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—The burden then shifted to the County to demonstrate by competent substantial evidence that petitioner did not meet the criteria for approval, and, further, that approval of the Application would be adverse to the public interest-county did not meet its burden--petition for writ granted.  Patterson v. Pasco County Board of County Commissioners, 51-2003-CA-003490WS (Fla. 6th Cir. App. Ct. November 21, 2004).












vs.                                                                    Case No: 51-2003-CA-003490-WS









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

            The petitioners own a parcel of undeveloped land surrounded by a canal and single family residential dwelling units. The subject parcel is zoned R-4 which provides for duplexes only after a special exception is granted. The petitioners filed an Application for Special Exception requesting that a proposed duplex be approved for the subject parcel.  The Pasco County Zoning Administrator, Debra Zampetti, recommended approval of the proposed special exception, subject to conditions.  At the Pasco County Planning Commission public hearing on July 9, 2003, the Commission heard the requested special exception.  The Commission disagreed with the Zoning Administrator's recommendation and considered the following standards of the Code unmet by the Petitioners:

            1.  The request is not consistent with the goals, objectives, and policies of an adopted Comprehensive Plan, element, or portions thereof.

            2.  The requested special exception will result in any substantially adverse economic, noise, glare, or odor effects on adjoining or surrounding properties.

            3. The special exception use is not, or will not be, screened and buffered if necessary in order to prevent adverse effects upon adjoining or surrounding property.

            The Petitioners appealed the denial to the Board of County Commissioners. At the appeal hearing before the Board on November 4, 2003, the Board denied the appeal, upholding the determination of the Commission to deny the special exception.  On December 4, 2003, the petitioner's filed their Petition for Writ of Certiorari with this Court alleging that the County's determination was not supported by substantial competent evidence and was a departure from the essential requirements of law.

            In reviewing the record, the Court finds that petitioners met their initial burden of showing that its Application met the statutory criteria for granting such exceptions. Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1091-92 (Fla. 2000)(explaining the allocation of burdens in a special exception proceeding).  As stated above, the County Zoning/Code Compliance Administrator, reviewed the application based on the criteria set forth in the Code upon which it then recommended approval.  Staff reports can be considered in determining whether petitioner's met their initial burden. ABG Real Estate Development Company of Florida, Inc., v. St. Johns County, 608 So. 2d 59 (Fla. 5th DCA 1992)(finding that staff report's positive recommendation was strong evidence supporting the approval of property owner's application.)

            The burden then shifted to the County to demonstrate by competent substantial evidence that petitioner did not meet the criteria for approval, and, further, that approval of the Application would be adverse to the public interest.  Florida Power & Light Co., 761 So. 2d at 1091-92.     The Court finds that the County did not meet its burden.

            The Court recognizes that the County heard opposition to the application as expressed by neighbors of the subject property.  As evidence by the testimony of the neighbors, some concerns were "too much coming in on the street"; "everything else there is just . . . single family homes"; and "[duplexes] depreciate the value of the whole area . . . "   The neighbors submitted a petition stating their objections to the proposed duplex.  Although citizen testimony in a zoning matter is perfectly permissible, lay opinions, unsupported by competent facts, do not constitute competent substantial evidence.  See City of Apopka v. Orange County, 299 So. 2d 657, 660 (Fla. 4th DCA 1974).    In this case, the board did not have before it substantial competent evidence upon which to base its denial of the exception. Thus, the County did not meets its burden.

            Accordingly, the Court finds that the decision of the Board must be quashed and this cause remanded.[1]

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED and the order below QUASHED.

            DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ________ day of  November,  2004.



                                                                                     W. Lowell Bray, Circuit Judge


Copies furnished to:

Constantine Kalogianis, Esq.  

W. Elizabeth Blair, Esq.           




[1] When the order under review is quashed on certiorari, it leaves the controversy pending before the tribunal, commission, or administrative authority, as if no order or judgment had been entered, and the parties stand upon the pleadings and proof as it existed when the order was made with the rights of all parties to proceed further as they may be advised to protect or obtain the enjoyment of their rights under the law in the same manner and to the same extent which they might have proceeded had the order reviewed not been entered.  Broward County v. G.B.V. Intern., Ltd.  787 So.2d 838 (Fla.2001).