Petition for Writ of Certiorari to Review Quasi-Judicial Action of
Agencies, Boards and Commissions of Local Government: ZONING—Essential Requirements of the Law—Where
special exception is sought, petitioner bears only initial burden of showing it
meets statutory criteria, and then burden shifts to opposing party to
demonstrate that the special exception does not meet relevant
standards—development board failed to follow essential requirements of law
where it placed ultimate burden on petitioner to show that property could not
be developed without the requested use deviation—petition for writ
granted. CEPCOT Corp. v. City of
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. 03-5083AP-88B
This matter is 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 grants the Petition as set forth below.
Cepcot Corporation and Clearwater Transportation (Cepcot) seek review of the
Final Order entered December 2, 2003, by the City of
Cepcot owns real property located at 657 Court Street in the downtown zoning district of the City. The property is actually on the “fringe” of downtown and surrounding uses include offices, warehouses, and a utility plant.
At the time Cepcot
acquired the property, it housed a restaurant, thrift store and park. Cepcot, however, desired to replace the
existing uses with a 3,200-square foot convenience store with two gas pump
islands. A large impetus for this desire
was the pending completion of the
Because an automobile service station is not a permitted use within the downtown zoning district, Cepcot filed a Flexible Development Application for a comprehensive infill redevelopment project (CIRP) on December 17, 2002. In support of its application, Cepcot submitted detailed plans outlining the proposal’s aesthetic features and consideration of both vehicular and pedestrian traffic from the nearby recreational Pinellas Trail.
However, after reviewing Cepcot’s plans, the City’s Planning Department issued a Staff Report recommending that the application be denied. At the close of a public hearing on the application on June 17, 2003, the Board denied the application by a 4-2 vote. Cepcot then appealed the Board’s decision to the City’s hearing officer, who upheld the Board’s determination. Cepcot then filed the present Petition.
In reviewing the
hearing officer’s Final Order and the administrative action taken by the City,
this Court must consider three factors: (1) whether Cepcot was afforded
procedural due process; (2) whether the Board observed the essential
requirements of the law; and (3) whether the Board’s action is supported by
competent substantial evidence.
claims that the Board departed from the essential requirements of the law by
forcing it to bear the ultimate burden of establishing that the property could
not be developed without the requested use deviation. Indeed, where a special exception is sought,
the petitioner bears only the initial burden of showing that its application
meets the pertinent statutory criteria. Florida Power & Light Co. v.
The City contends that burden shifting was not appropriate because CEPCOT never met its initial burden of showing that it met the statutory criteria. This Court, however, finds that Cepcot met its prima facie burden; therefore, the Board erred in failing to present competent substantial evidence to refute Cepcot’s showing.
Section 2-903.C of the Code sets forth the following criteria for evaluating a CIRP:
1. The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards;
2. The development of the parcel proposed for development as a Comprehensive Infill Redevelopment Project will not reduce the fair market value of abutting properties;
The uses within the comprehensive infill redevelopment
project are otherwise permitted in the City of
4. The uses or mix of uses within the comprehensive infill redevelopment project are compatible with adjacent land uses;
Suitable sites for development or redevelopment of the
uses or mix of uses within the comprehensive infill redevelopment project are
not otherwise available in the City of
6. The development of the parcel proposed for development as an comprehensive infill redevelopment project will upgrade the immediate vicinity of the parcel proposed for development;
The design of the proposed comprehensive infill
redevelopment project creates a form and function which enhances the community
character of the immediate vicinity of the parcel proposed for development and
the City of
Flexibility in regard to lot width, required setbacks,
height and off-street parking are justified by the benefits to community
character and the immediate vicinity of the parcel proposed for development and
the City of
9. Adequate off-street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development;
10. The design of all buildings complies with the Downtown District design guidelines in Division 5 of Article 3.
Code § 2-903.C.
While the Planning Staff’s report maintained that Cepcot failed to meet several of these criteria, Judge Meale found that Cepcot had failed to meet numbers 1 and 7 only, and the City has not argued the applicability of any other criteria. Therefore, this Court will focus on the first and seventh criteria as well.
Cepcot maintained before both the Board and Judge Meale that it did not have to comply with the first criterion because it was not seeking a deviation from use, intensity and development but from use only. However, the Board certainly considered the other uses to which the property could be put, and Judge Meale specifically found that although the criterion uses the conjunctive “and,” it should instead be interpreted as a disjunctive “or.” Otherwise, the City would be unable to regulate certain uses at certain intensities.
an “or” reading other than an “and” reading might allow for a greater range of
regulation, this Court cannot agree with Judge Meale that the City’s use of
“and” was inadvertent and should hence be disregarded. In evaluating statutory language, a court
must first examine the provision’s plain meaning. Moonlit Waters Apartments, Inc. v. Cauley,
666 So. 2d 898, 900 (
Here, the plain and obvious meaning of the first criterion is that the applicant does not have to present evidence that development is otherwise impractical unless it seeks a deviation from use, intensity, and development. While this might be a rare situation, it is certainly within the realm of possibility, and it is equally possible that the City intended to limit this criterion to applicants seeking a wide variety of deviation from the Code. Furthermore, there is no evidence in the record justifying a contrary interpretation. Therefore, this Court finds that by imposing this criterion upon Cepcot, the Board and the hearing officer failed to observe the essential requirements of the law.
Judge Meale also found that Cepcot had failed to meet the seventh criterion, which provides that the proposed project must enhance the community character of the immediate vicinity of the parcel proposed for development and of the city as a whole. On this provision, he noted:
The immediate vicinity of the Property is occupied by offices, warehouses, and a small utility plant. A gas station and convenience store would serve the beach-bound traffic, although it would serve as well the nontransportation functions of surrounding uses. Additionally, the proposed project, as a nonurban convenience store with a couple of gas pumps, would cover little of the Property, and [the Board] may lawfully determine that the proposed project would appear disharmonious with the surrounding bulkier structures.
However, a review of the transcript of the Board’s hearing on Cepcot’s Petition contains absolutely no discussion on whether the convenience store would be “disharmonious” with existing structures in the area. Further, a review of the record establishes that Cepcot met its prima facie burden as to the seventh criterion by, inter alia, presenting the testimony of Ethel Hammer, a noted urban planner, whom the Board recognized as an expert. Ms. Hammer testified that numerous urban areas allow for the type of development proposed by Cepcot and that furthermore, Cepcot’s plan would provide the most pedestrian-friendly venue for users of the Pinellas Trail.
As provided in Dania, once Cepcot met its prima facie burden of showing that its plan satisfied the seventh criterion, it was incumbent upon the Board to find by substantial competent evidence placed in the record that the criterion was indeed not satisfied. However, a review of the record shows that no such finding was made. Therefore, once again this Court determines that by placing the ultimate burden of proof regarding the seventh criterion upon Cepcot, the Board and the hearing officer failed to observe the essential requirements of the law.
As this Court has determined that the Board failed to observe the essential requirements of the law, it need not consider whether the Board’s determination was supported by substantial, competent evidence. For purposes of clarity on remand, however, this Court will address three additional issues.
First, the Court is troubled by the Board’s
heavy reliance upon the planning report.
While such a report may constitute competent, substantial evidence for
or against approval of a proposal, see generally ABG Real Estate Dev.
This Court recognizes that the Board expressed concern over considering the pending changes and actually voted to eliminate those changes as a stated basis for its denial of Cepcot’s proposal. However, the planning report was so rife with references to these changes, and the City Planner cited them so many times during the Board meeting on Cepcot’s application, that it is difficult to conclude that they played no role in the Board’s deliberations. Therefore, this Court would suggest that the Planning Office prepare a new report eliminating all consideration of the pending downtown plan.
Second, the parties dispute whether the Board may consider the general applicability requirements in Section 3-913 of the Code in deciding whether to approve an application. Cepcot contends that Section 3-913 places no additional requirements on applicants, but instead merely lists requirements that the Board must meet if it places any conditions on an approval. The City, however, maintains that since § 2-903 states that proposed uses are subject to the criteria set forth and other applicable provisions of Article 3, Article 2 “captures” the Article 3 requirements.
This Court agrees with Cepcot that, under the plain language of the provisions, § 3-913 does not impose requirements on the applicant. Under § 2-903, qualifying uses are Level II permitted uses, and § 3-913 states that “[c]onditions which are imposed by [the Board] pursuant to a . . . Level Two approval shall ensure that” the listed criteria are met. Therefore, § 3-913 imposes requirements on the Board only; furthermore, these requirements do not come into play until the Board has approved an application but desires to place conditions on its approval. In deciding whether to approve the application in the first instance, however, the Board must limit its review to the criteria of § 2-903.
Finally, the Court
notes that the Board made no specific findings of fact in its Order. However, special exceptions may require that
the Board enter specific findings of fact upon which its action is taken. See Redner v. City Council, 10 Fla. L.
Weekly Supp. 84a (Fla. 13th
Cir. Ct. Dec. 5, 2002) (stating that “due process and equal protection requires
[sic] every final order entered by an administrative agency in the exercise of
quasi-judicial functions to contain specific findings of fact upon which its
ultimate action is taken”); see also Vichich v. DHSMV, 799 So. 2d
1069, 1074 (
Therefore, it is
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby GRANTED. The Final Order dated December 2, 2003, is quashed and this cause is remanded for action consistent with this Order.
DONE AND ORDERED
in Chambers, at
DAVID A. DEMERS
Circuit Judge, Appellate Division
Copies furnished to:
Darryl R. Richards, Esq.
Post Office Box 1100
Leslie K. Dougall-Sides, Esq.
Post Office Box 4748
The Honorable Robert E. Meale
Administrative Law Judge
Division of Administrative Hearings
Judge Meale is an Administrative Law Judge with the Division of Administrative
Hearings, he was not acting in that capacity in this matter. Instead, he was sitting as a hearing officer
under § 4-505 of the City’s Community Development Code. See
 In its
Response, the City briefly argues that Cepcot’s application was for a
conditional use rather than a special exception, apparently in an effort to
persuade the Court that the burden would remain on Cepcot at all times. See Redner v. City of
 Cepcot has also argued that the Board failed to observe the essential requirements of the law by insisting that it satisfy all 10 CIRP criteria. However, this Court is to give great deference to an agency’s interpretation of its own provisions. See Golfcrest Nursing Home v. State, 662 So. 2d 1330, 1333 (Fla. 1st DCA 1995) (appellate court will give deference to any interpretation by an agency that falls within the permissible range of statutory interpretations). Without any language in the Code as to how these provisions are to be weighed, this Court cannot conclude that it would be unreasonable for the Board to determine that all 10 need be met.
 In contrast to pending land
use plan changes, pending zoning changes may be considered when reviewing a land use application. Smith v. City of