Petition for Writ of Certiorari to Review Quasi-Judicial Action - Agencies, Boards, and Commissions of Local Government:  ZONING - Conditional Use - The Florida Right to Farm Act, Fla. Stat. § 823.14(6), exempts from local regulation agricultural lands used for bona fide agricultural purposes, defined as “good faith commercial agricultural use of the land” in §193.461, Fla. Stat.  Substantial competent evidence supported City’s finding that Petitioner’s catfish farming operations were noncommercial and therefore not exempt from the City’s zoning regulations.  Petition denied.  McAlpin v. City of Tarpon Springs, No. 10-000030AP-88B (Fla. 6th Cir. App. Ct. June 2, 2011).










v.                                                                                             Ref. No.:  10-000030AP-88B                      

                                                                                                                                                UCN: 522010AP000030XXXXCV 

CITY OF TARPON SPRINGS,                                          





            THIS CAUSE is before the Court on the Petition for Writ of Certiorari filed by Petitioner Huey K. McAlpin Trustee, on June 30, 2010.  Respondent City of Tarpon Springs (“City”) filed a response, to which the Petitioner filed a Reply.  Upon consideration, this Court denies the Petition for Writ of Certiorari.

            Ken McAlpin is the owner of real property located at 2000 North Highland Avenue, Tarpon Springs, Florida, which was annexed into the City of Tarpon Springs in 2005.  Around the same time, McAlpin applied for and the City approved, with eleven conditions, McAlpin’s Conditional Use Application for upland excavation of the property.  In 2007 McAlpin applied for and the City approved, with four additional conditions, a Conditional Use Application for expanded excavation of the pond on the property.

            On April 1, 2010, McAlpin submitted Conditional Use Application 10-15 for farm and aquaculture operations and the removal of the previous 2005 and 2007 conditions on the grounds that the City’s regulation of bona fide farm operations on agricultural lands pursuant to section 193.461, Florida Statutes, violates § 823.14(6), the Florida Right to Farm Act (“FRFA”).  On May 17, 2010, the City’s Planning and Zoning Board conducted a quasi-judicial hearing on McAlpin’s Application and voted 6-1 to recommend denial of the application in its entirety. 

            On June 1, 2010, the City’s Board of Commissioners (“Board”) voted 5-0 to deny the application based on a finding that the circumstances giving rise to the conditions in 2005 and 2007 had not changed and that the evidence did not demonstrate that the excavation activity was in connection with a bona fide farm operation. 

            Petitioner seeks judicial review of the Board’s decision, arguing that the City failed to adhere to the essential requirements of the law and the decision was not supported by competent substantial evidence.  In its consideration of the Petitions and the responses thereto, this Court must determine: 1) whether the agency action afforded the parties procedural due process; 2) whether the essential requirements of law were observed; and 3) whether the agency action is supported by competent, substantial evidence.  Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); Sarasota County v. Bow Point on Gulf Condo Developers, LLC, 974 So. 2d 431 (Fla. 2d DCA 2007).

            Petitioner argues that the Board misapplied the plain language of the FRFA and argues that his catfish farm constitutes “farm operations” and “farm products” such that his property is exempt from City regulation by the FRFA.  According to the Petitioner, the Board erroneously concluded that excavation of the catfish farm was not exempt from the City’s regulation because it based its decision on whether McAlpin sold or intended to sell his catfish, rather than the classification of catfish as “farm products.”  Petitioner argues that the City improperly interpreted the FRFA to require that farm products be sold or intend to be sold in order to constitute a “farm operation.”  Petitioner further argues that the evidence presented at the hearing and considered by the Board was irrelevant to whether McAlpin was operating a farm and whether his operations can be regulated by the City.  

            Contrary to the Petitioner’s suggestions, only lands that are used primarily for bona fide agricultural purposes shall be classified agricultural. The term “bona fide agricultural purposes” means good faith commercial agricultural use of the land.”  § 193.461(3)(b), Fla. Stat. (2009).  The evidence concerning Petitioner’s commercial or noncommercial use of the land since 2005, as well as the testimony concerning nuisance allegations by nearby residents, constitute competent, substantial evidence supporting the City’s decision that McAlpin’s property was subject to the City’s regulatory authority.

            Under these circumstances, the Petitioner has failed to meet its burden of demonstrating that the City’s decision to deny McAlpin’s Conditional Use Application 10-15 should be overturned.  Accordingly, it is

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida, on June 2, 2011.

Original order entered on June 2, 2011, by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.


Copies furnished to:


Alan S. Zimmet, Esquire

Nicole C. Nate, Esquire

Zimmet, Unice & Salzman, P.A.

2570 Coral Landing Boulevard, Suite 201

Palm Harbor, FL 34584

Attorney for the Petitioner

Jay Daigneault, Esquire

James L. Yacavone, III, Esquire

Frazer, Hubbard, Brandt, Trask & Yacavone, LLP

595 Main Street

Dunedin, FL 34698

Attorney for the Respondent