Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variance – Petitioners had the burden to establish variance request met code criteria  - competent substantial evidence in the record to support denial of variance request – Petitioners failed to establish that they would suffer a hardship without the variance – Petition denied.  Andrade v. City of St. Pete Beach, No. 04-0044AP-88A (Fla. 6th Cir. App. Ct. April 11, 2005). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

EUGENE ANDRADE and

GAIL ANDRADE,

                        Petitioners,

vs.                                                                                                Appeal No. 04-0044AP-88A

                                                                                                    UCN522004AP000044XXXXCV

CITY OF ST. PETE BEACH, FLORIDA,

                        Respondents.

________________________________________________/

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

 

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

            The Petitioners, Eugene Andrade and Gail Andrade (Petitioners), seek review of the Development Order, entered April 22, 2004, in which the Respondent, City of St. Pete Beach, Florida (City), denied the Petitioners’ variance request.  In reviewing the administrative action taken by the City, the Court must consider whether the Petitioners were 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).  As the Petitioners do not argue that they were denied due process, the Court need not address that prong. 

            The record shows that the Petitioners own a single-family residence located at 2404-06 Sunset Way, St. Pete Beach, Florida.  A metal pan roof supported by metal posts extends from the rear of the house over a patio.  The Petitioners sought a variance to replace the metal pan roof with a two-story partially covered balcony in the same footprint as the existing metal pan roof, with the exception of a small covered walkway extension.  The Petitioners requested a rear yard setback from 20 feet to 6.4 feet to construct the covered balcony.  The Development Review Board unanimously denied the variance application.  Upon hearing the Petitioners appeal, the City Commission upheld the Board’s decision in a 3 to 2 vote.

            Before this Court, the Petitioners argue that the City failed to observe the essential requirements of law and that the Order is not supported by competent substantial evidence.  In reviewing this issue, the Court finds that the Petitioners had the burden to establish the requirements for the variance.  See Gomez v. City of St. Petersburg, 550 So.2d 7, 8 (Fla. 2d DCA 1989).  The City’s Code sets forth several criteria which must be met before a variance can be granted.  See Code Sec. 3.13(a)-(e).  The City concluded that the Petitioners failed to meet these criteria, including that the Petitioners failed to demonstrate they would suffer a hardship without the variance.  The City also expressed concern that granting the variance may create an undesirable precedent in the future for similar requests.

            The Court finds that there is competent substantial evidence in the record to support the City’s decision and this Court is not permitted to reweigh the evidence presented.  See Heggs, 658 So.2d at 530; see also Town of Manalapan v. Gyongyosi, 828 So.2d 1029, 1033 (Fla. 4th DCA 2002).  Likewise, the Court can find no support for the Petitioners argument that the City departed from the essential requirements of law in the proceedings below.  Hence, the request for certiorari relief must be denied.  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 April 2005.

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge, Appellate Division

Copies furnished to:

 

Thomas E. Reynolds, Esquire

535 Central Avenue

St. Petersburg, FL  33701

 

Timothy P. Driscoll, Esquire

100 First Ave. South, Suite 340

St. Petersburg, FL  33701