HomeMy WebLinkAbout2020 Quash by Circuit Case No. 19-AP-142Filing # 109579826 E-Filed 06/30/2020 09:54:50 AM
IN THE Cl RCUIT COURT FOR THE
NINETEENTH JUDICIAL CIRCUIT IN AND
FOR INDIAN RIVER COUNTY, FLORIDA.
APPELLATE DIVISION
Circuit Case No. 19-AP-142
Petition for Writ of Certiorari
PELICAN ISLAND AUDUBON
SOCIETY, GRAHAM COX,
AND DONNA HALLERAN,
Petitioners, Not final until time expires for filing motion
V. for rehearing, and if filed, disposed of.
CITY OF SEBASTIAN,
Respondent.
1
Decision filed June 30, 2020.
Petition for writ of certiorari to the Sebastian City Council.
George Glenn. Jr., Vero Beach, for petitioners.
Laura Wendell, Weiss Serota Helfman Cole & Bierman, N.L., Fort Lauderdale, for respondent.
PER CURIAM.
This case involves the Sebastian City Council's ("City Council") ordinance for voluntary
annexation of L l 18 acres of privately owned land. The Petitioners, landowners within the city
limits, seek this couWs review under § 171.081( I ), Fla. Stat. (2019). We find that the Petitioners
have standing to bring this action. See Mallacha Civic Association. Inc. v. City of Cupe Cora1,
273 So. 3d 243, 246 (Fla. 2d DCA 2019) (citing Cily of Tampa v, Hillsborough County, 504
So.2d 10, 11 (Fla. 2d DCA 1986).
During this first tier review, the circuit court must determine whether procedural due
process was accorded, whether the essential requirements of the law have been observed. and
whether the administrative findings and judgment are supported by competent substantial
evidence. County of Volusia v. City of Dellona, 925 So. 2d 340, 343 (Fla. Sth DCA 2006) (citing
Broward County v. G.B. V. Intern., Lid., 787 So. 2d 838. 843 (Fla. 2001). The reviewing court
cannot reweigh evidence or substitute its view for that of the agency. Id.
We agree with the Petitioners' sole argument that the City Council departed from the
essential requirements of law by failing to provide an accurate map of the land to be annexed in
the public notice. as required by statute. §1.71.044(2). Fla. Stat. (2019) states:
...The description shall include a map clearly showing the area
and a statement that the complete legal description by metes and
bounds and the ordinance can be obtained from the office of the
city clerk.
(Emphasis added). The Florida Supreme Court has stated that the word "shall" is mandatory in
nature. Wheaton v. Wheaton, 261 So. 3d 1236, 1243 (Fla. 20I9). The City Council concedes that
the public notice map was missing a five acre parcel, but it argues that the flaw is de minimus.
The complete map was attached to the ordinance_ We find that the City Council was required to
include a complete map in the public notice showing the area to be annexed in its entirety, and
the Five acre missing parcel was not de minimus. Therefore, the petition for writ of certiorari is
granted, and the City Council's ordinance is quashed.
We grant the Petitioners' motion for appellate attorneys fees. §171.081. Fla. Stat. (2019).
Determination of amount will be determined by Judge Jeffrey Hendriks.
The Petitioners' motion for appellate costs is not properly before this court, so it is denied
without prejudice to be refiled in the lower tribunal. See Arthur v. Arthur, 54 So. 3d 454. 460
(Fla. 2010). If the motion to tax appellate costs is timely filed in the lower tribunal, appellate
costs must be taxed in favor of the party who prevailed in the appeal. I'erez, v. Fay, 198 So. 3d
681.683 (Fla. 2d DCA 2015) (citing Fla. R. App. P. 9.400(a)).
The petition ,for writ of certiorari is granted, and the City Council's ordinance is
quashed.
HEISEY, MEADOWS, JJ., and HENDRIKS, Acting Circuit Judge. concur.
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