Petition for Writ of Certiorari to Review Quasi-Judicial Action, Agencies, Boards, and Commissions of Local Government: ZONING – variances -  Competent, substantial evidence supported the Board’s decision to deny the granting of five variances –  Proposal to tear down the existing structures and replace them with a new “less nonconforming” structure that did not meet zoning requirements - Degree of nonconformity of current structure irrelevant to the decision to grant or deny the variances where structure was to be demolished. - Written findings of fact are not required of an administrative board or agency making quasi-judicial decisions so long as it can be shown that there was competent substantial evidence presented to the board to support its ruling. Petition denied. Saxon v. City of Madeira Beach, No. 02-1087 CI-88A (Fla. 6th Cir. App. Dec. 6, 2002).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

THOMAS W. and CINDY G. SAXON,

          Petitioners,

 

v.

                                                                   Case No. 02-1087 CI-88A

THE CITY OF MADEIRA BEACH, FLORIDA,

A FLORIDA MUNICIPAL CORP., et al,

          Respondents.

_______________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

          THIS MATTER is before the Court on a Petition for Writ of Certiorari, pursuant to Fla. R. App. P. 9.190(b)(3) and 9.100(b), (c) after the Board of Adjustment of the City of Madeira Beach denied Petitioners’ request for a zoning variance.

          The property in question measures 40 x 115 feet, currently contains two buildings that house a total of three rentals and is located in a R-2 zoning classification to which it does not conform. Petitioners, who are the owners of the subject property, are seeking to demolish the existing buildings and replace them with one building that would house two rental units. The new building, according to the Petitioners, would be “less non-conforming” than the existing buildings. Specifically, for the Petitioners to follow through on their plans, they need variances from the Madeira Beach Land Development Regulations in the following areas: (1) minimum building site area necessary to construct a duplex; (2) side yard setbacks; (3) rear yard setbacks; (4) maximum lot coverage; and (5) impervious surface ratio.

          On January 7, 2002, the Petitioners’ request for the zoning variances was summarized before the Madeira Beach Board of Adjustment by the Acting Building Official; it was noted that no correspondence had been received after public notice; and Petitioners were granted an opportunity to state their case. After several questions between Board members and Petitioner Thomas W. Saxon, and having received no questions from the public, the Board deliberated, and denied a motion to grant the variances by a vote of 3 to 2. The Board did not make any findings of fact, but sent a letter, dated February 1, 2002, to the Petitioners stating simply that their application for a variance had been denied as of January 7, 2002. The Petitioners have timely invoked the jurisdiction of this Court by filing a Petition for Writ of Certiorari to review the decision of the Board of Adjustment.

          Review of the quasi-judicial decision of the Madeira Beach Board of Adjustment is procedurally governed by Fla. R. App. P. 9.190(b)(3), (c)(4), and 9.030(c)(3) and is limited to a review of (1) whether procedural due process was accorded; (2) whether the essential requirements of the law were observed; and (3) whether the administrative findings and judgment were supported by competent, substantial evidence. Acting in its appellate capacity, the Circuit Court has no jurisdiction, in certiorari, to make factual findings or to enter a judgment on the merits of the underlying controversy. See Evergreen Tree Treasurers of Charlotte County, Inc. v. Charlotte County Board of County Commissioners, 810 So.2d 526 (Fla. 2d DCA 2002).

          The Madeira Beach Board of Adjustment authorizes variances from the terms of the city land development regulations as not being contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the land development regulations will result in unnecessary and undue hardship. Madeira Beach Code of Ordinances §2-107. In order to obtain a variance under the Ordinance, Petitioners had to convince the Board of the following:

1.     Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district.

2.     Special conditions and circumstances do not result from the action of the applicant.

3.     Granting the variance will not confer on the applicant any special privilege that is denied to other lands, buildings, or structures in the same zoning district.

4.     Literal interpretation would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of this ordinance and would put unnecessary and undue hardship on the applicant.

5.     The variance granted is a minimum variance that will make possible reasonable use of the land, and

6.     The granting of the variance would be in harmony with the general intent and purpose of the City Land Development Regulations, in that such variances will not be injurious to the area involved or otherwise detrimental to the public welfare.

 

          Petitioners’ major argument before the Board and in their Petition is simply that they met their burden of proof and complied with the §2-107 criteria by submitting plans for new structures that “reduced” the existing nonconformance of the property and that generally improve the neighborhood. Petitioners apparently have interpreted Ordinance 110-93(3)(a) which states “Structural changes which decrease the degree of nonconformity shall be permitted.” as applicable to their proposal to tear down the existing structures and replace them with a new “less nonconforming” structure.

Since the Board did not make detailed findings of fact, the Court must review the record to determine if competent substantial evidence supports the Board’s decision to deny the variances. Broward County v. G.B.V. International LTD, 787 So.2d 838 (Fla. 2001). The fact that the Petitioners intend to bulldoze the nonconforming structures renders them and their degree of nonconformity irrelevant to the decision to grant or deny the variances. The record does not show that Petitioner’s lot contains any special conditions or circumstances that are not applicable to comparable property within the same zoning district. Literal interpretation of the zoning ordinance would not deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the ordinance and the only unnecessary and undue hardship on the applicant would be economic. Economic disadvantage alone does not constitute a hardship sufficient to warrant the granting of a variance, nor is a self-imposed hardship sufficient ground for granting a variance. See Metropolitan Dade County v. Reineng Corporation, 399 So.2d 379 (Fla. 3d DCA 1981); Board of Adjustment, City of Ft Lauderdale v Kremer, 139 So.2d 448 (Fla. 2d DCA 1962).

          Also, the five variances requested in order to build the new structure do not appear to be the minimum variance that could be requested to make reasonable use of the land. Although the granting of the variances might be in harmony with the general intent and purpose of the City Land Development Regulations, in that such variance would not be injurious to the area involved or otherwise detrimental to the public welfare, this Court finds that competent, substantial evidence supports the Board’s decision to deny the granting of the five variances.

          Petitioners also argue that the Board’s failure to set forth detailed findings of fact constitutes a departure from the essential requirements of the law. Written findings of fact are not required of an administrative board or agency making quasi-judicial decisions so long as it can be shown that there was competent substantial evidence presented to the board to support its ruling. See Broward County v. G.B.V. International LTD, 787 So.2d 838 (Fla. 2001); Board of County Commissioners v Snyder, 627 So.2d 469 (Fla. 1993). Thus, in this case the Board did not depart from the essential requirements of the law by omitting written findings of fact from its decision.

          Finally, a review of the transcript of the proceeding reveals that procedural due process was accorded Petitioners and that there was no indication that undue bias influenced the decision. It is therefore

          ORDERED that the above-styled Petition for Certiorari is denied.      

          DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ day of December, 2002.

 

  ___________________________

NANCY MOATE LEY

CIRCUIT JUDGE, APPELLATE DIVISION

 

 

 

cc: Thomas W. and Cindy G. Saxon, 14109 N. Bayshore Drive, Madeira Beach, FL 33708

Thomas J. Trask, Esq., Frazer, Hubbard, Brandt & Trask, PA, 595 Main Street, Dunedin, FL 34698-4998