a Florida Corporation,


vs.                                                                                                         Appeal No.00-8590-CI-88A





            This cause came before the Court on the Petition for Writ of Certiorari (Petition), the Response and the Reply.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition is denied as set forth below.

            Initially, the Court finds that this cause is ripe for appellate review.  Although the Pinellas County Water and Navigation Control Authority Regulations, Pinellas County Code Sec. 166-241 Et Seq (Code), states that an aggrieved party may file a petition for rehearing prior to having the entire cause reviewed by the Circuit Court for the Sixth Judicial Circuit, the Court finds that, in this case, such action would be futile and serve no useful purpose.  See Code, §166-288(b), (c); see also Halifax Area Council on Alcoholism v. City of Daytona Beach, 385 So.2d 184, 186 (Fla. 5th DCA 1980)(citations omitted).  Therefore, this appeal is properly before this Circuit Court, sitting in its appellate capacity.

            The Petitioner, International Capital Properties, Inc., filed its Petition following the entry of the Order by the Respondent, Board of County Commissioners of Pinellas County, Florida, acting as the Pinellas County Water and Navigation Control Authority, denying the Petitioner’s Commercial and Multi-Use Dock Permit Application, number CD28997-00 (Application).  The Respondent’s approval of the Application at a public hearing was required by the Code, as the proposed dock exceeded five hundred (500) square feet of new deck area and required a setback variance.  See Code, §§ 166-286(2)a., 166-291(1)(1995).[1] 

            In entering its Order, the record shows that the Respondent considered, and entered finding of facts, based of the variance and permitting criteria for docks as set forth in the Code.  See Code, §§ 166-291(3)a.-c., 166-331, 166-358(a)(1)-(9).  The Respondent found that the Petitioner met the variance criteria; however, in answering four questions regarding the dock criteria in the affirmative, the Respondent concluded that the Petitioner did not meet the necessary permitting requirements and denied the Application.  The Code provides that “[i]f any of the nine questions are answered in the affirmative, the application shall be denied or modified.”  The following criteria/questions, as contained in the Order, were answered affirmatively in response to the proposed plan and requested variance before the Respondent: 

(1)     Would have a detrimental effect on the use of said waters for navigation, transportation, recreational or other public purposes and public conveniences;

(2)     Would restrict the free use of the waterways and navigable waters;

(3)     Would have a material adverse effect upon the natural beauty and recreational advantages of Pinellas County; and,

(4)     Would have a material adverse effect upon the conservation of wildlife, marine life, and other natural resources, including beaches and shores so as to be contrary to the public interest.  

            The first issue raised by the Petitioner is that the findings of fact, including those enumerated above, were not findings of fact at all, but rather broad conclusions that tracked the language of the Code.  The Petitioner argues that it was denied due process of law since the Order failed to contain sufficient findings of fact upon which the Respondent’s ultimate determination was based.  However, the Court can conduct a meaningful appellate review, as the Order sets forth sufficiently detailed findings of fact to support the denial of the Application.  See Irvine v. Duval County Planning Commission, 504 So.2d 1265, 1267 (Fla. 1st DCA 1986).  (The Court finds that the Irvine holding is applicable in this case since the Code implicitly mandates that written and/or oral findings of fact will be made “under this article.” See Code, § 166-288(b)).  Further, the findings of fact contained in the Order are predicated on the criteria set forth in the Code and are properly supported by an abundance of sworn testimony and evidence contained in the record.  See id.

            The Petitioner next argues that record is void of competent substantial evidence to support the denial of the Application and, further, that the Respondent’s denial was based on political concerns or other improper factors.  In addressing these issues, the Court finds it is constrained to determine whether the Respondent’s decision is supported by competent substantial evidence. See Florida Power & Light Company v. City of Dania, 761 So.2d 1089, 1093 (Fla. 2000)(explaining that competent substantial evidence is tantamount to legally sufficient evidence)(citations omitted); see also De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)(defining substantial evidence as such relevant evidence as a reasonable mind would accept as adequate to support a conclusion).  The Court may not conduct its own de novo review of the Application, nor substitute is judgment for that of the Respondent.  See Florida Power & Light Company, 761 So.2d at 1092 (citations omitted). 

            In further evaluating the appropriate standard of review, the Court finds that the facts of the underlying case are somewhat unique.  In its Application for a commercial dock permit, the Petitioner was not seeking to amend the county or local comprehensive plan, to rezone the subject property, nor to obtain a “special zoning exception” as generally would be defined by code (i.e. See Florida Power & Light Company, 761 So.2d at 1091 (Fla. 2000), and Metropolitan Dade County v. Section 11 Property Corporation, 719 So.2d 1204 (Fla. 3d DCA 1998), discussing special exceptions as provided for by that municipality’s code).  Rather, the Petitioner was seeking a permit to construct a commercial dock that would be 854 square feet larger than a commercial dock that would need only administrative permit approval; therefore, as stated above, the Respondent’s approval was necessary.  However, even though the facts of this case are distinct, the Respondent’s review and final determination is nevertheless subject to the same standard of review in this Court as from any applicable administrative action.  See Florida Power & Light, 761 So.2d at 1092 (citations omitted).

            The record shows that there was a high level of interest in the Application and that many citizens attended the public hearing and testified.  The opposition to the Application, and the intended use of the Application to service a future 176-slip high and dry marina (marina) on Tierra Verde Island, was evident from the outset of the hearing.  It was announced, for the record, that “215 letters in favor of the Application have been received” and “874 letters, 338 cards and 1 telephone call opposed (sic) the application have been received.”  The record also contains e-mails received by the Respondent in opposition to the Application. 

            It is apparent that the large response to the Application was due primarily to the location of the proposed project and the community’s trepidation over damage to the surrounding natural marine habitat if the Application were approved.  The opposition was particularly distressed about the close proximity of the proposed dock, and the accompanying marina, to Shell Key Preserve (which has been designated as an important habitat for Florida’s imperiled shorebird species), and to adjacent sea grass and mangrove islands.  The Respondent heard a great deal of sworn testimony from neighbors surrounding the proposed dock site, some long-time area residents, who testified to a variety of potential adverse and detrimental effects to the adjacent waterways, to the recreational advantages of the area and to the conservation of marine life.  An expert for an opponent, Dr. Thomas Cuba (whose resume reveals extensive experience with ecological and marine issues), also testified and provided evidence showing the detrimental effects the use of the proposed dock would have on the area.   

            This extensive sworn testimony was properly considered by the Respondent and is competent substantial evidence to support the Respondent’s denial of the Application, specifically under the four affirmative responses contained in the Order.  See id. at 1093, 1091.  In Florida Power & Light Company v. City of Dania, the Florida Supreme Court found that the district court’s ruling was proper when it concluded that the circuit court unlawfully substituted its evaluation for that of the City.  The district court stated that “[w]e can discern no valid reason why the City, as fact finder, should have been required to disregard the expert testimony and the testimony of the area residents . . . ”   Id. at 1091.  Therefore, this Court will not usurp the fact-finding authority of the Respondent nor reweigh the testimony considered by the Respondent in denying the Petitioner’s Application.  See id.; see also Board of County Commissioners of Pinellas County v. City of Clearwater, 440 So.2d 497, 499 (Fla. 2d DCA 1983)(finding that the Authority was entitled to accord great weight to the cumulative objections of local, lay individuals with first-hand knowledge of the vicinity);  Metropolitan Dade County v. Section 11 Property Corporation, 719 So.2d 1204, 1205 (Fla. 3d DCA 1998)(finding that the neighbors fact-based testimony regarding the aesthetic incompatibility of the project with the surrounding neighborhood was properly considered).

            The Court also finds that, although the Respondent clearly understood they were voting on the commercial dock Application, the Respondent properly considered the intended use of the commercial dock, that of servicing the marina, in making its final determination.  See Metropolitan Dade County, 719 So.2d at 1205 (finding that the commission could consider aesthetics as well as use in examining issue of compatibility)(citations omitted).  The record shows that from the inception of the Application, the intended use of the proposed commercial dock was considered as part of the permitting process.  The Application itself required the Petitioner to state the “Intended Use” and the intended use, or marina, was an integral aspect of the Water and Navigation Report submitted by the Pinellas County Department of Environmental Management in support of the Application.              Further, the Court finds it would not have been feasible for the Respondent to adequately review the commercial dock Application without considering its intended use, given the dock permitting requirements and criteria set forth in the Code.  See Code, §§166-321(h), 166-358(a); see also Special Act, § 8.(d)1. (providing that the effect of the proposed plan or development should be considered).

            The Petitioner’s final argument that the Respondent’s denial of the Application was based on political concerns or other improper factors lacks merit.  As set forth above, the Court finds that the Respondent’s denial of the Application is supported by competent substantial evidence.  The Court also finds, in conclusion, that the Petitioner was accorded procedural due process and that the Respondent observed the essential requirements of law.  

            It is therefore,

            ORDERED AND ADJUDGED that the Petition For Writ Of Certiorari is denied.  It is further

            ORDERED AND ADJUDGED that the Petitioner’s Request for Oral Argument is denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this 17th day of May 2001.


Circuit Judge, Appellate Division


Copies Furnished To:

Brian P. Deeb, Esquire
5999 Central Avenue, Suite 202
St. Petersburg, FL  33710

Jewel White Cole, Esquire
Assistant County Attorney
315 Court Street, Sixth Floor
Clearwater, FL  34616

Staff Attorney, Appellate Division

[1] The Code was enacted pursuant to Section 10, of the Special Act of the Florida Legislature in Chapter 31182, Laws of Florida, as amended (Special Act), and provided the basis for the Respondent’s rejection of the Application.  The Petitioner does contest the validity of the Code nor the Respondent’s lawful authority to deny a commercial dock permit under the Code.