Case No: GCG99-2997

GERALD BURNS,

Petitioner,

vs.

CITY OF WINTER HAVEN,

Respondent.

___________________________

This matter is before the court on a petition for writ of certiorari. Petitioner, Gerald Burns, seeks review of a municipal ordinance by which Respondent, City of Winter Haven, annexed certain parcels of real property. This court has jurisdiction. § 171.081, Fla.Stat. (1999).

Certiorari is granted; municipal ordinance O-99-53 is quashed.

A. Must a public official abstain from voting on an annexation ordinance which, if passed, could result in a waiver of impact fees for certain real property contained in a trust benefitting the public official’s father and of which the public official is trustee?

B. Did the city council fail to comply with the procedures for annexation as established in Chapter 171, Florida Statutes, (1999)?

Scott Girouard is mayor of the City of Winter Haven, Florida and a member of the City Commission. Mayor Scott Girouard is trustee of the Raymond P. Girouard Trust, of which his father, Raymond P. Girouard, is beneficiary. On February 18, 1999, Mayor Girouard executed an Inducement Agreement with the City of Winter Haven. The Inducement Agreement acknowledges that parcel number 25 28 26 000000 034080 is the res of the Raymond P. Girouard Trust. The agreement also states that the City shall be bound by the agreement if the owner annexes his property to the city within 120 days of the agreement. Also on February 18, 1999, Mayor Girouard executed a consent to annexation on behalf of the trust.

In May 1999, municipal ordinance O-99-25 came up for vote. The ordinance was a measure intended to annex certain parcels of land to the City including Petitioner’s land, and parcel number 25 28 26 000000 034080, the trust res. Mayor Girouard abstained from the May 10 and May 24 votes on O-99-25; the measure did not pass. Mayor Girouard acknowledged a voting conflict concerning the annexation of parcel number 25 28 26 000000 034080 in two documents entitled Form 8B Memorandum of Voting Conflict for County, Municipal, and Other Local Public Officers, and dated May 10 and May 24, 1999. The memoranda cite language from section 112.3143, Florida Statutes, regarding voting conflicts and the requirement to abstain from voting on any measure which would inure to the special private gain or loss of a public official, or his relative.

On June 18, 1999, the 120^th day of the Inducement Agreement, Mayor Girouard executed a second consent to annexation for parcel number 25 28 26 000000 034080. Under the terms of the Consent to Annexation, consent was irrevokable for a period of 120 days after the date of execution. On August 23, 1999, a second municipal ordinance, O-99-53 came up for vote. Minutes from the August 23, 1999 meeting show that the Commission conducted a public hearing and took comments from the public just prior to voting. Like O-99-25, O-99-53 provided for annexation of certain parcels of land including Petitioner’s land, and parcel number 25 28 26 000000 034080, the trust res.

During the hearing, the Commission approved a report of the City Engineering Department and the City Planning Department which certified that the character of the land proposed for annexation met the requirements of section 171.043. Stuart Artman, a city engineer, noted specifically that the proposed land met the requirements of sections 171.043(1) and (3)(a). At the close of the meeting, Mayor Girouard voted along with other members of the Commission in favor of annexation. Petitioner seeks review pursuant to sections 171.081, and 112.3143, Florida Statutes.

Section 171.081 grants Petitioner standing to seek review of the annexation ordinance by writ of certiorari. When reviewing a municipal annexation ordinance, the court must determine whether a city commission departed from the essential requirements of the law, whether the petitioner was denied due process, and whether the decision is supported by competent substantial evidence. Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).

Section 112.3143 (3)(a) states:

No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

On February 18, 1999, Mayor Girouard executed the Inducement Agreement, and a Certification of Ownership and Consent to Annexation for parcel number 25 28 26 000000 034080. Under the terms of the Inducement Agreement, the City agreed to waive impact fees if "the owner annexes its property to the city within 120 days" of the agreement. (app. 23). On May 10 and 24, 1999, Mayor Girouard acknowledged in writing a voting conflict regarding the annexation of parcel number 25 28 26 000000 034080. He also publically acknowledged his conflict and abstained from both votes taken on ordinance O-99-25.

On June 18, 1999, the 120th day of the Inducement Agreement, Mayor Girouard executed a second Consent to Annexation for parcel number 25 28 26 000000 034080. The document states in pertinent part:

I/We hereby consent to the annexation of the above-referenced property . . . to the city of Winter Haven, as part of the annexation of a larger area of land as specifically outlined in the attached map.

I/We understand that in reliance upon this consent to annexation that the City shall expend considerable time and resources toward effectuating the annexation. Further, as consideration for this consent to annexation the City has offered an Inducement and Development Agreement which would not have been made available to me/us had I/we not consented to annexation. Therefore, this consent to annexation is irrevocable for a period of 120 days from the date of its execution. I/WE UNDERSTAND THAT I/WE WILL NOT BE ABLE TO REVOKE, RESCIND OR WITHDRAW THIS CONSENT TO ANNEXATION FOR A PERIOD OF ONE HUNDRED TWENTY (120) DAYS FROM THE SIGNING OF HEREOF.

The document is signed, Scott Girouard, Trustee. When ordinance O-99-53 came before the Commission on August 23, 1999, Mayor Girouard voted in contravention to section 112.3143. The measure passed. Having executed a second Consent to Annexation on the 120^th day of the Inducement Agreement, Mayor Girouard could arguably assert his right to waiver of impact fees according to the terms of the Inducement Agreement.

In his second issue, Petitioner argues that the character of the land does not meet the requirements for annexation as stated in section 171.043. Petitioner included in his appendix the Annexation Services Report which certifies that the land meets the statutory requirements of section 171.043. The minutes of the August 23, 1999 meeting reflect that the Commission approved and relied upon the report, and public comments in reaching its decision that the character of the land met the requirements of 171.043. Such conclusion is based upon competent substantial evidence and will not be disturbed.

Accordingly, it is ORDERED that the petition for writ of certiorari is GRANTED. It is further ORDERED that the decision of the Winter Haven City Commission adopting municipal ordinance O-99-53 is QUASHED.

ORDERED February  2000.

Charles B. Curry

Chief Judge