Posted by: Patricia Salkin | September 5, 2018

FL Appeals Court Rules that Date of Mailing, Not Filing, Commenced 30 Day Appeals Period for Rezoning Ordinance

This post was authored by Amy Lavine, Esq.

The Florida Court of Appeal addressed the timeliness of a rezoning appeal in a case decided in August. The petitioner, Kevin Pettway, had opposed a rezoning action sought by a new restaurant, but the application was eventually approved by the city council after a lengthy review process. Pettway then appealed, but the restaurant claimed that his appeal was untimely. Resolution of this issue required the court to determine when exactly the 30 day appeals period commenced, and it ultimately ruled in Pettway’s favor and found that it was the date of mailing rather than the date of filing that started the appeals clock.

The rezoning ordinance in this case was filed and made available to the public on June 14, 2016. Because Pettway had requested a formal quasi-judicial hearing on the rezoning application, however, the city’s rules required that a “final order” had to be executed and sent to the “applicant and affected parties” by certified mail, and this mailing was only completed on June 20, 2016. Pettway then filed a petition for review on July 20, 2016, which was within the 30 day appeals period as long as it commenced on the date of mailing. He argued that this was consistent with the city’s “rendition rule,” which provided that the “date of rendition of the order shall be the date of mailing.” The owner of the restaurant property, on the other hand, contended that Pettway’s appeal was untimely, and the trial court ageed, finding that rendition actually occurred when the ordinance was “filed”and posted on the city’s website.

The Florida Court of Appeal disagreed with the trial court and held in Pettway’s favor, finding that the city’s “rendition rule” had to be given effect in quasi-judicial proceedings where notice was required for affected parties. As the court explained, “it makes little sense for an earlier date of rendition… because the applicant and affected parties aren’t given actual notice at that time. Starting the thirty-day clock at that point would be premature; affected property owners could easily lose their right to contest final orders about which they are not notified via the certified mail process.” The court also determined that the city’s “rendition rule” could be harmonized with the state’s rules of appellate practice, noting that “the City’s rule is simply another way of saying that the date of certified mailing serves the purpose of a “filing” date and thereby sets finality and rendition on that date…. The purpose of the word “rendition” in City Rule 6.310 is the same as the word “filed” in the appellate rules: each serves to define the final step that produces finality of the order (here, an ordinance).”

Pettway v. City of Jacsksonville,  2018 WL 3799624 (FL App 8/10/2018)

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