R-2018-27R Filing # 85458246 E-Filed 02/25/2019 04:00:52 PM
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT,
IN AND FOR LAKE COUNTY,FLORIDA
DANIELLE MARIE PAGE,
Petitioner,
v. Case No.: 2018-CA-2267
CITY OF CLERMONT, FLORIDA,
Respondent.
ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
This cause came on for consideration on the Petition for Writ of Certiorari filed on
November 6,2018. The Court has considered the Petition,the responses,the appendices,exhibits,
the relevant statutory authority and case law, and has been otherwise fully advised.
A. FACTS AND PROCEDURAL HISTORY
On November 6, 2018, Petitioner filed a Petition for Writ of Certiorari with this Court. In
pertinent part it alleged that: (1) due process was not afforded; (2) the essential requirements of
the law were not observed;and(3)that there was no competent substantial evidence to support the
City of Clermont's decision to grant a conditional use permit.
On November 19, 2018, this Court issued an Order to Show Cause to Respondent as to
why the Petition should not be granted.
On December 11, 2018, movant Summit Construction Management Group, LLC
("Summit,") filed a Motion to Dismiss or to Intervene ("Motion to Dismiss").
On January 7,2019,this Court denied the Motion to Dismiss but granted Summit's request
to intervene.
On January 8, 2019, Respondent filed a Response to Petition for Writ of Certiorari
("Response"). It in pertinent part stated: (1) the jurisdiction of this Court has not been invoked
because the record is fatally inadequate; (2) the essential requirements of the law were observed;
and (3) that the record demonstrates the decisions by the City of Clermont were support by
competent substantial evidence.
On January 10, 2019, Petitioner filed a Reply to the Response. In pertinent part it stated
that: (1) Respondent refused to provide her with the requested record prior to the expiration of the
time period to file the subject matter Writ; (2) the essential requirements of the law were not
observed; and (3) there is no competent substantial evidence to support the findings by City of
Clermont.
On January 14, 2019, this Court entered an Order Requiring the Record to be
Supplemented. In pertinent part it ordered the parties to file the following documentation: (1) a
copy of all referenced codes cited within the record; and(2)a transcript of the referenced hearings
in the record.
On January 16, 2019, Respondent filed the requested copy of all referenced codes cited
within the record.
On January 24, 2019, Petitioner filed a copy of the requested transcripts of the referenced
hearings in the record. Further, Petitioner filed an additional copy of the requested city codes.
On January 30, 2019, this Court entered an additional Order Requiring the Record to be
Supplemented("Second Request").In pertinent part it ordered the Respondent to file the following
documentation: (1) all evidence which would support the requisite findings by the City Counsel
pursuant to Clermont Code Section 86-144(c); and (2) all evidence in support of the standards
weighted by the council pursuant to Clermont Code Section 86-144(d).
On January 30,2019,the Respondent filed a Notice of Renewed Objection to the Inclusion
of Improper Documents in the Record ("Objection"). In pertinent part it alleged that anything in
the record that occurred after the October 9,2018, city council meeting should not be weighted.
On January 31, 2019, Respondent filed a Notice of Filing in response to the Second
Request.
B. STANDARD OF REVIEW
On a petition for Writ of Certiorari, the Circuit Court's review, acting in its appellate
capacity, is limited to: "1) whether procedural due process is accorded, 2) whether the essential
requirements of law have been observed,and 3)whether the administrative findings and judgment
are supported by competent substantial evidence." Haines City Cmty. Dev. v. Heggs, 658 So. 2d
523, 530 (Fla. 1995); citing City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).
C. ISSUES & ANALYSIS
Petitioner moves this Court to consider her Petition because she believes the issuance of
the conditional use permit to Summit by Respondent was in error, as it allegedly: 1) failed to
provide procedural due process because notice was not given pursuant to both city code and Florida
statute; 2) departed from the essential requirements of the law, because it skipped a procedural
requirement and because it is not consistent with the city cody; and 3)that the Board's decision is
not supported by competent substantial evidence, because the record is allegedly remiss of such
evidence as required by law.
Respondent asks this Court to deny Petitioners request because Respondent believes 1)
that the record is devoid of a legal basis for invoking the jurisdiction of this Court; 2) that the
Respondent observed the essential requirements of the law because the conditional use permit is
consistent with the Clermont city code and its comprehensive plan;and(3)the record conclusively
demonstrates competent substantial evidence in support of its actions.
I. Because Respondent failed to comply with procedural due process, the essential
requirements of the law and its actions were not supported by competent
substantial evidence, the Petition must be granted:
This Court's review is narrow, as it must only determine if Respondent afforded due
process,relied upon competent substantial evidence to support its findings and whether it deviated
from the essential requirements of the law in so doing.See Broward Cty. v. G.B.V. Int'1, Ltd., 787
So. 2d 838(Fla.2001). For the reasons discussed below,this Court must respectfully disagree with
Respondent and grant the subject matter Petition.
a. Petitioner was not afforded due process.
Petitioner contends that she was not afforded due process as she did not receive proper
notice as required by Florida Statute Section 125.66(4) and City of Clermont Code Section 86-
143. In support of her argument,Petitioner attached a copy of the card mailed to her for the October
9th, 2018, city council meeting which reflected a postmark date of September 20, 2018. As to the
violation of Clermont Code Section 86-143, the Petitioner states that no notice was provided. The
applicable statute and code state as follows:
"(4) Ordinances or resolutions, initiated by other than the county, that change the actual
zoning map designation of a parcel or parcels of land shall be enacted pursuant to
subsection (2). Ordinances or resolutions that change the actual list of permitted,
conditional, or prohibited uses within a zoning category, or ordinances or resolutions
initiated by the county that change the actual zoning map designation of a parcel or parcels
of land shall be enacted pursuant to the following procedure:
(a) In cases in which the proposed ordinance or resolution changes the actual zoning map
designation for a parcel or parcels of land involving less than 10 contiguous acres, the
board of county commissioners, in addition to following the general notice
requirements of subsection(2),shall direct its clerk to notify by mail each real property
owner whose land the governmental agency will redesignate by enactment of the
ordinance or resolution and whose address is known by reference to the latest ad
valorem tax records. The notice shall state the substance of the proposed ordinance or
resolution as it affects that property owner and shall set a time and place for one or
more public hearings on such ordinance or resolution. Such notice shall be given at
least 30 days prior to the date set for the public hearing, and a copy of such notice shall
be kept available for public inspection during the regular business hours of the office
of the clerk of the board of county commissioners. The board of county commissioners
shall hold a public hearing on the proposed ordinance or resolution and may, upon the
conclusion of the hearing, immediately adopt the ordinance or resolution." Fla. Stat. §
125.66
"All conditional use permit requests shall be considered at public hearings, which shall be
noticed as follows: (1) The city shall send notice of the proposed conditional use permit to
the owners of all adjoining properties to the subject property. Such notice shall include the
date,time and place of the public hearings before the planning and zoning commission and
the city council, along with a clear and concise description of the proposed use. For the
purposes of such notification,adjoining properties shall include those properties within 150
feet of the subject property even when separated from the subject property by a road,canal,
easement, right-of-way or similar barrier. (2) Notice of public hearing shall be published
in a newspaper of general circulation within the city at least twice, one publication being
five days prior to the planning and zoning commission meeting(first Tuesday of the month)
and the second being five days prior to the city council meeting (fourth Tuesday of the
month)." Clermont Code § 86-143.
In responding to these allegations, Respondent merely contends that the Petitioner has
misinterpreted the applicable statute and code, without providing any legal authority in support of
such or evidence to support its belief that it provided proper notice. In discerning legislative intent,
a court must look first and foremost at the actual language used in the statute. Joshua v. City of
Gainesville, 768 So. 2d 432,435 (Fla. 2000). Statutes"should be interpreted to give effect to every
clause in it,and to accord meaning and harmony to all of its parts."Jones v. ETS of New Orleans,
Inc., 793 So. 2d 912, 914-15 (Fla. 2001). Where the statutory construction is clear and amenable
to a reasonable and logical interpretation, courts are without power to diverge from the intent of
the Legislature as expressed in the plain language' of the Code. See Starr Tyme, Inc. v. Cohen, 659
So.2d 1064 (Fla.1995). In reading the plain language of Florida Statute Section 125.66, the
Respondent was required to give the Petitioner at least 30 days' notice; however as is clear by the
record, such was not afforded to the Petitioner. As to Clermont Code Section 86-143, it is
undisputed that Respondent failed to provide any competent substantial evidence that notice was
afforded as required by the plain and unambiguous language of the code. As such, Petitioners due
process rights were clearly violated.
b. Respondent deviated from the essential requirements of the law.
Petitioner argues that Respondent deviated from the essential requirements of the law in
failing to adhere to Clermont Code Section 86-144. For the reason discussed below this Court
agrees. A "departure from the essential requirements of law" occurs when a lower tribunal fails to
apply or adhere to the plain language of a statute or ordinance. See Justice Admin. Comm'n v.
Peterson, 989 So. 2d 663, 665 (Fla. 2nd DCA 2008). In pertinent part the applicable code states:
"General criteria for granting permit. Upon review and formal action on an application
for a conditional use permit, the planning and zoning commission may recommend
granting and the city council may grant by resolution a conditional use permit if it is
found, from the evidence presented at the public hearing, that: (1) The granting of the
conditional use permit will not adversely affect the officially adopted comprehensive
plan of the city; (2) Such use will not be detrimental to the health, safety or general
welfare of persons residing or working in the vicinity; (3) The proposed use will
' It is important to note that the Fifth District in Fleeman v. City of St. Augustine Beach,728 So. 2d 1178, 1180(Fla.
5'h DCA 1998),interpreted Florida Statute Section 125.66(4)to be applicable to municipalities such as the Respondent.
Further, the language in the applicable statute essentially mirrors that which is codified at Florida Statute Section
166.041(3)(c).
comply with the regulations and conditions specified in the codes for such use; and (4)
The proposed use may be considered desirable at the particular location." Clermont
Code § 86-144(c).
In reviewing the transcripts from the October 9, 2018, hearing the record is completely devoid of
any of the findings required by the code. In an abundance of caution, this Court issued a Second
Request directed at the Respondent on January 30,2019.The Order required to file with this Court,
within 10 days from the date of the Order, any evidence which would support that the Respondent
made the requisite findings as required pursuant to the code. On January 31,2019,the Respondent
filed 282 pages partially in response to this specific request. Despite this voluminous filing, the
only document which ostensibly partially supported Respondents argument was an unsigned and
unexecuted conditional use permit. For obvious reasons, this Court cannot consider such a
document. As such, because the Respondent did not make the requisite findings as required by the
applicable code, it deviated from the essential requirements of the law.
b. Respondent did not rely upon competent substantial evidence.
Once more,Petitioner argues that the Respondent failed to observe the law. In specific,the
Petitioner alleges the Respondent's decision to grant the conditional use permit was not supported
by competent substantial evidence. Previously, the Supreme Court of Florida defined
substantial evidence as "such evidence as will establish a substantial basis of fact from which the
fact at issue can be reasonably inferred."De Groot v. Sheffield, 95 So.2d 912,916(Fla. 1957). For
the "substantial"evidence to also constitute "competent" evidence, the evidence relied upon
"should be sufficiently relevant and material that a reasonable mind would accept it as adequate to
support the conclusion reached."Id.; See Irvine v. Duval County Planning Comm'n, 495 So. 2d
167(Fla. 1986).Pertinent to the subject matter review is the standard which is codified at Clermont
Code Section 86-144(d), which reads as follows:
"(d)Specific development standards.In determining whether the application meets the four
requirements in subsection (c) of this section, the city shall as a minimum consider that
satisfactory provisions and arrangements have been made for the following, where
applicable: (1) Density or intensity, character and type of development. The density or in-
density, character and type of development shall be in conformance with the city's
comprehensive plan, future land use map, future land use district designation and zoning
district classification. (2) Compatibility of development. The compatibility of the
development with terrain and surrounding development as to type and size of unit and
height shall be considered. The development shall be so located and designed to avoid
undue noise, odor, traffic or other nuisances and dangers to abutting property owners. (3)
Transportation. The city transportation system or streets must be of sufficient width and
capacity to serve the demands created by the development. Dedication of rights-of-way,
frontage or reverse frontage roads and other necessary improvements shall be considered
and addressed." Clermont Code § 86-144(d).
In reviewing the transcripts and all filed exhibits, this Court could not find the competent
substantial evidence as required by the code. In reviewing the evidence this Court finds that the
Respondent did not rely upon competent substantial evidence because the material provided,along
with the record, is not such that a reasonable mind would accept it to reach the conclusion of
approving the conditional use permit. Interestingly, to the contrary, the discussion of the
commissioners and mayor in the transcripts from the October 9, 2018, meeting seem to suggest
that they ignored the potential traffic problems, rather than addressing them as required by the
code,and instead allowed the desire for another school to usurp the rights as expressly codified in
the subject matter sections of the code. While it is not to say that a school could not be placed upon
the subject matter location and the concerns which are codified addressed through competent
substantial evidence, it is clear in this instance the decision was not based upon said standard of
evidence. Based upon the foregoing, it is,
Intentionally Left Blank.
ORDERED AND ADJUDGED:
1. Petitioner's Petition for Writ of Certiorari is GRANTED.
2. The conditional use permit granted by Respondent is QUASHED.
3. Respondent's Objection is SUSTAINED. All documents in the record which were
created after the October 9,2018, hearing have not been considered.
4. Respondent shall have thirty days from the date of this Order to file an appeal.
i
DONE AND ORDERED in chambers at Tavares, Lake County, Florida this '7S day of
February 2019.
p
e 'e J. Se lento, Circuit Judge
IMMENNENNEw
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Order has been furnished by e-mail / U.S.
Mail, this 25 day of February,2019, to the following:
Danielle M. Page Andrew S. Ballentine, Esq.
2422 Linkwood Ave De Beaubien, Simmons, Knight, Mantzaris &
Clermont, FL 34711 Neal, LLP
dani.pageAyahoo.com 332 N. Magnolia Ave.
Orlando, FL 32801
aballentine@dsklawaroup.com
Rachel M. Crews,Esq.
Gray Robinson,P.A.
301 E. Pine St., Ste 1400
Orlando,FL 32801
11 Rachael.crewsQgray-robinson.com
Darlene.dallasQgray-robinson.com
Judicial Assistant
Filing # 85458246 E-Filed 02/25/2019 04:00:52 PM
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT,
IN AND FOR LAKE COUNTY,FLORIDA
DANIELLE MARIE PAGE,
Petitioner,
v. Case No.: 2018-CA-2267
CITY OF CLERMONT, FLORIDA,
Respondent.
ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
This cause came on for consideration on the Petition for Writ of Certiorari filed on
November 6,2018. The Court has considered the Petition,the responses,the appendices, exhibits,
the relevant statutory authority and case law, and has been otherwise fully advised.
A. FACTS AND PROCEDURAL HISTORY
On November 6, 2018, Petitioner filed a Petition for Writ of Certiorari with this Court. In
pertinent part it alleged that: (1) due process was not afforded; (2) the essential requirements of
the law were not observed; and(3)that there was no competent substantial evidence to support the
City of Clermont's decision to grant a conditional use permit.
On November 19, 2018, this Court issued an Order to Show Cause to Respondent as to
why the Petition should not be granted.
On December 11, 2018, movant Summit Construction Management Group, LLC
("Summit,") filed a Motion to Dismiss or to Intervene ("Motion to Dismiss").
On January 7,2019,this Court denied the Motion to Dismiss but granted Summit's request
to intervene.
On January 8, 2019, Respondent filed a Response to Petition for Writ of Certiorari
("Response"). It in pertinent part stated: (1) the jurisdiction of this Court has not been invoked
because the record is fatally inadequate; (2) the essential requirements of the law were observed;
and (3) that the record demonstrates the decisions by the City of Clermont were support by
competent substantial evidence.
On January 10, 2019, Petitioner filed a Reply to the Response. In pertinent part it stated
that: (1)Respondent refused to provide her with the requested record prior to the expiration of the
time period to file the subject matter Writ; (2) the essential requirements of the law were not
observed; and (3) there is no competent substantial evidence to support the findings by City of
Clermont.
On January 14, 2019, this Court entered an Order Requiring the Record to be
Supplemented. In pertinent part it ordered the parties to file the following documentation: (1) a
copy of all referenced codes cited within the record; and(2)a transcript of the referenced hearings
in the record.
On January 16, 2019, Respondent filed the requested copy of all referenced codes cited
within the record.
On January 24, 2019, Petitioner filed a copy of the requested transcripts of the referenced
hearings in the record. Further, Petitioner filed an additional copy of the requested city codes.
On January 30, 2019, this Court entered an additional Order Requiring the Record to be
Supplemented("Second Request").In pertinent part it ordered the Respondent to file the following
documentation: (1) all evidence which would support the requisite findings by the City Counsel
pursuant to Clermont Code Section 86-144(c); and (2) all evidence in support of the standards
weighted by the council pursuant to Clermont Code Section 86-144(d).
On January 30,2019,the Respondent filed a Notice of Renewed Objection to the Inclusion
of Improper Documents in the Record ("Objection"). In pertinent part it alleged that anything in
the record that occurred after the October 9,2018, city council meeting should not be weighted.
On January 31, 2019, Respondent filed a Notice of Filing in response to the Second
Request.
B. STANDARD OF REVIEW
On a petition for Writ of Certiorari, the Circuit Court's review, acting in its appellate
capacity, is limited to: "1) whether procedural due process is accorded, 2) whether the essential
requirements of law have been observed,and 3)whether the administrative findings and judgment
are supported by competent substantial evidence." Haines City Cmty. Dev. v. Heggs, 658 So. 2d
523, 530 (Fla. 1995); citing City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).
C. ISSUES & ANALYSIS
Petitioner moves this Court to consider her Petition because she believes the issuance of
the conditional use permit to Summit by Respondent was in error, as it allegedly: 1) failed to
provide procedural due process because notice was not given pursuant to both city code and Florida
statute; 2) departed from the essential requirements of the law, because it skipped a procedural
requirement and because it is not consistent with the city cody; and 3) that the Board's decision is
not supported by competent substantial evidence, because the record is allegedly remiss of such
evidence as required by law.
Respondent asks this Court to deny Petitioners request because Respondent believes 1)
that the record is devoid of a legal basis for invoking the jurisdiction of this Court; 2) that the
Respondent observed the essential requirements of the law because the conditional use permit is
consistent with the Clermont city code and its comprehensive plan;and(3)the record conclusively
demonstrates competent substantial evidence in support of its actions.
I. Because Respondent failed to comply with procedural due process, the essential
requirements of the law and its actions were not supported by competent
substantial evidence, the Petition must be granted:
This Court's review is narrow, as it must only determine if Respondent afforded due
process,relied upon competent substantial evidence to support its findings and whether it deviated
from the essential requirements of the law in so doing.See Broward Cty. v. G.B.V. Int'l, Ltd., 787
So.2d 838(Fla.2001).For the reasons discussed below,this Court must respectfully disagree with
Respondent and grant the subject matter Petition.
a. Petitioner was not afforded due process.
Petitioner contends that she was not afforded due process as she did not receive proper
notice as required by Florida Statute Section 125.66(4) and City of Clermont Code Section 86-
143. In support of her argument,Petitioner attached a copy of the card mailed to her for the October
9`h, 2018, city council meeting which reflected a postmark date of September 20, 2018. As to the
violation of Clermont Code Section 86-143, the Petitioner states that no notice was provided. The
applicable statute and code state as follows:
"(4) Ordinances or resolutions, initiated by other than the county, that change the actual
zoning map designation of a parcel or parcels of land shall be enacted pursuant to
subsection (2). Ordinances or resolutions that change the actual list of permitted,
conditional, or prohibited uses within a zoning category, or ordinances or resolutions
initiated by the county that change the actual zoning map designation of a parcel or parcels
of land shall be enacted pursuant to the following procedure:
(a) In cases in which the proposed ordinance or resolution changes the actual zoning map
designation for a parcel or parcels of land involving less than 10 contiguous acres, the
board of county commissioners, in addition to following the general notice
requirements of subsection(2),shall direct its clerk to notify by mail each real property
owner whose land the governmental agency will redesignate by enactment of the
ordinance or resolution and whose address is known by reference to the latest ad
valorem tax records. The notice shall state the substance of the proposed ordinance or
resolution as it affects that property owner and shall set a time and place for one or
more public hearings on such ordinance or resolution. Such notice shall be given at
least 30 days prior to the date set for the public hearing, and a copy of such notice shall
be kept available for public inspection during the regular business hours of the office
of the clerk of the board of county commissioners. The board of county commissioners
shall hold a public hearing on the proposed ordinance or resolution and may, upon the
conclusion of the hearing, immediately adopt the ordinance or resolution." Fla. Stat. §
125.66
"All conditional use permit requests shall be considered at public hearings, which shall be
noticed as follows: (1) The city shall send notice of the proposed conditional use permit to
the owners of all adjoining properties to the subject property. Such notice shall include the
date,time and place of the public hearings before the planning and zoning commission and
the city council, along with a clear and concise description of the proposed use. For the
purposes of such notification,adjoining properties shall include those properties within 150
feet of the subject property even when separated from the subject property by a road,canal,
easement, right-of-way or similar barrier. (2) Notice of public hearing shall be published
in a newspaper of general circulation within the city at least twice, one publication being
five days prior to the planning and zoning commission meeting(first Tuesday of the month)
and the second being five days prior to the city council meeting (fourth Tuesday of the
month)." Clermont Code § 86-143.
In responding to these allegations, Respondent merely contends that the Petitioner has
misinterpreted the applicable statute and code, without providing any legal authority in support of
such or evidence to support its belief that it provided proper notice. In discerning legislative intent,
a court must look first and foremost at the actual language used in the statute. Joshua v. City of
Gainesville, 768 So. 2d 432,435 (Fla.2000). Statutes"should be interpreted to give effect to every
clause in it, and to accord meaning and harmony to all of its parts."Jones v. ETS of New Orleans,
Inc., 793 So. 2d 912, 914-15 (Fla. 2001). Where the statutory construction is clear and amenable
to a reasonable and logical interpretation, courts are without power to diverge from the intent of
the Legislature as expressed in the plain language' of the Code. See Starr Tyme, Inc. v. Cohen, 659
So.2d 1064 (Fla.1995). In reading the plain language of Florida Statute Section 125.66, the
Respondent was required to give the Petitioner at least 30 days' notice; however as is clear by the
record, such was not afforded to the Petitioner. As to Clermont Code Section 86-143, it is
undisputed that Respondent failed to provide any competent substantial evidence that notice was
afforded as required by the plain and unambiguous language of the code. As such, Petitioners due
process rights were clearly violated.
b. Respondent deviated from the essential requirements of the law.
Petitioner argues that Respondent deviated from the essential requirements of the law in
failing to adhere to Clermont Code Section 86-144. For the reason discussed below this Court
agrees. A "departure from the essential requirements of law" occurs when a lower tribunal fails to
apply or adhere to the plain language of a statute or ordinance. See Justice Admin. Comm'n v.
Peterson, 989 So. 2d 663, 665 (Fla. 2nd DCA 2008). In pertinent part the applicable code states:
"General criteria for granting permit. Upon review and formal action on an application
for a conditional use permit, the planning and zoning commission may recommend
granting and the city council may grant by resolution a conditional use permit if it is
found, from the evidence presented at the public hearing, that: (1) The granting of the
conditional use permit will not adversely affect the officially adopted comprehensive
plan of the city; (2) Such use will not be detrimental to the health, safety or general
welfare of persons residing or working in the vicinity; (3) The proposed use will
' It is important to note that the Fifth District in Fleeman v. City of St.Augustine Beach,728 So. 2d 1178, 1180(Fla.
5`s DCA 1998),interpreted Florida Statute Section 125.66(4)to be applicable to municipalities such as the Respondent.
Further, the language in the applicable statute essentially mirrors that which is codified at Florida Statute Section
166.041(3)(c).
comply with the regulations and conditions specified in the codes for such use; and(4)
The proposed use may be considered desirable at the particular location." Clermont
Code § 86-144(c).
In reviewing the transcripts from the October 9, 2018, hearing the record is completely devoid of
any of the findings required by the code. In an abundance of caution, this Court issued a Second
Request directed at the Respondent on January 30,2019.The Order required to file with this Court,
within 10 days from the date of the Order, any evidence which would support that the Respondent
made the requisite findings as required pursuant to the code. On January 31,2019,the Respondent
filed 282 pages partially in response to this specific request. Despite this voluminous filing, the
only document which ostensibly partially supported Respondents argument was an unsigned and
unexecuted conditional use permit. For obvious reasons, this Court cannot consider such a
document. As such, because the Respondent did not make the requisite findings as required by the
applicable code, it deviated from the essential requirements of the law.
b. Respondent did not rely upon competent substantial evidence.
Once more,Petitioner argues that the Respondent failed to observe the law. In specific,the
Petitioner alleges the Respondent's decision to grant the conditional use permit was not supported
by competent substantial evidence. Previously, the Supreme Court of Florida defined
substantial evidence as "such evidence as will establish a substantial basis of fact from which the
fact at issue can be reasonably inferred."De Groot v. Sheffield, 95 So.2d 912,916(Fla. 1957). For
the "substantial"evidence to also constitute "competent" evidence, the evidence relied upon
"should be sufficiently relevant and material that a reasonable mind would accept it as adequate to
support the conclusion reached."Id.; See Irvine v. Duval County Planning Comm'n, 495 So. 2d
167(Fla. 1986).Pertinent to the subject matter review is the standard which is codified at Clermont
Code Section 86-144(d), which reads as follows:
"(d)Specific development standards.In determining whether the application meets the four
requirements in subsection (c) of this section, the city shall as a minimum consider that
satisfactory provisions and arrangements have been made for the following, where
applicable: (1) Density or intensity, character and type of development. The density or in-
density, character and type of development shall be in conformance with the city's
comprehensive plan, future land use map, future land use district designation and zoning
district classification. (2) Compatibility of development. The compatibility of the
development with terrain and surrounding development as to type and size of unit and
height shall be considered. The development shall be so located and designed to avoid
undue noise, odor, traffic or other nuisances and dangers to abutting property owners. (3)
Transportation. The city transportation system or streets must be of sufficient width and
capacity to serve the demands created by the development. Dedication of rights-of-way,
frontage or reverse frontage roads and other necessary improvements shall be considered
and addressed." Clermont Code § 86-144(d).
In reviewing the transcripts and all filed exhibits, this Court could not find the competent
substantial evidence as required by the code. In reviewing the evidence this Court finds that the
Respondent did not rely upon competent substantial evidence because the material provided,along
with the record, is not such that a reasonable mind would accept it to reach the conclusion of
approving the conditional use permit. Interestingly, to the contrary, the discussion of the
commissioners and mayor in the transcripts from the October 9, 2018, meeting seem to suggest
that they ignored the potential traffic problems, rather than addressing them as required by the
code,and instead allowed the desire for another school to usurp the rights as expressly codified in
the subject matter sections of the code. While it is not to say that a school could not be placed upon
the subject matter location and the concerns which are codified addressed through competent
substantial evidence, it is clear in this instance the decision was not based upon said standard of
evidence. Based upon the foregoing, it is,
Intentionally Left Blank
ORDERED AND ADJUDGED:
1. Petitioner's Petition for Writ of Certiorari is GRANTED.
2. The conditional use permit granted by Respondent is QUASHED.
3. Respondent's Objection is SUSTAINED. All documents in the record which were
created after the October 9, 2018, hearing have not been considered.
4. Respondent shall have thirty days from the date of this Order to file an appeal.
DONE AND ORDERED in chambers at Tavares, Lake County, Florida this 1S7 day of
February 2019.
All/ep
e .e J. Se 'ento, Circuit Judge
CERTIFICATE OF SERVICE
I HEREBY CCERTIFY that a copy of the foregoing Order has been furnished by e-mail / U.S.
Mail, this 25 day of February, 2019,to the following:
Danielle M. Page Andrew S. Ballentine, Esq.
2422 Linkwood Ave De Beaubien, Simmons, Knight, Mantzaris &
Clermont, FL 34711 Neal, LLP
dani.page@,yahoo.com 332 N. Magnolia Ave.
Orlando, FL 32801
aballentine@dsklawgroup.com
Rachel M. Crews, Esq.
Gray Robinson, P.A.
301 E. Pine St., Ste 1400
Orlando, FL 32801
Rachael.crews®gray-robinson.com
Darlene.dallasna,gray-robinson.com
fiz ---
i '
Judicial Assistant
Filing# 86280310 E-Filed 03/12/2019 05:00:08 PM
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR LAKE COUNTY, FLORIDA
DANIELLE MARIE PAGE
Petitioner,
v. Case No. 2018-CA-2267
CITY OF CLERMONT, FLORIDA
Respondent.
/
RESPONDENT'S MOTION FOR REHEARING OF ORDER GRANTING
PETITION FOR WRIT OF CERTIORARI
Respondent, CITY OF CLERMONT, FLORIDA ("Clermont" or
"Respondent"), by counsel and pursuant to Appellate Rule of Civil Procedure
9.330, hereby seeks rehearing on this Court's Order Granting Petition for Writ of
Certiorari, dated February 25, 2019.
INTRODUCTION
Petitioner, DANIELLE PAGE (the "Petitioner"), opposed the conditional
use permit application by Summit Construction Management Group, LLC
("Summit"), before Clermont's City Council's on October 9, 2018. After the City
Council granted Summit's application, and on November 6, 2018, the Petitioner
filed the instant action appealing the decision (the "Petition").
On February 25, 2019, the Court issued its Order Granting Petition for Writ
of Certiorari (the "Order"). , The Court based its review on the three elements set
forth in Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). See
generally Order, pp. 3-8. In consideration of the third element—"whether
procedural due process is accorded"—the Court examined both section
125.66(4)(a), Florida Statutes, and Clermont Code § 86-143(1-2). Order, pp. 4-5.
In its analysis of these two provisions, the Court stated that the provisions "should
be interpreted to give effect to every clause in it, and to accord meaning and
harmony to all of its parts." Order, pp. 5-6 (citing to Joshua v. City of Gainesville,
768 So. 2d 432, 435 (Fla. 2000), and Jones v. ETS of New Orleans, Inc., 793 So.
2d 912, 914-15 (Fla. 2001). The Court also noted the similarities between section
125.66(4), Florida Statutes ("§ 125.66"), and section 166.041(3)(c), Florida
Statutes, as noted by the Fifth District Court of Appeal in Fleeman v. City of St.
Augustine Beach, 728 So. 2d 1178, 1180 (Fla. 5th DCA 1998), when considering a
small-scale comprehensive plan amendment.'
While the observation of giving effect to every clause in these two
provisions is proper, the Court misapprehended the provisions of§ 125.66(4) in its
interpretation and analysis of whether procedural due process was afforded to
Petitioner. Respectfully, the Court's analysis created disharmony among the parts
1 The instant case involves a resolution approving a conditional use permit rather
2
of § 125.66(4), which applies to counties and non-county entities in differing
contexts, and section 166.041, Florida Statutes ("§ 166.041"). Further, the
provisions of § 125.66(4) do not, in its plain language, apply due to the nature of
the resolution at bar. The provisions of Clermont Code § 86-143 ("§ 86-143")
require two separate notices be sent to certain property owners. The Petitioner
asserts she is entitled to such notices but no such evidence is in the record and the
Court made clear it was not considering documents outside of the record. Order, p.
9. Yet the Court found Petitioner was entitled to notice without support in the
record. See generally id. Finally, the Court considered the analysis required by
Clermont Code § 86-144(c)—(d) and whether competent substantial evidence was
presented to support the decision at issue. The Court, however, misapprehended
the conjunctive nature of the analysis between parts (c) and (d) in its analysis and
overlooked facts included in the record that support Clermont's decision.
For the reasons discussed herein, this Court should grant the instant motion
for rehearing and vacate its February 25, 2019 opinion, hold that Clermont
provided adequate notice to the Petitioner pursuant to § 86-143, that Petitioner was
not entitled to notice under § 125.66 or § 166.041, and affirm the City Council's
approval of Summit's conditional use permit application.
than a small-scale comprehensive plan amendment. (Pet., p. 2; Pet. App. 1, p. 2).
3
MOTION FOR REHEARING
The Court decided this appeal by expressly addressing the single issue on
appeal, namely whether Clermont improperly granted Summit's conditional use
permit application (the "Application") by addressing the three elements required
by Heggs, 658 So. 2d at 530. Specifically, in regard to the procedural due process
element, the Court held that:
In reading the plain language of Florida Statute Section 125.66, the
Respondent was required to give the Petitioner at least 30 days'
notice; however as is clear by the record, such was not afforded to the
Petitioner. As to Clermont Code Section 86-143, it is undisputed that
Respondent failed to provide any competent substantial evidence that
notice was afforded as required by the plain and unambiguous
language of the code. As such, Petitioners due process rights were
clearly violated.
Order, p. 6. In so holding, the Court, respectfully, misapprehended the provisions
of section 125.66(4)(a), Florida Statutes, and section 166.041(3)(c), Florida
Statutes, to the extent it was considered, and misapprehended § 86-143(1), which,
when based on the record, should compel this Court to reconsider and vacate its
February 25, 2019 opinion and deny the Petition for Writ of Certiorari.
Further, the Court charged Clermont with not supplied competent substantial
evidence to support its approval of Summit's Application, which is the Petitioner's
duty to provide. Order, pp. 6-8. The failure to supply an adequate record is fatal
to an appeal and the Petitioner did not, and has not, supplemented the record. Aris
v. State, 162 So. 2d 670, 671 (Fla. 1st DCA 1964). Moreover, the Court appears to
4
have made findings unsupported by the record, which is reversible error. Kranz v.
Kranz, 737 So. 2d 1198, 1200 (Fla. 5th DCA 1999) ("findings in the order ...
without record support ... require reversal."). On this basis alone, the Court should
reconsider and vacate its February 25, 2019 opinion and deny the Petition for Writ
of Certiorari.
A. The Provisions of § 125.66(4) are not Applicable to Clermont's
Resolution Approving Summit's Application.
The Court, respectfully, misapprehended the provisions of§ 125.66(4)(a) in
three separate ways when considering whether notice was owed to Petitioner for
Clermont's review of Summit's application.
First, § 125.66 is a requirement generally imposed upon counties. Fla. Stat.
§ 125.66(1) ("... counties shall adhere to the procedures prescribed herein.). The
statute can apply to non-county entities in circumstances unlike those at bar. See
infra. Respectfully, the Court overlooked the initial threshold qualification of
which governmental entities were required to follow the procedures in the statute.
Second, the provisions of the statute, in its plain language, applies separately
to ordinances and resolution based on the type of entity initiating the ordinance or
resolution. The statute provides, in pertinent part, that "resolutions, initiated by
other than the county, that change the actual zoning map designation of a parcel or
parcels of land shall be enacted pursuant to subsection (2)." Fla. Stat.
§ 125.66(4)(a) (emphasis added). The first clause of part (4) applies when a
5
resolution is initiated "by other than the county...," as is the case here, and the
substance of the subject ordinance or resolution changes "the actual zoning map
designation of a parcel or parcels of land..." Fla. Stat. § 125.66(4). However, the
notice provisions under subsection (2) are applicable, not those under (4)(a). Id.
On this point, that the Court acknowledged that the executed resolution at issue
was never put in the record (albeit charging Clermont with the failure). Order, p.
7; see infra. However, the Application is in the record and plainly states that
Summit seeks only a modification to the existing permitted uses. (Pet. App. 1, p.
52). Nothing in the Application requests a change in the zoning map designation
such that it would fall under the auspices of§ 125.66(4). Compare (Pet. App. 1, p.
52) with Fla. Stat. § 125.66(4). Furthermore, it is even clearer that it would not fall
under the corollary provision in § 166.041 as the provision only applies to
ordinances and not a resolution such as the one at issue here. Compare Fla. Stat.
§ 125.66(4) with Fla. Stat. § 166.041(1)(a) and Fla. Stat. 166.041(3)(c).
Assuming arguendo that the Application, and the resulting resolution, did
seek a change in the actual zoning map designation, the 30-day notice provision in
section 125.66(4)(a), Florida Statutes, is still not applicable as the statute applies
the provisions of part (2), which is without a 30-day notice provision.
The holding from Fleeman regarding the application of section 125.66,
Florida Statutes, is inapplicable under the instant facts. See Order, p. 6 (citing the
6
Fleeman, 728 So. 2d at 1180, as the basis for the application of § 125.66).
Fleeman involved a small scale comprehensive plan amendment pursuant to
section 163.3187, Florida Statutes, which is entirely different from what Summit
sought in its Application. 728 So. 2d at 1179; (Pet. App. 1, p. 52). As the Court
noted, the Fleeman court applied the provisions of the statute, which has since
been amended, that required the governmental entity to follow the provisions of the
applicable statute. Order, p. 6; Fleeman, 728 So. 2d at 1179-80. A small scale
comprehensive plan amendment is entirely different from a conditional use permit.
Compare Fla. Stat. § 163.3187(1)(c) (setting forth what changes a permissible
amendment can seek) with 7 Fla. Jur 2d Building, Zoning, and Land Controls §
253 ("A "conditional use" is one appropriate to the zoning classification but which
depends upon factual findings prior to issuance of the permit." Bay View Invs.,
Inc. v. Grigsby, 219 So. 2d 760, 762 n.1 (Fla. 2d DCA 1969)).
The Court has, respectfully, overlooked the distinctions in the plain language
of § 125.66(4) that do not apply to a resolution that does not change the zoning
map designation, and as a result, misapprehended the application of the 30-day
notice provision contained in 125.66(4)(a) under the instant facts. See Starr Tyme,
Inc. v. Cohen, 659 So. 2d 1064 (Fla. 1995).
Third, the Court, respectfully, overlooked that the provisions of the statute,
in particular, part (a), apply to ordinances or resolutions initiated by a county or
7
that make wholesale changes within whole zoning categories, which is factually
distinguishable. The statute provides, in pertinent part, that "[o]rdinances or
resolutions that change the actual list of permitted, conditional, or prohibited uses
within a zoning category, or ordinances or resolutions initiated by the county that
change the actual zoning map designation of a parcel or parcels of land shall be
enacted pursuant to the following procedure...." Fla. Stat. § 125.66(4)(a). This is
an important distinction to those ordinances or resolutions falling under the first
clause that specifically applies to non-counties. Compare Fla. Stat. § 125.66(1)
(requiring counties, as opposed to municipalities, adhere to procedures in the
statute) with Fla. Stat. § 125.66(4) ("Ordinances or resolutions that change the
actual list of permitted, conditional, or prohibited uses within a zoning category"
specifically excludes the non-county language from the first clause). Arguably, the
entirety of the second clause is applicable only to counties. Neumont v. State, 967
So. 2d 822, 827 (Fla. 2007) (finding that compliance with § 125.66(4)(a) "requires
compliance with the notice requirements of subsection (2), ... and requires that
counties mail to each property owner affected by the proposed ordinance a
summary of the proposed ordinance explaining how the proposed ordinance will
affect them." (emphasis added)). This distinction between which statute applies to
counties and municipalities is clear when reading the plain language in part (a) and
part (b). Compare Fla. Stat. § 125.66(4)(a) (expressly requiring the board of
8
county commissioners to take certain action for certain types of proposed changes)
with Fla. Stat. § 125.66(4)(b) (expressly requiring the board of county
commissioners to take certain actions for a completely different set of proposed
changes); see also Fla. Stat. § 166.041.
Furthermore, part (a)'s notice requirement is applicable only to a county's
"ordinance or resolution that changes the actual zoning map designation for a
parcel or parcels of land involving less than 10 contiguous acres." Fla. Stat.
§ 125.66(4)(a). An interpretation that results in the 30-day notice provision
applying to a resolution for an actual change to a zoning map designation other
than one initiated by a county is illogical, unreasonable, and is not in harmony with
a logical and reasonable interpretation of part (b), which clearly provides for other
types of ordinances or resolution or those involving actual zoning map designation
changes involving 10 contiguous acres or more. See Cohen, 659 So. 2d at 1067;
Joshua, 768 So. 2d at 435.
Assuming arguendo that § 125.66(4) is applicable in the instant case, the
Petitioner is still not entitled to direct notice under part (a). Part (a) applies only
"[i]n cases in which the proposed ordinance or resolution changes the actual
zoning map designation for a parcel or parcels of land involving less than 10
contiguous acres..." Fla. Stat. § 125.66(4)(a). Clermont's resolution does not
change the actual zoning map designation for the parcel in question. See (Pet.
9
App. 1, p. 52) (requesting a conditional use permit, not a change of the map
designation). Furthermore, the only party entitled to specific written notice under
subsection (4)(a) is the property owner whose land is being directly affected, which
is not Petitioner. Fla. Stat. § 125.66(4)(a). Moreover, the notice requirements in
part (b) do not include the 30-day provision, only notice by publication. See Fla.
Stat. § 125.66(4)(b)(1)—(2); see also Fla. Stat. § 166.041(3)(c)2. (providing similar
notice requirements for ordinances but not for resolutions, such as the one at issue).
The Court, in applying the provisions of § 125.66(4)(a), respectfully overlooked
that its notice provisions apply to property owners whose land is being
redesignated and misapprehended that the Petitioner, who is not the owner of the
parcel in question, was covered by that notice provision.
Section 125.66(4) is inapplicable, in its entirety, to Clermont's resolution at
issue here as the resolution was initiated by "other than a county," does not change
the zoning map designation for the parcel in question, or otherwise satisfy a single
other qualifier under the plain language of the statute and even if it was, Petitioner
is not covered by the 30-day notice provision. Accordingly, this Court should
reconsider and vacate its opinion in this case and deny the Petition.
10
B. Section 125.66, Florida Statutes, Construed In Pari Materia With
Section 166.041, Florida Statutes, Provides a Consistent Result
Section 166.041 sets forth the procedures for adopting ordinances and
resolutions by municipalities and follows substantially the same pattern as
§ 125.66. The statute provides, in pertinent part, that:
Ordinances initiated by other than the municipality that change the
actual zoning map designation of a parcel or parcels of land shall be
enacted pursuant to paragraph (a). Ordinances that change the actual
list of permitted, conditional, or prohibited uses within a zoning
category, or ordinances initiated by the municipality that change the
actual zoning map designation of a parcel or parcels of land shall be
enacted pursuant to the following procedure
Fla. Stat. § 166.041(3)(c). In the Order, the Court referenced § 166.041 as having
equivalent provisions as section 125.66(4), Florida Statutes, and cited to Fleeman
as the basis for that equivalence. However, the statute defines ordinances and
resolutions, the latter of which encompasses Clermont's approval of Summit's
application. Fla. Stat. § 166.041(1)(a)—(b). This distinction, in and of itself,
requires a different outcome than the Court's analysis under section 125.66,
Florida Statutes, because the similar provisions are limited to "ordinances," as
defined therein, and not "resolutions." Compare Fla. Stat. § 166.041(1)(a)—(b) and
Fla. Stat. § 166.041(3) with Fla. Stat. § 125.66(4). As § 166.041(3) is inapplicable
in the instant matter, § 125.66 should be similarly inapplicable to the instant
resolution when read in pari materia. State v. Fuchs, 769 So. 2d 1006, 1009-10
(Fla. 2000) ("statutes which relate to the same or closely related subjects should be
11
read in pari materia."), citing to American Bakeries Co. v. Haines City, 180 So.
524, 528 (Fla. 1938) ("Laws should be construed with reference to the constitution
and the purpose designed to be accomplished, and in connection with other laws in
pari materia, though they contain no reference to each other."), cited with approval
in Miami Dolphins, Ltd. v. Metro. Dade Cnty., 394 So. 2d 981, 988 (Fla. 1981).
As the 30-day notice requirement is inapplicable under either § 125.66(4) or
§ 166.041(3), the Court misapprehended the applicability of these statutes to the
instant facts and the application of 30-day notice requirement. Application of the
wrong law is reversible error. Dusseau v. Metro. Dade Cnty. Bd. Of Comm'rs, 794
So. 2d 1270 (Fla. 2001). Accordingly, this Court should reconsider and vacate its
opinion in this case and deny the Petition.
C. The Court Misapprehended the Provisions of§ 86-143 as Applied in the
Instant Case
The Court's analysis of § 86-143 provides that the Court misapprehended
the provisions, and Clermont's arguments related thereto, in two separate and
significant ways. Notwithstanding the foregoing, Petitioner never raised the due
process issue before the City Council and should have been barred from doing so
now. Battaglia Fruit Co. v. City of Maitland, 530 So. 2d 940, 943 (Fla. 5th DCA
1998).
First, the Court found that Clermont "merely contends that the Petitioner has
misinterpreted the applicable statute and code, without providing any legal
12
authority in support of such or evidence to support its belief that it provided proper
notice." (Order, p. 5) (emphasis added). In arguing that the Petitioner was not
entitled to notice under § 86-143(1), Clermont argued that based on the plain
language of § 86-143(1), there was no requirement that the residents of Tuscany
Ridge be provided with notice as § 86-143(1) requires that only residents adjoining
the property at issue were entitled to mailed notice and all others were entitled to
notice only by publication. Compare (Order, p. 5) with (Resp't. Br., p. 14). In her
reply brief, Petitioner raises the issue of what constitutes "adjoining" under § 86-
143 and only claims that certain unnamed, and therefore non-party, residents of
Tuscany Ridge were among those entitled to notice but never alleged that she is
among those entitled to notice. (Pet. Reply Br., p. 3-4). Petitioner only alleged, as
a "fact," that "[t]he City of Clermont did not send notices for the planning and
zoning hearing to the owners of the adjoining properties at Tuscany Ridge," which
Clermont contested encompassed the Petitioner. (Pet., p. 5, ¶ 14). Clermont's
contentions are supported by the record, which is devoid of any evidence providing
that the Petitioner falls within the meaning of § 86-143(1). City of Ft. Myers v.
Splitt, 988 So. 2d 28, 32 (Fla. 2d DCA 2008) ("the reviewing court's consideration
shall be confined strictly and solely to the record of proceedings by the agency or
board on which the questioned order is based." Dade Cnty. v. Marca, S.A., 326 So.
2d 183, 184 (Fla. 1976)). Further, the Court did not state, or otherwise provide
13
notice to the parties, that it judicially noticed Petitioner was within the property
owners entitled to notice pursuant to § 86-143(1), as required by section 90.204,
Florida Statutes. Maradie v. Maradie, 680 So. 2d 538, 540 (Fla. 1st DCA 1996)
(judicial notice taken in non-compliance with Fla. Stat. § 90.204 is subject to
reversal). As the record does not include any evidence that the Petitioner, herself,
was entitled to notice pursuant to § 86-143(1), the Court has respectfully
misapprehended the controlling law in finding Petitioner was entitled to notice.
Kranz, 737 So. 2d at 1200 ("findings in the order ... without record support ...
require reversal."); Splitt, 988 So. 2d at 32 (findings based on the allegations in the
certiorari petition that are unsupported by the record is a departure from the
essential requirements of law).
Second, the Court, respectfully, overlooked the evidence in the record
demonstrating Clermont complied with the notice requirements pursuant to § 86-
143(2). (Pet. App. 1, pp. 53-54); (Clermont's Notice of Filing, filed January 30,
2019, at 28-29). Clermont argued Petitioner was not entitled to mailed notice
pursuant to § 86-143(1) in the first place so any evidence demonstrating such is
superfluous. (Resp't. Br., p. 14-15). Moreover, the record demonstrates that
Clermont provided Petitioner with notice beyond what she was entitled, i.e. the
mailed notice regarding the City Council meeting held on October 9, 2018. (Pet.
App. 6, pp. 1-2); F&R Builders, Inc. v. Durant, 390 So. 2d 784, 786 (Fla. 3d DCA
14
1980) (sending a "courtesy notice" does not afford standing for common law
certiorari).
As Clermont argued the provisions of § 86-143(1) did not apply to the
Petitioner and there is no evidence in the record to support Petitioner's entitlement
to notice under the code provision, the Court has, respectfully, misapprehended the
applicability of § 86-143(1) to Petitioner and afforded standing to Petitioner
without support in the record. Further, the Court, respectfully, overlooked that the
record supports that Petitioner received notice pursuant to § 86-143(2) and
additionally received mailed notice for the City Council meeting held on October
9, 2018, despite not being entitled to such under Clermont Code § 86-143(1).
Accordingly, this Court should reconsider and vacate its opinion in this case and
deny the Petition.
D. The Court Misapprehended the Provisions of Clermont Code § 86-144
When It Held that Clermont Failed to Make the Required Findings
Clermont Code § 86-144 permits the City Council to grant a conditional use
permit application by resolution if it makes certain findings based on
considerations by the city of satisfactory provisions and arrangements on seven
separate issues. Clermont Code § 86-144(c)—(d). In the Order, the Court cites to
the requirements set forth in part (c) and separately analyzes the considerations in
part (d), which inform the findings in part (c). (Order, pp. 6-8). This disjunctive
analysis resulted in the Court, respectfully, overlooking and misapprehending the
15
unambiguous language of § 86-144(c)—(d) and the burdens it imposed on the
Petitioner. Cohen, 659 So. 2d at 1067.
First, the Court overlooked the conjunctive nature of the analysis in parts (c)
and (d) and that the city takes those considerations. Compare (Order, pp. 6-8) with
Clermont Code § 86-144(d) ("In determining whether the application meets the
four requirements of subsection (c) of this section, the city shall...."); see also
Cohen, 659 So. 2d at 1067. The showing required by the Respondent is merely
that Clermont, not just the City Council, "consider[ed] that satisfactory provisions
and arrangements have been made..." Clermont Code § 86-144(d). The Court's
misapprehension of the findings in part (c) is, in part, due to Petitioner's failure to
supply an adequate record. See infra. Notwithstanding Petitioner's failure to
provide an adequate record, Clermont filed all of the documents available for the
City Council's review that address each of the considerations required under part
(d). (See generally Clermont's Notice of Filing, filed January 30, 2019). An
additional complication is that the Court appears to be relying on less than half of
§ 86-144(d). Compare (Order, p. 8) with Clermont Code § 86-144(d)(1)—(7). For
instance, the Court makes a finding that the City Council "ignored the potential
traffic problems" but overlooks the traffic monitoring requirement, the use of an
off-duty sheriff's deputy to direct traffic, and the City Council's questions to
Summit's representatives in the transcript. Compare (Order, p. 8) with (Pet. Notice
16
of Filing, dated January 24, 2019, at 18, 26, 37-38, 103-26). Given the depth of
information provided and considered by Clermont, the Court has respectfully
misapprehended the type of analysis Clermont was required to perform and
overlooked the depth and breadth of information provided for consideration and
the City Council's response to it.
Second, the Court's holding evinces that it swapped the burden when it
improperly charged Clermont with the failure to provide competent substantial
evidence when in actuality, the Petitioner failed to provide an adequate record.
(Order, p. 7); Fla. R. App. P. 9.100(g) ("If the petition seeks an order directed to a
lower tribunal, the petition shall be accompanied by an appendix as prescribed by
rule 9.220...");Aris v. State, 162 So. 2d 670, 671 (Fla. 1st DCA 1964) (placing the
burden for compliance with procedural elements in a certiorari proceeding on the
petitioner). Further, the Court cites to "an unsigned and unexecuted conditional
use permit" in the record as "the only document which ostensibly partially
supported Respondent[`s] argument...." (Order, p. 7); see also Aris, 162 So. 2d at
671 (failure to cure procedural defects is fatal to demonstrating an entitlement to a
writ of certiorari). Clermont argued that Petitioner failed to supply an adequate
record yet the Court placed the burden to cure this defect primarily on Clermont.
See (Order Requiring the Record to Be Supplemented, dated January 30, 2019).
17
The Court, respectfully, misapprehended the nature of the analysis that
Clermont Code § 86-144 requires Clermont to perform and overlooked the
voluminous documents evincing competent substantial evidence that Clermont
performed the analysis required by Clermont Code § 86-144(c)—(d). Accordingly,
this Court should reconsider and vacate its opinion in this case and deny the
Petition.
CONCLUSION
The Court has misapprehended or overlooked three key areas in its Order.
First, the Court misapprehended the applicability of§ 125.66 and § 166.041 to the
resolution passed by Clermont. Second, the Court misapprehended the lack of
support in the record and the law that the Petitioner was entitled to notice pursuant
to § 86-143(1) and overlooked that the Petitioner was provided notice pursuant to
§ 86-143(2). Finally, the Court misapprehended the nature of the analysis required
by Clermont Code § 86-144, overlooked the competent substantial evidence that
supports Clermont's decision, and misapprehended the provisions of the law
governing which party has the burden of providing a record that resulted in a shift
of the burden from Petitioner to Clermont. In light of these issues, the Court
should reconsider and vacate its February 25, 2019 Order and enter a new order
denying the Petition.
18
WHEREFORE, based on the foregoing discussion and authorities,
Respondent, CITY OF CLERMONT, FLORIDA, respectfully requests that the
Court grant reconsider and vacate its February 25, 2019 opinion in this case and
affirm the disposition below by denying the Petition for the reasons stated above.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by electronic mail delivery, on this 12th day of March 2019, to Danielle
Marie Page, 2422 Linkwood Avenue, Clermont, Florida 34711
(dani.page@yahoo.com), and Rachael M. Crews, Esq., Gray Robinson, P.A., 301
E. Pine Street, Suite 1400, Orlando, FL 32801 (Rachael.Crews@gray-
robinson.com, Christopher.Hudon@gray-robinson.com, and Darlene.Dallas@gray-
robinson.com).
/s/Andrew S. Ballentine
DANIEL F. MANTZARIS
FBN: 562327
Email: DMantzaris@dsklawgroup.com
Secondary Email:
RNull@dsklawgroup.com
ANDREW S. BALLENTINE
FBN: 118075
Email: ABallentine@dsklawgroup.com
Secondary Email:
LMorales@dsklawgroup.com
de Beaubien, Simmons, Knight,
Mantzaris & Neal, LLP
332 N. Magnolia Avenue
Orlando, FL 32801
Phone: (407) 422-2454
19
Facsimile: (407) 849-1845
Attorneys for Respondent, City of
Clermont, Florida
20