Filing # 189219062 E-Filed 01/05/2024 05:06:50 PM

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA
APPELLATE DIVISION
__________________________________

CASE NO.
__________________________________

RICHARD AUGUSTYN, MADGE K. SHAFMASTER,

KENNETH GLUECK, and JOSEPH BERARDO,

Petitioners,

v.

CITY OF PALM BEACH GARDENS,

a Florida municipal corporation,

Respondent.
__________________________________
On Certiorari Review from Annexation Ordinance 20-2023
City of Palm Beach Gardens, Florida
__________________________________________________________________
PETITION FOR WRIT OF CERTIORARI
__________________________________________________________________

NICHOLAS M. GIESELER | FBN. 0043979

CYNTHIA G. ANGELOS| FBN. 539058
STEVEN GIESELER | FBN. 0880981
BARTLETT, LOEB, HINDS, THOMPSON
& ANGELOS
819 S. Federal Hwy, Suite 300
Stuart, Florida 34994
Telephone: (772) 252-3000
NicholasG@BLHTLaw.com
 INTRODUCTION &
SUMMARY OF ARGUMENT

Petitioners are owners of property in Hidden Key, a small 60-

year-old community, utilizing a North Palm Beach postal address,

located east of the Intracoastal Waterway in unincorporated Palm

Beach County. There are 70 homes located in Hidden Key. None of

the 70 owners wishes their neighborhood to lose its identity and be

annexed into the City of Palm Beach Gardens. This is not hyperbole;

opposition to annexation into Palm Beach Gardens is literally

unanimous.

Among other reasons, the residents of Hidden Key believe

annexation into Palm Beach Gardens will significantly increase their

tax burdens, while, at the same time, decreasing the level of

municipal services from which they currently benefit. Even more

generally, Hidden Key has nothing in common with Palm Beach

Gardens. It is located across US 1 from any other residential area

within the City’s boundaries. Its roads and entrance are owned and

maintained by the Northern Palm Beach County Improvement

1
District, its water is provided by the Seacoast Utility Authority, and

its homes are all served by septic tanks.

The City knows this. It wants to annex Hidden Key anyway,

because many of the homes in Hidden Key are of considerable worth

and the City wants to tax their value. What is more, Hidden Key offers

Palm Beach Gardens a “contiguity bridge” to the far more affluent,

unincorporated communities bordering the Atlantic Ocean to Hidden

Key’s east, north, and south. These areas are not contiguous to Palm

Beach Gardens without Hidden Key. So, the residents of historic

Hidden Key, many living on fixed incomes, have found themselves a

pawn in the chess game of the City’s planned future annexations.

In 2023, Palm Beach Gardens began the formal process of

annexing Hidden Key. Palm Beach Gardens, however, had to confront

the fact that nobody in Hidden Key wants to be a part of its

jurisdiction. The City fashioned a solution to this problem that makes

a mockery of the strict statutory procedures that govern annexations

in Florida, see Fla. Stat. §171.011 et seq. The result is depicted

graphically, for the Court’s reference, below.

2
 As this map illustrates, the City has proposed annexing

properties in five separate “zones.” Four of the five zones are small,

distinct areas or communities smaller than Hidden Key itself. But

Zone 1, which includes Hidden Key, is a gerrymandered monstrosity

32 times the size of any of the other “zones,” and in fact, 12 times

larger than the other four zones combined. According to the City’s

3
own feasibility study, A.17,1 Zone 1 is comprised of over 70 distinct

“areas” akin to Hidden Key, which include wildly disparate residential

neighborhoods, commercial zones, schools, and churches. Zone 1

encompasses at least 8 different zoning designations (ranging from

general commercial and light industrial to single-family residential)

and 5 separate land use categories. A.19.

Zone 1 would consist of approximately 8000 residents—more

than 10 percent of the current population of the entire City of Palm

Beach Gardens, and a population greater than the median

population of all Florida municipalities. Despite making up less than

3 percent of Zone 1 residents, the City’s own projections estimate

that Hidden Key will bear the burden of 25 percent of the “anticipated

net benefit” to the City’s finances—that is, they will pay 25% of the

taxes.

Under Florida law, once an annexation ordinance is passed, the

proposed annexation is submitted to a referendum of the voters

located within the ordinance’s annexation zone. Fla. Stat. §171.0413.

1Citations in this format (“A.#”) refer to the Appendix filed and served
by Petitioners pursuant to Florida Rule of Appellate Procedure 9.220.
4
With this statutory background, the City’s scheme is clear. It seeks

to swamp the unanimous “no” votes among Hidden Key’s residents

with “yes” votes from the remainder of the gerrymandered Zone 1.

This is perverse, and it is illegal. To preclude just this type of

machination, the Florida Statutes limit municipal annexations to

“single areas” which are “compact” in nature, and which have

boundaries “contiguous” with the municipality’s existing boundary

lines. Fla. Stat. §171.031; Fla. Stat. §171.0413.

Zone 1 meets none of these criteria. And more to the point, the

City provided no evidence, whatsoever, at the quasi-judicial hearing

on the Ordinance, to try and justify the design of Zone 1 and how it

complies with the statutory requirement of compactness and

contiguity. Incredibly, when asked by a Councilmember whether

Zone 1 met the statutory definition of “compactness,” the City

Attorney responded that “I’m not going to debate the people from the

public” on the question. A. 106.

In line with this approach, the City refused to allow Petitioners,

other Hidden Key residents, or their counsel to participate in the

quasi-judicial hearing for purposes of asking questions or cross-

5
examining the City’s lone witness. Instead, it limited their

participation to individual three-minute public comments. Even so

(improperly) limited, Petitioners submitted considerable evidence

demonstrating that the Ordinance does not comply with the Florida

Statutes.

As the Florida Supreme Court has held, a Petitioner challenging

a local government’s quasi-judicial decision is entitled to certiorari

relief unless the local government (a) comported with the essential

requirements of the law; (b) supported its decision with competent,

substantial evidence; and (c) afforded Petitioners procedural due

process. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla.

1982).

The City has failed every one of these standards. By violating

the plain language of Chapter 171, the City’s enactment of the

annexation Ordinance departs from the essential requirements of the

law. The Ordinance’s alleged compliance with the law was not

supported by any evidence, let alone competent substantial evidence,

the entirety of which was submitted in opposition to the Ordinance’s

legality. Nor did the City afford Petitioners basic due process in
6
enacting the Ordinance. For these reasons, demonstrated in further

detail below, this Court should grant this Petition, issue a writ of

certiorari, and quash Ordinance 20-2023.

BASIS FOR INVOKING JURISDICTION

This Court has jurisdiction pursuant to Florida Statutes Section

171.081(1), which provides, in relevant part:

Any party affected who believes that he or she will suffer

material injury by reason of the failure of the municipal
governing body to comply with the procedures set forth in
this chapter for annexation or contraction or to meet the
requirements established for annexation or contraction as
they apply to his or her property may file a petition in the
circuit court for the county in which the municipality or
municipalities are located seeking review by certiorari. The
action may be initiated at the party’s option within 30 days
following the passage of the annexation or contraction
ordinance[.]

The City passed the annexation ordinance in question

(Ordinance 20-2023) at its December 6, 2023 meeting, rendering this

Petition timely filed under the statute. It is well-established, in

accordance with the plain language of Section 171.081, that the

trigger for the filing of the petition is the passage of the annexation

ordinance, and not a subsequent, successful referendum on the

annexation question. City of Palm Beach Gardens v. Oxenvad, 259

7
So. 3d 129, 130-31 (Fla. 4th DCA 2018). As such, Petitioners need

not—and, indeed, must not, id. at 130—wait for the March 2024

annexation referendum to pass to challenge the City’s Ordinance.

As Petitioners are owners of property proposed for annexation

by Ordinance 20-2023, they are “parties affected” within the

definition set forth in Florida Statutes Section 171.031(9). Petitioners

therefore have standing to bring this challenge under Section

171.081(1). In the annexation context, Florida’s appellate courts have

held the statute’s “material injury” prong is satisfied where a “party

affected” believes, as the Petitioners do here, that an annexation not

complying with Chapter 171’s requirements will change his or her

property’s tax treatment. See City of Sunrise v. Broward County, 473

So. 2d 1387, 1389 (Fla. 4th DCA 1985).2

NATURE OF RELIEF SOUGHT

2 Notwithstanding the statute’s jurisdictional mandate, this Court

would have jurisdiction pursuant to Fla. R. App. P. 9.030(c); see also
Fla. R. App. P. 9.100(c)(2) (governing petitions for certiorari review of
“quasi-judicial action of agencies, boards, and commissions of local
government”).
8
 Petitioners seek a writ of certiorari quashing Ordinance 20-

2023 as it violates Chapter 171 of the Florida Statutes. Fla. Stat.

§171.081(1). Moreover, this Court should exercise its inherent

equitable powers to enjoin the City from taking any further action in

reliance on the putative validity of Ordinance 20-2023, such as

holding the scheduled referendum on the proposed annexation.

Finally, upon granting of the substantive relief sought, Petitioners

would be entitled to an award of their reasonable attorneys’ fees and

costs incurred in obtaining that relief, under Florida Statutes Section

171.081(1).

STATEMENT OF THE FACTS AND CASE

In the interest of brevity, Petitioners will not re-state those facts

already set forth in their Introduction, except where necessary for

context or completeness.

Involuntary Annexation Procedure

Under Florida Statutes Chapter 171, after proposing an

annexation area, a municipality must conduct a feasibility study,

hold two public hearings, and certify statutory compliance. Once an

annexation ordinance is passed, the proposed annexation is

9
submitted to a referendum of the voters located within the

ordinance’s annexation zone and must be passed by a majority. Fla.

Stat. §171.0413. Finally, Florida law provides for judicial review of

annexation proceedings. Fla. Stat. §171.081.

The City Plans in Secret to Annex Hidden Key

Though the City Council admitted it had been considering

annexation of Hidden Key for decades, A.107, the City’s move to

formally annex the community happened suddenly and out of the

public’s view. Despite the first hearing on the Ordinance being held

on November 2, 2023, A.##, Hidden Key’s residents did not become

aware of the City’s plans until media reports in September and early

October. A.303.

Upon realizing the City was going to annex Hidden Key,

Petitioners and other Hidden Key residents began organizing. They

wrote letters to the Mayor and members of the City Council; the

letters were ignored, with not so much as an acknowledgment of

receipt. Petitioners hired counsel, who submitted a public records

request to the City for information—which it has yet to produce—

related to the proposed annexation. A.40. Petitioners’ counsel also

10
requested, verbally and in writing to the City Attorney, that

Petitioners be permitted to formally participate in the quasi-judicial

hearing on November 2. This request was denied, with participation

limited to public comment. A.42.

The City Holds its First Quasi-Judicial Hearing

The City held its first hearing on the annexation on November

2. The hearing was expressly quasi-judicial in nature. A.44. At the

hearing, the City Council considered Ordinance 20-2023—the

annexation of Zone 1, including Hidden Key—as well as four other

ordinances seeking annexation of Zones 2 through 5. A.44. The

annexation ordinances were combined into a single presentation.

A.49. Though the Mayor, in line with the hearing’s quasi-judicial

nature, declared that the hearing would feature “testimony and

discussion,” opponents of the annexations, including Petitioners,

were not permitted to present their own formal testimony, nor to

cross-examine the City’s witness testifying in support of the

annexation. A.72.

The City’s planning manager, Martin Fitts, was the lone witness

offered by the City. Mr. Fitts presented the City’s case for annexation.
11
He noted that the annexation of Zone 1, like the other annexations,

was “City initiated.” A.49. He further acknowledged that the

annexation was governed by Chapter 171 of the Florida Statutes, and

that “[e]ach area proposed to be annexed must be contiguous,

compact, and not located within another municipality.” A.49. Mr.

Fitts read the statutory definitions of “contiguous” and “compact” but

did not otherwise elaborate. A.49-50.

Instead, Mr. Fitts stated—with no examination or supporting

evidence whatsoever—that Zone 1 “meets the statutory requirements

for annexation by being contiguous and compact.” A.##. He did so

immediately after acknowledging that Zone 1 “composes [sic] just

under 1,200 acres, 3,600 dwelling units, and approximately 7,600

residents,” A.54, and is comprised of several disparate zoning

districts and land use categories. By contrast, Mr. Fitts testified that

the other annexation zones had the following characteristics:

Zone 2: 20.27 acres, 74 dwelling units, 157 residents.

Zone 3: 31.25 acres, 63 dwelling units, 134 residents.

Zone 4: 32.92 acres, 71 dwelling units, 151 residents.

Zone 5: 38.71 acres, 113 dwelling units, 240 residents.

12
A.59-63.

Mr. Fitts quickly mentioned that the City had commissioned an

annexation feasibility study, as required by Chapter 171. A.65. He

did not point to any portion of the study that defended compactness

or contiguity, and was not asked any questions. A.67. The Mayor

immediately began the meeting’s public comment period, assigning

three minutes of time to attendees who had filled out a comment

card. A.67. The very first comment was by a resident of the Pleasant

Ridge community, which, like Hidden Key, is grouped into Zone 1

and opposed to being annexed. A.68. The commenter noted that he

had been provided a City brochure advertising: “Annexation isn’t

something that’s done to you. Annexation is [something] done by

you,” A.69, and spoke on his view that the City’s process was not in

line with that promise.

The next commenter was Petitioners’ counsel. Counsel noted for

the record that “we were advised by the City Attorney that we would

not be granted intervener status into tonight’s hearing,” and instead

wished to present a written statement on behalf of Petitioners and

other Hidden Key residents. A.72. In so doing, counsel formally

13
requested that the City Council reconsider the City Attorney’s denial

of Petitioners’ participation in the hearing. A.72.

Counsel used his three minutes to explain Petitioners’ view of

the annexation’s lack of congruence with the Florida Statutes’

requirements. A.73-74. Counsel noted that the feasibility study

referenced by Mr. Fitts—while stating, without any elaboration or

examination, that Zone 1 is a “single area” meeting the statutory

definition of “compact”—concedes that Zone 1 actually is comprised

of several dozen “areas” like Hidden Key which are the same size, or

even larger, than the other annexation zones. A.74.3 Counsel further

read into the record the other ways in which Zone 1 contravened the

statute, including its composition of dramatically disparate zoning

3 A (partial) list—again, per the City’s own feasibility study: Cabana

Colony, Bay Village Harbour, Cabana Colony Commercial, Captain’s
Key, Casa De Marbella, Frenchman’s Cove, Frenchmen’s Landing,
Gardens Way Condos, Guarino Trailer Park, Guarino Subdivision,
Hampton Cove Condos, Hidden Key, Holly Lane Park, Hope Acres,
Intracoastal Park, Juno Cove, Maheu Estates, Maheu Subdivision
Section A, Maheu Subdivision Section B, Maheu Subsection C,
Mariner’s Cove, Monet Acres, Monet Gardens, Monet Heights, Palm
Harbor, Pirates Cove, Pleasant Ridge, Prosperity Bay Village, Schaffer
Subdivision, Schell unrecorded subdivision, Seven Oaks, Smith
Subdivision, Snook Hole, Snug Harbor, PointeNorth Palm Beach,
Windsor Estates, Windsor Walk Condos, Wood Hill Estates.
14
districts and land uses. A.74-75. Other than the Mayor saying

“Thank you, sir,” nobody on behalf of the City addressed these facts.

A.75.

Petitioners and other Hidden Key residents also offered their

sworn comments, and asked the City to accept written declarations

of their opposition to Ordinance 20-2023. The basis for this

opposition included increased tax bills, loss of community and

identity, a reduction in municipal services (as compared with the

current baseline), and objections to Zone 1’s compliance with the

statutory requirements of “compactness” and similar requirements

for contiguity. A.75-101.

After the Mayor closed the comments, she adjourned the public

hearing. A.101. Immediately, the Vice Mayor offered a motion to

adopt Ordinance 20-2023 “based upon the evidence and the

testimony presented,” declaring that as a matter of fact and of law,

“the character of the area to be annexed fully complies with

requirements set forth at Section 171.043 [sic], Florida Statute.”

A.102. The motion was seconded, and the Vice Mayor offered his view

that Palm Beach Gardens was a great city that people should be
15
happy to join. A.103. He also stated that those objecting to the

annexation did not need attorneys, since “we’re going to accept what

the voter wants and that’s how it goes. If you guys want to be in the

City, great. If you don’t want to be in the City, that’s fine, too.” A.104.

At this point, another Councilmember stated: “I do have a

couple of questions about – and I don’t know who can answer them

in the City about compact areas. Definition of compact areas.” A.105-

106. The City Attorney replied as follows:

“We’ve already gone over that definition of compact area in

the presentation and I’m not going to debate the people
from the public that have offered testimony otherwise.”

A.106. Yet another member of the Council opined that the

referendum ballot box would be the place to debate the proposed

annexation, since “whoever votes for it votes for it. Whoever doesn’t,

doesn’t.” A.108. With that, the City Council unanimously voted to

approve the Ordinance. A.111.

North Palm Beach Votes to Annex Hidden Key

Between the City’s first hearing and the second hearing, the

Village of North Palm Beach—now aware of the Palm Beach Gardens

plan—passed, on first hearing, an ordinance to annex Hidden Key,

16
on November 15, 2023. A.304. The second hearing was held on

December 14, 2023, where it also passed. North Palm Beach’s

annexation of Hidden Key will be held on March 19, 2024, the same

day, and on the same ballot—as the Palm Beach Gardens annexation

referendum. A.304.

The City’s Second Quasi-Judicial Hearing

Prior to December 6, Petitioners’ counsel again renewed his

request that Petitioners be permitted to participate in the quasi-

judicial hearing as to cross-examine witnesses and provide testimony

of their own. A.42. The City ignored this request, even though the

Mayor opened the hearing with a declaration that the City was

“required by law to allow cross-examination of any witnesses who

testify tonight.” A.135.

Mr. Fitts, the Planning Director, began his comments by noting

that he would be making “the same presentation that we made last

month . . . we’ll be making the same presentation again.” A.147. As

in November, he did not explain, expound on, or clarify his or the

City’s view on how Zone 1 could be considered “compact” or

“contiguous” under the Florida Statutes; indeed, after again reading

17
the relevant statutory definitions and rhetorically asking “But what

does that mean?”, A.148, Mr. Fitts did not answer his own question.

He concluded by noting that the annexations would be put to

referendum on March 19, 2024, A.164, and as in November, the

Mayor immediately moved on to public comments. A.165.

The initial comment, offered as sworn testimony, was by a

Hidden Key resident named Katherine Murray. Ms. Murray, as she

had in November, outlined the ways in which the proposed

annexation of Hidden Key violated the Florida Statutes. A.166.

Indeed, in her three minutes, Ms. Murray by herself offered a

considerably more detailed review of governing Florida law, and its

application to Zone 1, than the City had ever offered in ostensible

support of the Ordinance’s legality. A.166. Other Hidden Key

residents did the same.

Eventually, Petitioners’ counsel made his allotted three-minute

comment. A.177. The City Attorney demanded that counsel “list [by]

name” every Hidden Key resident who had retained counsel to

represent him or her. A.177. Counsel explained that if the City had

allowed, as repeatedly requested, Petitioners and others to actually

18
participate in the quasi-judicial hearing, the City itself would have

this information by way of formal intervention. A.178. Counsel then

submitted the sworn declarations of Petitioners, and others, A.180,

which contained their testimony opposing the validity of the

Ordinance. This evidence, accepted into the record of the proceeding

by the City, A.237, is summarized as follows:

Declaration of Madge K. Shafmaster. A.273. Petitioner Madge K.

Shafmaster testified that Hidden Key is accessed via a single entrance

road called “Landing Place.” A.273. The gate to Hidden Key is located

on Landing Place near the intersection of Jack Nicklaus Drive. Ms.

Shafmaster testified that a simple review of the public records reveals

that the parcel fronting this gate is located in unincorporated Palm

Beach County, and is not a part of the properties proposed to be

annexed by the City via Zone 1 (or any other zone). Ms. Shafmaster

further testified this entryway parcel is also not referenced or

described anywhere in the City’s Charter, a fact confirmed by the

statement of a licensed surveyor. A.274.

Declaration of Celeste Colliton. A.303. Ms. Colliton has been a

resident of Hidden Key for 32 years. Ms. Colliton’s declaration

19
included her testimony that Juno Beach was in the process of

voluntarily annexing Captain’s Key, a small neighborhood, like

Hidden Key, folded into Zone 1 by the City. A.304. Ms. Colliton also

testified that North Palm Beach had voted to annex Hidden Key in

November, meaning that the same March ballot would include

competing referendums concerning the annexation of Hidden Key.

A.304. As such, Hidden Key faces the possibility (and, in reality, the

probability) of being annexed into to separate municipalities on the

same day.4

Declaration of Joseph D’Angelo. A.306. Mr. D’Angelo has been

a resident of Hidden Key for 45 years. Mr. D’Angelo testified regarding

the characteristics of Zone 1, including that (a) Zone 1 is 32 times

larger than the next largest zone, and 12 times larger than Zones 2,

3, 4, & 5 combined, A.307; (b) Zone 1 is larger than 60 percent of all

4 Nobody at the City has any answer for what happens in this
scenario. The City Attorney’s observation was that it is a question for
“the Supervisor of Elections” to deal with. A.236. There is little doubt
that if allowed to take place, the simultaneous dual-annexations (one
favored, and one unanimously opposed, by Hidden Key’s residents)
will surely end up back before this Court in a very complicated,
expensive, and seemingly unprecedented lawsuit.
20
Florida municipalities, twice the size of Juno Beach, and if annexed,

would comprise 10 percent of the population of Palm Beach Gardens

itself; (c) the Intracoastal Waterway runs directly through Zone 1,

dividing it from east to west; (d) that Zone 1 includes approximately

70 distinct geographical areas and neighborhoods, 8 separate zoning

districts (including both high and low density housing), 5 separate

land use designations, two separate school zones, and a division of

properties between public sewer and septic tanks. A.307-308. Mr.

D’Angelo’s declaration echoes the findings of the City’s own feasibility

study, which requires a separate multi-page appendix to list all of the

separate areas and neighborhoods, with their respective zoning

designations, included by the City in Zone 1. A.34-35.

Declaration of Barry Paraizo. A.311. Mr. Paraizo has been a

resident of Hidden Key for 43 years. Mr. Paraizo testified that different

public safety solutions (police, fire, or paramedic) are required for

residents on the east and west side of the zone. A.312. Since public

safety responses are different for different residents within the same

zone, some provided by Palm Beach Gardens and others provided

under reciprocal agreements with the County, North Palm Beach or

21
Juno Beach, the zone is, by definition, not “reasonably compact.”

Further, the definition of “contiguous” excludes Zones divided by a

waterway, where that division will “prevent the territory sought to be

annexed and the annexing municipality from being a unified whole

with respect to municipal services”. See Fla. Stat. §171.031(3)

(definition of “contiguous” excludes Zones divided by a waterway,

where that division will “prevent the territory sought to be annexed

and the annexing municipality from being a unified whole with

respect to municipal services”).

Declaration of Stephen Marinak. A.313. Mr. Marinak has been

a resident of Hidden Key for 55 years. Mr. Marinak testified that he

is 87 years old, on a fixed income, and had no means to absorb the

increase in his taxes that would accompany annexation into the City.

He noted that the City itself conceded that up to 30% of the homes

in Zone 1—including those in Hidden Key—would see such a tax

increase, and that despite this increase in taxes paid, he and other

Hidden Key residents would actually see a dramatic decrease in

government services. A.314.

22
 Expert Affidavit of Robert V. Schwerer, Esq. A.315. Mr.

Schwerer was the City Attorney for the City of Fort Pierce for several

decades, “overseeing literally hundreds of annexations.” A.315. Mr.

Schwerer testified that he had reviewed the foregoing declarations,

and agreed with their conclusions in full. Mr. Schwerer testified that

neither the feasibility study nor any other testimony or document

offered by the City so much as attempted to explain how Zone 1 met

the compactness and contiguity requirements of Chapter 171. A.317.

Mr. Schwerer further testified that in his opinion, the City had not

even attempted to support its proposed Ordinance with competent,

substantial evidence as required of a quasi-judicial decision under

Florida law. A.317. Expounding on the evidence provided in the

Shafmaster Declaration, Mr. Schwerer also opined that Hidden Key

not only is not itself an “enclave” subject to elimination via

annexation, because it is not “bounded on all sides by a single

municipality,” but the annexation of Zone 1 would itself result in the

23
gateway entrance becoming a pocket in violation of Chapter

171.031(2).5 A.316.

The City reckoned with none of this. The Council did not allow

any questioning of Mr. Fitts, any other staff member, or the drafters

of the feasibility study. It didn’t even ask any of these people to

answer questions of their own. The City Attorney and several

members of the Council made conclusory comments as to why the

Ordinance satisfied the statutory requirements—again, without any

evidence or explanation—and echoed November’s talking point that

objectors could have their say at the ballot box during the March

referendum. A.238-239. The extent of the City Attorney’s comments

on the central question of compactness were as follows:

“compactness as defined under the Florida statutes doesn’t mean

small. It means that you cannot annex in such a fashion such as to

create enclaves, pockets or serpentine patterns yes, I know, or

5This testimony was supported by the unsworn letter of Petitioner

Kenneth Glueck, A.319, who also explained why the City’s claim of
Hidden Key being an “enclave” had no factual or legal basis.

24
fingers. And you cannot annex to create them, and it does not. This

area does not create fingers.” A.238.

Based in part on this reassurance, the Council then voted to

unanimously approve the Ordinance. A.253.

ARGUMENT

I. THE ANNEXATION ORDINANCE IS NOT SUPPORTED BY ANY

EVIDENCE, AND VIOLATES THE FLORIDA STATUTES

A. Standard of Review

To survive a certiorari challenge, a local government’s quasi-

judicial decision must be supported by competent, substantial

evidence, and comport with the “essential requirements of the law.”

Vaillant, 419 So. 2d at 626.

In reviewing a petition for certiorari, this Court does not defer

to a local government’s conclusory statements regarding the

existence of competent, substantial evidence. Rather, this Court

“must review the record” and determine, for itself, whether the quasi-

judicial decision was supported by competent, substantial evidence.

25
Dusseau v. Metropolitan Dade County Bd. of County Comm’rs, 794 So.

2d 1270, 1274 (Fla. 2001). The Florida Supreme Court has defined

“competent, substantial evidence” as “tantamount to legally

sufficient evidence,” id., and the Fourth DCA has noted that

“[s]ubstantial evidence has been described as such evidence as will

establish a substantial basis of fact from which the fact at issue can

be reasonably inferred.” NITV, LLC v. Baker, 61 So. 3d 1249, 1253

(Fla. 4th DCA 2011) (quoting DeGroot v. Sheffield, 95 So. 2d 912, 916

(Fla. 1957)).

Likewise, on certiorari review this Court must ensure that a

local government’s quasi-judicial action complies with “the essential

requirements of the law”—that is, that the decision applies, and

adheres, to a correct reading and understanding of controlling

statutes and case law. This Court owes no deference whatsoever to a

local government’s incorrect interpretation, or application, of

controlling law. See, e.g., Schrimsher v. School Bd. of Palm Beach

County, 694 So. 2d 856, 861 (Fla. 4th DCA 1997); Raghunandan v.

Miami-Dade County, 777 So. 2d 1009, 1010 (Fla. 3d DCA 2000)

(applying Schrimsher rule in certiorari proceeding).

26
B. The City Never Made Any Attempt, Legally or Factually, to
Support its Conclusion that Zone 1 Complies with the
Controlling Annexation Statutes

In the prototypical first-tier certiorari challenge of a quasi-

judicial local government decision, the Court is charged with

analyzing whether evidence supporting the decision is “competent

and substantial” within the definitions set forth above. But in this

case, no such effort is needed, because the City never made any

effort, whatsoever, to support its rote conclusion that Ordinance 20-

2023 complies with the Florida Statutes governing annexation.

Sadly, this is not an exaggeration. Neither the feasibility study,

A.17, nor the presentations made by Mr. Fitts, include so much as a

passing explanation for how Zone 1 meets the controlling statutory

definitions. As the record demonstrates, a Councilmember asking the

simple, but integral, question of whether Zone 1 meets the statute’s

“compactness” standard was told by the City Attorney that he didn’t

feel the need to explain his conclusion. A.106.

Moreover, as discussed supra, the City Attorney advised the

Council that “compactness means that you cannot annex in such a

fashion such as to create enclaves, pockets or serpentine patterns.”

27
A.238. That was an egregious misstatement of Fla. Stat. §171.031(2).

It conflates a two-part test into a single prohibition and leaves out

entirely the concept that “compactness” requires “the concentration

of a piece of property in a single area” and that a zone must be

“designed in such a manner as to ensure that the area will be

reasonably compact.”

In fact, nothing in any of the City’s materials or Mr. Fitts’

presentation contains a scintilla of evidence that an annexation of an

area similar to Zone 1 has ever been attempted, let alone upheld,

under the definitions contained in Chapter 171.

To reset, those definitions and standards are as follows. A

municipality may only annex an “area,” and that area must be

“contiguous, compact unincorporated territory.” Fla. Stat.

§171.0413(1). “Contiguous” means “that a substantial part of a

boundary of the territory sought to be annexed by a municipality is

coterminous with a part of the boundary of the municipality.” Fla.

Stat. §171.031(3). And “compactness” is defined as a “concentration

of a piece of property in a single area, and precludes any action which

would create enclaves, pockets, or finger areas in serpentine

28
patterns. Any annexation proceeding in any county in this state must

be designed in such a manner as to ensure that the area will be

reasonably compact.” Fla. Stat. §171.031(2).

Again, other than reciting these definitions and declaring that

they were met, the City never made an attempt to show its work and

explain how Zone 1 satisfies either of these controlling standards.

Petitioners aren’t alleging that the City’s explanation is wrong, they’re

alleging it does not exist. “Evidence that is confirmed untruthful or

nonexistent is not competent, substantial evidence.” Wiggins v. Fla.

Dep't of Highway Safety & Motor Vehicles, 209 So. 3d 1165, 1173 (Fla.

2017) (emphasis added).

Something akin to Occam’s Razor suggests that the reason for

this is that the City’s formulation of Zone 1 has no plausible defense

in fact or law, and so the City did not so much as try. Instead, its

tactic is to point to the ballot box and then, surely, to ask this Court

to defer to its feasibility study as conclusive. But this Court owes the

City no such deference; as a matter of logic, the statute requires the

feasibility study as a prerequisite to annexation, Fla. Stat. §171.042,

and if all that’s required of such a study is for it to conclude, without

29
explanation, that the proposed annexation “complies” with the

Florida Statutes, then the statutorily-prescribed certiorari challenge

to an improper annexation, Fla. Stat. §171.081, is rendered a nullity.

1. The City Did Not, and Cannot, Support Its Claim that Zone
1 is “Compact” Within the Meaning of Chapter 171, as
Applied by Florida’s Courts

As it happens, Florida’s appeals courts have weighed in on the

controlling statutory definitions of “compactness” and “contiguity.”

These controlling opinions unquestionably support Petitioners’

challenge. For example, in City of Sunrise v. Broward County, the

Fourth DCA upheld a circuit court decision finding a proposed

annexation violated the statute’s definition of compactness. In so

doing, the court elaborated on that definition within the context of

“the 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 inhabitants—that
is, a body of people collected or gathered together in one
30
 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.

473 So. 2d at 1388 (quoting 56 Am. Jur. 2d Municipal Corporations

§69) (emphasis in original).

There is simply no manner to square the City’s Zone 1 with the

Fourth DCA’s analysis. In contrast with the other four zones, there

is nothing about Zone 1 that evidences any kind of unity. Even

setting aside (for a moment) its massive size, the fact that Zone 1 is

comprised of so many distinct areas, so many distinct types of uses,

and so many disparate and conflicting zoning designations, renders

facially absurd the City’s claim to “compactness” under any

cognizable definition. Nowhere is this fact made more obvious than

the City’s concession that, if annexed, Hidden Key and the rest of

residential Palm Beach Gardens would be separated not just by the

Intracoastal Waterway, but by differences in terms of public safety

provisions, municipal services, utilities (sewer vs. septic) and

taxation.

31
 The sheer size of Zone 1, however, ultimately must be

considered. Zone 1 is not, in any reasonable (let alone textual) sense,

a “concentration of a piece of property in a single area” as required

by Chapter 171. Zone 1 stretches miles, crosses highways, includes

major bodies of water, and touches the boundaries of several

adjacent municipalities. It is the gigantic expanse of the Zone itself

that allows so many areas, uses, and zoning designations to be

situated within its boundaries. The disparity between the size of Zone

1 and the sizes of the other City zones only accentuates this fact.

Furthermore—and this simply cannot be ignored, particularly

in light of the City’s cynical, and repeated, call for opponents of the

annexation to just vote their way out of it—it is the size of Zone 1 that

enables Hidden Key’s unanimous opposition to be rendered

meaningless on Election Day.

This Court must not allow such a scheme to stand, and it need

not, considering the controlling law on this question such as the

opinion in City of Sunrise.

2. The City Did Not Demonstrate that Zone 1 Satisfies

Statutory Requirements for Contiguity

32
 Another such authority opined on the question of “contiguity.”

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

2006), the court considered whether property sought for annexation

by the City of Deltona satisfied the statute’s contiguity requirement.6

Noting that the statute requires that “that a substantial part of a

boundary of the territory sought to be annexed by a municipality

[must be] coterminous with a part of the boundary of the

municipality,” the Fifth DCA held that the proposed annexation did

not comply with the statute, since less than 2% of the annexed

property’s border was coterminous with the City’s boundary. Id. at

344.

Here, and as discussed at length above, Zone 1 contains many

distinct communities that are most certainly not contiguous with

6 It is worth noting, in light of the immediately foregoing discussion

of size, that such concerns may be ameliorated where very large areas
proposed for annexation are owned by a single owner, or are
comprised of very few parcels. City of Deltona, featured one property
exceeding 4000 acres. But that area had one owner, one land use,
and the owner initiated the annexation process (obviating the ballot
box / gerrymandering question). 925 So. 2d at 341-42. None of those
features is even remotely present in the instant case.

33
Palm Beach Gardens. Rather they are contiguous with other

unincorporated areas of Palm Beach County which, in turn, are

contiguous with Palm Beach Gardens. To this end, a neighborhood

view of the City’s Annexation Map reveals that many of the areas in

Zone 1 have no border touching Palm Beach Gardens at all, much

less 2 percent of their border.7 This includes areas such as Flamingo

Road, Frenchman’s Cove, Lane Park Neighborhood, Windsor Estates,

Schaffler Subdivision, Hope Acres, Old Gate, Casa De Marbella,

Cardinal Lane Neighborhood, Intracoastal Park Neighborhood, Shore

Road, Maheu Estates, Bay Village Harbor, and Pleasant Ridge.

By way of example, the community of Pleasant Ridge is

contiguous with the Village of Juno Beach to the north. To the east

is The Point at North Palm Beach and US 1, also included in proposed

Zone 1 and currently in unincorporated Palm Beach County. To the

south is the community of Juno Terrace, also included in Zone 1 and

currently in unincorporated Palm Beach County. To the west is the

7Available at
https://pbgfl.maps.arcgis.com/apps/webappviewer/index.html?id=
de6f3f7e40924a3e9661e735fdb74a97
34
Intracoastal Waterway. To the east of the Intracoastal is Maheu

Estates, also included in Zone 1 and currently in unincorporated

Palm Beach County. Only when you get to the West side of Maheu

Estates do you finally arrive at a border to Palm Beach Gardens. So,

Pleasant Ridge is substantially contiguous with Juno Beach on the

north and is surrounded by unincorporated Palm Beach County on

the west, east, and south. No part of Pleasant Ridge is coterminous

with any part of Palm Beach Gardens.

The City’s apparent position—which, again, must be surmised

since the City never made any effort to explain its conclusion with

regard to contiguity—is that contiguity can be daisy-chained across

35
multiple unincorporated areas, none of which, on its own, is

contiguous to Palm Beach Gardens, but all of which are ultimately

contiguous with one another. If this method is permissible, then as

long as a municipal annexation zone does not cross into another

municipality, a city would be allowed to dispense with the remainder

of the Florida Statutes’ requirements and, from this point forward,

conduct single-zone annexation referendums. Such a method

comports with neither the spirit nor the letter of Chapter 171; it

violates the law, and this Court should quash the City’s attempt to

circumvent the statute.

Yet, Zone 1’s lack of statutory compliance gets even worse. The

only portion of Zone 1 with which Hidden Key is contiguous is the

similar area of Captain’s Key. But as noted elsewhere in this Petition,

Captain’s Key is far along in the process of voluntarily annexing into

Juno Beach, with first-hearing approval already reached. Once that

annexation is complete—which will be well prior to the March 2024

referendum on the City’s Ordinance—Hidden Key will touch no other

part of Zone 1:

36
That means that Hidden Key cannot be considered a part of Zone 1.

It will be as separate from Zone 1 as are Zones 2, 3, 4 and 5.

Finally, the definition of “contiguous” mandates that any “body

of water” or other geographical division between the municipality and

the area sought to be annexed, must not “prevent the territory sought

to be annexed and the annexing municipality from becoming a

unified whole ...” Fla. Stat. §171.031(3). Here, there is no clearer

violation of this provision than the fact that the geographical division

37
at issue consists of the Intracoastal Waterway, which runs directly

through the middle of Zone 1 and would divide Hidden Key from the

rest of the City in the myriad of tangible, practical ways outlined

above.

Zone 1 fails the central statutory tests of compactness and

contiguity and the City has provided no evidence to the contrary. The

Petition should be granted on these grounds alone.

3. Hidden Key is Not an Enclave of Palm Beach Gardens

Finally, and briefly, the City put forth no competent, substantial

evidence supporting Mr. Fitts’ mistaken conclusion that Hidden Key

is an “enclave” subject to annexation.

As set forth in the declarations of Petitioner Madge K.

Shafmaster and expert witness Robert Schwerer, detailed above, it is

a matter of objective, record fact that the gate entrance to Hidden Key

is located in unincorporated Palm Beach County, and that this area

is not proposed for annexation because the City mistakenly asserts

it is already a part of Palm Beach Gardens. The City’s map depicting

its mistaken assertion is simply incorrect. This is illustrated for

reference below:
38
 For this reason, among others set forth in the declarations,

Hidden Key is not “bounded on all sides” by the City’s existing

boundaries, and therefore simply cannot fall within the statutory

definition of the term enclave. Moreover, annexing Hidden Key, would

itself result in this entrance area becoming an unincorporated

“pocket” within the City’s new boundaries, in violation of the

statutory definition of “compactness.” Fla. Stat. §171.031(2); see City

of Center Hill v. McBryde, 952 So. 2d 599, 603 (Fla. 5th DCA 2007)

(quashing city’s annexation ordinance due to violation of statutory

39
compactness requirement, due to formation of “pocket” of

unincorporated property).

In sum, the City did not undertake even a bare-bones effort to

support its conclusion of statutory compliance with any evidence, let

alone competent, substantial evidence. The City compounded this by

misconstruing, and misapplying, controlling law in enacting the

Ordinance. For these reasons, this Court should grant the Petition

and quash the Ordinance.

4. Competing Annexations Make Palm Beach Gardens’

Annexation Plan Unworkable

Between the City’s first hearing and the second hearing, the

Village of North Palm Beach passed, on first reading on November 15,

2023, an ordinance to annex Hidden Key. A.303-304. The second

reading was held on December 14, 2023, where it also passed. The

referendum on North Palm Beach’s annexation of Hidden Key will be

held on March 19, 2024, the same day, and on the same ballot—as

the Palm Beach Gardens annexation referendum. A.304. However,

Hidden Key represents a majority of electors in the annexation zone

of North Palm Beach. Thus, it is not only possible, but probable, that

40
electors of Hidden Key vote “no” on the question of annexation with

Palm Beach Gardens and “yes” on the question of annexation with

North Palm Beach and end up annexed by both municipalities

because, in all probability, they will be outvoted by the 70% of

electors in Palm Beach Gardens’ Zone 1 who will see their taxes

decrease.

Also, because Captain’s Key is well along in the process of

voluntarily annexing into Juno Beach, Hidden Key is now also

directly contiguous with Juno Beach. But for the illegal actions of

Palm Beach Gardens, Hidden Key could therefore seek voluntary

annexation with Juno Beach as well. Under Florida Statutes 171.044

Hidden Key should be given the time and opportunity to do so as

“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.”

II. The City Did Not Afford Petitioners Procedural

Due Process at the Quasi-Judicial Hearings

41
 It remains only to note that the City’s conduct of its two quasi-

judicial hearings on Ordinance 20-2023 was so procedurally flawed

that even were the Ordinance substantively sound—and to be sure,

see above, it is not—this Court still would be bound by controlling

law to grant a writ of certiorari quashing the Ordinance.

Petitioners challenging a quasi-judicial local government

decision are entitled to certiorari relief where the local government

did not afford the petitioners procedural due process. City of Deerfield

Beach v. Vaillant, 419 So. 2d at 626. Quasi-judicial hearings

“contemplate a basic level of fairness in order to afford due process.”

Seminole Entertainment, Inc. v. City of Castleberry, 811 So. 2d 693,

696 (Fla. 5th DCA 2001). This baseline includes “the opportunity to

cross-examine witnesses, to inspect documents and to offer evidence

in explanation or rebuttal.” Id. (quoting 9 McQuillin, Municipal

Corporations, §26.89 (3d ed.)).

The City did not meet this due process baseline, and it did not

come close. Most importantly, the City did not afford Petitioners or

their counsel any opportunity to question Mr. Fitts about the City’s

legal conclusions or the deficiencies of the feasibility study. This

42
absence of cross-examination is all the more remarkable since the

Mayor opened the second hearing on the Ordinance by stating that

the City was “required by law to allow cross-examination of any

witnesses who testify tonight.” A.135. She was right, and the City’s

failure to meet this requirement itself merits granting of this Petition.

The process undertaken by the Council was a process that more

closely resembled a public comment period over the design of a new

park, the addition of a new traffic pattern, the location of a food truck,

or the hours of a recreational field, where citizens are always

permitted three-minute, timed comments to make their views known.

Three-minute, timed speaking slots are standard procedure and

occur during every Council meeting all over the State when issues

are generic or communal in nature. Those comment periods are not

quasi-judicial in nature and are not mandated by statute. It cannot

be that citizens’ property rights and taxation levels are afforded the

exact same time and process as might be afforded to what kind of

outdoor recreational equipment is installed at a park. But that is the

process Petitioners were provided.

43
 Here the process must be more proscribed and interactive. At a

minimum, a quasi-judicial process must include some procedure

where affected parties can meaningfully participate because

annexation necessarily involves property rights, taxation, property

values, individual public safety and other services. “Quasi-judicial”

must have some meaning. By way of example, the process should

more closely resemble a zoning hearing, where sufficient time and

interaction is permitted between parties and evidence is offered,

evaluated and interrogated so the Council can make an informed

decision.

It is not up to Petitioners to define the process in real time after

a hearing has been opened. The facts are clear from the public

transcripts. Petitioners requested to participate meaningfully but

were denied. Petitioners, at great time and expense, prepared

declarative testimony that was never even read into the record, much

less considered by the Council. Property owners attempted to offer

short slide presentations; that too was rejected. Property owners

requested to “bundle” the time allotted to two or three speakers into

a single presentation so that a more complete discussion of the issues

44
could be presented. That request also was denied. Property owners

even submitted testimony days in advance, for example, on the

critical, fact-intensive question of enclaves with the hope of having

an opportunity to meaningfully discuss the issues. Their submission

was never even acknowledged. Petitioners hired counsel, procured

geographical surveys, retained expert fact witnesses. None of these

witnesses were permitted.

A quasi-judicial process must be equitable and even-handed.

The City’s presenter had unlimited time and full multimedia

capabilities. The City Attorney was given unlimited time to make

comments and selectively rebut issues. As stated in this Petition, and

as a matter of fact, the City Attorney misrepresented the central

definition and statutory concept of this matter—compactness. Yet,

any attempt to interject, clarify the record, or ask a question was met

with an admonition from the Mayor to follow rules that only applied

to one side. The clearest example, as stated above, was when the City

Attorney, after being asked directly by a member of the Council about

a comment from a Zone 1 resident regarding lack of compactness,

responded that he "wasn’t going to debate the public.” A.106. So, the
45
question was never answered and moments later the Council voted

unanimously in favor of the Ordinance.

It is unquestionably the right of property owners to be afforded

some cognizable, meaningful process through which to participate in

a quasi-judicial hearing. Now, the City will presumably suggest to the

Court that they are owed deference as the fact finders of first

instance, despite the reality that no fact finding took place. What is

clear here is that competent testimony was proffered and never heard

or evaluated by the Council.

In this regard, the City’s actions at the hearings are redolent of

those struck down by the Third DCA in relation to a city’s hearing on

a new zoning provision:

The City Commission was asked to make a total of twenty-

five findings relating to the Design Review Criteria and
their subdivisions. The City Commission allotted only
eight minutes per side for the developer and the objectors
to make their presentations. Under the circumstances, we
must respectfully state that eight minutes per side was too
short a time allotment. While we do not specify any
particular length of time, on remand a reasonable time
allotment shall be given to each side.

46
Hernandez-Canton v. Miami City Com’n, 971 So. 2d 829, 832 (Fla. 3d

DCA 2007).

The City’s hearings were perfunctory and not designed to

meaningfully consider evidence and testimony on all sides of the

annexation question. This is despite that the annexation of Zone 1

affects the daily lives, property rights and finances of thousands of

people. This constitutes a denial of basic due process, is in violation

of basic requirements attendant to quasi-judicial hearings, and

warrants this Court’s quashing of the Ordinance that resulted from

the City’s actions.

CONCLUSION

Ordinance 20-2023 does not comply with controlling law.

Neither did the hearings the City held to rubber-stamp this illegal

annexation. For those reasons, and those foregoing, this Court

should grant this Petition and issue a writ of certiorari quashing the

Ordinance.

DATED: January 5, 2024.

s/ Nicholas M. Gieseler_______
NICHOLAS M. GIESELER | FBN. 0043979
47
NicholasG@BLHTLaw.com
MariaC@BLHTLaw.com
CYNTHIA G. ANGELOS| FBN. 539058
CynthiaA@BLHTLaw.com
HeatherW@BLHTLaw.com
STEVEN GIESELER | FBN. 0880981
StevenG@BLHTLaw.com
LoisF@BLHTLaw.com
BARTLETT, LOEB, HINDS, THOMPSON
& ANGELOS
819 S. Federal Hwy, Suite 300
Stuart, Florida 34994
Telephone: (772) 252-3000

Counsel for Petitioners

48
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing was filed with the Clerk of the Court, and served on the

following, via the Florida Courts eFiling Portal, on this 5th Day of

January, 2024:

Max Lohman, City Attorney Patricia Snider, City Clerk

City of Palm Beach Gardens City of Palm Beach Gardens
max@lohmanlawgroup.com psnider@pbgfl.com

I FURTHER CERTIFY that pursuant to this Court’s

Administrative Order No. 8.101-1/21, Form B(2)(c), an electronic

courtesy copy of the foregoing was emailed to the following:

adminappeals@pbcgov.org

s/ Nicholas M. Gieseler
NICHOLAS M. GIESELER | FBN. 0043979
NicholasG@BLHTLaw.com

49
 CERTIFICATE OF COMPLIANCE

Pursuant to Florida Rule of Appellate Procedure 9.045(e), I

HEREBY CERTIFY that the foregoing document complies with (a) the

font requirements set forth in Florida Rule of Appellate Procedure

9.045(b), having been prepared in Bookman Old Style 14-point font,

and (b) the word count requirements set forth in Florida Rule of

Appellate Procedure 9.100(g) and this Court’s Administrative Order

8.101-1/21, as it consists of 8,618 words.

s/ Nicholas M. Gieseler
NICHOLAS M. GIESELER | FBN. 0043979
NicholasG@BLHTLaw.com

50