Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING –appellate court can only deny the writ or quash the order under review- the reviewing court does not have authority to take any action resulting in the entry of a judgment or orders on the merits or direct any particular judgment or order be entered-court may not quash only part of an order; that would in effect amount to a new order- Petition denied. Three H Learning Center, Inc., v. Pasco County, No. 2003-1099CA (Fla. 6th Cir. App. Ct. November 21, 2004).

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY

THREE H LEARNING CENTER, INC.

d/b/a FLORIDA YOUTH CONSERVATION

CORPS, a Florida not-for-profit corporation,

Petitioner,

vs. Case No: 2003-1099CA

PASCO COUNTY, FLORIDA,

a Political Subdivision of the State of Florida,

Respondent.

____________________________________/

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

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

In 1999, Petitioner sent a proposal to the zoning administrator to purchase certain property in an A-R district in order to build offices and operate what is described as an educational training facility. In July1999, the zoning administrator agreed to allow the building of the offices required to operate the school since the corporation fit within the property classification. Petitioner purchased the property in August 1999. Subsequently, the zoning administrator received complaints from adjoining neighbors about sign manufacturing on the property. In January 2001, the zoning administrator made a determination that sign manufacturing did not fall within the scope of the Land Development Code. Petitioner appealed that determination to the Board of County Commissioners of Pasco County ("BOCC"). A public hearing for the appeal was held in March 2001 on the issue of whether signs could be assembled and/or manufactured on the site. In May 2001, the BOCC upheld the zoning administrator's determination and found that the assembly and/or manufacturing of signs was not allowed as part of petitioner's educational training facility and gave petitioner six months to remove the sign operation from the site. In April 2002, petitioner filed an 'appeal' with the BOCC requesting the BOCC reconsider its May 2001 decision. The BOCC scheduled a public hearing in February 2003 at which time evidence was received. The BOCC directed staff to draw up an order based on the Board's discussion after receiving evidence. The proposed order was brought back to the BOCC in March 2003. At the March hearing, additional documentation and testimony were received and another Board discussion followed. The BOCC signed an order on March 25, 2003 finding that petitioner could use the property for a school, but made findings that certain activities were not within the permitted uses of an A-R zone and placed certain restrictions on Petitioner.

Petitioner has filed a Petition for Writ of Certiorari in which he requests this Court quash only certain portions of the Order. [1] However, Petitioner has not provided, nor has this Court found, any authority under which it may grant certiorari quashing only part of an order entered by the BOCC. Moreover, if this Court were to grant such relief, it would create an apparent conflict with Broward County v. GBV, 787 So. 2d 838 (Fla. 2001). In GBV, the Court clearly stated that an appellate court can only deny the writ or quash the order under review. In doing so, the Court specifically pointed out that the reviewing court does not have authority to take any action resulting in the entry of a judgment or orders on the merits or direct any particular judgment or order be entered. In GBV, after the county commission denied the developer's application for plat approval, the developer filed petition for writ of certiorari. The Seventeenth Judicial Circuit denied review ruling that the commission's decision was legislative in nature and that GBV was estopped from raising its claim because GBV had misrepresented its position. The Florida Supreme Court determined that instead of simply reviewing the record to determine whether the commissions' decision was supported by competent substantial evidence, the circuit court combed the record and extracted its own factual finding. Thus, as found by the Florida Supreme Court, the court exceeded the scope of its authority when it embarked on an independent review.

In explaining the limited review afforded on a certiorari petition, the Court cited to Snyder v. Douglas, 647 So. 2d 275 (Fla. 2d DCA 1994)(petitioner asked court to grant a 6 month extension of time); ABG Real Estate Dev. Co. v. St. Johns County, 608 So. 2d 59 (Fla. 5th DCA 1992)(petitioner asked court to direct board of county commissioners to grant application for modification of final development for plan); Nat'l Adver. Co. Broward County, 491 So. 2d 1262 (Fla. 4th DCA 1986)(circuit court acting in appellate capacity exceeded scope of certiorari review where it directed county to take steps to have the sign removed, rather than merely quashing variance); and Gulf Oil Realty Co. v. Windhover Ass'n, Inc., 403 So. 2d 476 (Fla. 5th DCA 1991)(court may only quash order, it can not direct lower court to enter contrary orders; court may not require condominium association to provide notice of proceedings). Thus, if this Court were to grant Petitioner's request, it would in effect, be ordering a different result from that of the county; contrary to GBV, 787 So. 2d 838 (Fla. 2001).

Additionally, this Court's determination that it may not quash only part of an order on a petition for writ of certiorari is further supported by the language in Tamiami Trail Tours v. Railroad Com'n  128 Fla. 25, 174 So. 451 (Fla.1937) (on rehearing).

Specifically, Tamiami held that "when an order is quashed it leaves the subject matter, that is, the controversy pending before the tribunal, commission, or administrative authority, as if no order or judgment had been entered and the parties stand upon the pleadings and proof as it existed when the order was made with the rights of all parties to proceed further as they may be advised to protect or obtain the enjoyment of their rights under the law in the same manner and to the same extent which they might have proceeded had the order reviewed not been entered." Id at 31-32; 174 So. 454. If this Court were to quash only part of the order in this case, the subject matter would not be pending as if no order or judgment had been entered. To the contrary, there would be a new order.

Accordingly, this Court declines to grant Petitioner's relief because as discussed above, an appellate court on certiorari review can only deny the writ or quash the order under review. It has no authority to take any action resulting in the entry of a judgment or order on the merits or to direct that any particular judgment or order be entered. GBV, 787 So. 2d 838 (Fla. 2001) ; Tamiami Trail Tours, Inc, 128 Fla. 25, 174 So. 451 (1937)

Therefore, it is,

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

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ________ day of October 2004.

________________________

W. Lowell Bray, Circuit Judge

Copies furnished to:

Timothy Patrick Driscoll, P.A.

Pasco County Attorney's Office

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[1] Specifically, Petitioner request this Court quash paragraphs 2.a (a portion thereof), b,d,e, and f of the Order.