Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances  – Petitioner is unable to demonstrate that it met all the code conditions for granting of a variance – Certiorari relief must be denied as the Board of County Commissioners lawfully denied variance request based on criteria set forth in county’s code – decision denying variance is supported by competent substantial evidence in the record – Petition denied.  D.A. Holt v. Pinellas County, No. 03-3760AP-88B (Fla. 6th Cir. App. Ct. Sept. 23, 2004). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

D.A. HOLT and BLUE DIAMOND DOLLS,

INC., d/b/a “DIAMOND DOLLS”,

                        Petitioner,

vs.                                                                                                Appeal No. 03-3760CI-88B

                                                                                                    UCN522003CA003760XXCICI

PINELLAS COUNTY, FLORIDA, a political

Subdivision of the State of Florida,

                        Respondent.

________________________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response and the Reply.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The Petitioner, D.A. Holt and Blue Diamond Dolls, Inc., d/b/a Diamond Dolls (Diamond Dolls), seeks review of the denial of its variance application to allow an existing sign, 168 sq. ft., 35 ft. high, to remain on property located in a C-2, General Retail Commercial and Limited Services zone, wherein the maximum sign size permitted is 150 sq. ft., 25 ft. high. [1]   The Respondent, Pinellas County, Board of County Commissioners (Board), denied the variance request, via letter dated April 10, 2003, following a hearing before the Board on the same day. 

            In reviewing the administrative action taken by the Board, the Court must consider whether Diamond Dolls was afforded procedural due process, whether the essential requirements of law were observed and whether the Board’s action is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action).  Diamond Dolls does not argue that it was not afforded procedural due process; thus, this Court’s review is limited to whether the essential requirements of law have been observed and whether the Board’s decision is supported by competent substantial evidence, or evidence “sufficiently relevant and material that a reasonable mind would accept as adequate to support the conclusion reached.”  See DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957). 

            Initially, the Court finds that the Board was not required to enter written findings of fact in making its decision.  See Broward County v. G.B.V. International, LTD., 787 So.2d 838, 846 (Fla. 2001)(finding that written findings of fact were not required in quasi-judicial proceedings)(citing Board of County Commissioners v. Synder, 627 So.2d 469, 476 (Fla. 1993)).  However, to sustain the Board’s action it must be shown that there was competent substantial evidence or, as under the facts of this case, a lack thereof, presented to the Board to support its ruling.  See Synder, 627 So.2d at 476.  In the proceedings below, the burden was on Diamond Dolls to show that it met all the conditions for granting a variance as set forth by the Pinellas County Code, Section 138-113.  The relevant criteria included:  special conditions, no special privilege, unnecessary hardship, minimum variance necessary, purpose and intent compliance, and detriment to public welfare.  See Code, Section 138-113(1)-(6). 

            In support of its variance request, Diamond Dolls proffered the testimony of one witness, Bruce McLaughlin, a certified land planner.  In regards to the first criteria, Mr. McLaughlin stated that the elevation of the road adjacent to the subject property is a special condition peculiar to the property.  However, Section 138-1334(e)(3) of the Code grants an increase in the height of the subject sign over signs on grade roads, thus placing them in the same condition and circumstance as other property owners.  Therefore, the Diamond Dolls’ sign contiguousness to an elevated road does not meet the criteria of being a special condition.

            In addressing the second variance criteria, no special privilege, the Court finds that no evidence was presented that the Board’s approval of the variance application would not confer a special privilege that is denied by the Code to other similar lands, buildings, or structures within the same zoning district.  There was no evidence presented that similarly situated properties had received sign height variances because of a sign’s adjacency to an elevated road or overpass.  Further, the newspaper articles Mr. McLaughlin presented to the Board in relation to this criteria involved the life and placement of billboards, which have no application to a freestanding, on-premise sign such as the Diamond Dolls sign.

            For the third criteria, unnecessary hardship, Mr. McLaughlin stated that the subject sign predated the Code height limitation and construction of the elevated road.  However, Diamond Dolls failed to show that compliance with the new Code requirements, mandating that the sign’s height be reduced from 35 to 25 feet, would inflict practical difficulty or unnecessary hardship on the property owner.  See Redner v. City of Tampa, 827 So.2d 1056, 1059 (Fla. 2d DCA 2002)(providing that a variance should be granted only upon a finding that enforcement of the ordinance would inflict practical difficulty or unnecessary hardship on a property owner).

            In addressing the fourth criteria, minimum variance necessary, Mr. McLaughlin presented testimony on the relationship of vehicular speed, sign placement, visibility, and road designs based on a publication by the American Planning Association.  Assuming, arguendo, that Mr. McLaughlin was qualified as an expert to testify on transportation and traffic speed variables, the Board could only base its decision on those criteria set forth in the Code.  See City of Naples v. Central Plaza of Naples, Inc., 303 So.2d 423, 425 (Fla. 2d DCA 1974)(finding that the only criteria upon which the Council could legally base its decision were those set forth in the ordinance).  Hence, the Board properly disregarded the theories presented in support of the minimum variance necessary criteria.

            Lastly, no testimony or evidence was presented in support of variance criteria five, purpose and intent compliance, and six, detriment to public welfare.  Accordingly, the Court finds that certiorari relief must be denied as the Board lawfully based its decision to deny Diamond Doll’s variance request on the criteria set forth in the Code and the decision is supported by competent substantial evidence in the record.

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby denied. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of September 2004.

 

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

Luke Lirot, Esquire

112 East Street, Suite B

Tampa, FL  33602

 

David S. Sadowsky

Sr. Assistant County Attorney

315 Court Street

Clearwater, FL  33756



[1] The height of the sign was the only matter before the Board.