Dmb Investment Trust v. Islamorada, Village of Islands

Third District Court of Appeal
State of Florida

Opinion filed July 19, 2017.
Not final until disposition of timely filed motion for rehearing.

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No. 3D16-2894
Lower Tribunal No. 16-AP-2-P
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DMB Investment Trust and SKB Investment Trust,
Petitioners,

vs.

Islamorada, Village of Islands, a Florida municipality,
Respondent.

On Petition for Writ of Certiorari to the Circuit Court for Monroe County,
Appellate Division, Timothy J. Koenig, Judge.

John A. Jabro, for petitioners.

Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Jeffrey L.
Hochman (Fort Lauderdale), for respondent.

Before LAGOA, SALTER, and FERNANDEZ, JJ.

LAGOA, J.
 Petitioners, DMB Investment Trust and SKB Investment Trust

(“Petitioners”), petition this Court for a writ of certiorari to quash a decision of the

appellate division of the Sixteenth Judicial Circuit Court affirming a final order of

an Islamorada, Village of Islands Code Compliance Hearing Officer. Because the

appellate division of the circuit court properly applied the unambiguous provisions

of the Islamorada, Village of Islands Code of Ordinances and Petitioners do not

dispute that they were afforded procedural due process, we deny the petition.

I. FACTUAL AND PROCEDURAL HISTORY

The Petitioners own property located at 139 Gimpy Gulch Drive,

Islamorada, Florida. Petitioners sought to install a swim buoy system adjacent to

and waterward of the mean high water line of their property in order to provide

themselves a protected swimming area. On March 2, 2015, the Florida Department

of Environmental Protection issued a letter to the Petitioners authorizing the

installation of the buoy system. The letter also stated that it did “not relieve you

from the responsibility of obtaining other federal, state, or local authorizations that

may be required for the activity.” On June 3, 2015, the United States Army Corps

of Engineers issued a similar letter, authorizing the installation of the buoy system,

but stating that “[t]his Department of the Army permit does not give absolute

authority to perform the work as specified on your application. The proposed work

may be subject to local building restrictions.”

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 Jerry Sanders (“Sanders”), a Code Compliance Officer for appellee,

Islamorada, Village of Islands (the “Village”), received a complaint about the buoy

system. Sanders determined that no permit had been issued by the Village for the

installation of the buoys. On July 9, 2015, the Village sent a letter to Don Horton1

(“Horton”), who the Petitioners had hired to assist with permit applications, stating

that the “buoys and rope system that were installed must be removed within seven

(7) days of this action or Code Enforcement will occur.” The Village’s letter stated

that a June 16, 2015, permit issued by the Village to the Petitioners solely

authorized the removal of four concrete pier bases, and that it did not authorize the

installation of a buoy system, “irrespective of what approvals have been received

from the Army Corps of Engineers and the Department of Environmental

Protection.” The buoy system was not removed.

On August 25, 2015, the Village issued a Notice of Warning to the

Petitioners, notifying them that the property was in violation of Village ordinances.

On November 3, 2015, the Village issued a Notice of Violation to the Petitioners.

The Notice of Violation stated that the property was in violation of sections 30-

681(b)(2)2 and 30-1543(a), (c)3 of the Village Code of Ordinances (“Village

1Horton is a licensed contractor, certified building official, and former director of
code enforcement for the Village.
2 Section 30-681(b)(2) provides:

Sec. 30-681. - Purpose; uses generally; districts

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Code”), and that in order to bring the property in compliance with the Village
established.

(a) Purpose. In order to ensure that all development is
consistent with the goals and objectives of the
comprehensive plan, it is necessary and proper to
establish a series of zoning districts to establish use and
bulk regulations that control the use of land in each
district consistent with this chapter. All development
within each zoning district shall be consistent with the
purposes stated for that district in this division.

(b) Uses generally.

(1) No structure or land in the village shall hereafter be
developed, used or occupied unless expressly authorized
in a zoning district in this division.

(2) Uses not specifically listed herein as a permitted or
conditional use are prohibited, unless the director of
planning and development services determines by
written interpretation that the proposed use exhibits
similar characteristics to a listed permitted use, in which
case the proposed use shall be permitted in the same
manner as the use with similar characteristics.

3 Section 30-1543(a),(c) provides:

Sec. 30-1543. - Shoreline environmental and
development criteria.

(a) The purpose of this section is to allow for
reasonable access between the land and water, protect
marine and terrestrial natural resources, assure good
water quality, provide a consistent community character,
protect structures from the effects of longterm sea level
rise, protect beaches and shores from erosion, avoid
adverse impacts on navigation and provide secure boat
storage.

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Code, the Petitioners needed to remove the buoy system.

The Petitioners did not remove the buoy system, and the matter proceeded to

a code compliance hearing in front of a Hearing Officer on December 15, 2015. At

the hearing, Sanders testified that no permits had been submitted for the buoy

system and that the Petitioners needed to remove the system in order to gain

compliance. Horton testified that a building official for the Village told him that a

permit was not needed for the buoys. Horton also testified that prior to submitting

the application for the June 16, 2015, permit to remove the concrete pier bases he

obtained approval for the buoy system from the Army Corps of Engineers and the

Department of Environmental Protection.

On January 27, 2016, the Hearing Officer entered a Findings of Fact,

Conclusions of Law, and Amended Order (the “Final Order”). The Hearing

Officer found the Petitioners “to be in violation of Section 30-1543(a) and Section

30-1543(c) of the Village Code, entitled, ‘Shoreline environmental and

development criteria,’ and Section 30-681(b)(2) of the Village Code, entitled,

‘Purpose; uses generally; districts established’ by installing a rope and buoy system

....

(c) All development waterward of the mean high-water
line shall require approval by the U.S. Army Corps of
Engineers and state department of environmental
protection.

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without a permit from the Village.” The Petitioners were ordered to remove the

buoy system within sixty days.

The Petitioners appealed to the appellate division of the circuit court. The

Petitioners argued that the Final Order was “erroneously based upon the very

general provisions of Section 30-681(b)(2),” and that pursuant to rules of statutory

construction, the Hearing Officer was instead required to apply the more specific

provision of section 30-1543, which specifically enunciates shoreline

environmental and development criteria and requires approval only from the Army

Corps of Engineers and the Department of Environmental Protection. Indeed, the

Petitioners asserted that section 30-1543(c) excluded “any other permitting

requirements.”

The circuit court found that the Hearing Officer applied section 30-681(b)(2)

correctly, and affirmed the Hearing Officer’s ruling that the buoy system was in

violation of section 30-681(b)(2). With regard to section 30-1543, however, the

circuit court found that the Petitioners complied with section 30-1543(c) because

they obtained approval from the Army Corps of Engineers and the Department of

Environmental Protection, and therefore reversed the Hearing Officer’s ruling that

the Petitioners were in violation of sections 30-1543(a) and (c).

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 The Petitioners then filed a petition for writ of certiorari in this Court,

seeking to quash that part of the circuit court’s decision finding them in violation

of section 30-681(b)(2).

II. ANALYSIS

“The standard governing the disposition of a petition for second-tier

certiorari in a district court is narrow: ‘[T]he district court must determine whether

the decision of the circuit court . . . is a departure from the essential requirements

of law resulting in a miscarriage of justice.’” Dep’t of Highway Safety & Motor

Vehicles v. Fernandez, 114 So. 3d 266, 269-70 (Fla. 3d DCA 2013) (quoting

Nader v. Fla. Dep’t of Highway Safety and Motor Vehicles, 87 So. 3d 712, 725

(Fla. 2012)). A district court’s analysis of whether a circuit court’s decision

constitutes a departure from the essential requirements of the law is limited to

whether the parties were afforded procedural due process and whether the circuit

court applied the correct law. See Haines City Cmty. Dev. v. Heggs, 658 So. 2d

523, 530 (Fla. 1995). District courts should consider the seriousness of the error

involved, only granting certiorari in the “few extreme cases where the appellate

court’s decision is so erroneous that justice requires that it be corrected.” Custer

Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1094 (Fla. 2010) (quoting

Combs v. State, 436 So. 2d 93, 95 (Fla. 1983)).

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 Because a second-tier certiorari proceeding “cannot be used to grant a

second appeal to correct the existence of mere legal error,” the Florida Supreme

Court has cautioned that “a district court should exercise its discretion to grant

review only when the lower tribunal has violated a clearly established principle of

law resulting in a miscarriage of justice.” Custer, 62 So. 3d at 1092-93; accord

Sutton v. State, 975 So. 2d 1073, 1081 (Fla. 2008) (stating that “[a] departure from

the essential requirements of the law is not mere legal error, but instead, involves a

‘gross miscarriage of justice’”).

Where the issue before the circuit court involves statutory construction, a

writ of certiorari may be appropriate where the circuit court does not apply the

plain and unambiguous language of the relevant statute, resulting in an egregious

error. See Nader, 87 So. 3d at 723 (“[A] district court may grant a writ of

certiorari after determining that the decision is in conflict with the relevant statute,

so long as the legal error is also ‘sufficiently egregious or fundamental to fall

within the limited scope’ of certiorari jurisdiction.” (quoting Allstate Ins. Co. v.

Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003))); see also Fernandez, 114 So. 3d at

272 (holding that circuit court’s failure to apply statute according to its clear and

unambiguous terms amounted to failure to apply clearly established law); Justice

Admin. Comm’n v. Peterson, 989 So. 2d 663, 665 (Fla. 2d DCA 2008) (“When the

circuit court does not apply the plain and unambiguous language of the relevant

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statute, it departs from the essential requirements of law.”); Orange Cty. v. Lewis,

859 So. 2d 526, 529 (Fla. 5th DCA 2003) (granting petition for certiorari where

circuit court ignored plain language of Orange County Code).

Here, the Petitioners argue that the circuit court failed to properly apply the

rules of statutory construction in its review of the Final Order.4 Specifically, the

Petitioners assert that the circuit court failed to apply the rule of statutory

construction that a specific statute covering a particular subject area controls over a

more general statute.

Legislative intent is the polestar that guides a court’s statutory construction

analysis, and “[t]o discern legislative intent, a court must look first and foremost at

the actual language used in the statute.” Larimore v. State, 2 So. 3d 101, 106 (Fla.

2008). “It is a fundamental principle of statutory construction that where the

language of a statute is plain and unambiguous there is no occasion for judicial

interpretation.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.

2d 452, 454 (Fla. 1992). “The Legislature must be understood to mean what it has

plainly expressed and this excludes construction. The Legislative intent being

plainly expressed, so that the act read by itself or in connection with other statutes

pertaining to the same subject is clear, certain and unambiguous, the courts have

only the simple and obvious duty to enforce the law according to its terms.” Id.

4Petitioners do not argue that the circuit court failed to afford them procedural due
process.

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(quoting Van Pelt v. Hilliard, 78 So. 693, 694-95 (Fla. 1918)); see also Daniels v.

Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005) (“When the statute is clear and

unambiguous, courts will not look behind the statute’s plain language for

legislative intent or resort to rules of statutory construction to ascertain intent.”

(citation omitted)); Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (“[W]hen the

language of the statute is clear and unambiguous and conveys a clear and definite

meaning, there is no occasion for resorting to the rules of statutory interpretation

and construction; the statute must be given its plain and obvious meaning.”

(quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (1931))).

“In ascertaining the legislative intent, a court must consider the plain

language of the statute, give effect to all statutory provisions, and construe related

provisions in harmony with one another.” See Hectman v. Nations Title Ins. of

N.Y., 840 So. 2d 993, 996 (Fla. 2003); see also Forsythe, 604 So. 2d at 455

(“Where possible, courts must give full effect to all statutory provisions and

construe related statutory provisions in harmony with one another.”); Howarth v.

City of De Land, 158 So. 294, 298 (1934) (“The courts, in construing a statute,

must, if possible, avoid such construction as will place a particular statute in

conflict with other apparently effective statutes covering the same general field.”).

While the Petitioners are correct that an accepted rule of statutory

construction provides that “a specific statute covering a particular subject area

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always controls over a statute covering the same and other subjects in more general

terms,” McKendry v. State, 641 So. 2d 45, 46 (Fla. 1994), this rule applies when

statutes are in conflict with each other. See Fla. Virtual Sch. v. K12, Inc., 148 So.

3d 97, 102 (Fla. 2014) (“When reconciling statutes that may appear to conflict, the

rules of statutory construction provide that a specific statute will control over a

general statute . . . .”); Palm Beach Cty. Canvassing Bd. v. Harris, 772 So. 2d

1273, 1287 (Fla. 2000) (“[W]here two statutory provisions are in conflict, the

specific statute controls the general statute.”); McKendry, 641 So. 2d at 46

(applying rule that more specific statute is considered an exception to the general

statute where statutes contain conflicting provisions).

A comparison of the plain language of section 30-681(b)(2) and section 30-

1543(c) indicates that the two sections are not in conflict with each other. Section

30-1543(c) addresses state and federal approval for “[a]ll development waterward

of the mean high-water line,” and requires approval by the U.S. Army Corps of

Engineers and the Florida Department of Environmental Protection. Section 30-

681(b)(2), in turn, addresses the Village’s local permitting requirements, i.e, the

requirement to obtain use permits for “[u]ses not specifically listed herein as a

permitted or conditional.” One section does not necessarily exclude the other,

nor does one render the other meaningless. Giving effect to both sections and

read in harmony with one another, the most obvious reading of the two sections is

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that when land use pursuant to section 30-681(b)(2) involves development

waterward of the mean high-water line, section 30-1543(c) requires that state and

federal approval must also be obtained.

“If the language of the statute is clear and unequivocal, then the legislative

intent must be derived from the words used without involving incidental rules of

construction or engaging in speculation as to what the judges might think that the

legislators intended or should have intended.” Tropical Coach Line, Inc. v. Carter,

121 So. 2d 779, 782 (Fla. 1960). Here, both the Village and the Petitioners agree

that the relevant sections of the Village Code are unambiguous. Accordingly, the

circuit court was obligated to apply the plain language of the Village Code. See

Forsythe, 604 So. 2d at 454; Daniels, 898 So. 2d at 64; Holly, 450 So. 2d at 219.

III. CONCLUSION:

Because sections 30-681(b)(2) and 30-1543(c) of the Village Code do not

conflict with each other, the circuit court was not required to apply the rule of

statutory construction instructing that a more specific statute controls over a more

general one in order to harmonize the two sections. The circuit court properly

construed the Village Code in a manner consistent with its plain and unambiguous

language. As the circuit applied the correct law and the Petitioners do not dispute

that they were afforded procedural due process, we deny the petition for certiorari.5

5 The Petitioners also assert, in a one-sentence argument, that the circuit court
failed to find that the notice of violation was defective as to the remedy for

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 Petition denied.

compliance under section 30-681(b)(2) because the notice did not request that the
Petitioners apply for the required permits for the buoy system, but instead only
mandated removal. This Court, however, cannot consider the issue because it was
not raised by the Petitioners in their brief before the circuit court. See State Farm
Fire & Cas. Ins. Co. v. Best Therapy Ctr., 69 So. 3d 1059, 1061 (Fla. 3d DCA
2011) (stating that review of decision rendered by the appellate division of circuit
court is limited to issues raised in the circuit court appeal).

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