Surf Works, LLC and Nadime Karan Kowkabany v. City Of Jacksonville Beach

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA

SURF WORKS, L.L.C., and NOT FINAL UNTIL TIME EXPIRES TO
NADIME KARAN KOWKABANY, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Petitioners,
CASE NO. 1D16-3312
v.

CITY OF JACKSONVILLE BEACH,

Respondent.
______________________________/

Opinion filed November 8, 2017.

Petition for Writ of Certiorari – original jurisdiction.

Paul M. Harden and Zachary Miller, Jacksonville; Steve Diebenow of Driver,
McAfee, Peek & Hawthorne, Jacksonville, for Petitioners.

Susan Smith Erdelyi of Marks Gray, P.A., Jacksonville, for Respondent.

B.L. THOMAS, C.J.

Petitioners Surf Works, L.L.C. and Nadime Karan Kowkabany petition this

court for a writ of certiorari to quash the circuit court’s decision upholding

Respondent Jacksonville Beach’s denial of Petitioners’ application for rezoning.

Because the circuit court applied the incorrect law, which departed from the

essential requirements of the law, we grant the petition.
 Background

In 2014, Petitioners filed a rezoning application seeking to rezone the

classification of property in Jacksonville Beach from Central Business District to

Redevelopment District (“RD”). The property was the site of Mango’s Beach Bar

and Grille, which Petitioners intended to redevelop into a mixed-use facility of

office and retail space, with the majority of the proposed development devoted to a

two-story bar named “Surfer – the Bar.” Petitioners envisioned their proposed bar

as becoming a destination for surfers and surf enthusiasts.

Petitioners’ application for rezoning specifically stated their intention to

locate the proposed bar within 500 feet of two other alcoholic beverage

establishments, contrary to Respondent’s Land Development Code (“Code”).

(Mango’s Bar had been grandfathered into the location.) Petitioners acknowledged

that their proposed bar was inconsistent with the provisions of section 34-407 of

the Code, which imposed additional requirements for outdoor bars and restaurants,

but noted their proposed deviations were permissible under the flexible RD zoning

process. Under the Code, the expressed purpose of this RD zoning district is to

achieve a diversity of uses in a desirable environment through the
application of flexible land development standards and to foster
creative design and planning practices in the Jacksonville Beach
Downtown Redevelopment Area in order to encourage economic
vitality and redevelopment pursuant to the objectives of the
Jacksonville Beach Community Redevelopment Plan.

Jacksonville Beach, Fla., Code § 34-347(a) (2015) (emphasis added).
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 This section of the Code outlines the procedure that must be followed to

receive an RD zoning district classification. Specifically, it requires land to

“receive approval of a preliminary development plan pursuant to the procedures

and standards” of section 34-347(c). Jacksonville Beach, Fla., Code § 34-

347(c)(1). To obtain this approval, an applicant must submit a proposed

preliminary development plan to Respondent’s Planning and Development

Director. Once the application is determined to be sufficient, it is further reviewed

by Respondent’s Redevelopment Agency and Planning Commission, which

recommends either approval, approval with conditions, or denial. The application

and recommendations are then forwarded to the city council for a public hearing

for final action on the preliminary development plan “pursuant to the standards in

section 34-347(c)(3)(i.).” Jacksonville Beach, Fla., Code § 34-347(c)(3)(h.)(2.)

(emphasis added).

If the city council votes to approve the preliminary development plan,

“[i]ssuance of a development order for [the] preliminary development plan for an

RD zoning district classification shall constitute an amendment to the official

zoning map to RD zoning district.” Jacksonville Beach, Fla., Code § 34-

347(c)(3)(k.) (emphasis added).

Petitioners’ application was reviewed once by Respondent’s Planning

Commission and twice by Respondent’s Community Redevelopment Agency

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under section 34-347(c) of the Code, and both bodies recommended approval of

the application.1 There was no indication that any additional provisions of the

Code were factored into the review. Also significant here, Respondent’s Senior

Planner noted that while Petitioners’ proposed development departed from the

conventional zoning criteria of sections 34-393 and 34-407(b), those

“characteristics [we]re allowed to be addressed and modified from the normal

standards as part of the RD zoning process, which was created to allow flexibility

from traditional standards in an effort to encourage redevelopment activity in the

Downtown Redevelopment Area.” Memoranda from Bill Mann, Senior Planner,

Dep’t of Planning & Dev., to George D. Forbes, City Manager (July 7, 2014;

Sept. 9, 2014).

Petitioners first presented their rezoning application to the city council on

July 21, 2014. The mayor announced that Petitioners’ application would be

considered pursuant to the standards of section 34-211 of the Code, which

governed zoning atlas and code amendments. One of the standards contained in

section 34-211(c) required the city council to consider whether the proposed

rezoning conflicted with any other portion of the Code. Jacksonville Beach, Fla.,

Code § 34-211(c)(2) (2016). During the hearing, concerns were raised by citizens,

1
The Planning Commission voted to conditionally approve the application with the
conditions that 1) there be no live or amplified music in the outdoor bar areas, and
2) Petitioners augment the second floor of the bar with architectural screen walls.
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the mayor, and city council members about Petitioners’ application and its

inconsistencies with the Code. Petitioners were given a chance to work on the

comments received from the city council, and another hearing was scheduled.

At the second hearing, the mayor again announced that Petitioners’

application would be considered pursuant to the standards contained in section 34-

211. Petitioners asserted that significant efforts had been made to improve the

application. Following substantial public comment, the city council ultimately

voted to deny Petitioners’ rezoning application, citing concerns that the location

was unsuitable. The city council stated that Petitioners’ application was denied for

four reasons, including: 1) its conflict with section 34-393, which requires a 500-

foot separation between alcoholic beverage establishments; and 2) its conflict with

section 34-407(b), which limits the amount of outdoor seating allowable for

outdoor restaurants and bars. Both of these grounds were acknowledged in

Petitioners’ application, which, as noted above, sought approval under section 34-

347(c)(3)(i.).

Petitioners then filed a petition in the circuit court seeking certiorari review

of the city council’s decision. Petitioners alleged that the city council’s decision

was not supported by competent, substantial evidence and that the city council

applied the wrong provisions of the Code in denying the application, and as such,

departed from the essential requirements of law. Petitioners argued that their

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application was subject to the requirements of section 34-347 of the Code, which

governs the RD zoning district.

Section 34-347(c)(3)(h.)(2.) provides: “After the public hearing, the city

council shall approve, approve with conditions, or deny the application pursuant to

the standards in section 34-347(c)(3)(i).” Jacksonville Beach, Fla., Code § 34-

347(c)(3)(h.)(2.) (emphasis added). Petitioners argue here, as below, that this

provision restricted the city council’s consideration solely to the criteria of section

34-347(c)(3)(i.), and because sections 34-393 and 34-407 were not expressly

included in that criteria, the city council applied the incorrect law in relying on

Petitioners’ noncompliance with those sections as a basis for denying their

application.

In denying the petition below, the circuit court ruled that Petitioners’ RD

zoning district application was governed by sections 34-201 through 34-211. As

stated above, one of the factors listed in section 34-211(c) requires the city council

to consider whether a proposed zoning amendment conflicts with any portion of

the Code. Accordingly, the court ruled that the city council’s denial of Petitioners’

application based on Petitioners’ noncompliance with sections 34-393 and 34-407

was supported by competent, substantial evidence, despite the fact that compliance

with sections 34-393 and 34-407 was not among the criteria enumerated by section

34-347(c)(3)(i.). The court found that none of the other reasons the city council

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gave for denying the application were supported by competent, substantial

evidence.

Analysis

District courts should grant second-tier certiorari “only when there has been

a violation of a clearly established principle of law resulting in a miscarriage of

justice.” Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla.

2010) (quoting Combs v. State, 436 So. 2d 93, 96 (Fla. 1983)). Under this

standard, the mere existence of legal error is insufficient to invoke the district

court’s certiorari jurisdiction. Combs, 436 So. 2d at 95. Likewise, “a

misapplication or an erroneous interpretation of the correct law does not rise to the

level of a violation of a clearly established principle of law.” State, Dep’t of

Highway Safety v. Edenfield, 58 So. 3d 904, 906 (Fla. 1st DCA 2011). Certiorari

relief cannot be granted when the established law provides no controlling

precedent, “because ‘[w]ithout such controlling precedent, [a district court] cannot

conclude that [a circuit court] violated a clearly establish[ed] principle of law.’”

Id. (quoting Ivey v. Allstate Ins. Co., 775 So. 2d 679, 682 (Fla. 2000)).

District courts must be cautious and prudent when exercising their

jurisdiction to grant relief by writ of certiorari. Ivey v. Allstate Ins. Co., 774 So. 2d

679, 682-83 (Fla. 2000). Only where the circuit court failed to afford procedural

due process or failed to apply the correct law may such relief be granted by the

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district court: “The inquiry is limited to whether the circuit court afforded

procedural due process and whether the circuit court applied the correct law. . . .

[T]hese two components are merely expressions of ways in which the circuit court

decision may have departed from the essential requirements of the law.” Haines

City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). In Heggs, the supreme

court cited to a “critic,” William A. Haddad, who commented that, in invoking its

certiorari jurisdiction, a district court must consider the “gravity of the error and

the adequacy of other relief.” Id. at 531 n.14 (citing William A. Haddad, The

Common Law Writ of Certiorari in Florida, 29 U. Fla. L. Rev. 207, 228 (1977)).

Mr. Haddad continued to write that a district court can properly exercise this

jurisdiction “to correct grievous errors that, for a variety of reasons, are not

otherwise effectively subject to review.” Id. We hold that when the circuit court

applied the incorrect law to uphold the city council’s decision to apply the

provisions of section 34-211, rather than the provisions of section 34-347(c), such

an error occurred here. This error resulted in a miscarriage of justice which

departed from the essential requirements of law and deprived Petitioners of the

lawful use of their property. When a party complies with the law in seeking to

utilize the highest and best use of their property, and the governing authority

refuses to apply the correct law to thwart the citizen so as to deprive him of the

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ability and right to enjoy the lawful highest and best use of his land, a miscarriage

of justice has occurred.

At issue is which sections of the Code were applicable to Petitioners’

application seeking to rezone property to the RD zoning district. Petitioners

argued below that section 34-347(c)(3)(i.) contained the applicable criteria;

however, the circuit court found that the provisions of section 34-347 did not

address rezonings, and Petitioners’ application was required to comply with the

sections that did govern zoning amendments, namely, sections 34-201 through 34-

211. On appeal, Petitioners argue that this finding departed from the essential

requirements of law for various reasons. Pertinent to this court’s analysis is

Petitioners’ argument that the circuit court ignored the plain meaning of the

provisions of section 34-347, and thereby applied the incorrect law. See Rinker

Materials Corp. v. City of N. Miami, 286 So. 2d 552, 553 (Fla. 1973) (holding that

the circuit court’s failure to apply the plain and ordinary meaning of the language

of the ordinance was “a clear basis of conflict”).

City ordinances, like the Code sections at issue here, are subject to the same

rules of construction as state statutes. Great Outdoors Trading, Inc. v. City of High

Springs, 550 So. 2d 483, 485 (Fla. 1st DCA 1989) (citing Rinker, 286 So. 2d at

553). As with statutes, the first step when construing ordinances is “to discern and

to give effect to the legislative will, since ‘intent is the essence of the law.’” Great

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Outdoors Trading, Inc., 550 So. 2d at 485 (quoting City of Boca Raton v. Gidman,

440 So. 2d 1277, 1281 (Fla. 1983)). Intent is derived primarily from a statute’s

text; therefore, “‘to discern that intent [courts] must look first to the language of

the statute and its plain meaning.’” Hill v. Davis, 70 So. 3d 572, 575 (Fla. 2011)

(quoting Fla. Dep’t of Children & Family Servs. v. P.E., 14 So. 3d 228, 234 (Fla.

2009)). The words of the ordinances must be given their “plain and ordinary

meaning,” and “courts generally may not insert words or phrases in municipal

ordinances in order to express intentions which do not appear, unless it is clear the

omission was inadvertent . . . .” Rinker Materials Corp., 286 So. 2d at 553-54.

Under the plain meaning rule, which is regarded as “‘the cardinal rule of statutory

construction,’” if a court finds that the language of the statute is unambiguous, it

should not resort to further construction or interpretation. Smith v. Crawford, 645

So. 2d 513, 522 (Fla. 1st DCA 1994) (quoting Weber v. Dobbins, 616 So. 2d 956,

958 (Fla. 1993)). Furthermore, to effectuate legislative intent, “[i]t is axiomatic

that all parts of a statute must be read together in order to achieve a consistent

whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452,

455 (Fla. 1992) (emphasis in original).

Section 34-347, which specifically addresses RD zoning district

applications, in no way requires that an application for a preliminary development

plan for an RD zoning district classification also comply with the standards of

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section 34-211, but the circuit court found that Petitioners’ compliance with this

section was required by the plain language of an unrelated section of the Code.

The circuit court’s reasoning was that the plain language of section 34-347 did not

address zoning amendments, while the plain language of sections 34-201 through

34-211 did; therefore, because Petitioners were seeking to rezone their land to the

RD zoning district, their application was required to comply with sections 34-201

through 34-211. We hold that the circuit court overlooked the plain language of

the specific and controlling provisions of section 34-347, and therefore applied the

incorrect law. See Rinker Materials Corp., 286 So. 2d at 553-54 (holding that the

district court failed “to follow established decisional rules of statutory

construction” when it failed to give to the ordinance “the plain and ordinary

meaning of the words employed by the legislative body”).

Contrary to the circuit court’s ruling, section 34-347 does address zoning

amendments. Section 34-347(c)(1) states that land must receive approval of a

preliminary development plan before receiving an RD zoning district

classification, and then prescribes the procedure to follow to obtain approval of the

preliminary development plan. Even more explicit is subsection 34-347(c)(3)(k.),

which provides: “Issuance of a development order for a preliminary development

plan for an RD zoning district classification shall constitute an amendment to the

official zoning map to RD zoning district.” Jacksonville Beach, Fla., Code § 34-

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347(c)(3)(k.) (emphasis added). It is plain from the unambiguous language of

these provisions that section 34-347 was precisely intended to encompass

situations such as this where the applicant is seeking an RD zoning designation for

land that is not already classified as RD. This conclusion is supported by the

actions of Respondent’s planning staff, who reviewed Petitioners’ application

pursuant to the procedures and standards prescribed by subsection 34-347(c), and

importantly, did not follow the procedure contained in sections 34-201 through 34-

211. And nor would they: It would be nonsensical to provide a detailed

alternative zoning scheme designed to facilitate “economic vitality and

redevelopment,” and then deny applications that met this criteria, solely because

the application did not meet the criteria of a separate regulatory scheme applicable

only to applications that did not seek approval under the RD alternative zoning

process.

Additionally, the circuit court erroneously applied the statutory construction

principle of in pari materia to find that the standards in section 34-211(c) applied

to Petitioners’ application. The statutory construction rule of in pari materia

requires provisions relating to the same subject to “‘be construed together and

compared with each other;’” however, “[i]n contrast to the rule permitting in pari

materia construction . . . is the maxim instructing that a specific statute controls

over a general statute covering the same subject matter.” Cone v. State, Dep’t of

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Health, 886 So. 2d 1007, 1010, 1012 (Fla. 1st DCA 2004) (quoting Smith, 645

So. 2d at 522). Here, sections 34-201 through 34-211 provide a process for

amending the boundaries of the official zoning atlas, and section 34-211(c)

provides the standards that must be considered by the city council when deciding

whether to adopt the amendment. Jacksonville Beach, Fla., Code §§ 34-201, 34-

211(c). Meanwhile, section 34-347(c) provides a process for obtaining an RD

zoning district classification and section 34-347(c)(3)(i.) provides the applicable

standards. Therefore, while these sections all address rezonings, only the specific

procedures in section 34-347 apply when the applicant is seeking an RD zoning

district classification, and for this reason the RD-specific standards in section 34-

347(c)(3)(i.) control over the general standards contained in section 34-211(c).

For the foregoing reasons, we hold that the circuit court’s order failed to

apply the correct law when it found that Petitioners’ application was required to

comply with the standards in section 34-211(c) rather than those contained in

section 34-347(c)(3)(i.). Accordingly, we GRANT the petition for writ of

certiorari and QUASH the circuit court’s decision denying certiorari relief.

RAY, J., CONCURS; KELSEY, J., DISSENTS WITH OPINION.

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KELSEY, J., dissenting.

I would deny the petition because the trial court applied the correct law. That

is the only legal issue presented over which we have jurisdiction on second-tier

certiorari review. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla.

1995) (holding that standard of review on second-tier certiorari is whether the

lower tribunal “applied the correct law,” synonymous with “observing the essential

requirements of law”).

The Code.

The first “correct law” is the Jacksonville Beach Land Development Code.2

The Code encompasses numerous articles, divisions, and sections related to

various aspects of land development, including Article VII, Division 2, Section 34-

347, entitled “Redevelopment District: RD.” The standards of section 34-

347(c)(3)(i) include the adequacy and appropriateness of the land area;

compatibility with other existing or proposed uses in the general vicinity usage;

and consistency of lot area, setbacks, parking, signage, landscaping, and

environmental factors with the Jacksonville Beach Community Redevelopment

Plan. The next subsection, 34-347(c)(3)(j), expressly authorizes the city council to

2
The “correct law” could also include the Jacksonville Beach Comprehensive
Plan, Community Redevelopment Plan, and 2007 Vision Plan, but the parties do
not raise those documents as among those that as a matter of law could make a
difference here.
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“impose such conditions . . . that are necessary to accomplish the purposes of this

section, this Code, and the comprehensive plan.”

The Code as a whole relates to land development, and includes numerous

specific provisions that on their face could apply to the proposal at issue here. The

Code sets forth generally applicable rules of construction and definitions. Article

VI on Development Review Procedures applies “to every application for a

development permit,” and a “development permit” is defined to include

amendments to the RD zoning district. Other Code provisions outside of section

34-347 also apply to all zoning districts and all action by the City Council.

Rules of Construction.

The “correct law” is also the law governing interpretation of the Code. The

Code is a municipal ordinance, and as such is subject to the general rules of

statutory construction. Great Outdoors Trading, Inc. v. City of High Springs, 550

So. 2d 483, 485 (Fla. 1st DCA 1989). The trial court was required to construe all

parts of the Code together “in order to achieve a consistent whole.” Forsythe v.

Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992).

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

construe related statutory provisions in harmony with one another.” Id.

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Trial Court’s Application of Correct Law.

The trial court was confronted with statutory construction of a local

government ordinance. The two narrow legal issues before the trial court were

(1) whether section 34-347 mandates that the Jacksonville Beach City Council

approve rezoning requests for bars that violate other sections of the Code by being

located within 500 feet of other bars and exceeding outdoor seating limitations;

and (2) whether section 34-347 prohibits the Jacksonville Beach City Council from

considering any other provisions of the Code when deciding whether to grant a

request to rezone a property to the Redevelopment District category. To resolve

those legal issues required the trial court to construe section 34-347 in light of its

legal context within the entire Code. It is impossible to decide how section 34-347

interacts with the remainder of the Code without looking at the Code in its entirety.

The “correct law” to be reviewed is the entire Code, construed according to

governing principles of statutory construction. The trial court applied the correct

law, and therefore we should deny the petition for writ of certiorari.

This case is analogous to another recent local government land use decision

in which the Third District denied certiorari. In DMB Inv. Tr. v. Islamorada,

Village of Islands, 225 So. 3d 312, 314 (Fla. 3d DCA 2017), the underlying merits

issue was whether a property owner was required to obtain a permit from the

Village before installing a swim buoy system, in addition to obtaining

16
authorizations from both the Florida Department of Environmental Protection and

the United States Army Corps of Engineers. The property owner argued that one

specific section of the Islamorada, Village of Islands Code of Ordinances,

requiring approval only from the state and federal bodies, prevailed over more

general sections of the Code governing shoreline environmental and development

criteria and land use in general. Id. at 315. In pertinent part, the circuit court

affirmed the Village’s interpretation of a general Code provision as requiring a

local-government permit for the swim buoy system in addition to state and federal

approval. Id. at 316.

On second-tier certiorari review, the Third District held that the circuit court

correctly applied the law of statutory construction and properly analyzed both

provisions of the Village Code to determine that they were not in conflict with one

another, but rather could be harmonized. Id. at 318. Of particular relevance here,

the Third District noted that the court was required to “consider the plain language

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

in harmony with one another.” Id. at 317 (quoting Hechtman v. Nations Title Ins.

of N.Y., 840 So. 2d 993, 996 (Fla. 2003)).

Similarly in this Jacksonville Beach case, the trial court on appeal expressly

held that “[r]elevant portions of the ordinance code applicable in this case

constitute the correct law.” The trial court carefully reviewed as a whole the

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various provisions of the Land Development Code on which the parties relied, and

arrived at a harmonizing construction consistent with the general rules of statutory

interpretation. The trial court found competent, substantial evidence in support of

the City Council’s decision (an issue beyond the scope of our second-tier certiorari

review). The trial court applied the correct law, ending our analysis.

The Restrictiveness of the Writ.

Even if we were to conclude that the trial court applied the wrong law or

applied the correct law incorrectly, we should deny certiorari because of the

extremely narrow scope of the writ. Mere legal error is insufficient to invoke our

certiorari jurisdiction. Combs v. State, 436 So. 2d 93, 95 (Fla. 1983). We should

grant second-tier certiorari “only when there has been a violation of a clearly

established principle of law resulting in a miscarriage of justice.” State, Dep’t of

High. Saf. & Motor Veh. v. Edenfield, 58 So. 3d 904, 906 (Fla. 1st DCA 2011)

(quoting Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla.

2010)). An overly narrow definition of what constitutes the “correct law” in

second-tier certiorari analysis would expand the writ inappropriately. In this case, a

local governing body vested with wide discretion over a local land-use decision

exercised that discretion in a manner supported by the evidence and the law. The

trial court applied appropriate rules of construction and scope of review to the

narrow issues presented. It is not up to us to decide how a parcel of land in

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Jacksonville Beach should be used. Petitioners are free to address the factors that

concerned the public and the City Council, and apply again, if they wish to do so.

This is not a miscarriage of justice. Certiorari should be denied.

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