5D06-3701 Marion County v. Kirk

SUPREME COURT CASES

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-3701

Case Date: 09/17/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007 MARION COUNTY, FLORIDA, ET AL., Case No. 5D06-3701 Appellants, v. MICHELLE KIRK, Appellee. ________________________________/ Opinion filed September 21, 2007 Appeal from the Circuit Court for Marion County, Jack Singbush, Judge. Thomas L. Wright, County Attorney, and Thomas D. MacNamara, Chief Assistant County Attorney, Ocala, for Appellant Marion County. Michael P. Donaldson and Christine R. Davis of Carlton Fields, P.A., Tallahassee, and Michael E. Dean of Dean & Dean, LLP, Ocala, for Appellant C & K Investments. No Appearance for Appellee.

PALMER, C.J. Marion County and its Board of County Commissioners (BCC) appeal the trial court's order granting appellee Michelle Kirk's petition for a writ of mandamus, thereby compelling BCC to comply with the notice requirements of its land development code and reconsider its grant of a special use permit. Determining that Kirk was not legally entitled to receive mandamus relief in this matter, we reverse.

BCC approved an application for a special use permit which allowed C & K Investment, Inc., to develop and operate a sand mine. Kirk responded by filing a petition in the circuit court seeking a writ of mandamus against BCC. The petition alleged that BCC failed to comply with the mailing requirements related to the proposed special use permit with respect to at least four adjacent landowners. The petition requested the circuit court to issue a writ of mandamus requiring BCC to comply with its notice rules and to reconsider the special use permit application. The trial court conducted an evidentiary hearing on Kirk's petition. During the hearing, the zoning director for Marion County testified that special use permit applications are processed consistent with the requirements of the Land Development Code. The Land Development Code provides for and defines due public notice as follows: Publication of notice shall be given at least ten days prior to said meeting in a newspaper of general circulation in the County. Due public notice for public hearings of the Zoning Commission and the Board of County Commissioners for rezoning of property shall include mailed written notice to all owners of property within 300 feet of the boundaries of the property subject to rezoning whose address is know by reference to the latest ad valorem tax records and to all parties of interest who timely request such notice in writing to the Zoning Director. The zoning director explained that a staff member maps the property owners who live within 300 feet of the proposed projects and the zoning department then creates a mailing list for those owners. The zoning director's office thereafter prepares the notices for placement in the U.S. mail. The Municipal Service Taxing Unit (MSTU) handles all of the mailing for the county and mails the notices to those persons on the mailing address list. The director testified that his office complied with these procedures and, to the best of his knowledge, the notices were mailed.

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Upon review, the trial court granted Kirk's mandamus petition concluding that, although the mapping specialist testified that she delivered the notices to the MSTU, there was no testimony that it was ordinary and usual for the MSTU employees to mail out the notices. The trial court did note that the zoning director testified that he and the employees of his office did their job on a timely basis and in the ordinary scope of their employment, and that they followed the rules that bind them. Marion County, joined by C & K Investment, filed a timely motion for rehearing and attached affidavits prepared by the director of MSTU and the deputy clerk of the circuit court to the motion. In his affidavit, the director averred that MSTU is responsible for all mailings for nine county departments, including the zoning department, and that all notices to surrounding property owners with respect to the public hearing at issue were mailed. The deputy clerk averred that she was present at that public hearing, that a petition opposing the proposed special permit was presented at that meeting , and that the second signatory on the petition was Kirk. The petition listed, on its face, the time and place of the public meeting (hence showing that Kirk had actual notice of the meeting). The trial court refused to consider the affidavits and denied the motion for rehearing. This appeal followed. Mandamus is a discretionary writ, awarded, not as a matter of right, but in the exercise of sound judicial discretion. Therefore, this court reviews the trial court's order for an abuse of discretion. Wright v. Frankel, 32 Fla. L. Weekly D97 (Fla. 4th DCA Dec. 27, 2006). Here, the trial court abused its discretion in granting Kirk mandamus relief. Mandamus is an inappropriate remedy under the facts presented in this case because rulings of a board acting in its quasi-judicial capacity are subject to review by

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certiorari. See Bd. of County Comm'rs. of Brevard County v. Snyder, 627 So.2d 469, 474 (Fla. 1993). When a matter is open to review by certiorari, mandamus is an inappropriate remedy. Mellon v. Cannon, 482 So.2d 604, 604 (Fla. 5th DCA 1986). Accordingly, we reverse the trial court's grant of the writ of mandamus and remand for further proceedings consistent with this opinion. In closing, we note that, e ven if the mandamus petition had not been procedurally improper, it would still have been erroneously entered since the trial court improperly disregarded the presumption of routine practice in mailing notices prepared by the county and delivered to MSTU for mailing. See

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