Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ANNEXATION – § 171.0413, Fla. Stat. (2010), permits municipality to annex unincorporated territory that is reasonably compact and does not create enclaves. The annexation did not create enclaves, pockets, or "finger areas in serpentine patterns" as argued by Petitioners. Failure to annex right-of-way does not prevent annexation of territory. Essential requirements of law were observed and competent, substantial evidence supports conclusion that annexation meets all requirements of § 171.0413. Petition denied. P-Squared Fast Lube & More, L.L.C. v. City of Largo, No. 11-000025AP-88A (Fla. 6th Cir. App. Ct. April 9, 2012).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

P-SQUARED FAST LUBE & MORE, L.L.C.,

a Florida limited liability company; C&R

BUILDING FUND, a Florida partnership; and

CNF REALTY, a Florida partnership,

Petitioners,

Case No. 11-000025AP-88A

UCN522011AP000025XXXXCV

v.

THE CITY OF LARGO, FLORIDA, a

Florida municipal corporation,

Respondent.

______________________________________/

Opinion Filed ______________

Petition for Writ of Certiorari

from adoption of Ordinance by

the City of Largo, Florida

Roberts L. Chapman, Esq.

Timothy W. Weber, Esq.

Joseph P. Kenny, Esq.

Attorneys for Petitioners

Alan S. Zimmet, Esq.

Nicole C. Nate, Esq.

Attorneys for Respondent

PER CURIAM.

Petitioners P-Squared Fast Lube & More, L.L.C.; C&R Building Fund; and

CNF Realty seek certiorari review of Ordinance 2011-17, passed by Respondent the City of Largo, Florida on April 5, 2011. The Amended Petition for Writ of Certiorari is denied.

Petitioners filed an Amended Petition for Writ of Certiorari pursuant to section 171.081, Florida Statutes (2010), seeking to quash City of Largo Ordinance 2011-17. They claim the Ordinance creates enclaves, pockets, and finger areas in a serpentine pattern that violates section 171.031(12), Florida Statutes (2010), requiring "compactness."

In reviewing annexation ordinances, the Circuit Court in its appellate capacity determines (1) whether the lower tribunal afforded the parties procedural due process; (2) whether the essential requirements of the law were observed; and (3) whether the lower tribunal's action was supported by competent, substantial evidence. See City of Center Hill v. McBryde, 952 So. 2d 599, 601 (Fla. 5th DCA 2007). The Petitioners argue that the City Commission failed to observe the essential requirements of law and its determination that the annexed area is reasonably compact is not supported by competent, substantial evidence. There are no allegations that there has been a violation of procedural due process.

First, Petitioners complain that the Ordinance allegedly created an enclave of unincorporated land directly north of the property located at 2310 Starkey Road, Largo ("Great Bay Property"). It is argued that due to the annexation, the property north of the Great Bay Property now is surrounded on all sides by municipal land. (Property #1). Second, Petitioners allege that directly west of the Great Bay Property the annexation area "snakes around certain parcels in seeming avoidance of any property that would hamper the City's strategy of targeting only high-value commercial properties free of registered electors." (Property #2). Third, the Petitioners allege that the annexation results in a "thin finger-like strip of unincorporated property that snakes through the Great Bay Property in a serpentine pattern." (Property #3)

Analysis

Section 171.0413, Florida Statutes (2010), permits any municipality to annex unincorporated territory meeting certain conditions. The annexed property must be contiguous, reasonably compact, and not create enclaves. McBryde, 952 So. 2d at 602.

The term "compactness" means the "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." §171.031(12), Fla. Stat. An "enclave" is defined as "(a) Any unincorporated improved or developed area that is enclosed within and bounded on all sides by a single municipality;" or "(b) Any unincorporated improved or developed area that is enclosed within and bounded by a single municipality and a natural or manmade obstacle that allows the passage of vehicular traffic to that unincorporated area only through the municipality." § 171.031(13), Fla. Stat.

Petitioners in Exhibit 5 in their appendix and Respondent in Exhibit 6 in its appendix have supplied the Court with a map similar to that set out below (hereinafter "Annexation Maps").

As designated on the bottom of the map above, the Annexation Maps have hatch marks on the areas that have been annexed by Ordinance 2011-17. The Great Bay Property also is marked with Xs. On the Annexation Maps in the appendices, properties for which the City obtained annexation agreements and petitions are marked in red.

Unincorporated Property #1

With regard to Property #1, on the Annexation Maps in the appendices, both Petitioners and Respondent indicate in red that there is a strip of unincorporated property immediately to the north of Property #1 that stretches to the northwest to a housing development around a lake. The red highlighting denotes that annexation agreements and petitions were obtained for this unincorporated property. Despite such annexation agreements, this strip was not included in the property that was the subject of Ordinance 2011-17. The Annexation Maps do not have hatch marks over this strip. Therefore, because unincorporated land is located immediately to the north, Property #1 is not bounded on all sides by City property. Property #1 is not an enclave as defined in section 171.031(12)(a).

Petitioners concede in their Reply, and the Annexation Maps demonstrate, that the 1.55 acre strip of land that is denoted as 20th Avenue SE is unincorporated property. The Petitioners argue in their Reply that Property #1 is an enclave because there is no access to Property #1 other than by entering it from Starkey Road that is municipal property. This argument is without merit as the Annexation Maps demonstrate that to the west, 20th Avenue SE connects to a section of Lake Avenue that is unincorporated property. To the south, Lake Avenue connects to a section of Ulmerton Road that is unincorporated property and that section of Ulmerton Road has access to a large unincorporated area. Therefore, Property #1 is not an enclave as defined in section 171.031(12)(b).

The annexation of the Great Bay Property and property to the east of Property #1 did not violate the compactness requirement of section 171.0413.

Unincorporated Property #2

Petitioners complain Property #2 is a pocket of land created by Ordinance 2011-17 because the annexation area "snakes around certain parcels." The statute prohibits the creation of “finger areas in serpentine patterns." In City of Sanford v. Seminole County, 538 So. 2d 113, 115 (Fla. 5th DCA 1989), the appellate court quoted Webster's Dictionary for the definition of "serpentine" as "winding or turning one way and another." Further, in McBryde, the appellate court discussed the prohibition of the creation of "pockets" through annexation. The term "pocket" has been defined as "a small isolated area or group." McBryde, 952 So. 2d at 602-03.

Upon review of the Annexation Map, it is clear that a pocket or enclave is not created because Property #2 is bounded on the west side by an unincorporated section of Lake Avenue and to a large area of unincorporated land beyond. Further, the annexation of parcels to the south and east of Property #2 did not create "finger areas in serpentine patterns." §171.031(12), Fla. Stat. The annexation of parcels contiguous to Property #2 did not violate the compactness requirement of section 171.0413.

Unincorporated Property #3

Petitioners complain that the annexation results in a "thin finger-like strip of unincorporated property that snakes through the Great Bay Property in a serpentine pattern." The property complained of is denoted on the Annexation Maps in the appendices with a red or black line. The strip of land is to the west of the northern most parcel of the Great Bay Property and connects with 20th Avenue SE to the north.

In its response, the City states that the strip of land of which the Petitioners complain is a right-of-way. In their reply, Petitioners do not dispute this representation.

Section 171.031(11) defines contiguous and states in pertinent party:

The separation of the territory sought to be annexed from the annexing municipality by a publicly owned county park; a right-of-way for a highway, road, railroad, canal, or utility; or 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 . . . .

As this Court found in Eva-Tone, Inc. v. City of Largo, Florida, 14 Fla. L. Weekly Supp. 246a (Fla. 6th Cir. App. Ct. Oct. 5, 2006), "[T]he 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 of parcels surrounding Property #3 did not violate the contiguous or compactness requirements of section 171.0413.

Conclusion

This Court has reviewed the appendices filed by the parties which include the Annexation Maps; Minutes from the City of Largo City Council Meetings conducted on March 1, 2011, and April 5, 2011; and transcripts of portions of those March 1, 2011, and April 5, 2011, meetings. The Court finds that the essential requirements of the law were observed by the City and competent, substantial evidence supports the conclusion that the annexation of property through Ordinance 2011-17 meets all the requirements of section 171.0413.

The Amended Petition for Writ of Certiorari is DENIED.

DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this ____ day of April, 2012.

Original order entered on April 9, 2012, by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

Copies furnished to:

Roberts L. Chapman, Esq.

Timothy W. Weber, Esq.

Joseph P. Kenny, Esq.

980 Tyrone Blvd.

St. Petersburg, FL 33710

Alan S. Zimmet, Esq.

Nicole C. Nate, Esq.

2570 Coral Landings Bld., Ste. 201

Palm Harbor, FL 34684