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Aaron's Lawsuit

Judge Rosenberg's Decision received 10/12/2005

IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA

CASE NO: 05-11144(25)
HON. ROBERT A ROSENBERG

AARON VANTREASE,
Petitioner,

vs.

CITY OF COCONUT CREEK BOARD
OF COMMISSIONERS and CITY OF
COCONUT CREEK, and WOOD
PARTNERS, Applicant for Rezoning,

Respondents

_________________________________/

ORDER

THIS CAUSE having come before the court upon petitioner's Petition for Writ of Certiorari and the court having considered the petition, reviewed the court file, and being otherwise fully advised in the premises, hereby finds and decides:

On June 8, 2005, the Planning and Zoning Board of the city held a hearing to rezone property on which Coral Lake Mobile Home Park is located. The following day, the city Commission conducted a hearing on the finding of fact as to whether there was adequate mobile home space or other suitable facilities for relocation of the mobile home owners. At that hearing the commission determined that adequate mobile home parks or other suitable facilities existed for the relocation of the mobile home owners pursuant to Florida Statute S 723.083. On June 23, 2005, the city held a second hearing and passed City Ordinance No. 2005-27 approving the zoning request. Petitioner timely filed this Petition for Writ of Certiorari. The Petitioner argues that the decision by the commission lacked substantial competent evidence.

When the circuit court reviews the decision of an administrative agency the court must apply a three-fold standard of review: (1) whether procedural due process was accorded, (2) whether the essential requirements of the law have been observed and, (3) whether the administrative findings and judgment are supported by competent substantial evidence. Department of Highway Safety and Motor Vehicles v. Smith, 697 So. 2nd 3O (Fla. 1st DCA 1997). In so doing, the circuit court is not permitted to reweigh the evidence nor to substitute its judgment for that of the agency. Bell v. City of Sarasota, 371 S.2d 525 (Fla. 2d DCA 1979).

In the instant matter, this Court finds the commission's decisions are supported by competent substantial evidence. Prior to the approval of the rezoning and the ordinance, the city conducted two hearings at which testimony and witnesses were evaluated. Furthermore, the court finds that the commission did not depart from the essential requirements of law.

Accordingly, it is hereby

ORDERED AND ADJUDGED that Appelliat's Petition for Writ of Certiorari is DENIED.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 7th day of October, 2005.

ROBERT A. ROSENBERG
CIRCUIT COURT JUDGE

A TRUE COPY

Copies to counsel of record




[JUL 26 2005 received by City of Coconut Creek]
SEVENTEENTH CIRCUIT COURT IN AND FOR BROWARD COUNTY
CASE No.: 05011144

JUL 25 2005
[A TRUE COPY HOWARD C. FORMAN CLERK OF CIRCUIT COURT]

AARON VANTREASE,
Petitioner
vs.
CITY OF COCONUT CREEK BOARD OF
COMMISSIONERS and CITY OF COCONUT CREEK, and
WOOD PARTNERS, Applicant for Rezoning

Respondents.

__________________________________________/
PETITION FOR WRIT OF CERTIORARI PURSUANT TO RULE 1.630.FLA.
R. CIV. P. AND RULE 9.100 FLA. R. APP. P

COMES NOW PETITIONER, AARON VANTREASE, by and through his undersigned counsel, and sues RESPONDENTS, City of Coconut Creek, a municipality of the State of Florida and its Board of Commissioners (hereinafter referred to as "City"), and WOOD PARTNERS, applicant for rezoning, pursuant to Rule 1.630, Fla. R. Civ. P. and Rule 9.100, and hereby files this Petition for Writ of Certiorari, challenging the adoption of Rezoning of that property commonly known as Coral Lake Mobile Home Park and adoption of a Plat Approval for that same property to be developed as "Paloma Lakes" as codified in an Ordinance of the City of Coconut Creek adopted June 23rd, 2005, a copy of which is attached hereto in Appendix 1, Further, Petitioners state:

FACTUAL INTRODUCTION

1. On June 8, 2005, the Planning and Zoning Board of the City held a hearing on a request by applicant, Michael Woodman of Calvin, Giordano & Associates, Inc., on behalf of developer, Wood Partners, to rezone property on which Coral Lake Mobile Home Park is located. The request was to rezone the site from MH-1 (mobile home park) to PUD (planned unit development). The size of the property is 29.242 acres and the applicant sought the rezoning in order to develop town homes on the site.

2. The requested rezoning would necessitate the displacement of approximately 184 households currently living in the mobile homes in Coral Lake Mobile Home Park.

3. Petitioners, AARON VANTREASE, owns a mobile home and leases a mobile home lot at Coral Lake Mobile Home Park. Having resided there for seventeen (17) years, he will be displaced as a result of the rezoning approval given to Wood Partners.

2. Section 723.083, Florida Statutes, provides as follows:

No agency of municipal, local, county, or state government approve any application for rezoning, or take any other official action, which would result in the removal or relocation of mobile home owners residing in a mobile home park without first determining hat adequate mobile parks or other suitable facilities exist for the relocation of the mobile home owners.

3. At the Commission meeting held on June 9, 2005, the Commission held a quasi-judicial hearing on the finding of fact as as to whether there was adequate mobile home space or other suitable facilities for relocation of the mobile home owners.

4. At the City Commission meeting held on June 23, 2005, the City held a second quasi-judicial hearing and approved the rezoning and passed City Ordinance No. 2005-027 ("Ordinance") approving the rezoning request.

5. Petitioner appeared at both quasi-judicial hearings and objected to a finding that adequate mobile parks or other suitable facilities exist for the relocation of these mobile home park owners.

6. Section 5 of the Ordinance reads as follows:

That the City Commission, based on expert testimony and documentation, has determined that adequate mobile home parks and other suitable facilities exist for the relocation of the mobile home owners, pursuant to the Section 723.083, Florida Statutes.

Petitioners appeal the decision of the City on the basis that the finding of the City Commission pursuant to Fla. Stat. 723.083 is not based upon substantial and the City failed to adhere to the essential requirements of law.

8. The Record consists of Appendices 1, 2, and 3. Appendix 1 includes a copy of Ordinance 2005-028, Transcript of Coconut Creek City Commission Meetings of June 9 and June 23, 2005. Appendix 2 contains Exhibits entered into evidence at the June 8, 2005 Planning and Zoning Board Meeting. Appendix 3 contains Exhibits entered into evidence at the June 9, 2005 City Commission Meeting. With respect to designation of the Record evidence will be referenced as (R. Homeowner's Exhibit (date of hearing to which the exhibit is identified) ________, Developer's Exhibit (date of hearing), etc., except reference to the transcripts of the meetings held on June 9 and 23, 2005 which shall be identified as to the page and lines relevant to the point, (T.(Date of hearing) Pg. _______, Lines _____).

STANDARD OF REVIEW

9. When a circuit court reviews an order of an administrative agency, a municipal board r commission, the scope of review is limited ot the following three components:

a. whether procedural due process was accorded:

b. whether the essential requirements of law were observed;

c. whether the administrative findings and judgment were supported by competent, substantial evidence. 1

When the City Commission (hereinafter referred to as "Commission" adopted the Ordinance, it failed to meet two of these components in that the requirements of the law were not observed and the administrative findings were not supported by competent evidence.

THE COMMISSION FAILED TO BASE THEIR FINDING UNDER FLA. STAT. SECTION 723.083 ON SUBSTANTIAL AND COMPETENT EVIDENCE

10 Prior to ruling on the rezoning of the subject mobile home park, the Commission undertook in a quasi-judicial hearing held on June 9, 2005 to address whether adequate mobile home space or other suitable facilities exist pursuant to Fla. Stat. 723.083.

_____________________________

1 Broward County v G.B.V. Int'l Ltd., 787 So. 2d 838 (Fla. 2001); Education Day Center, Inc. V. City of West Palm Beach Zoning Board of Appeals, 541 So. 2d 106 (Fla. 1989); City of Deerfield v. Valliant, 419 So. 3d 624 (Fla. 1982).

11. On the previous date of June 8, 2005, at a meeting of the Planning and Zoning Board of the City ("Zoning Board"), that Board heard testimony and took evidence on the subject rezoning issue, absent the issue of compliance with Fla. Stat. 723.083, which the Commission had determined was in it's jurisdiction and would be the subject of the hearing on June 9, 2005. (The transcript of the Planning and Zoning Board hearing is included in R. City's Exhibit (6-09), Exhibit 1.)

12. At the hearing held on June 9, 2005, the developer who requested the rezoning, Wood Partners (hereinafter "Developer") put into evidence and testimony from Harold Steinhold of Urban Group, a real estate development group (hereinafter "Urban"). Mr. Steinhold testified that Urban had been asked by the property owners to do a study regarding replacement housing.

13. The Developer put the study by Urban into evidence, as Developer/Petitioner's Exhibit (6-09) 4, a document entitled "Coral Lake Mobile Home Park Replacement Housing Study;" purporting to be an analysis of available mobile home lots in Broward, Miami-Dade and West Palm counties. T. (6-09), Pg. 29.

14. R. Developer/Petitioner's Exhibit (6-09) 4 shows a total of 604 lots available in the three county area. The developer also put into evidence a document entitled "Consultants Resource Study" as R. Petitioner's Exhibit (6-09) 2 which also purports to demonstrate availability of 604 mobile home park lots in the area of Broward, Miami-Dade and Palm Beach counties.

15. Another expert was retained by the City, Mr. Marty Posgay. Mr. Posgay testified in regard to the Developer's study as follows:

There is some information and content that could have been or should have been, included in the study that may have given you more information, namely some of the things that the Commissioners have been questioning this evening. A break down of the ages admitted by various communities, whether they'd be an all age community over fifty-five is one item. A listing of criteria as to what a mobile home has to qualify as regarding age or physical status to be received or approved in another community is another fact . . .

MT.(6-09), Pg32, Line 32 - Pg. 44, Line1)

16. At the June 9th hearing, Petitioner, VANTREASE, testified that he called every mobile home park listed by Urban as a source. He asked for a manager or whoever was in charge of sales and inquired as to lot availability. (T(6-09), pg 49, line13-pg.50,line50).

17. Mr. Vantrease further testified that "Once you subtract parks that require you to buy one of their models, parks that are fifty five and older, parks that have age limitations like 1995, you have twenty available lots in Broward County, those were in Pompano." (T.(6-09), pg. 51, line 16-20).

18. Mr. Vantrease further testified that "Their study of West Palm Beach found 430 available lots. Most of contact with West Palm Beach told me they won't accept - I got a total of thirty-four available lots, ten of the thirty-four were adults only, a total of sixteen in Palm Beach County." (T.(6-09), pg.51, Line 20-25).

19. As to Miami-Dade County, Mr. Vantrease's testimony was: "Miami-Dade County, they found 801. I don't know where those numbers came from except Palm Garden and Pine Island Apartments, 180 and 62. Other than that, I found two available lots." (T.(609), pg.51, line 20-pg. 52, line 3.)

20. R. Homeowner's Exhibit (6-09) 3 is a spreadsheet demonstrating the results of Mr. Vantrease's telephone inquiries which delineate the information as to which he testified.

21. Also testifying at the hearing was Janice Ellery who also reviewed Urban's data and did research on her own. (T.(6-09) Page 38, line 10-Page 42, line 25). Ms. Ellery testified that her research revealed only one mobile home park that would take a mobile home older then 2000 and that there several sexual offenders on site which made it unsuitable for families with children.

22. Ms Ellery also testified that Urban's report lists as apartments which are available as suitable facilities, other then mobile home park space, several health care facilities, a drug treatment program, assisted living facilities an one nursing home. (T.(6-09) Page 41, line 13 - Page 42, line 2).

23. R. Homeowner's Exhibit (6-09) 1 is "Rebuttal to the Urban Group's (TUG) Replacement Housing Study for Coral Lakes MHP Residents" prepared by Ms. Ellery. This exhibit supports Ms. Ellery's testimony that the residents of Coral Lake have monthly housing expenses ranging from $500 a month to about $800 a month. (R.Homeowner's Exhibit (6-09)pg.42, line 4 - line 5). There was no testimony or evidenced introduced to the contrary.

24. R. Homeowner's Exhibit (6-09) I also included a copy of Multiple Listing Service table showing available housing rentals in the range of $500-$800 per month as of June 5, 2005. As the Exhibit asserts, and this was not disputed, 70% of the households at Coral Lake include children; therefore, family units are required. As Exhibit 1 demonstrates there are few units available and suitable for families in this price range.

25. R. Vantrease Exhibit (6-09) is a study performed by the National Low Income Housing Coalition (T., pg 47, line 22-page. 48, line 23). The study demonstrates that the median rental cost for a two bedroom unit in Broward County is $998 per month.

26. The fact that private market housing is out of the financial reach of the residents of Coral Lake was not refuted. In fact, one of the City Commissioners, Commissioner Lou Sarbone Stated:

I tried to narrow it down a lot. I really based my opinion on just mobile homes. I didn't even look at whether one, two, three bedroom apartments were available because as much as I don't think we should take affordability into account, they are just way out there.

Way, way above what would be adequate. T.(6-09), page 79, line 8-14.

27. Further, the issue of whether those living in Coral Lake Mobile Home Park could, in fact, actually move their mobile homes to another park was not taken into account. Commissioner Sarbone stated:

I'm also, [sic] Janice Ellery for her report because I agree that it would be the report itself that we're asked to look at maybe wasn't prepared with good care, and the numbers in there whether they were used in the summary section or not, should have been found and taken out of the report. However, when I look, when I look the report, I concentrated on what the number of available mobile home sites were regardless of whether you can move your house there.

T. (6-09), pg. 78, line 17-24.

28. The City interpreted Section 723.083, Florida Statutes to make no requirement that the City determine whether the mobile home owners being displaced could be moved to an available mobile lot in the area. In fact, Commissioner Sarbone stated:

I've been sitting here, as much as I'd like to include in my decision making process whether or not the home can be moved or not. You've pointed out a number of times in the statute, and, actually, it's obvious to me that the statute contemplates abandonment. It's there in terms of the funds.

T.(6-09), pg. 78, line 10-16

29. It is clear that Chapter 723 does not contemplate abandonment and that such interpretation is not "there in terms of the funds."

30. It is axiomatic that a statute must be read as a whole and that the entire statute under consideration must be analyzed in determining legislative intent, and every part must be given effect with a view to the statute as a whole in pari materia.2

31. The statute under consideration in the instant case is Section 723.083, which must be read in pari muteria with the whole Chapter 723, Florida Statutes.

32. Section 723.0612 of the statute sets up a method for payment of relocation expenses by the Florida Mobile Home Corporation for those who are required to "move due to a change in use of the land comprising the mobile home park."

33. Section 723.0612 provides for payment of:

(a) The amount of actual moving expenses of relocating the mobile home to a new location within a 50-mile radius of the vacated park, or

(b) The amount of $3,000 for a single-section mobile home or $6,000 for a multi-section mobile home, whichever is less...
Section 723.061291)(1)(a),(b)

__________________________

2 Wilensky v. Fields, 267 So. 2d 1 (Fla. 1972), City of St. Petersbure v. Earle, 109 So.2d 288 (Fla 2nd DCA, 1059); Fla. Jur. 2nd, Statutes, Section 114.

34. Section 723.0612(7) provides that in lieu of receiving relocation payment as set forth in subsection (1), a mobile home owner may abandon the mobile home in the mobile home park and collect $1,375 for a single section and $2,750 for a multi-section mobile home.

35. The statute clearly does not contemplate abandonment, but simply provides a payment for when abandonment occurs.

36. One must read Section 723.083 in whole with 723.0612 and conclude that the statute contemplates relocation.

37. The wording of Section 723.083 makes this even clearer in that 723.083 states that a municipality shall not" approve any application for rezoning...that would result in the removal or relocation of mobile home owners residing in a mobile home park without first determining that adequate mobile home parks or other suitable facilities exist for the relocation of the mobile home owners. (Emphasis added.)

38. The Florida Bar Continuing Legal Education manual Mobile Home Park Tenancies Under the Mobile Home Act3 states:

______________________

3 Mobile Home Park Tenancies Under the Mobile Home Act, Second Edition, The Florida Bar (2004)

If a rezoning would result in the removal or relocation of mobile homes within the park, the zoning authority must first determine that there are other suitable mobile home parks or facilities available for relocating displaced mobile homes before granting the application. F.S. 723.083 (Emphasis added.)

39. Section 723.083 clearly contemplates relocation of the mobile home and there is no reasonable reading of the entirety of Chapter 723 that would allow for the conclusion that 723.083 contemplates abandonment.

40. Given that the statute contemplates relocation, one must next ask what does "adequate mobile home parks or other suitable facilities" mean.

41. It is axiomatic that where a statute is clear and admits only one meaning, the statute should be held to mean what the words say by their plain meaning. One of the basic tenants of statutory construction is that "we give statutory language its plain and ordinary meaning." and that when necessary the plain and ordinary meaning can be ascertained by use of a dictionary".4

42. "Adequate" is defined as that which is "sufficient to meet a specific requirement" or "lawfully and reasonably adequate" according to Webster's Ninth Collegiant Dictionary.5

_____________________

4 Nehme v. SmithLline Clinical Laboratories, Inc., 863 So. 2d 201 (Fla. 2003); Bryant v. Adventist Health Systems Sunbelt, Icn., 869 So. 2d 681, 684 (Fla 5th DCA 2004).

43. The record makes clear that there is no question that whatever mobile home spaces may exist in the tri-county area of Broward, Miami-Dade and West Palm, due to the age of the mobile homes and other restrictions these spaces are not, in fact, available to these mobile home owners. Therefore, it can not be found that there is adequate mobile home space available for relocation. Relocation is the specific requirement for which there must be sufficient mobile home park space. This requirement has not been met.

44. The word "suitable" is defined in Black's Law Dictionary6 as "fit and appropriate for the end in view." What is the end in view here? Clearly, it is relocation as the statute wording in 723.083 is adequate mobile home space or other suitable facilities exist "for the relocation of the mobile home owners." As stated above, the phrase "other suitable facilities" contemplates other facilities to relocate the mobile home. The only "other suitable facilities" as to which the City had evidence was of housing which, as Commissioner Sarbone admitted, is totally unavailable to these mobile home park owners due to cost. The statute does not contemplate other alternate housing but relocation of the mobile home. Even if alternative housing could qualify as other suitable facilities under Section 723.083, it is clear that there is no alternate housing truly available for relocation of these mobile home owners.

__________________

5 Websters's Ninth New Collegiate Dictionary, Merriam-Webster, Inc. (Springfield. 1987)

6 Black's Law Dictionary, Fifth Ed., West (1987)

45. The City made a finding pursuant to 723.083 that adequate mobile home park space or other suitable facilities exist for Coral Lake Mobile Home Park residents while excluding from consideration whether or not the mobile homes could be relocated to the park spaces claimed to be available or whether or not, in fact, other suitable facilities existed for relocation of these mobile home owners.

46. Therefore, the finding as stated above was not based on substantial and competent evidence and, therefore, the finding must be reversed.

47. Furthermore, the CITY failed to observe the essential requirements of law when it granted the rezoning based upon a finding pursuant to Section 723.083 which failed to take into consideration the issue of actual relocation of the mobile homes.

CONCLUSION

The CITY made a finding pursuant to Section 723.983 that adequate mobile home space other suitable facilities exist for the relocation of the mobile home owners in Coral Lake Mobile which is a prerequisite for rezoning as the predicate for adoption of Ordinance No. 2005-028. That finding was made with the CITY having excluded from consideration whether the residents of the mobile home park could in reality relocate to the mobile home spaces it found to be available or whether the residents could in reality move to any of the other suitable facilities which it found to be available. The finding is, therefore, not based on substantial and competent evidence and fails to meet the essential requirements of the law.

For these reasons, the ORDINANCE adopted by the CITY should be quashed and the matter remanded to the CITY for further proceedings consistent herewith.

DATED: July 22, 2005.
Respectfully submitted
By Janet R. Riley (sig)
JANET R. RILEY
Florida Bar No. 308722
Legal Aid Service of Broward County, Inc.
491 N. State Rd. 7
Plantation, Florida 33317

CERTIFICATE OF COMPLIANCE WITH RULE 9.100(1)

I HEREBY CERTIFY that this brief was prepared in Times New Roman, 14-point font in compliance with Rule 9.100(1), FLA.R. APP.P.

JANET R. RILEY
Legal Aid Service of Broward County, Inc.
Attorneys for Petitioner
491 N. State Rd.7
Plantation, Florida 33315
954 736-2419 Fax: 954 736-2480

By Janet R. Riley (sig)
JANET R. RILEY
Florida Bar No. 308722

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof has been furnished by United States Mail on July 25, 2005 to Paul Stuart, attorney for CITY OF COCONUT CREEK / COCONUT CREEK BOARD OF COMMISSIONERS, at Law Offices of Stuart and Walker, P.O. Box 14004, Fort Lauderdale, Florida 33302-4004 and to Barbara Hall, attorney for WOOD PARTNERS, at Law Offices of Greenberg, Trauring, P.A., 401 E. Las Olas Blvd., Suite 2000, Fort Lauderdale, Florida 33301-2204.

By Janet Riley (sig)
JANET R. RILEY
Attorney for Petitioner
Legal Aid Service of Broward County, Inc.
491 N. State Rd. 7
Plantation, Florida 33317



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