City staff and its legal department. The City argues that it held the requisite two public hearings at which the public had ample opportunity to provide input and that it is not required to “restart the hearings all over again because of comments provided by staff in response to comments from the public.”
Upon careful consideration of the record, including the transcripts of the three meetings and Mr. Goodwin’s Memorandum to the City Council dated November 20, 2008, the Court agrees with the City’s characterization of the November 21 proceedings as ministerial in nature with respect to the North Tierra Verde Annexation.
Mr. Goodwin and the Mayor presented additional information at the November 21 hearing concerning the eight-story height limitation, refined revenue estimates for the existing properties within the annexation area, prospective increases in the City’s tax receipts under hypothetical development scenarios, and the PPC’s opinion that the City does not have the ability to serve the annexation area. These matters were presented initially by the City at the first public hearing, and the second public hearing afforded the public, the TVCA’s counsel and experts, and Pinellas County’s counsel and experts the opportunity to be heard in opposition to the annexation.
Under these circumstances, the City observed the essential requirements of law and did not violate the notice requirements of §§ 171.0413 and 166.041 by failing to advertise the November 21, 2008, meeting as a third public hearing, and the City afforded the public the requisite opportunity to be heard consistent with procedural due process.
D. UNTIMELY NOTICE TO THE PROPERTY APPRAISER
The City failed to comply with its own Comprehensive Plan in its untimely notice to the Pinellas County Property Appraiser’s Office. There is no dispute that the City did not forward the Notice of Annexation Requests to the Pinellas County Property Appraiser’s Office until after 5:00 p.m. on November 20, 2008, in anticipation of the hearing scheduled for 8:30 the next morning. Policy LU15.6 of the City of St. Petersburg Comprehensive Plan provides: “The City will forward notice of annexation requests prior to their final approval by the City Council to the Pinellas County Property Appraiser’s Office for review and comparison and comments.” Although the City did not follow this requirement, it does not serve as a basis for overturning the ordinance. An annexation appeal pursuant to § 171.081(1) is the sole and exclusive procedure for challenging a municipal government’s failure to comply with the annexation procedures established by chapter 171. SCA Servs. of Fla., Inc. v. City of Tallahassee, 418 So. 2d 1148 (Fla. 1st DCA 1982).
E. CONSENT OF PROPERTY OWNERS
Petitioners argue that the City failed to obtain consent of the property owners prior to final adoption of Ordinance No. 867-G. In other words, Petitioners complain that the City Council literally adopted the ordinance prior to adopting the Marina Holdings Annexation Agreement and the A&S Annexation Agreement. This argument is without merit, as the property owners clearly consented to annexation.
F. ANNEXATION REPORT
Upon review, the City’s North Tierra Verde Annexation Report meets the requirements of § 171.042(1), Florida Statutes (2008).
After careful consideration, this Court finds that the Petitioners have failed to sustain their burden of proving that they were denied procedural due process, that the City failed to observe the essential requirements of law, or that the annexation is not supported by competent, substantial evidence.
It is hereby
ORDERED AND ADJUDGED that the Petitions for Writ of Certiorari are DENIED.
DONE AND ORDERED in Chambers in St. Petersburg, Pinellas County, Florida, on April 7, 2011.
Original order entered on April 7, 2011 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.
Jonathan James Damonte, Esquire
12110 Seminole Blvd.
Largo, FL 33778
Attorney for Intervener Tierra Verde Marina Holdings, LLC
Stephen C. Chumbris, Esquire
Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullis, PA
200 Central Ave., Suite 1600
St. Petersburg, FL 33701
Attorneys for Intervener A&S Tierra Verde Ventures, LLC
John R. Thomas, Esquire
233 Third Street North, Suite 101
St. Petersburg, FL 33701
Attorney for Petitioner Tierra Verde Community Association
John C. Wolfe, Esquire
Jeanne Hoffmann, Esquire
P.O. Box 2842
St. Petersburg, FL 33731
Attorneys for Respondent the City of St. Petersburg
The Honorable Bill Foster
Mayor, City of St. Petersburg
P. O. Box 2842
St. Petersburg, FL 33731
David Sadowsky, Esquire
Senior Assistant County Attorney
315 Court Street
Clearwater, FL 33765
Neither Intervenor Tierra Verde Marina Holdings, LLC (“Marina Holdings”) nor Intervenor A&S Tierra Verde Ventures, LLC (“A&S”) filed a brief despite invitation by the Court. Marina Holdings filed a chapter 11 bankruptcy on January 29, 2010.
 The cross-referenced statute, § 166.041 provides:
Procedures for adoption of ordinances and resolutions.-
(3)(a) Except as provided in paragraph (c), a proposed ordinance may be read by title, or in full, on at least 2 separate days and shall, at least 10 days prior to adoption, be noticed once in a newspaper of general circulation in the municipality. The notice of proposed enactment shall state the date, time, and place of the meeting; the title or titles of proposed ordinances; and the place or places within the municipality where such proposed ordinances may be inspected by the public. The notice shall also advise that interested parties may appear at the meeting and be heard with respect to the proposed ordinance.
§ 166.041, Fla. Stat. (2008).