Dmb Investment Trust v. Islamorada, Village of Islands
225 So. 3d 312
| Fla. Dist. Ct. App. | 2017Background
- Petitioners (DMB and SKB Investment Trusts) installed a rope-and-buoy swim system waterward of their mean high-water line at 139 Gimpy Gulch Drive, Islamorada. They obtained federal and state approvals (Army Corps of Engineers and Florida DEP).
- Village Code Compliance Officer received a complaint; Village asserted no local permit had been issued and ordered removal of the buoy system.
- Village issued Notices of Warning and Violation citing Islamorada Code §§ 30-681(b)(2) and 30-1543(a),(c); Petitioners did not remove the buoys and a hearing officer ordered removal within 60 days.
- On appeal the circuit court affirmed the violation under § 30-681(b)(2) (local permitting/use requirement) but reversed the hearing officer as to §§ 30-1543(a),(c) because Petitioners had obtained federal and state approvals.
- Petitioners sought second-tier certiorari in the district court, arguing the circuit court erred by failing to apply the rule that a specific statute controls over a general one (i.e., § 30-1543(c) specific to waterward development should control § 30-681(b)(2)). Procedural due process was not contested.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the circuit court erred by applying the general local-use provision § 30-681(b)(2) to require a Village permit despite § 30-1543(c) addressing waterward development | § 30-1543(c) is the specific provision for waterward development and requires only Army Corps and DEP approval; it excludes other permitting requirements, so it should control | The provisions are harmonious: § 30-1543(c) mandates state/federal approvals for waterward development while § 30-681(b)(2) governs local permitting for uses not expressly listed; both can apply | Court held the sections do not conflict; both should be read in harmony and the circuit court correctly applied the Code; certiorari denied |
| Whether failure to find compliance with § 30-1543(a),(c) required reversal of Village enforcement under § 30-681(b)(2) | Because Petitioners obtained Army Corps and DEP approvals, they complied with § 30-1543(c) and should not be subject to local removal order | Village may still enforce local permitting/use rules under § 30-681(b)(2) even when state/federal approvals exist | Circuit court correctly reversed the hearing officer as to §§ 30-1543(a),(c) but affirmed the violation under § 30-681(b)(2); district court denied certiorari |
| Whether the Notice of Violation was defective for not instructing Petitioners to apply for Village permits (preservation) | Notice was defective because it ordered removal rather than requesting permit application | Village and court noted the issue was not raised in the circuit court appeal | Court declined to consider defect argument because it was not preserved in the circuit court appeal |
Key Cases Cited
- Nader v. Fla. Dep’t of Highway Safety and Motor Vehicles, 87 So. 3d 712 (Fla. 2012) (second-tier certiorari limits and review standards)
- Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010) (certiorari relief reserved for extreme errors that cause miscarriage of justice)
- Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452 (Fla. 1992) (plain and unambiguous statutory language controls construction)
- McKendry v. State, 641 So. 2d 45 (Fla. 1994) (specific statute controls general when provisions conflict)
- Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995) (second-tier certiorari limited to procedural due process and correct application of law)