Petition
for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and
Commissions of Local Government: ZONING – Variance – Standing – as a
neighbor within 300 feet of subject property, Petitioner had standing to
challenge Board’s decision – Board, acting in an appellate capacity, departed
from the essential requirements of law in failing to follow its Code and for
vacating the decision of the City Manager finding that new, more stringent,
Code applied to developer’s application for development – nothing in the record
to show that City Manager erred in entering his decision that developer’s
application was not complete at the time the new Code went into effect –
Petition granted. Manning v. Development Review
Board, No. 05-0014AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
BETH MANNING,
Petitioner,
vs. Appeal No.05-0014AP-88B
UCN522005AP000014XXXXCV
DEVELOPMENT REVIEW BOARD,
CITY OF
NICKLAUS INVESTMENT ENTERPRISES, INC.,
Respondents.
___________________________________________/
THIS
CAUSE came before the Court on the Petition for Writ of Certiorari, the
Response of the Development Review Board, City of
The Petitioner, Beth Manning
(Manning), seeks review of Administrative Appeal # 20030048 (Order), entered February
26, 2004, by the Respondent, Development Review Board, City of St. Pete Beach
(Board). The Order denied Manning’s
Motion for Rehearing and upheld its decision to overturn the finding of the
City Manager that the subject application for development, submitted by
Respondent, Nicklaus Investment Enterprises, Inc. (Nicklaus), was incomplete on
the effective date of the City’s New Code,[1]
June 1, 2003. In reviewing the administrative
action taken by the Board, the Court must consider whether Manning 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 (
Initially, the Court finds that this matter is ripe for appellate review and that Manning has standing. The City’s Code, Section 3.14(b), states that “[a]ny person aggrieved by a final order of the City Commission or the appropriate board of authority may appeal the order to circuit court.” Indeed, the Order itself states that “[a]ny person aggrieved by this order may appeal the order to the circuit court on or before thirty (30) days from the date of the order.” The Court also finds that Manning has standing to appeal the Order as Manning has sufficiently established that the Board’s action will affect her property. See e.g. City of St. Petersburg, Board of Adjustment v. Marelli, 728 So.2d 1197, 1198 (Fla. 2d DCA 1999)(recognizing that neighboring property owners affected by zoning changes have standing to challenge the changes). It is undisputed that Manning’s home is directly diagonal from the proposed commercial lot and that Manning was provided notice of the hearing before the Board, and participated in the proceedings, because she lives within 300 feet of the subject property.
The record shows that Nicklaus
submitted an application for a site plan review seeking acceptance by the Board
of a proposed parking lot at
On August 22, 2003, the City Manager, the primary administrator of the City’s Code and ordinances, issued his decision that the application was incomplete on the date of filing and so was subject to the New Code. The basis for the City Manager’s decision was that Nicklaus paid the application filing fee late, on August 18, 2003. The City Manager also found that the application remained incomplete as numerous items remained outstanding, including: a notarized statement from the owner authorizing Paul Nicklaus to act in the matter; zoning and land use for existing and adjoining properties; proposed location and outline of the storm water system; proposed outfall points; proposed subsurface piping; fire hydrant locations, and; major water and sewer lines with sizes.
Nicklaus timely filed an appeal of the City Manager’s administrative decision, requesting a hearing before the Board. A noticed hearing was held on November 20, 2003. The City Manager, a key witness in the proceedings, was not present due to a family emergency. At the close of the hearing, the Board decided, in a 5 to 0 vote, to reverse the decision of the City Manager; however, the City Attorney and Nicklaus’ attorney stipulated that the affidavit of the City Manager was necessary for the Board’s consideration. On November 23, 2003, Manning filed a motion for rehearing which came before the Board on February 25, 2004. During the rehearing, the only additional evidence considered by the Board was the affidavit of the City Manager.[3] The affidavit mirrored the administrative decision issued August 22, 2003, setting forth a multitude of reasons as to why Nicklaus’ application was deemed incomplete as of June 1, 2003. The Board ultimately denied the motion for rehearing.
Before this Court, Manning’s primary
argument is that the Board departed from the essential requirements of law in
failing to follow its Code and by vacating the decision of the City
Manager. This Court agrees. Initially, the Court finds that the City’s
Code is subject to the same rules of construction as statutes. See Rinker Materials Corp. v. City
of
In this case, the Code clearly provides for a transition period between the New Code and the Old Code. Section 1.8(a), Transition Rules, states: “Where a complete application for development approval is pending on the effective date of these regulations, the provisions of the regulations in effect when the application was filed shall govern the review and approval of the application for development approval.” (emphasis added). While the term “complete” is not defined by the City’s Code, Black’s Law Dictionary defines the term as: “Full; entire; including every item or element of the thing spoken of without omissions or deficiencies.” See Black’s Law Dictionary 357 (revised 4th ed., West 1968).
According to Section 3.15, Enforcement, and Section 4.01, City Manager, the City Manager is charged with enforcing the City’s Code and Rules. As set forth above, the City Manager, in a detailed letter dated August 22, 2003, enumerated a myriad of reasons why the application submitted by Nicklaus was not complete. Nicklaus appealed the City Manager’s decision to the Board. As set forth in Section 22-41(a)(1), when sitting in its appellate capacity, the Board is to: “Hear and decide appeals where it is alleged there is any error in any order, requirement, decision or determination made by the administrative official in the enforcement of the land development regulations.”
There is nothing in the record to show that the City Manager erred in entering his decision. Indeed, comments of the Board members at the conclusion of the November hearing demonstrate that the application was not complete, to wit: “Now was it [the application] complete? Well, I think as indicated from the city manager, there were some things lacking. I think that is clear.”, and; “Now, technically did they do everything absolutely correct? Absolutely not, as learned here today in this testimony . . .”. (emphasis added). It is clear that the application had several omissions and deficiencies and was not complete as one would commonly apply the term or as defined by Black’s Law Dictionary.
The transcript of the November hearing shows that the Board based its decision to reverse the City Manager on the fact that the application had been accepted for filing before the effective date of the New Code and that the City’s technical review committee had met twice to review the application. The transcript also shows that the Board reversed the City Manager because it determined that it was the custom of the City’s staff to work with an applicant, at least under the Old Code,[4] to move towards a final site plan, even when an incomplete application had been submitted. However, the fact that the City staff attempted to work with Nicklaus to complete his application, as was their custom, doesn’t negate the application of the Transitional Rules which, according to its plain language, contemplates that a pending application process would be at a “complete” stage on or before May 31, 2003. Further, the City staff assisting Nicklaus with his application after it was filed logically supports the City Manager’s finding that the application was not complete.
Accordingly, the Court finds, under these facts, the Board erred in reversing the decision of the City Manager, resulting in a departure from the essential requirements of law. See Haines, 658 So.2d at 527; see also Housing Authority of the City of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004)(explaining that in determining whether there has been a departure from the essential requirements of law, the appellate court “should not be as concerned with the mere existence of legal error as much as with the seriousness of the error”). The Court finds that it needn’t address the remaining issues. Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby granted and the Administrative Appeal # 20030048 is quashed.
DONE
AND ORDERED in Chambers, at
_________________________________
DAVID A.
DEMERS
Circuit Judge, Appellate Division
Copies furnished to:
Donald E. Hemke, Esquire
Post Office Box 3239
Timothy P. Driscoll, Esquire
Gregory T. Elliott, Esquire
St.
Pete
[1] The Court will refer to the Code in effect as of June 1, 2003 as the “New Code” and the Code in effect up until that date as the “Old Code.”
[2] The record shows that the “11th hour” application was hastily submitted as counsel for Nicklaus only became aware of the implementation of the New Code on May 28, 2003.
[3] The Court notes that the City Manger’s affidavit, identified as Exhibit J, is missing the signature page. The Court finds that this is inconsequential since it is not disputed that the City Manager executed the affidavit.