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 St. Petersburg, No. 04-0022AP-88A (Fla. 6th Cir. App. Ct. March 9, 2005). 












vs.                                                                                                Appeal No. 04-0022AP-88A










            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 St. Petersburg (Board), denied Martin’s variance request.  Mr. Richard Martin appeared before the Board on February 20, 2004, on behalf of his company.  In reviewing the administrative action taken in the proceedings below, the Court must consider whether Martin was afforded procedural due process, whether the essential requirements of law were observed and whether the Order 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). 

            The record shows that Martin owns property located at 712 15th Avenue South, St. Petersburg.  Since November 2002, the property has been the subject of ongoing code violations that have resulted in several hearings and the imposition of fines.  One cited violation was that the property had an enclosed carport area for which no permit had been pulled.  The enclosed carport existed at the time Martin purchased the property in 1995.  The City notified Martin that it would need to obtain a variance in order to apply for an after-the-fact permit since the enclosed carport extended 2 feet into the required 20 feet rear yard setback.  Martin applied for a variance and the City’s Development Services Department initially recommended approval.  The approval was rescinded and the matter was referred to the Board for a hearing.  The Staff Report recommended denial of the variance request primarily because of active code violations on the property.  After the hearing, the Board voted 3 to 2 to deny the variance request.

            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 St. Petersburg, 550 So.2d 7 (Fla. 2d DCA 1989).  As analyzed by the Second District Court of Appeal in Gomez, the applicant for a variance must still meet code criteria even when developed property has been utilized in an unlawful manner for an extended period of time.  

            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 (Fla. 2001).  It is therefore,     

            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 March 2005.





                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

Copies furnished to:


Michael R. DeMinico, Esquire

305 62nd Avenue North

St. Petersburg, FL  33702


Milton A. Galbraith, Assistant City Attorney

Post Office Box 2842

St. Petersburg, FL  33731