Petition for Writ of Certiorari to Review
Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: VARIANCES
– Martin did not establish before the Board that its variance request met all
the criteria – Martin failed to present evidence that it had attempted to
correct code violations on the property or to demonstrate that the housing is
safe - Petition denied. Richard Martin Management Co. Inc. v. City of
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE
DIVISION
RICHARD MARTIN MANAGEMENT
CO. INC.,
Petitioner,
vs. Appeal No. 04-0022AP-88A
UCN522004AP000022XXXXCV
CITY OF
Respondent.
________________________________________________/
THIS CAUSE came before the Court on the Petition for Writ of Certiorari and the Response. 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, Richard Martin Management Co. Inc.
(Martin), seeks review of the Order, entered February 20, 2004, in which the
Board of Adjustment of the City of
The record shows that Martin owns property located at
Before this Court, Martin argues that the Board’s
decision in not supported by competent substantial evidence and that the Board
failed to accord Martin due process. In
addressing the first issue, the Court finds that Martin did not meet its burden
of establishing that its variance request met all the Code criteria. See Gomez v. City of
While the Board did not specify its reason for denying the variance request, an obvious concern was that several code violations had existed on the property for over a year with no evidence presented by Martin that it had attempted to substantially correct the violations or demonstrate a commitment to ensure that the housing is safe. As stated in the Staff Report, Martin failed to meet criteria # 8, that “[t]he granting of the variance will not be injurious to the neighborhood or otherwise detrimental to the public welfare.” Without the need to address each code criteria, the Court finds that there is competent substantial evidence in the record to support the Board’s decision based on Martin’s failure to meet criteria # 8, which the Court finds was of particular importance given the property’s use as a rental unit. See e.g. Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002)(explaining that competent substantial evidence is evidence sufficiently relevant and material that a reasonable mind would accept as adequate to support the conclusion reached).
In addressing the second issue, the Court finds that
at least one Board member admonished Mr. Martin for his failure to adhere to
deadlines when Mr. Martin attempted to provide the Board with a package of
materials at the beginning of the variance request hearing. While the record is void of any evidence that
Martin was provided with notice of when and how to submit material for the
Board’s consideration prior to the hearing, the Court cannot conclude that
there was a due process violation. The
Board allowed Mr. Martin to present his case as he wished on February 20,
2004. Further, the record demonstrates
that Mr. Martin had ample opportunity to submit material to the Board for its
consideration given the multiple hearings regarding the subject property over a
12-month period. Hence, under the facts
of this case, the Court finds that Martin was afforded fair notice and a real
opportunity to be heard. See Keys
Citizen for Responsible Government, Inc. v. Florida Keys Aqueduct Authority,
795 So.2d 940, 948 (
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby denied.
DONE AND ORDERED in Chambers, at
___________________________________
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Michael R. DeMinico, Esquire
Milton A. Galbraith,
Post Office Box 2842