Petition for Writ of Certiorari to Review Quasi-Judicial Action, Agencies, Boards, and Commissions for Local Government: ZONING – Variances - Additional family members occupying one of the single-family units in a duplex resulted in a self-created hardship for which no relief had to be granted - Although the fact of a structure’s nonconformity required a variance before permits for renovation could be pulled, that did not mean a variance had to be automatically granted, especially, since type of renovation contemplated in this case, which increased the degree of nonconformity, was disfavored.- Petition denied. Piotti v. City of Madeira Beach, No. 02-1847-CI-88A (Fla. 6th Cir. App. Ct. March 4, 2003).  

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION  UCN 522002**001847XXCI*P

 

LEONARD A. PIOTTI,

          Petitioner,

 

v.

                                                                   Case No. 02-1847 CI-88A

CITY OF MADEIRA BEACH, FLORIDA,

          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 Petitioner’ request for a zoning variance.

          The property in question contains a two-story building, a duplex, consisting of two single-family units. Although it conformed to the building code when built, in 1994 it became a nonconforming structure because of a 2.5 foot encroachment in the newly-established side lot setback requirement. In 1994 Petitioner purchased the property and established one of the single-family units as his primary residence. In 1997 Petitioner and his wife became custodian of two grandchildren and eventually, in an effort to create more space, began converting the two-car garage. The half of the garage closest to his kitchen would be the recreation area and laundry facility for his unit and the front half of the garage would be a laundry facility for the rental unit and a storage area. Upon discovery of the lack of necessary permits, all renovation was stopped until the necessary permits were pulled. Because the building is nonconforming, however, permits could not be issued until a variance was obtained.

          The Petitioner’s request for the zoning variance 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 to the abutters; and Petitioner was granted an opportunity to state his case. After several questions between Board members and Petitioner, the Board deliberated, and approved a motion to deny the variance by a vote of 4 to 1. The Board’s findings of fact stated that the application for variance failed to meet the criteria established by the City of Madeira for the granting of variances – specifically, that there was no hardship and that the claimed hardship was self-imposed. The decision of the Board was rendered March 4, 2002. Petitioner then timely filed an Appeal, which has been converted to a Petition for Writ of Certiorari, seeking to quash the decision of the Madeira Beach Board of Adjustment that denied his application for a variance.

          The jurisdiction of this Court having been timely invoked, 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 City of Madeira Beach Code of Ordinances, Section 110-93(3) provides as follows:

Sec 110-93. Intent concerning nonconforming property, structures and uses.

          It is the intent of the land development regulations that these nonconformities shall be considered to be incompatible with the permitted uses within the city districts. Such nonconformities shall not be enlarged or extended in any respect.

. . .

(3) Nonconforming structures. Where a lawful structure exists at the time of the passage or amendment of the land development regulations which could no longer be built under the terms of the land development regulations by reason of restrictions on area, lot coverage, height, or other characteristics of the structure or location on lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions: a. That any addition, alteration or renovation to the structure shall not increase the degree of nonconformity or result in the conversion of a nonconforming carport, garage, screen enclosure, patio roof, storage area or other nonhabitable area into a habitable area unless specifically approved by the board of adjustment…”

 

          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 the land development regulations, subpart B of this Code and would work unnecessary and undue hardship on the applicant.

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

6.     The granting of the variance will be in harmony with the general intent and purpose of the city land development regulations, and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare.

See also Gomez v City of St. Petersburg, 550 So.2d 7 (Fla. 2d DCA 1989) (applicant has burden to establish before the Board of Adjustment the requirements for a variance).

          In this case, the transcript reveals that the Board members discussed at length what constituted the unique hardship in this case and appeared to determine that the addition to Petitioner’s family of his grandchildren and the resulting overcrowding, as well as the existing nonconformity of the building, caused Petitioner to apply for the variance. They then made general findings of fact that there was no hardship and that the claimed hardship was self-created. On that basis, the variance request was denied.

          The additional family members occupying one of the single-family units in the duplex resulted in a self-created hardship for which no relief need be granted. Although the fact of the structure’s nonconformity requires a variance before permits for renovation may be pulled, that does not mean that a variance must automatically be granted. The Madeira Beach Code of Ordinances makes it clear that the type of renovation contemplated in this case, which increases the degree of nonconformity, is disfavored.

          It is the Petitioner’s burden to come before the Board and establish the requirements for a variance, such as a showing that the granting of the variance would be in harmony with the general intent and purpose of the city land development regulations. Based on a review of the transcript, this Court finds that the Board accorded procedural due process, observed the essential requirements of the law and that its decision was supported by competent, substantial evidence. 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 March, 2003.

 

 

 

                                                          _________________________________________

                                                                   JOHN A. SCHAEFER

                                                CIRCUIT JUDGE, APPELLATE DIVISION

 

 

 

cc: Joel D. Broida, Esq., Broida & McKinney, PA, 605 – 75th Ave, St. Pete Beach, FL 33706

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