Decker v. Citrus County

Filing 48

ORDER: Plaintiff's Motion for the Entry of an Order to Show Cause as to Count VIII Petition for the on the Record Review 25 is GRANTED. Within thirty (30) days of the date of this Order, Respondent shall file a response to Count VIII Pet ition for on the Record Review. Within fourteen (14) days after Respondent's response is filed, Petitioner may file a reply not to exceed fifteen (15) pages and a supplemental appendix. Signed by Judge James S. Moody, Jr on 2/29/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

GEORGE H. DECKER,
Plaintiff/Petitioner,
v.

Case No: 5:15-cv-24-Oc-30PRL

CITRUS COUNTY, a political
Subdivision of the State of Florida,
Defendant/Respondent.
________________________________/

ORDER
THIS CAUSE comes before the Court upon Petitioner George H. Decker’s Motion
for the Entry of an Order to Show Cause as to Count VIII Petition for the on the Record
Review (Doc. 25) and Respondent Citrus County’s response 1 (Doc. 26). The Court, having
reviewed the motion and response, and being otherwise fully advised in the premises,
concludes that the motion should be granted.
BACKGROUND 2
Petitioner George H. Decker seeks a writ of certiorari reviewing Respondent Citrus
County’s decision denying his request for amendments to the Citrus County Generalized
Future Land Use Map (“GFLUM”) and the Citrus County Land Development Code Atlas

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Although the response indicates that Respondent believes that no preliminary basis for relief exists such that
the Court should issue an order to show cause directing a response to the petition, the response is not directly in
opposition to Petitioner’s motion.
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The following facts are derived from the petition (Count VIII of Petitioner’s Second Amended Complaint)
and attached appendix (Doc. 1, Exs. U, V) and do not constitute findings of fact.

(the “Atlas”) and his application for approval of a planned unit development (“PUD”).
(Doc. 39). In December 2012, Petitioner submitted an application for amendments to the
GFLUM and the Atlas. Subsequently, Petitioner amended his application seeking approval
of a PUD.
Petitioner’s application was heard before the Planning and Development
Commission (“PDC”) on October 2, 2014. After hearing evidence from Respondent and
from Petitioner’s representatives, the PDC voted to deny Petitioner’s application. (Doc. 1,
Ex. U). On December 16, 2014, Plaintiff’s application went before the Citrus County
Board of County Commissioners (the “Board”). 3 (Doc. 1, Ex. V). After hearing the
evidence presented from both Petitioner and Respondent, the Board voted unanimously to
deny Petitioner’s application. Petitioner now seeks review of the Board’s decision. (Doc.
39, Count VIII).
DISCUSSION
After a local governmental body renders a final decision on a developmental
application, the applicant may seek certiorari review as a matter of right. Miami-Dade
Cnty. v. Omnipoint Holdings, Inc., 863 So. 2d 195, 198-99 (Fla. 2003). In reviewing a
quasi-judicial decision of a local governmental body, a court should apply “first-tier”
certiorari review under Florida law. See Broward Cnty. v. G.B.V. Int’l, Ltd., 787 So. 2d
838, 844 (Fla. 2001); City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982).
First-tier review requires a three-prong inquiry: (1) whether procedural due process was

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At the same hearing, the Board also considered Plaintiff’s appeal from a staff determination regarding the
definition of transient. The Board ruled in Plaintiff’s favor.

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accorded, (2) whether the essential requirements of the law were observed, and (3) whether
the denial was supported by competent substantial evidence. G.B.V. Int’l, Ltd., 787 So. 2d
at 843.
Under Florida law, before a court can address the merits of a petition for certiorari
review, it must first determine whether the petitioner has stated a preliminary basis for
relief. Florida Rule of Appellate Procedure 9.100, which governs petitions for writs of
certiorari, provides:
If the petition demonstrates a preliminary basis for relief, a departure from
the essential requirements of law that will cause material injury for which
there is no adequate remedy by appeal, or that review of final administrative
action would not provide an adequate remedy, the court may issue an order
either directing the respondent to show cause, within the time set by the court,
why relief should not be granted or directing the respondent to otherwise file,
within the time set by the court, a response to the petition. In prohibition
proceedings, the issuance of an order directing the respondent to show cause
shall stay further proceedings in the lower tribunal.
Fla. R. App. P. 9.100(h). If the petition does not demonstrate a preliminary basis for relief,
a departure from the essential requirements of law that will cause material injury for which
there is no adequate remedy by appeal, or that review of final administrative action would
not provide an adequate remedy, the reviewing court is not required to issue an order to
show cause directing a response. See Fine v. City of Coral Gables, 958 So. 2d 433, (Fla.
3d DCA 2007).
As a preliminary matter, the Court directed the parties to submit supplemental
briefing regarding whether Florida Rule of Appellate Procedure 9.100, either in whole or
in part, governs a petition for writ of certiorari being litigated in federal court. (Doc. 45).
The parties filed a joint response asserting that Florida Rule of Appellate Procedure
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9.100(h) applies to petitions for writ of certiorari litigated in federal court because this
subsection of the rule is outcome determinative. (Doc. 47). Generally, “federal courts are
to apply state substantive law and federal procedural law.” Hanna v. Plumer, 380 U.S.
460, 465 (1965). When no comparable procedural provision exists in the federal rules, a
federal district court “should apply the state’s rule if it is outcome determinative.” Tiara
Condo Ass’n v. Marsh USA, Inc., 697 F. Supp. 2d 1349, 1358 (S.D. Fla. 2010) (emphasis
added). As noted by the parties, if a petitioner does not satisfy the requirements of Florida
Rule of Appellate Procedure 9.100(h), the petition should be denied. Accordingly, the
Court agrees with the parties’ assertion that Florida Rule of Appellate Procedure 9.100(h)
should apply to the present proceedings.
Having determined that Florida Rule of Appellate Procedure 9.100(h) applies, the
Court next considers whether Petitioner has demonstrated a preliminary basis for relief as
required under Florida Rule of Appellate Procedure 9.100(h) such that Respondent should
be directed to respond to the petition. By the petition, Petitioner alleges that Respondent’s
decision should be overturned because Petitioner was deprived of procedural due process,
Respondent’s decision was not based on competent substantial evidence, and Respondent
departed from the essential requirements of the law in rendering its decision. (Doc. 39 at
24-42).

Petitioner asserts that he was deprived of due process because the staff

recommendation of denial provided to the PDC and to the Board was based, partially, on
the transient issue which was ultimately resolved in Plaintiff’s favor by the Board.
Petitioner asserts that Respondent’s decision was not based on competent substantial
evidence because Respondent relied upon evidence of lay persons in determining whether
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the project was compatible as defined in Florida Statute § 163.3164(9). Last, Petitioner
asserts that Respondent’s decision departed from the essential requirements of the law
because Respondent did not adhere to the statutory definition of compatibility.
Without reaching the merits of the petition, Petitioner has demonstrated a
preliminary basis for relief and is therefore entitled to an order to show cause directing a
response to the petition from Respondent.
CONCLUSION

Accordingly, it is therefore ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for the Entry of an Order to Show Cause as to Count VIII
Petition for the on the Record Review (Doc. 25) is GRANTED.
2. Within thirty (30) days of the date of this Order, Respondent shall file a response
to Count VIII Petition for on the Record Review.
3. Within fourteen (14) days after Respondent’s response is filed, Petitioner may
file a reply not to exceed fifteen (15) pages and a supplemental appendix.
DONE and ORDERED in Tampa, Florida, this 29th day of February, 2016.

Copies furnished to:
Counsel/Parties of Record

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