Petition
for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and
Commissions of Local Government: ZONING – Due Process – Petitioners were
not denied due process by ex parte communications between City Commissioners
and both the Petitioners and Wal-Mart – ex parte communications were disclosed
at the beginning of the hearing and no objection was made – no due process
violation for Wal-Mart’s introduction of supplemental traffic study at the
hearing – Petitioners did not request additional time to review the study - Essential
Requirements of Law – Petitioners do not have standing to challenge DRI
abandonment order pursuant to Section 380.07(2) – proposed use of site to build
a Wal-Mart is expressly permitted by City’s Code in a General Business zoning
which allows for Retail Sales Establishments and Shopping Centers – Wal-Mart
not required to seek conditional use approval for potential future development
on lots not impacted by proposed Wal-Mart - Competent Substantial Evidence – record
supports City’s approval of site plan – Court cannot substitute its judgment
for that of the City – No evidence of bias or prejudice by City’s request of
City Attorney to outline possible litigation issues that could arise from
either granting or denying site plan – Petition denied. Concerned Citizens of Tarpon Springs, Inc. et. al. v. City of
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
CONCERNED CITIZENS OF TARPON SPRINGS,
INC., HARRY BATUYIOS, DENNIS BROWN,
DOROTHY BROWN, WENDY CROSATO, BRIAN
R. CROSATO, JEAN DORRELL, HELEN GLADWIN,
BILL GLADWIN, WILLIAM HOOPER, CHRIS
HRABOVSKY, RICHARD MURDACH, EDWARD
SKAALAND, JOAN SKAALAND, JOHN K. TARAPANI,
CHARLES VAN WINKLE,
and WILLIAM L. VINSON,
Petitioners,
vs. Appeal No.05-0014AP-88B
UCN522005AP000014XXXXCV
CITY OF
WAL-MART STORES EAST, LP,
Respondents.
__________________________________________/
THIS CAUSE came before the Court on the Amended Petition for Writ of Certiorari, the Joint Response to Second Order to Show Cause, and the Petitioners’ Reply. 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, Concerned Citizens
of Tarpon Springs, Inc., Harry Batuyios, Dennis Brown, Dorothy Brown, Wendy Crosato,
Brian R. Crosato, Jean Dorrell, Helen Gladwin, Bill Gladwin, William Hooper,
Chris Hrabovsky, Richard Murdach, Edward Skaaland, Joan Skaaland, John K. Tarapani,
Charles Van Winkle, Sharon Van Winkle, and William L. Vinson (Petitioners),
seek review of Resolution 2004-63, entered January 19, 2005, by the Respondent,
City of Tarpon Springs, Florida (City), to approve the site plan, with
conditions, submitted by the Respondent, Wal-Mart Stores East, LP (Wal-Mart). These Petitioners have standing.[1] 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 Resolution is supported by competent substantial
evidence. See Haines
City Community Development v. Heggs, 658 So.2d 523, 530 (
The record shows that Wal-Mart
submitted a site plan proposal for the development of a 74.4 acre parcel of
land, described as Lot 1, located off of U.S. 19 and bordered on one side by
the
After a 13-hour public hearing, the Board of Commissioners of the City of Tarpon Springs (City Commission), in a 3 to 2 vote, approved Resolution 2004-63. The Resolution approved the site plan with several conditions, to wit:
1. The developer is responsible for acquiring all other jurisdictional permits and for
meeting the minimum criteria of the Land Development Code.
2. Construction plans, signed and sealed by a
registered engineer licensed to practice in the State of
3. All conditions and requirements of the final Development Agreement (ATTACHMENT B) must be performed on a timely basis, as applicable.
4. Master meters and utility line adjustments
per the requirements of the City of
5. Plat approval is required for the subdivision into three lots.
6. Submission of revised traffic impact study with follow-on review by TBE Group for compliance with City of Tarpon Springs transportation concurrency management requirements or reduction of scope of project to within 50% of allowable floor area ratio. No development permits will be issued until concurrency requirements are accomplished.
7. A 50’ buffer is required along the
8. A physical barrier is required between the
The Development
Agreement, incorporated into the Resolution as Attachment B, is a 24-page
document that sets forth several more conditions and restrictions, including
that the owner must seek rezoning of
The Petitioners have raised several issues before this Court. The Petitioners first argue
that they were denied due process as the City Commission failed to disclose the substance of ex
parte communications; the City failed to require rezoning of the subject property, and; Wal-Mart
failed to timely submit a traffic study. The Petitioners next argue that the City’s decision does
not conform to the essential requirements of law because of incomplete abandonment of
development of regional impact; the site plan violates the City’s Code, and; the site plan violates the City’s comprehensive land development plan. Lastly, the Petitioners argue that the Resolution is not supported by competent substantial evidence because the traffic study was incomplete and the City’s decision was influenced by prejudice and bias.
Before addressing each issue, the
Court reiterates that in conducting certiorari review of the underlying action
it has neither the duty nor the authority to decide whether it is good public
policy to allow Wal-Mart to build a supercenter at this particular
location. Rather, as set forth in Haines
City, this Court’s review is governed by a three-part standard: whether procedural due process has been
accorded; whether the essential requirements of law were observed; and, whether
the findings and judgment are supported by competent substantial evidence.
In evaluating the last prong of
review, competent substantial evidence has been described as evidence that is
“sufficiently relevant and material that a reasonable mind would accept it as
adequate to support the conclusion reached.”
See Department of Highway Safety and Motor Vehicles v. Trimble,
821 So.2d 1084, 1087 (
The issue before this court is not whether the agency’s decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency. The circuit court has no training or experience – and is inherently unsuited – to sit as a roving “super agency” with plenary oversight of such matters.
With that standard in mind, the Court reaches the following decision as to each issue.
Due Process
1. Failure to disclose substance of ex parte communications
The Court finds that before the
hearing began on January 18th, the City Commissioners disclosed on the record
any ex parte communications they had with either side. All of the Commissioners disclosed that they
had talked with opponents of the site plan proposal; 4 of the 5 Commissioners
disclosed that they had talked with Wal-Mart representatives. The Petitioners did not object to the fact
that there were ex parte communications, nor request any additional
clarification as to the nature or extent of such communications. The law is well-settled that issues may not
be raised for the first time on certiorari review which were not presented to
the lower tribunal during the quasi-judicial hearing. See G.B.V. International, Ltd. v.
2. Failure to require rezoning of the subject property
There are no
facts, nor any legal authority, cited by the Petitioners that the City rezoned
the property, de facto, without
requiring Wal-Mart to go through the necessary rezoning process. The Petitioners’ argument is that the
property’s current zoning, GB, does not allow for the development of a
3.
Failure to timely submit traffic study
As with the ex parte communications issue, the Court finds that the Petitioners have waived this argument by failing to expressly object to the introduction of the Supplement Traffic Analysis during the January 18th hearing. See id. The Petitioners did not request additional time to review the traffic report. Further, even if the Petitioners had not waived this argument, the record shows that the Petitioners were fully afforded the right to present evidence and testimony during the January 18th hearing, as well as the opportunity to cross-examine the traffic experts presented by the City and Wal-Mart. Under these facts, the Courts finds that the Petitioners were afforded procedural due process.
Essential Requirements of Law
1. Incomplete abandonment of development of regional impact
In reviewing this issue, the Court finds that the Petitioners do not have standing to argue this matter as Florida Statutes, § 380.07(2), confers standing only to the owner, developer, or state land planning agency to appeal a DRI development order or abandonment order; even then, the order must be appealed to the Florida Land and Water Adjudicatory Commission. However, assuming this issue were properly before the Court, there is no support for the Petitioners’ argument that the DRI Abandonment Order, entered beyond the 90-day time frame due to scheduling delays caused by three hurricanes, is a nullity. See e.g. Caliente Partnership v. Johnston, 604 So.2d 886, 887 (Fla. 2d DCA 1991)(holding that the failure to publish a notice of intent for a plan amendment within the statutorily prescribed forty-five days is not grounds for approval by default); School Board of Leon County v. Weaver, 556 So.2d 443, 446 (Fla. 1st DCA 1990)(holding that failure to enter a final order within the statutorily prescribed ninety days from receipt of a recommended order does not warrant reversal unless the fairness of the proceeding or the correctness of the action is impaired by virtue of the statute’s violation).
2.
Proposed use of the site plan violates the City’s Code: (a) the site
plan does not comply with the Code; (b) the site plan circumvents procedural
requirements for conditional uses, and; (c) the site plan application is
incomplete
The
Court finds that the proposed use of the site plan, specifically
(A) The GB District is established to provide for the development of a centralized commercial area where specialty retail, restaurant, office and residential uses are readily available. This district is intended to encourage redevelopment of traditional shopping areas and promote cultural tourism within the National Register Historic District and Cultural Preservation District which function to serve the immediate residential neighborhoods and the community as a whole.
(B) Permitted uses; (15) Retail Sales Establishments; (18) Shopping Centers. (emphasis added).
As previously stated, “Retail Sales Establishment” includes “[a]ny establishment where the primary use is the sale of goods or merchandise to the general public for personal or household consumption.”[2]
The
Petitioners focus on the words “specialty retail” to argue that the proposed
development is not a permitted use under GB zoning. However, while the intent of the GB district
is to encourage specialty retail, the district does not limit retail solely to
“specialty.” Rather, the Code
unambiguously and expressly allows for retail sales establishments, as well as
shopping centers, with no limitation to specialty retail. The Court finds that the
3.
The site plan violates the comprehensive plan
The
Petitioners argue that the City erred in approving the site plan without first
requiring Wal-Mart to seek conditional use approval for potential future
residential development of
Competent substantial evidence
1. Incomplete traffic study
The Court finds
that there is nothing in the record to show that the Supplemental Traffic Study
was incomplete. Rather, the record shows
that the City Commission considered the testimony and evidence presented from
the City’s Planning and Zoning Director, the City’s Development Services
Director, the City’s traffic consultant, Wal-Mart’s project engineer and
Wal-Mart’s planning expert, along with the Staff Report recommending approval
of the Wal-Mart site plan before concluding that the traffic study was sufficient
to support its decision to approve the Site Plan. The Court cannot reweigh the evidence nor
substitute its judgment for that of the City to arrive at a different
conclusion. See Dusseau, supra.
Further, the Court finds that the traffic impact on the proposed development is still subject to review by the City. As set forth in condition # 6 of the Resolution, Wal-Mart must still submit a revised traffic impact study to be reviewed for compliance with the City’s transportation concurrency management requirements before any development permits will be issued.
2.
Evidence of prejudice and bias
In reviewing the last issue, the Court finds that the City attorney did prepare a memorandum, at the request of the City’s Mayor, dated January 10, 2005, and addressed to the City Commission, that outlined possible litigation issues that could arise from granting or denying Wal-Mart’s proposed site plan. The Court finds that, standing alone, it is not inappropriate for the City to consider the legal consequences of its actions. In the memorandum, the City Attorney stressed that the City Commission must base its decision on competent substantial evidence presented at the hearing and not on possible litigation that might arise from its decision. While some Commission members may have been influenced, to some degree, by concern about litigation, there is nothing in the record to suggest that this was the basis for any votes. Furthermore, this has nothing to do with the sufficiency of the evidence.
In conclusion, the Court finds that the Petitioners were afforded procedural due process, the City observed the essential requirements of law, and the Resolution is supported by competent substantial evidence. Accordingly, the Petitioners’ request for certiorari relief must be denied.
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby denied.
DONE
AND ORDERED in Chambers, at
_________________________________
DAVID A.
DEMERS
Circuit Judge, Appellate Division
_________________________________
PETER RAMSBERGER
Circuit Judge, Appellate Division
________________________________
ANTHONY
RONDOLINO
Circuit Judge, Appellate Divison
Copies furnished to:
C. Phillip Campbell, Esquire
Theodore C. Taub, Esquire
Tammy N. Giroux, Esquire
Mark A. Connolly, Esquire
John G. Hubbard, Esquire
David A. Theriaque, Esquire
Suzanne Van Wyk, Esquire
Timothy E. Dennis, Esquire
[1] As a preliminary matter, this Court, in an order
entered July 28, 2005, granted, in part, the Respondents’ motion to dismiss
amended petition based on lack of standing.
The motion to dismiss was granted only to the extent that the Court had
no jurisdiction over those Petitioners not named in the original petition. Concerned Citizens, incorporated after the
underlying hearing but comprised of citizens with standing to appeal, and the
remaining named Petitioners were allowed to proceed with the petition for writ
of certiorari.
[2] There is not a definition of “Shopping Center” provided in the record. However, the Court finds that the term Shopping Center is self-explanatory and unambiguous.
[3] The Court notes that there is a separate declaratory action, filed by the Petitioners pursuant to Florida Statutes,
§ 163.3215, currently pending at the trial court level.