Brooksville vs Hernando County Feb 2016

7/24/2019 Brooksville vs Hernando County Feb 2016

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IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT

IN AND FOR HERNANDO COUNTY, FLORIDA

HERNANDO COUNTY,

Petitioner,

vs. Case No.: H-27-2016-CA-15-DS

CITY OF BROOKSVILLE,

Respondent._______________________/

AMENDED PETITION FOR WRIT OF CERTIORARI

Petitioner, HERNANDO COUNTY (the County), by and through its

undersigned counsel and pursuant to Fla. R. App. P. 9.100, seeks certiorari review of

five ordinances passed by Respondent, CITY OF BROOKSVILLE (the City).1

I. QUESTIONS PRESENTED

A. Whether a municipalitys annexation of previously unincorporated

property constitutes a voluntary annexation pursuant to Fla. Stat. 171.044, where

the municipality actually petitioned itself for the annexation in its purported capacity

as the property owners attorney-in-fact.

1To create a consecutively paginated record, each page of the Appendix has

been Bates stamped in the upper and lower right hand corners in blue. TheAppendix, a .pdf file, contains an embedded bookmark for each tab. Accordingly,citations to the record shall be in the form of (App. at Tab #, p. #).

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Filing # 37767712 E-Filed 02/12/2016 03:01:01 PM


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B. Whether a municipalitys annexation ordinance is valid where its

enactment creates an enclave or finger of unincorporated land to exist within the

municipalitys borders.

C. Whether a power-of-attorney granted by a property owner to a

municipality in exchange for the provision of utility services constitutes the required

grant of an agency with an interest so as to make the power-of-attorney irrevocable.

D. Whether a municipalitys annexation of property that creates an enclave

is constitutionally valid, where the enclaves residents are predominately African-

American as a result of the municipalitys since-repealed de jureracial segregation.

II. THE BASIS FOR INVOKING JURISDICTION

The County asks this Court to quash Ordinance Nos. 854, 855, 857, and 859

that were adopted by the City on December 7, 2015, and Ordinance 862 that was

adopted by the City on December 21, 2015 (collectively the Annexation

Ordinances). Jurisdiction is vested in this Court by Article V, Section 5(b) of the

Florida Constitution, Fla. Stat. 171.081, and Fla. R. App. P. 9.100. The County is

a party affected because it is the governmental unit with jurisdiction over the area to

be annexed, and thus, has standing to bring this action.2

2City of Tampa v. Hillsborough County,504 So. 2d 10, 11 (Fla. 2ndDCA1986); City of Sunrise v. Broward County, 473 So. 2d 1387, 1389 (Fla. 4thDCA1985).

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Figure 1

III. MAP OF THE CHALLENGED ANNEXATIONS

The challenged annexations are shown on Figure 13below:

On Figure 1, the property annexed in Ordinance No. 854 is in red; the property

annexed in Ordinance No. 855 is in pink; the property annexed in Ordinance No. 857

is in yellow; the property annexed in Ordinance No. 859 is in purple; and the property

annexed in Ordinance No. 862 is in blue. The Citys territory is cross-hatched.

3Figure 1 was created by using the GIS mapping services athttps://www.hernandocountygis-fl.us/publicmapgallery/, last visited January 25,2016.

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IV. STATEMENT OF THE GOVERNING LAW

A. THE MUNICIPAL ANNEXATION AND CONTRACTION ACT

Article 8, Section 2(c) of the Florida Constitution vests the Legislature with the

exclusive power over municipal annexations.4 The Legislature may share its power

with municipalities by general or special law.5

In the Municipal Annexation and Contraction Act (the Annexation Act),6the

Legislature sets the procedures by which municipalities can alter the extent of their

own borders.7 Municipalities must act in strict accord with the Annexation Act,8

as it expressly preempts municipalities from annexing territory by any other means. 9

4E.g.,North Ridge Gen. Hosp., Inc. v. City of Oakland Park, 374 So. 2d 461,

464 (Fla. 1979), appeal dismissed, 444 U.S. 1062 (1980).

5

Fla. Const. Art. 8, 2(c). See also Fla. Stat. 166.021(3)(a) (excludingfrom municipal home rule powers [t]he subjects of annexation, merger, and

exercise of extraterritorial power . . . .).

6Codified as Fla. Stat. Ch. 171. See also SCA Servs. of Florida, Inc. v. City

of Tallahassee, 418 So. 2d 1148, 1149 (Fla. 1stDCA 1982).

7Pinellas County v. City of Largo, 964 So. 2d 847, 849 (Fla. 2ndDCA 2007).

8Smith v. Ayres, 174 So. 2d 727, 729 (Fla. 1965). See alsoMcGeary v. Dade

County, 342 So. 2d 549, 551 (Fla. 3rd

DCA 1977); Town of Mangonia Park v.Homan, 118 So. 2d 585, 588 (Fla. 2ndDCA 1960).

9Compare Fla. Stat. 171.022 with City of Ormond Beach v. City ofDaytona Beach, 794 So. 2d 660, 661, n.1 (Fla. 5thDCA 2001) rehearing denied.See also SCA, 418 So. 2d at 1150.

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The Annexation Act authorizes two alternative methods by which

municipalities can annex territory: (1) standard, involuntary annexations, and (2)

property-owner-initiated voluntary annexations.

B. INVOLUNTARY ANNEXATIONS

The Annexation Act creates a standard method, known as an involuntary

annexation, by which municipalities can annex property. A municipality begins the

process by satisfying three conditions precedent.

First, the city council must prepare a report on the proposed annexation that

contains maps showing the present and proposed municipal boundaries; the existing

major trunk water mains; the existing sewer interceptors and out-falls; the proposed

extensions of such mains and out-falls, if required; and the general land-use pattern

in the area to be annexed. Also, the report must include a statement certifying that

the area to be annexed is contiguous to the municipality's existing boundaries, that the

area is reasonably compact, and that no part of the area lies within another

municipality.10 Finally, the report must detail how the city will provide municipal

services to the area to be annexed.11

10Compare Fla. Stat. 171.042(1)(b) with Fla. Stat. 171.043.

11Fla. Stat. 171.042(1)(c). Please note that the subsection delineatesexactly what data the municipality needs to include in the report.

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Second, the city council must provide a copy of the report to the board of

county commissioners of the county wherein the city is located at least 15 days in

advance of the councils first scheduled hearing on the proposed annexation

ordinance. The Annexation Act cautions that the failure to timely file the report with

the county may be the basis for a cause of action invalidating the annexation.12

Third, [t]he governing body of the municipality shall, not less than 10 days

prior to the date set for the first public hearing [on the proposed annexation

ordinance], mail a written notice to each person who resides or owns property within

the area proposed to be annexed. The notice must describe the annexation proposal,

the time and place for each public hearing to be held regarding the annexation, and

the place or places within the municipality where the proposed ordinance may be

inspected by the public.13

Once a municipality satisfies the prerequisites, it can then proceed to consider

an annexation ordinance.

The Annexation Act requires that [p]rior to the adoption of the ordinance of

annexation, the [municipalitys] governing body shall hold at least two advertised

public hearings. The first public hearing shall be on a weekday at least 7 days after

12Fla. Stat. 171.042(2).

13Fla. Stat. 171.042(3).

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the day that the first advertisement is published. The second public hearing shall be

held on a weekday at least 5 days after the day that the second advertisement is

published.

14

The annexation ordinance must then be approved by the affected areas voters

in referendum held within thirty days. Voter approval is not required, however, if no

registered voters live in the territory to be annexed.15Also, no referendum is required

if non-voters (e.g., residents of other states, corporations, etc.) own more than seventy

percent of the total area to be annexed, and the owners of more than fifty percent of

the land in the area consent to the annexation, provided that the city council receives

the consents before it adopts the annexation ordinance.

C. VOLUNTARY ANNEXATIONS

Fla. Stat. 171.044 allows [t]he owner or owners of real property in an

unincorporated area of a county which is contiguous to a municipality and reasonably

compact may petition the governing body of said municipality that said property be

annexed to the municipality.16

14Fla. Stat. 171.0413.

15Id.

16Fla. Stat. 171.044(1).

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As a condition precedent to considering a voluntary annexation petition, the

Annexation Act requires a municipalitys governing body to determine that the

petition bears the signatures of all owners of property in the area proposed to be

annexed.17 The Annexation Act does not allow for an agent or an intermediary to

sign a petition on behalf of a property owner.

Assuming that a property owners voluntary annexation petition has been

validly executed, the Annexation Act establishes two criteria that the applicable

property must meet as a prerequisite for annexation.

First, the parcel to be annexed must be reasonably compact. Compactness

exists where the land to be annexed is concentrated in a single area. 18Compactness

does not exist where the annexation would create enclaves, pockets, or finger areas

in serpentine patterns, of unincorporated land.19 The Annexation Act defines an

enclave as [a]ny unincorporated improved or developed area that is enclosed

within and bounded by a single municipality and a natural or manmade obstacle that

17Fla. Stat. 171.044(2).

18Fla. Stat. 171.022(2).

19Id.

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allows the passage of vehicular traffic to that unincorporated area only through the

municipality.20

Second, the parcel must be contiguous to the municipalitys pre-annexation

boundaries.21 In other words, the area to be annexed must share a substantial part of

one of its boundaries with a pre-annexation boundary of the municipality.22

D. VOLUNTARY ANNEXATION AS A PREREQUISITE FOR

EXTRATERRITORIAL UTILITY SERVICES

While a municipality may condition its provision of extraterritorial utility

services to unincorporated property upon the owners submission of a petition for

voluntary annexation, the municipality cannot annex a parcel in contravention of the

Annexation Acts prerequisites.23

In practice, municipalities often require the owners of unincorporated

properties to sign a preannexation agreement as a condition of providing

extraterritorial utility services. If the property to be served otherwise satisfies Section

171.044's contiguity and compactness requirements, a municipality can require the

20Fla. Stat. 171.031(13)(b).

21Fla. Stat. 171.044(1).

22Fla. Stat. 171.022(1).

23County of Volusia, 925 So. 2dat 344 (Such annexation defeats the basicconcept of a municipal corporation of unity and compactness.).

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owner to submit a petition for voluntary annexation before agreeing to provide utility

services to the property.24 This because municipal utilities have the discretion, but

not an obligation, to provide extraterritorial services.

25

The municipality can even

combine the agreement to provide utility services and a petition for voluntary

annexation into a single document.26 If the parcel to be served is not yet able to

satisfy the compactness and contiguity requirements, a municipality can include in

a preannexation agreement a provision requiring the property owner to submit a

petition for voluntary annexation at such time that the parcel satisfies the

requirements, enforceable by injunction.27

The provisions of a preannexation agreement, however, are subordinate to

those of the Annexation Act. In other words, the existence of a preannexation

agreement between a municipality and a property owner does not permit a

24Allen's Creek Properties, Inc. v. City of Clearwater, 679 So. 2d 1172, 1176

(Fla. 1996) (Because Clearwater has no duty to provide services to theunincorporated land within its service area, we conclude that the City may

condition upon annexation the landowner's receipt of sewer services.).

25Compare Fla. Stat. 180.19(1) withAllstate Insurance Company v. City ofBoca Raton, 387 So.2d 478, 479 (Fla. 4thDCA 1980).

26

County of Volusia v. City of Deltona, 925 So. 2d 340, 345 (Fla. 5th

DCA2006).

27Generally Fla. Stat. 180.19(1) (allowing extraterritorial service uponsuch terms and conditions as may be agreed between such municipalities, and theowners or association of owners of such outside lots or lands.).

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municipality to deviate from Section 171.044's prerequisites to voluntary

annexations.28

V. ARGUMENT # 1 - THE ANNEXATION ORDINANCES ARE VOID DUETO THE CITYS NON-COMPLIANCE WITH THE ANNEXATION

ACTS PREREQUISITES FOR THEIR ENACTMENT

A. STATEMENT OF THE RELEVANT FACTS

1. THE CITY OBTAINS POWERS-OF-ATTORNEY FROM

THE PROPERTY OWNERS

All five of the Annexation Ordinances originate from a property owner

granting the City the authority to file a voluntary annexation petition on his or her

behalf in exchange for the Citys provision of extraterritorial water or wastewater

services, to wit:

In a Utility Service Agreement dated May 2, 1995, the City agreed to provide

extraterritorial sewer services to St. Anthony the Abbot Catholic Church in

exchange for the property owner, the Diocese of St. Petersburg (the

Diocese), agreeing to appoint the City . . . as its irrevocable attorney in fact

28County of Volusia, 925 So. 2dat 344 (Such annexation defeats the basicconcept of a municipal corporation of unity and compactness.);City of Ormond

Beach v. City of Daytona Beach, 794 So. 2d 660, 661, n.1 (Fla. 5thDCA 2001)rehearing denied; SCA Servs. of Florida, Inc. v. City of Tallahassee, 418 So. 2d1148, 1150 (Fla. 1stDCA 1982).

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with absolute and specific authority to execute and file any and all such

petitions for voluntary annexation into the City of Brooksville.29

On November 28, 2000, the City entered into a Utility Service Agreement with

Grace World Outreach Church, Inc. (Grace World),30that contained nearly

identical annexation/power-of-attorney provisions as those to which the

Diocese had agreed five years earlier.31

On August 29, 2002, the City entered into another Utility Service Agreement

with Brooksville Christian Church, Inc., that contained the same

annexation/power-of-attorney provision as had the prior agreements.32

The City entered into yet another Utility Service Agreement, on November 19,

2010, with the Hernando County Housing Authority. The Utility Service

Agreement contained the Citys standard annexation/power-of-attorney

provisions.33

29Ordinance 855 at Exhibit A. (App. at Tab 2, pp. 20, 24-38)

30Formerly known as the Brooksville Assembly of God. Seehttp://www.sunbiz.org/index.html, last visited on January 25, 2016.

31Ordinance No. 854 at Exhibit A. (App. at Tab 1, pp. 1, 5-18)

32Ordinance No. 862 at Exhibit A. (App. at Tab 5, pp. 69, 73-90)

33Ordinance 859 at Exhibit A. (App. at Tab 4, pp. 46, 50-67)

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Finally, the City obtained its fifth power-of-attorney from Samuel and Kellie

Griffin (collectively the Griffins) in 2008. The Griffins own a parcel of real

property, located on the west side of Mildred Avenue, that is improved with a

single-family home.34 On September 19, 2008, the Griffins executed an

Irrevocable Power of Attorney appointing the City as their attorney-in-fact.

The Griffins granted the City the power to do a voluntary annexation by the

City of [their] property at such time that the City of Brooksville shall in its sole

discretion petition to annex the . . . property into the City of Brooksville.35

2. THE CITY PETITIONS ITSELF TO VOLUNTARILY

ANNEX THE PROPERTIES

In 2015, the City petitioned itself to annex the properties as the attorney-in-fact

for the owners. The City Manager, T. Jennene Norman-Vacha, signed each of the

petitions. None of the actual property owners signed the petition. Further, the record

contains no evidence that the City provided any notice to the property owners that the

City Manager had petitioned the City for voluntary annexation.

34https://www.hernandocountygis-fl.us, last visited January 25, 2016.

35Ordinance 857 at Exhibit A. (App. at Tab 3, pp. 40, 44)

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3. THE CITY ADOPTS THE ANNEXATION ORDINANCES

After holding public hearings on November 16, 2015, and on December 7,

2015, the City adopted Ordinance Nos. 854, 855, 857, and 859, that annexed the

properties owned by Grace World Outreach Church, the Diocese of St. Petersburg,

the Griffins, and the Housing Authority respectfully.36

The record contains no evidence that the City notified the property owners of

the public hearings. In fact, the record evidence demonstrates the lack of notice.

During the first reading hearing held on November 17, 2015, the Grace World

Outreach Churchs Business Administrator, Ron Hansen, testified that he had just

read the Churchs annexation petition that day.37

The City subsequently annexed the Brooksville Christian Churchs parcel by

enacting Ordinance 862, after holding hearings on December 7, 2015 and December

21, 2015. As with the prior ordinances, the record contains no evidence that the City

notified Brooksville Christian Church of the public hearings.38

36(App. at Tabs 1-4, pp. 1-68; Tab 7, pp. 96-98; Tab 8, pp. 103-104, 107-

188; Tab 10, pp. 276-283; Tab 11, pp. 286-304, line 19)

37(App. at Tab 10, p. 276, lines 19-20)

38(App. at Tab 5, pp. 69-91; Tab 8, p. 106, 219-241; Tab 9, p. 244, 246-275;Tab 11, p. 304, line 24p. 307, line 5; Tab 12, pp. 309-311)

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B. LEGAL ARGUMENT

1. ANNEXATION ORDINANCES, AS A CLASS, ARE TO BE

STRICTLY CONSTRUED FOR COMPLIANCE WITH THE

MUNICIPAL ANNEXATION AND CONTRACTION ACT.

Whether an ordinance is enacted pursuant to Section 171.0413 or to Section

171.044, courts strictly construe annexation ordinances.

As notedsupra, the Legislature, when enacting the Annexation Act, elected to

share with Floridas municipalities, a small amount of the Legislatures sovereign,

constitutionally-derived power to authorize and regulate municipal annexations.

Florida courts strictly construe statutes that operate in derogation of the Legislatures

sovereignty.39 Accordingly, [w]here the power to extend boundaries has been

delegated to a municipal corporation, the power must be exercised in strict accord

with the statute conferring it.40

Put another way, a municipality has no power to extend its boundaries in any

manner other than in strict compliance with those prescribed by Annexation Act.41

39State v. Love, 126 So. 374, 377 (Fla. 1930) ([I]t might also be proper toobserve that the rule is that statutes in derogation of state sovereignty are to be

strictly construed.)

40Town of Mangonia Park v. Homan, 118 So. 2d 585, 588 (Fla. 2ndDCA

1960).

41See Smith v. Ayres, 174 So. 2d 727, 729 (Fla. 1965);Magnolia Park, 118So.2d at 588.

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2. AS SECTION 171.044 CREATES AN EXCEPTION TO

SECTION 171.0413'S OTHERWISE UNIFORM

ANNEXATION PROCEDURES, VOLUNTARY

ANNEXATION ORDINANCES ARE STRICTLY

CONSTRUED FOR COMPLIANCE WITH SECTION171.044

Since Sections 171.0413 and 171.044 both concern the same topic, municipal

annexation, they must be interpreted in pari materia.42 The Court must therefore

construe the statutes together, and compare each to the other, in such a manner as to

preserve the force of both without destroying their evident intent, assuming that a

compatible construction is possible.43

With regard to Sections 171.0413 and 171.044, each statute contains a

reciprocal reference to the other. On one hand, Section 171.0413(4) states, Except

as otherwise provided in this law, the annexation procedure as set forth in this section

shall constitute a uniform method for the adoption of an ordinance of annexation....

On the other hand, Fla. Stat. 171.044(4) provides that [t]he method of annexation

provided by this section shall be supplemental to any other procedure provided by

general or special law....

42McGeary v. Dade County, 342 So. 2d 549, 550-51 (Fla. 3rdDCA 1977)

(holding former voluntary and involuntary annexation statutes must be interpretedin pari materia).

43Idat 551.

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Structurally, Section 171.044's voluntary annexation procedures serve as an

exception, also known as proviso, to 171.0413's otherwise uniform, involuntary

procedures. In other words, a municipality can only add to its territory through

Section 171.0413's involuntary annexation procedures, except for when a property

owner applies to a municipality for the annexation.

Courts strictly construe exceptions and provisos as being limited to objects

fairly within their terms.44 A court must ascertain and give effect to legislative intent

regarding an exception as well as other parts of the statute. The proviso should be

construed together with the enacting clause to give effect to each part of the act and

carry out the Legislature's intent.45

Thus, a municipalitys annexation ordinance can only be voluntary if the

municipality strictly complied with Section 171.044 when enacting the ordinance.

If not, the annexation ordinances validity depends on whether the municipality

complied with Section 171.0413's requirements for involuntary annexations.

44SeeFarrey v. Bettendorf, 96 So.2d 889 (Fla. 1957); Cragin v. Ocean &

Lake Realty Co., 133 So. 569 (Fla. 1931).

45Therrell v. Smith, 168 So. 389 (Fla. 1936); State v. Nourse, 340 So.2d 966(Fla. 3rdDCA 1976).

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3. THE ANNEXATION ORDINANCES ARE NOT

VOLUNTARY AS THE CITY FAILED TO COMPLY

WITH SECTION 171.044 WHEN ENACTING THE

ORDINANCES

In this case, the City petitioned itself for the annexations as the attorney-in-fact

for the property owners. The City Manager signed the annexation petitions. The City

Councils agendas refer to the annexations as being city initiated. The City Planner

opened the public hearings on the then-proposed Annexation Ordinances as being

city initiated. In fact, the City did not even notify the property owners of the

annexations. Thus, the Annexation Ordinances can only be classified as voluntary

if Section 171.044 can be construed to allow a municipality to submit an annexation

petition to itself as the agent a the property owner.

The Florida Supreme Court has consistently held, [w]hen the language of the

statute is clear and unambiguous and conveys a clear and definite meaning . . . the

statute must be given its plain and obvious meaning.46 Accordingly, the task of

interpreting Section 171.044 begins with the language of the statute, construed in

46Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) quotingA.R. Douglass, Inc.,

v. McRainey, 137 So. 157, 159 (1931). See also State v. Egan, 287 So.2d 1, 4 (Fla.1973) (Where the legislative intent as evidenced by a statute is plain and

unambiguous, then there is no necessity for any construction or interpretation ofthe statute, and the courts need only give effect to the plain meaning of itsterms.).

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accord with its ordinary or natural meaning and with a view to [its] place in the

overall statutory scheme.47

When enacting Section 171.044, the Legislature delineated separate roles to be

played by (1) the petitioning property owner, and (2) the annexing municipality. The

voluntary annexation process begins when [t]he owner or owners of real property

in an unincorporated area of a county . . . petition the governing body of [a]

municipality that said property be annexed to the municipality.48 In turn, the

municipality can only consider enacting an annexation ordinance after a

determination by the governing body of the municipality that the petition bears the

signatures of all owners of property in the area proposed to be annexed.....49 The

Legislatures decision not to define owner or owners does not create an

ambiguity in those roles. In everyday speech, people know that an owner is [t]he

person in whom is vested the ownership, dominion, or title of property; [the]

proprietor.50

47King v. Burwell, 135 S. Ct. 2480, 2489 (2015) quotingFDA v. Brown &Williamson Tobacco Corp., 529 U.S. 120, 132 (2000). See alsoGraham County

Soil & Water Conservation Dist. v. United States, 559 U.S. 280, 290 (2010)(Courts have a duty to construe statutes, not isolated provisions.)

48Fla. Stat. 171.044(1).

49Fla. Stat. 171.044(2).

50BLACKS LAW DICTIONARY764 (6thed, abridged, 1991).

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Thus, Section 171.044(1) and (2) clearly preclude an annexing municipality

from also signing a voluntary annexation unless the municipality actually owns the

to-be-annexed property. The application of logic, combined with strict construction,

allows for no other interpretation of the statute.

In fact, the Florida Attorney Generals Office has gone even farther and

interpreted the statute to preclude even an owners legitimate, third-party agent from

signing a voluntary annexation petition on the owners behalf. [A] petition to a

municipality for voluntary annexation that does not bear the signatures of all owners

of units in a condominium would not comply with the procedural requirements of s.

171.044(2) . . . [as a] petition signed only by an authorized officer or officers of a

condominium association or appropriate proof that 100% of the condominium's unit

owners attending the association board meeting voted to authorize the petition is not

. . . a petition bearing the signatures of all owners of property in the area proposed

to be annexed.....51

An annexation of a parcel that is not initiated by the parcels owners is

involuntary. The existence of a preannexation agreement or a power-of-attorney

cannot change that fact. Thus, the Annexation Ordinances are all invalid ab initio

unless the City complied with Section 171.0413's involuntary annexation procedures.

511987 Fla. Op. Attorney Gen. 143 (1987). (App. at Tab 20, pp. 336-337)

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4. WHEN ENACTING THE ANNEXATION ORDINANCES,

THE CITY DID NOT COMPLY WITH THE

PROCEDURAL REQUIREMENTS FOR INVOLUNTARY

ANNEXATIONS, SO THE ANNEXATION ORDINANCES

MUST BE QUASHED.

In this case, the City cannot even pretend that it complied with the prerequisites

for an involuntary annexation, to wit:

The City neither obtained the advance consent of the property owners, as

required by Section 171.0413(5) and (6), nor did it hold a referendum as

required by Section 171.0413(1).

The City did not mail a written notice to each person who resides or owns

property within the area proposed to be annexed within 10 days prior to the

date set for the first public hearings on the Annexation Ordinances as required

by Section 171.0413(1).

The City did not prepare a report setting forth the plans to provide urban

services to any area to be annexed, as required by Section 171.042(1).

The City did not file a copy of the urban services report with the Board of

County Commissioners at least 15 days prior to beginning the process for the

annexations, as required by Section 171.042(2), even though the statute states

that the [f]ailure to timely file the report as required in this subsection may be

the basis for a cause of action invalidating the annexation.

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Accordingly, the Annexation Ordinances are invalid ab initio and must be

quashed.

VI. ARGUMENT #2 - THE CITYS ANNEXATIONS HAVE CREATED ORGREATLY EXACERBATED AN IMPERMISSIBLE POCKET OF

UNINCORPORATED LAND WHOLLY WITHIN THE CITYS

BORDERS

A. THE ANNEXATION ACTS COMPACTNESS REQUIREMENT

PRECLUDES ANNEXATIONS THAT RESULT IN POCKETS OR

FINGERS IN SERPENTINE PATTERN

For a parcel of real property to be eligible for municipal annexation, the

Annexation Act requires the property to be reasonably compact.52The Annexation

Act defines compactness as the concentration of a piece of property in a single

area and precludes any action which would create enclaves, pockets, or finger areas

in serpentine patterns.53 As the Fourth DCA held in City of Sunrise v. Broward

County, the compactness requirement promotes the general purpose and goals of a

municipal corporation: The legal as well as the popular idea of a municipal

corporation in this country, both by name and use, is that of oneness, community,

locality, vicinity; a collective body, not several bodies, a collective body of

52Fla. Stat. 171.044(1); Fla. Stat. 171.031(12) (Any annexation

proceeding in any county in the state shall be designed in such a manner as toensure that the area will be reasonably compact.).

53Fla. Stat. 171.031(12).

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inhabitants-that is, a body of people collected or gathered togetherin one mass, not

separated into distinct masses, and having a community of interest because residents

of the same place, not different places. So, as to territorial extent, the idea of a city

is one of unity, not of plurality; of compactness or contiguity, not separation or

segregation.54

Though the Annexation Act does not define the word pocket, the Fifth DCA

has defined the word to mean a small isolated area of land.55 The Fifth DCA, in a

later case, clarified that the smallness of a parcel is relative to, and necessarily

dependent upon, the size and configuration of the parcel and the surrounding

municipal property.56 The statutory requirement that pockets not be created by

annexations was intended to insure that no vestiges of unincorporated property be left

in a sea of incorporated property.57

54City of Sunrise v. Broward County, 473 So.2d 1387, 1388 (Fla. 4thDCA1985) (Emphasis in Original) quoting 1977 Op. Attorney Gen. Fla. 077-18,

(February 18, 1977) at 38. See also City of Center Hill v. McBryde, 952 So. 2d599, 602, n.2 (Fla. 5thDCA 2007) (quoting City of Sunrise).

55City of Sanford v. Seminole County, 538 So. 2d 113, 115 (Fla. 5thDCA

1989).

56City of Center Hill, 952 So.2d at 603.

57Idquoting Alison Yurko, A Practical Perspective About Annexation inFlorida-Making Sense of Florida Statutes Chapters 164 and 171 in 2003 andBeyond, 32 Stetson Law Rev. 517, 533 (2003).

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Figure 2

While the Annexation Act also lacks a definition for finger areas in serpentine

patterns, the Fifth DCA has interpreted the phrase to mean projections of

unincorporated land that are winding or turning one way and another.

58

B. THE CITYS ANNEXATION OF THE GRIFFINS PARCEL

CREATES OR EXACERBATES AN IMPERMISSIBLE POCKET.

Using the Fifth DCAs definition, the Citys annexation of the Griffins parcel

thus creates or greatly exacerbates a pocket. It leaves an area of unincorporated land,

consisting of approximately 95.7 acres and approximately 100 individual parcels,

within the Citys borders, as shown on Figure 2 below. 59

58

City of Sanford v. Seminole County, 538 So. 2d 113, 115 (Fla. 5th

DCA1989).


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Figure 3

On Figure 2, the crosshatched areas are within the Citys borders; the Griffins parcel

is yellow; and the pockets created by the annexation are shown in buff.

C. THE CITYS ANNEXATION OF THE DIOCESES, GRACEWORLDS, AND THE HOUSING AUTHORITYS PARCELS

CREATES OR EXACERBATES AN IMPERMISSIBLE FINGER

IN A SERPENTINE PATTERN

In Ordinance Nos. 854, 855, and 859, the City annexed the properties owned

by the Grace World Outreach Church, the Diocese of St. Petersburg, and the

Hernando County Housing Authority respectfully, as shown in Figure 3 below.60

On Figure 3, the crosshatched areas are within the Citys borders, the Griffinss parcel

is yellow, the Housing Authoritys parcel is purple, the Grace Worlds parcel is red,

and the Dioceses parcel is shown in pink.


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Figure 4

As Figure 4 shows, the Citys annexations of the Housing Authoritys, the

Grace World Outreach Churchs parcel, and the Dioceses parcel create a serpentine

finger of unincorporated finger consisting of approximately 75 acres, as shown on

Figure 4 below:61

In Figure 4, the crosshatched areas are within the Citys borders and the finger is

shown in white. At its widest point, the enclaves aperture is less than a mile wide.


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VI. ARGUMENT # 3 - THE RECORD CONTAINS NO EVIDENCE THAT

THE GRIFFINS POWER-OF-ATTORNEY WAS STILL VALID WHEN

THE CITY ENACTED ORDINANCE NO. 857

Even if a municipality could serve as the annexation agent for a property

owner, the record contains no evidence that the power-of-attorney that the Griffins

executed in favor of the City was still valid at the time the City petitioned itself for

the annexation of their parcel.

Under Florida law, an irrevocable power-of-attorney is an agency coupled

with an interest. To constitute an agency coupled with an interest, the agents

interest must be in the property itself upon which the power is to operate and not

merely an interest in the exercise of the power or that which is to be produced by the

exercise of the power.62 As the Florida Supreme Court has held, an interest, not

amounting to a property or estate . . . but still an interest in the continued existence

of the power or authority to act . . . secured by contract, based upon a consideration

moving from the agent to the principal, and not merely for the purpose of earning a

salary or commission by the exercise of the power, but because the agent has parted

with value, at the principal's request or with his assent, looking to the exercise of the

62Bowling v. National Convoy & Trucking Co., 135 So. 541, 544 (Fla. 1931);

Peacock v. American Agronomics Corp., 422 So. 2d 55, 57 (Fla. 2ndDCA 1982);Morton v. Morton, 307 So. 2d 835, 839 (Fla. 3rdDCA 1975);Robinson v. Sax, 115So. 2d 438, 440 (Fla. 3rdDCA 1959).

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power as a means of reimbursement, indemnity, or protection, creates an agency

coupled with an interest, which agency is not revocable and will in appropriate cases

be protected and enforced by courts of equity.

63

Importantly, neither the titling of

a document as irrevocable nor a statement provision by the principal that he or she

shall not revoke the agency, does not constitute an agency coupled with an interest.64

The Irrevocable Power of Attorney signed by the Griffins and appointing the

City as their attorney-in-fact does not contain any provisions reciting why the Griffins

granted the City the power to do a voluntary annexation by the City of [their]

property at such time that the City of Brooksville shall in its sole discretion petition

to annex the . . . property into the City of Brooksville. Also, the power-of-attorney

does not state the consideration given by the City, if any, that supported the power-of-

attorney. The record is also devoid of any evidence on these points.65

Other than the titling of the power-of-attorney as irrevocable, the City has

placed no evidence in the record that the City has a consideration-supported property

interest in its continued power to act as the Griffins agent. Accordingly, the record

63Bowling, 135 So. at 544.

64Peacock, 422 So. 2d at 57.

65Ordinance 857 at Exhibit A. (App. at Tab 4, p. 44)

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contains no evidence that the City still served as the Griffins attorney-in-fact at the

time of the annexation.

VII. ARGUMENT #4 - THE CITYS PATTERN OF ANNEXATION INSOUTH BROOKSVILLE DISCRIMINATED AGAINST THE

AFRICAN-AMERICAN RESIDENTS OF SOUTH BROOKSVILLE

A. THE EXISTENCE OF A PREDOMINATELY AFRICAN-

AMERICAN RESIDENTIAL COMMUNITY IN SOUTH

BROOKSVILLE IS A VESTIGE OF DE JURE RACIAL

SEGREGATION

The City, like most southern cities, has a history of legally-mandated racial

segregation. Originally, the City legislated this de jure racial discrimination by

approving plats with racially-restrictive covenants. For example, the City approved

a plat for the Bell Terrace subdivision in 1925 that included the covenant, No

land, or any interest therein, in the Bell Terrace sub-division [sic] shall by any person

or corporation be sold or resold, conveyed, leased, or rented to, or in any way be

occupied or acquired by persons not wholly of the Caucasian race, except that the

foregoing does not apply to bonafide servants employed and living with families of

the Caucasian race residing in Bell Terrace.66

66Plat of Bell Terrace, approved by the Brooksville City Council on or aboutDecember 18, 1925, subsequently recorded at Plat Book 4, Page 7. (App. at Tab19, p. 335)

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In 1948, the City enacted a zoning law that prohibited any person of the negro

race from living in the City.67

There is more than a hint of defiance in the Citys actions. The United States

Supreme Court struck down racially-discriminatory zoning laws as unconstitutional

in 1917,68 and held that the enforcement of racially restrictive covenants was

unconstitutional in 1948.69

As a result of the Citys actions, all of its African-American residents were

forced to move into South Brooksville. The area became known as the Sub[s] . . .

[which is] short for Negro Subdivisions all-black enclaves created by deed

restrictions and a city zoning law.70

The City ignored the needs of South Brooksville for decades. Flooding was

endemic, causing roadside ditches to overflow, yards to flood, and septic drain fields

67E.g., Dan DeWitt, Joseph "Joe" E. Johnston Jr., Former Legislator and

Hernando School Board Attorney, Dies at 86, TAMPA BAY TIMES, May 28, 2009(For the city, Johnston said in a 1998 interview, he wrote the 1948 zoning law

that segregated white and black residents into separate neighborhoods.). (App. atTab 13, p. 314)

68Buchanan v. Warley, 245 U.S. 60, 82 (1917).

69

Shelley v. Kraemer, 334 U.S. 1, 20 (1948).70See Dan DeWitt,Its Time to Make Good on Promises Made to South

Brooksville, TAMPA BAY TIMES, January 17, 2009; Dan DeWitt, A Good FloodControl Plan for South Brooksville Needs More Explaining, TAMPA BAY TIMES,February 7, 2014. (App. at Tab 17, pp. 327-329)

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to become inundated with storm water. Additionally, the Subs had inadequate water

lines and an insufficient number of fire hydrants.71 The NAACP sued the City in

federal court to force the City in 1973 to provide the Subs with public

improvements.72 The City, though it subsequently received a federal grant, did not

provide any improvements. In 1981, the City received a $2.3 million federal grant

to build infrastructure in the Subs, but this money was divvied up between white

contractors who made few lasting improvements. [A] Brooksville City Council

member . . . literally laughed in the faces of black residents in 1987 when they asked

where all the money had gone.73

While the City has long-since repealed this de jure segregation, South

Brooksvilles population remains predominately African-American.

71Dan DeWitt,Progress Making Inroads in South Brooksville, TAMPA BAYTIMES, March 23, 2010. (App. at Tab 15, pp. 318-319)

72

NAACP of Brooksville v. City of Brooksville, Middle District of FloridaCase Number 77-cv-1064. (App. at Tab 16, pp. 320-326)

73Dan DeWitt,Progress Making Inroads in South Brooksville, TAMPA BAYTIMES, March 23, 2010. (App. at Tab 15, pp. 318-319) See also Dan DeWitt,Past

Pain Still Present, TAMPA BAY TIMES, July 5, 2005. (App. at Tab 18, pp. 337-341)

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B. THE EQUAL PROTECTION CLAUSE PROHIBITS

GOVERNMENT ACTIONS THAT INTENTIONALLY

DISCRIMINATE ON THE BASIS OF RACE

The Fourteenth Amendments Equal Protection Clause provides that [n]o

State shall . . . deny to any person within its jurisdiction the equal protection of the

laws.74 The central purpose of the Equal Protection Clause of the Fourteenth

Amendment is to prohibit states from discriminating against individuals on the basis

of race.75

A plaintiff must demonstrate that a challenged action was motivated by an

intent to discriminate in order to establish an equal protection clause violation.76 In

the context of municipal annexations, a municipalitys discriminatory purpose may

be established by proof that the [municipality] used race as a substantial or motivating

factor in its annexation decisions and practices.77

Thus, this Court must determine whether the Citys pattern of encircling, but

not annexing, an African-American neighborhood is the result of intentional racial

74U.S. Const. amend. XIV, 1.

75Burton v. City of Belle Glade, 178 F.3d 1175, 1190 (11thCir. 1999).

76See, e.g., Village of Arlington Heights v. Metropolitan Housing Dev.

Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 429 U.S. 229, 23948(1976).

77Burton, 178 F.3d at 1189.

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discrimination, as an otherwise neutral state action does not violate the Equal

Protection Clause just because it has a disproportionate impact on a racial minority.

Instead, courts must adhere to the basic equal protection principle that the invidious

quality of a law claimed to be racially discriminatory must ultimately be traced to a

racially discriminatory purpose.78

A court looks at four factors when determining whether a discriminatory intent

exists: (1) the nature and magnitude of the disparity created by the challenged action;

(2) foreseeability of the consequences of the defendants actions; (3) legislative and

administrative history of the decision-making process; and (4) knowledge, in that a

defendant's actions would be known to have caused the disparity or discriminatory

impact which resulted from their conduct.79

In consideration of these four factors, several other concepts rooted in civil

rights jurisprudence interplay. First, a claimant need not prove that a racial purpose

was the sole, dominant, or even the primary purpose for a challenged action, but only

that it has been a motivating factor in the decision.80 Discriminatory intent is

78Washington v. Davis, 426 U.S. 229, 240 (1976);Burton, 178 F.3d at 1189;

Dowdell v. City of Apopka, 698 F.2d 1181, 1185-86 (11thCir. 1983).

79Arlington Heights, 429 U.S. at 26569;Ammons v. Dade City, 783 F.2d982, 98788 (11thCir. 1986);Dowdell, 698 F.2d at 1186-89.

80Arlington Heights, 429 U.S. at 265-66.

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simply not amenable to calibration. It either is a factor that has influenced a

legislative choice or it is not.81Second, proof of subjective personal bias, motive or

ill-will are irrelevant to the inquiry of whether intentional discrimination exists.

82

Third, proof of intentional discrimination can be, indeed as it often is, developed

through circumstantial rather than direct evidence.83

C. THE SOUTH BROOKSVILLEANNEXATION ORDINANCES

ARE VOID AS THEY CONSTITUTE A CONTINUATION OF

THE CITYS PRIOR DE JURE RACIAL SEGREGATION

POLICIES

In this case, each of the four factors supports a finding that the four annexation

ordinances were enacted with a discriminatory intent.

Disparate Impact: In proving discriminatory intent, a good starting point is

whether the challenged act bears more heavily on one race than another.84 While an

official act is not necessarily unconstitutional solely because it has a racially

disproportionate impact, the Supreme Court has nevertheless recognized that

81Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 277 (1979).

82Dowdell, 698 F.2d at 1185 citingPalmer v. Thompson, 403 U.S. 217, 224(1971).

83

E.g., Washington, 426 U.S. at 241 (This is not to say that the necessarydiscriminatory racial purpose must be express or appear on the face of the statute

...);Arlington Heights, 429 U.S. at 266.

84Arlington Heights, 429 U.S. at 266; City of Mobile v. Bolden, 446 U.S. 55,70 (1980).

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discriminatory impact may for all practical purposes demonstrate unconstitutionality

because in various circumstances the discrimination is very difficult to explain on

nonracial grounds.

85

In this case, the disparate impact of the Citys pattern of

annexations, standing alone, gives rise to an inference of discriminatory intent. The

pattern is explicable only on racial grounds. The African-American community has

essentially been relegated to living in a neighborhood that is surrounded on all sides

by the City. Generations of decisions by the City have resulted in that stark

disparity.86

Foreseeable Discriminatory Consequences: The Supreme Court has recognized

that discriminatory purpose can be shown by proof that the discriminatory impact is

the reasonably foreseeable consequence of the challenged action. Thus, actions

having foreseeable and anticipated disparate impact are relevant evidence to prove

the ultimate fact, forbidden purpose, and adherence to a challenged action with full

knowledge of the predictable effects is one factor, among others, which may be

85Washington v. Davis, 426 U.S. at 242. See alsoArlington Heights, 429U.S. at 266 (Sometimes a clear pattern, unexplainable on grounds other than race,

emerges from the effect of the state action even when the governing legislationappears neutral on its face.).

86See Castaneda v. Partida, 430 U.S. 482, 495, n. 13 (1977) (Disparity ...sufficiently large over a period of time makes it unlikely that it [was] due solelyto chance or accident.).

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considered in determining purpose.87 Once again, the Citys exclusion of South

Brooksville from the Citys territory led to the foreseeable outcome of an

unincorporated and isolated African-American residential community.

88

Prior Discrimination: While not dispositive (as it is in school desegregation

cases), the most logical way to analyze the cause of a racial disparity is to look at

whether there is evidence that a current practice is traceable to prior de jure

discrimination.89This analytical approach is no more than recognition of the plain

facts that present events have roots in the past, and that past conduct is significant

because it illuminates or explains the present and predicts the shape of things to

come.90 Furthermore, in evaluating specific events for evidence of intentional

discrimination, [t]he historical background of the decision is one [relevant]

evidentiary source, particularly if it reveals a series of official actions taken for

87Columbus Board of Ed. v. Penick, 443 U.S. 449, 464-65 (1979). See alsoUnited States v. Texas Ed. Agency, 564 F.2d 162, 168 (5thCir. 1977), cert. den.,443 U.S. 915 (1979).

88SeeAmmons, 783 F.2d at 988.

89Burton, 178 F.3d at 1190;Dowdell, 698 F.2d at 1186;Ammons, 783 F.2d

at 988 (11th Cir. 1986);Brown v. Board of School Commissioners of MobileCounty., Ala., 706 F.2d 1103, 1107 (11thCir.) aff'd 464 U.S. 1005 (1983).

90United States v. Oregon State Med. Soc., 343 U.S. 326, 332-33 (1952).

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invidious purposes.91Between the Citys racially-restrictive plats and the 1948 de

jure segregation ordinance, the Citys history of racial discrimination is clear and

persuasive in this case. The past discriminatory actions of the City illuminate and

explain the evolution of the Citys borders and a separate, segregated African-

American residential community.

Knowledge of Discriminatory Effects: The factor of knowledge, while

perhaps difficult to disentangle from the two prior factors, supports a finding of

intentional discrimination. Anyone could foresee that the donut hole would be the

result of the Citys annexation policies.

Although none of these four factors are necessarily independently conclusive,

the totality of the relevant facts supports a finding that the Annexation Ordinances

represent the continuation of a course of conduct which inescapably evidences

discriminatory intent and which is the cause for continued exclusion of South

Brooksville from the Citys territory.

91Arlington Heights, 429 U.S. at 267. See alsoAmmons, 783 F.2d at 988([I]n tracing the history and development of Dade City, particularly with respect

to race relations, for its connection to present discrimination in the provisions ofthe contested municipal services, the district court correctly relied upon a large

body of constitutional jurisprudence which recognizes that the historical context ofa challenged activity may constitute relevant evidence of intentionaldiscrimination.);Dowdell, 698 F.2d at 1186.

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VIII. PRAYER FOR RELIEF

THEREFORE, it is respectfully requested that this Court enter a Writ of

Certiorari quashing the Annexation Ordinances, granting an award of attorneys fees

and costs pursuant to Fla. Stat. 171.081(2), and granting such further or

supplemental relief that this Court deems just and proper.

(The Remainder of this Page Has Been Intentionally Left Blank)

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing, and the

Appendix thereto, has been filed with the Courts ePortal system, which will provide

an email copy of the same to all counsel of record on February 12, 2016, and that a

true and correct copy of the foregoing shall be formally served upon the City of

Brooksville should this Court enter an Order to Show Cause.

/s/ Jon A. JoubenJon A. Jouben, Esq. (FBN: 149561)

[email protected] Coller, Esq. (FBN: 374849)[email protected]

Randall B. Griffiths, Esq. (FBN 768091)[email protected]. E-Mails: [email protected]

[email protected] N. Main Street, Suite 462Brooksville, FL 34601

352-754-4122 / 352-754-4001 Fax

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief complies with the font requirements of

Fla. R. App. P. 9.100.

/s/ Jon A. Jouben

cc: The Honorable Donald E. ScaglioneVia Hand Delivery and Via E-Mail to [email protected]

Documents

Brooksville vs Hernando County Feb 2016