02/13/2006 Aaron Vantreae's lawsuit apeal to the 4th district court
was dismissed as being without merit. For what it's worth, appeals
put the same information before a higher judge. They do not bring in
new information such as the recently uncovered Attorney General's
Opinion on 723.083 which could have made a major difference.
IN THE FOURTH DISTRICT
CITY OF COCONUT CREEK BOARD
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
1. Order Denying Appellant's Petition for Writ of Certiorari dated October 7, 2005.
2. Ordinance No. 2005-028, passed 6/9/05 and 6/23/05.
3. Excerpt of Final Report of the Mobile Home Study Commission, Volume I, June, 1990, page 57.
4. Report of Broward County Planning Services Division "Broward-by-the-Numbers" November, 2003.
5. Transcript of Coral Park City Commission Meeting dated June 9, 2005.
6. Opinion of Florida Attorney General Jim Smith, to Mr. Van B. Cook, County Attorney, Pinellas County, dated January 3, 1986.
LEGAL AID SERVICE OF BROWARD
By: Janet R. Riley (sig)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to: GLENN E. GOLDSTEIN, ESQ., GREENBERG TRAURIG, P.A. Attorneys for Wood Partners, 401 East Las Olas Blvd., Suite 2000, Fort Lauderdale, Florida 33301; MICHAEL W. MOSKOWITZ, ESQ., MOSKOWITZ, MANDELL, SALIM & SIMOWITZ, P.A., Attorneys for Coral Lakes MHC Limited Partnership, 800 Corporate Drive, Suite 500, Fort Lauderdale, Florida 33334, and PAUL S. STUART, ESQ., City Attorney, City of Coconut Creek, 4800 West Copans Road, Coconut Creek, Florida 33063, on this the 7th day of November, 2005.
By: Janet R. Riley (sig)
IN THE FOURTH DISTRICT
CITY OF COCONUT CREEK BOARD
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
Appellant AARON VANTREASE (hereinafter "Vantrease") hereby files this Petition for Writ of Certiorari seeking review of the order of the circuit court entered October 7, 2005, denying the writ of petition for certiorari which challenged the rezoning of Coral Lake Mobile Home Park (herinafter "Coral Lake") to be developed as "Paloma Lakes" a community of town homes and single family homes. 1 This approval was codified in an ordinance of the City of Coconut . . . (end page 1)
1 References to items in the Appendix to this petition are designated by the letter A followed by the appendix number such as A-__, and page numbers where appropriate.
Creek enacted June 23, 2005; Ordinance of Coconut Creek No 2005-27. (A-2)
Appellant seeks to quash the final order of the circuit court entered October 7, 2005 because the order is not in accordance with the law; specifically Florida Statute Section 723.083.
Vantrease filed his Petition for Writ of Certiorari in circuit court seeking review of the administrative decision of the Board of Commissioners of Coconut Creek (hereinafter "Commission") which granted rezoning of a mobile home park upon a finding that adequate mobile home park space or other suitable facilities existed for relocation of the mobile home owners as required by Florida Statute Section 723.083.
The circuit court entered its final order denying the Petition for Writ of Certiorari. Pursuant to Fla. R. App. P. 9.030(b)(2)(B), Appellant invokes the jurisdiction of this court to review the decision of the lower court acting in its appellate capacity.
STANDARD OF REVIEW
Certiorari review of a local agency action differs at the circuit court and district court levels. The circuit court reviews the local agency's action to determine if 1) procedural due process was accorded; 2) whether the essential (end Page 2)
requirements of the law have been observed: and 3) whether the administrative findings and judgment are supported by competent substantial evidence. The district court of appeals, in reviewing the decision of the circuit court, determines whether the circuit court afforded due process and 2) whether the circuit court applied the correct law. City of Deerfied v. Vaillant, 419 So.2d 624 (Fla. 1982); Education Development Center v. City of West Palm Beach, 541 So.2d 106 (Fla. 1989); Broward COunty v. G.B.V. International, Ltd., 787 So2d 838 (Fla.2001).
The second tier of certiorari review as to whether the lower court applied the correct law is another way of determining whether the lower court "departed from the essential requirements of the law." Mabrey v. Florida Parole Commission, 858 So.2d 1176, 1181 (2d DCA 2003). A ruling departs from the essential requirements of law when it amounts to a violation of a clearly established principle of law resulting in a miscarriage of justice. Mabrey, id., Allstate Insurance Company v. Lalkamanos, 843 So2d 885 (Fla. 2003). In the Allstate v. Kaklamanos case, the Florida Supreme Court also stated:
A district court should grant certiorari review only when there has been a violation of a clearly established principle of law. "Clearly established law" can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes and constitutional law. Thus, in addition to case law dealing with the same issue of law, an interpretation or (end page 3)
application of a statute, a procedural rule, or a constitutional
provision may be the basis for granting certiorari.
When the lower court denied VANTREASE'S petition, it failed to apply the correct law in holding that the Commission did not depart from the essential requirements of Florida Statute Section 723.083.
STATEMENT OF FACTS
Mobile home parks are an important housing resource in the state of Florida. The Final Report of the State Mobile Home Study Commission issued in June, 1990, states that at that time there were approximately 2,796 mobile home parks and 418,352 mobile home lots in Florida which were subjected to Chapter 723, known as the Florida Mobile Home Act. Over 50 percent of those mobile home lots and 75 percent of the mobile home parks were in 12 counties, concentrated in four geographical areas, including Southeast and Southwest Florida. (A-3) According to a report issued by the Broward County Planning Services Department in November, 2003, at that time there were 800,000 mobile homes in Florida. (A-4)
The same report notes the loss of 39 mobile home parks in Broward County and 2,323 mobile homes between 1984 and 2002, due primarily to commercial (end page 4)
and residential development, as well as loss due to airport expansion. (A-4) In this context of escalating development pressures displacing mobile home owners from their homes, appellant Wood applied to the City of Coconut Creek to rezone property on which Coral Lake Mobile Home Park ("Coral Lake") is located. The request was to rezone the property from MH-1 (mobile home park) to PUD (Planned unit development). The site 29.242 acres is owned by CORAL LAKE MHC LTD PARTNERSHIP and prospective buyer Wood sought rezoning in order to develop town homes and single family homes on the property.
Approximately 184 households currently reside in Coral Lake and would be displaced by the rezoning. Vantrease owns a mobile home and leases a lot at Coral Lake where he has resided for 17 years; he will be displaced by the rezoning.
Florida Statute Section 723.083 requires the following when a local government considers rezoning a mobile home park out of existence:
No agency of municipal, local, county, or state government shall 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 that adequate mobile home parks or other suitable facilities exist for relocation of the mobile home owners.
Florida Statute Section 723.083
At its meeting on June 9, 2005, the Commission held a quasi-judicial (end page 5)
hearing on the finding as to whether there was, pursuant to Section 723.083, adequate mobile home park spaces or other suitable facilities for relocating the home owners. On June 23, 2005, the Commission held a second quasi-judicial hearing and approved the rezoning, having found that the requirements of Section 723.083 had been met, VANTREASE appeared at both quasi-judicial hearings and objected to a finding that adequate mobile home parks or other suitable facilities exist for the relocation of these mobile home owners. Although there was evidence proffered by WOODS at the hearing on June 9, 2005 of available mobile home parks, VANTREASE and others testified that these parks were not available to these mobile home owners due to the age of these units. Parks refused to accept units older the 1995 or 2000. SOme parks were also not available due to 55 and older age restrictions. (A-5, pg. 78)
The Commission overtly rejected consideration of whether those living in Coral Lake could, in fact, move their mobile homes to another park. Specifically, Commissioner Sarbone stated that when he looked at the testimony at the quasi- judicial hearing he "concentrated on what the number of available mobile home sites were regardless of whether you can move your house there." (A-5, pg. 78) The Commission interpreted the statute to make no requirement that it determine whether the mobile home owners being displaced could relocate their (end page 6)
units to an allegedly available mobile home parks in the area. Commissioner Sarbone determined that the statute envisioned abandonment and, therefore, he could not include in the decision making process whether the home can be moved or not. (A-5, pg.78).
The Commission also interpreted Section 723.083 to preclude consideration of whether the "other suitable facilities" proffered by WOOD were affordable to these home owners. Commissioner Sarbone stated that he, in fact, agreed that other suitable facilities such as apartments were not within the financial means of these home owners but stated that he did not consider that an issue as, "I don't think we should take affordability into account, they are just way out there, Way, way above what would be adequate." (A-5, page 79, line 8-14)
The Commission did not comply with the essential requirements of Florida Statute Section 723.083 in that it it interpreted the statute to make no requirements, or to even preclude, consideration of whether proffered available mobile home space was not, in fact, available to these home owners because al allegedly available parks rejected homes based on the age of units and other factors. It also made its finding pursuant to Section 723.083 while rejecting consideration of whether the other suitable facilities alleged to be available were not, in fact, available to these home owners because they were not affordable. (end page 7)
The Commission's finding of adequate mobile home space or other suitable facilities being available for relocation was an incorrect interpretation of the statute. Vantrease filed his timely petition for writ of certiorari with the circuit court. The lower court did not apply the correct law and deviated from the essential requirements of the law in finding that the commission's finding pursuant to Section 723.083 was proper under the statute.
The lower court reviewed the administrative finding of the Commission which is required pursuant to Section 723.083 prior to approving the rezoning request with regard to Coral Lake. There are no reported court decisions in Florida interpreting Florida Statute 723.083 as to what is required for a determination that adequate mobile home space or other suitable facilities exist for relocation of the mobile home owners.
We do, however, have the benefit of an unpublished opinion Attorney General Opinion which speaks to the issue. (A-6) Although Attorney General Opinions are not legally binding on the Courts, they are entitled to great weight in construing Florida Law. Lowry v. Parole and Probation Commission, 473 So2d 1248 (Fla. 1985); Beverly v. Division of Beverage of Department of Business Regulation, 282, So.2d 657 (FLA. 1st DCA 1973). (end page 8)
The Attorney General Opinion notes the factors to be considered in determining legislative intent in the absence of express language interpreting "adequate mobile home space" and "suitable other facilities." The opinion refers to Florida cases in stating that to determine the legislative intent the Court must look at the "evil to be corrected, the intention of the law making body, and the purpose sought to be accomplished." State v. Webb, 398 So.2d 820 (Fla. 1981); Lanier v. Bronson, 215 So.2d 776 (Fla.4th DCA 1968; Maryland Casualty Co. v. Marshall, 106 So.2d 212 (Fla. 1st DCA 1958.)
It is helpful here to look at the Florida Supreme Court case of Stewart v. Green, 300 So.2d 889 (1974). In discussing the question of provisions in the Florida Mobile Home Act, Chapter 723 with regard to additional restrictions on mobile home park owners' right to evict as opposed to other landlords, the Supreme Court dealt with the specific harms to mobile home owners intended to be addressed by the statute and found that the legislature had determined protection of the mobile home owners to be essential. As in the Attorney General Opinion, the Supreme Court referred to the report of the Governor's 1974 Mobile Home Task Force and concluded:
... most people who live in mobile homes usually spend several thousands of dollars to purchase a home . . . Most mobile home owners find that they must rent the lot on (end page 9)
which their mobile home is to be placed from the mobile home dealer or his associates . . . their "home" with its wheels and hitch removed, appears to have permanence of location, being tied down on the lot as state law requires and being under girded with poured cement base. A great catch in the eviction removal process, as the Governor's Task Force noticed, is that often under modern conditions there is no ready place for an evicted mobile home owner to go due to a shortage of mobile home spaces in many areas of the state.
The harms caused by displacement are no less in the situation of displacement due to rezoning that in a situation of eviction, The Attorney General Opinion is in accord with Stewart in concluding that the intent of the Florida Mobile Home Act and, specifically, Section 723.083, was to address the harm of displacement of mobile home owners due to rezoning who must then find another park to house their unit. The Attorney General stated:
Thus, in light of the conditions which existed at the time of the enactment of Ch. 74-160, Laws of Florida which the Legislature sought to address, it appears that the legislative intent in using the phrase "adequate mobile home parks or other suitable facilities" was that the relocation facilities to be appropriate to the financial and other needs of the specific population of mobile home owners who would be displaced by rezoning.
The opinion also goes on to say:
Thus, in making a determination as to whether or not the (end page 10)
mobile home parks are adequate, the zoning authority would necessarily have to consider the financial abilities of the mobile home owners who may have to relocate, repair or replace their mobile homes.
And in reference to consideration of apartments, etc. as other suitable facilities, the Attorney General opinion states:
As stated hereinabove, I am of the opinion that the statute does not preclude a determination that the facilities described in your example are suitable, if the mobile home owners to be displaced have the financial and other resources to allow them to relocate to other facilities. (emphasis added)
Surely, if the intent is that relocation facilities must meet the financial and other needs of the displaced, group, then the issue of whether the allegedly available mobile home parks would reject all the displaced units due to age and other factors must be taken into consideration before it can be determined that adequate mobile parks exist for relocation.
It is clearly the intent of Section 723.083 to provide for relocation of those displaced by rezoning of a mobile home park. That intent is the lodestar for interpreting the statute. The Commission did not meet the essential requirements of (end page 11)
the law when it found that the statute makes no requirement that it determine whether the displaced home owners can actually move to an allegedly available mobile home space. It, likewise, does not meet the requirements of the law to, as the Commission did, interpret the statute to not require or even to preclude consideration of affordability as to other suitable facilities available for relocation.
The lower court applied incorrect law and failed to meet essential requirements of the law when it adopted the Commission's interpretation of Florida Statute Section 723.083.
The Order of the lower court holds that the administrative decision of the Coconut Creek City Commission did not deviate from the essential requirements of law in its granting of rezoning upon finding, pursuant to Florida Statute Section 723.083, that adequate mobile home parks or other suitable facilities exist for the relocation of the mobile home owners. The lower court did not apply the correct law when it accepted the Commission's interpretation of Section 723.083 that the statute did not require it to consider whether the mobile home parks allegedly available would reject these mobile homes due to age and other factors, and further, that the statute did not require it to consider whether or not other suitable facilities were affordable to those being displaced. (end page 12)
The lower court order does not comply with the essential requirements of the law, specifically Florida Statute Section 723.083. That order should be quashed.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Petition for Writ of Certiorari lettering is in Time New Romans 14-point font, in compliance with the font requirements of Florida Rules of Appellate Procedure, Rule 9.210(a)(2)(2005).
LEGAL AID SERVICE OF
by: Janet R. Riley (sig)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to: GLENN E. GOLDSTEIN, ESQ., GREENBERG (end page 13)
TRAURIG, P.A. Attorneys for Wood Partners, 401 East Las Olas Blvd., Suite 2000, Fort Lauderdale, Florida 33301; MICHAEL W. MOSKOWITZ, ESQ., MOSKOWITZ, MANDELL, SALIM & SIMOWITZ, P.A., Attorneys for Coral Lakes MHC Limited Partnership, 800 Corporate Drive, Suite 500, Fort Lauderdale, Florida 33334, and PAUL S. STUART, ESQ., City Attorney, City of Coconut Creek, 4800 West Copans Road, Coconut Creek, Florida 33063, on this the 7th day of November, 2005.
By: Janet R. Riley (sig)
Here is the unpublished Florida Attorney General's opinion from Janet Riley's Legal Aid lawsuit appeal. It contains information that belonged in the original suit indicating things were done wrong, ie: not considering the financial needs of the residents, not considering the refusal of the local parks to accept residents and/or their homes and for considering housing outside city limits. Robert Perkis
DEPARTMENT OF LEGAL AFFAIRS
January 3, 1986
Mr. Van B. Cook
Re: Counties - Mobile Homes - meaning of phrase
Dear Mr. Cook:
This is in response to your request made on behalf of the Pinellas County Board of County Commissioners for an opinion on substantially the following question: What is the meaning of the phrase "adequate mobile home parks or other suitable facilities" as used in S723.083, F.S. (1984 Supp.)?
Your inquiry states that the Board of County Commissioners of Pinellas County has concerns regarding the interpretation of the phrase "adequate mobile home parks and other suitable facilities" in S723.083 , F.S. (1984 Supp.), in acting upon applications for rezoning involving mobile home parks. Section 723.083, formerly S83.760(4), F.S. 1983, was originally enacted by S4, Ch. 74-160, Laws of Florida. Except for amendments made by S3, Ch. 76-81, Laws of Florida, which do not materially affect the issue under consideration, the provisions of the 1974 law are substantially identical to those contained in S723.083, which provides that "[n]o agency of municipal, local, county, or state government shall 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 that adequate mobile home parks or other suitable facilities exist for the relocation of mobile home owners".
Mr. Van B. Cook Page Two
The fundamental rule to which all others are subordinate in construction of statutes is that intent thereof is law and should be ascertained and effectuated. American Bakeries Co. v. Haines City, 180 So. 524 (Fla. 1938); Parker v. State, 406 So.2d 1089 (Fla. 1981) (legislative intent is the polestar by which courts must be guided in interpreting statutory provisions). The legislative intent must be primarily determined from the plain language of the statutes, as the Legislature must be presumed to have working knowledge of the English language and to express its intent by the use of words found in the statute. S.R.G. Corporation v. Department of Revenue, 355 So. 2d 687 (Fla. 1978); Thayer v. State, 335 So. 2d 815 (Fla. 1976).
Section 723.083, F.S. (1984) Supp.) clearly provides that the zoning authority must determine the existance of adequate mobile home parks or other suitable facilities for relocation of mobile home owners. Nothing in the language of the statute expressly precluded the zoning authority from considering facilities other then mobile home parks. If the Legislature had intended such, it could have so indicated by adding after "suitable facilities" the phrase "for the relocation of mobile home owners" the phrase "and their mobile homes." The phrase, "other suitable facilities for the relocation of the mobile home owners," in the absence of any qualification, includes all facilities suitable for the relocation of mobile home owners. See, Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla. 1958) (use of a generally comprehensive term indicated an intent to include everything embraces in the term): State v. City of Jacksonville, 50 So.2d 532 (Fla. 1951): Florida Industrial Commission v. Growers Equipment Co, 12 So.2d 889 (Fla. 1943).
The factors to be considered by the zoning authority in determining the "suitability" of relocation facilities are not expressly set forth in the statute. The legislative intent as to the application of these terms must therefore be determined from the evil to be corrected. the intention of the lawmaking body, and the purpose sought to be accomplished. State v. Webb, 398 So.2d 820 (Fla. 1981); Lanier v. Bronson, 215 So.2d 776 (4 D.C.A. Fla., 1968); Maryland Casualty Co. v. Marshall; 108 So.2d 212 (1 D.C.A. Fla., 1958). The political and social conditions of the
Mr. Van B. Cook Page Three
community for whom the law was enacted may also be considered in determining legislative intend. State ex rel. Parker v. Lee, 151 So. 491 (Fla. 1933).
Prior to the enactment of Ch. 74-160, Laws of Florida, the Governor's Task Force on Mobile Homes published its findings on the mobile home industry. The Task Force found that the industry had undergone phenomenal growth from the 1950's to the 1970's and that in 1970. 6.9% of year round housing units were mobile homes, with the percentage increasing. Report of the Governor's Task Force on Mobile Homes; March 1974, at 1, 2. The Task Force also found that although mobile homes could be relocated, they were not really mobile, but were placed in mobile home parks with the expectation of permanency. Task Force Report, at 70: The Task Force also acknowledged the low cost of mobile homes, and their availability to those who could not afford conventionally built housing. Task Force Report, at 76. These findings of the Task Force were reiterated by the legislative committee on Business Regulation, April 15, 23, 24, and 25, 1974, Series 414, Box 14, Archives of State Library. During these hearings information was placed before the committees that in many areas of the state, the populations of many mobile home parks were composed primarily of senior citizens on fixed incomes. Tape Recordings, April 15, 1984.
The Governor's Task Force noted a reduction in land being used for mobile home parks. The reasons cited were that mobile home parks were sold as the land became more valuable for commercial and residential development, and zoning authorities were reluctant to approve no zoning for mobile home parks. Task Force Report, at 72, 73, and 76. Members of the committees discussed this trend and observed that individuals evicted from mobile home parks due to changed in zoning would be unable to afford other types of housing and consequently have nowhere to live. Tape Recordings, April 15, 1974. Thus, in light of the conditions which existed at the time of the enactment of Ch. 74-160, Laws of Florida, which the Legislature sought to address, it appears that the legislative intend in using the phrase "adequate mobile home parks or other suitable facilities" was that the relocation facilities be appropriate to the financial and other
Mr. Van B. Cook Page Four
needs of the specific population of mobile home owners who would be displaced by rezoning.
In your letter you present three possible factual determinations which might be reached by the Board of County Commissioners in considering an application for rezoning of a mobile home park, and asked if the factual situation meet the requirements of S723.083, F.S. In the first factual situation presented, the Board determines that vacancies exist in other mobile home parks but the affected mobile home park owners would not be accepted into such parks by virtue of the characteristics, age, or size of their mobile homes. In considering your example, I will assume that these mobile home parks are the only facilities available for the relocation of mobile home owners. This factual situation was specifically discussed by members of the legislative committee in their consideration S4, Ch. 74-160, Laws of Florida. Tape recordings, April 15, 1974. Information was placed before the committee at that time that in the situation described, displaced mobile home owners may effectively be precluded from relocating in a mobile home park due to the lack of which would be required to comply with the park's rules and regulations. Tape recordings, April 15, 1974. Thus, in making a determination as to whether or not the mobile home parks are adequate, the zoning authority would necessarily have to consider the financial abilities of the mobile home owners who may have to relocate, repair or replace their mobile homes.
In the second situation you present, a determination is made that no adequate mobile home parks exist, but other facilities such as apartments, trailer parks, and boarding houses exist for the relocation of the mobile home owners. As stated hereinabove, I am of the opinion that the statute does not preclude a determination that the facilities described in your example are suitable, if the mobile home owners to be displaced have the financial and other resources to allow them to relocate to other facilities.
In your third factual situation you state that the Board finds that adequate mobile home parks or other suitable facilities
Mr. Van B. Cook Page Five
exist only outside of the territorial limits of the county. Generally, zoning and planning powers of a county are restricted to its territorial limits, unless the Legislature expressly authorizes the county to exercise its zoning powers extraterritorially. See, AGO 071-388 (municipal zoning powers are restricted to territorial limits unless extraterritorial powers are expressly authorized by statute). Such express authorization is not provided in S723.083, F.S. (1984 Supp.), or elsewhere in Ch. 723, F.S.: nor does the Local Government Comprehensive Planning and Land Development Regulation Act, SS163.316-163.3215, provide such authorization. See, S183.3171(2), F.S. as amended by S4, Ch. 85-53, Laws of Florida. To decide that mobile home parks or other suitable facilities for displaced mobile home owners exist in other counties would require that the county make planning decisions which impact upon areas not within its jurisdiction. Thus the fact that there are adequate mobile home parks or other suitable facilities outside the territorial limits of the county should not, in my opinion, be a factor in deciding whether to rezone a mobile home park.
In Summary, unless and until legislatively or judicially determined otherwise, I am of the opinion that the phrase "adequate mobile home parks or other suitable facilities" in S723.083, F.S. (1984 Supp.), includes all alternative housing which is appropriate to the needs, primarily financial, of the specific population of mobile home owners to be displaced.
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