Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Procedural Due Process – Riparian Rights – Petitioner was not denied due process by the City’s decision not to hold a public hearing in granting Petitioner’s neighbor a permit to build a dock – Administrative approval was all that was required by the County’s Code for dock permit – no record evidence that dock failed to meet Code criteria – Petitioner was not entitled to an unobstructed view of Mandalay Channel, west of Petitioner’s property – Petition denied. Fernandez  v. Board of County Commissioners of Pinellas County, No. 05-0042-88A (Fla. 6th Cir. App. Ct. March 20, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

JOHN D. FERNANDEZ,

                        Petitioner,

vs.                                                                                                Appeal No. 05-0042AP-88A

                                                                                                    UCN522005AP000042XXXXCV

BOARD OF COUNTY COMMISSIONERS

OF PINELLAS COUNTY, FLORIDA,

                        Respondent.

________________________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response and the Reply.  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, John D. Fernandez (Fernandez), seeks review of the Order, entered May 9, 2005, in which the Respondent, Board of County Commissioners of Pinellas County, acting as the governing authority of the Pinellas County Water and Navigation Control Authority (Board),

denied Fernandez’s Petition for Rehearing which sought to have a private dock permit issued to his neighbor, Robert Buck, set aside.  The standard of review of administrative action is whether the petitioner was afforded procedural due process, whether the essential requirements of law were observed, and whether the administrative findings and judgment are 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).  In considering the Board’s Motion to Strike, filed August 9, 2005, the Court will not consider the exhibits in Fernandez’s supplemental appendix,[1] as they were not developed as part of the record below.  See Fla. R. App. P. Rule 9.190(c)(1). 

            The record shows that on January 15, 2005, Robert Buck, of 210 Palm Island S.W., Clearwater, applied for a dock permit to construct a 13,000 pound cradle lift and a personal watercraft boat lift to an existing 248 square foot dock.  On January 26, 2005, Fernandez, who lives next to Mr. Buck at 216 Palm Island S.W., filed his objection to the dock application arguing that the proposed boat lift would unlawfully obstruct his view of Mandalay Channel.  The dock permit application was administratively approved on February 4, 2005.  On March 3, 2005, Fernandez filed his Petition for Rehearing on Authority’s Intention to Issue Permit.  In response to Fernandez’s Petition for Rehearing, the Managing Assistant County Attorney prepared a memorandum setting forth her analysis of the issues and her recommendation to deny the Petition.  A staff member from the Environmental Management Department also prepared a detailed summary and analysis recommending that the Board deny a request for a public hearing in response to the Petition.  On May 9, 2005, the Board denied the Petition for Rehearing, without holding a public hearing, from which Fernandez filed his Petition for Writ of Certiorari.    

            Before this Court, Fernandez argues that he was denied due process as the Board denied his Petition for Rehearing without holding a public hearing and, further, that the issuance of the permit unlawfully violates his riparian right to an unobstructed view.  In addressing the due process argument, the Florida Supreme Court has held that due process requires both notice and an opportunity to be heard at a meaningful time and in a meaningful manner.  See Keys Citizens for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940, 948 (Fla. 2001).  However, “[t]he specific parameters of the notice and opportunity to be heard required by procedural due process are not evaluated by fixed rules of law, but rather by the requirements of a particular proceeding.”  Id.

            In this particular proceeding, the dock permit could be administratively approved by the Director of the Department of Environmental Management without holding a public hearing since the proposed dock did not exceed 500 square feet and no variance was needed.  See Code Sec. 166-286(2)a.  There is no record evidence to show that the Board failed to follow the Code.  Rather, Fernandez was provided notice of the dock permit application and timely filed his Petition for Rehearing after the permit was administratively approved.  The Board considered the Petition, along with the County Attorney’s analysis and a summary prepared by a staff member of the County’s Environmental Management Department, and made a decision, as provided by the Code, to deny the Petition without a public hearing.  Under these facts, the Court finds that Fernandez was not denied due process in the proceedings below.

            The Court also finds that there is competent substantial evidence to support the approval of the dock permit.  See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002)(describing competent substantial evidence as such evidence that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached”).  Fernandez argues that the dock permit application should have been denied as it failed to meet permit Code criteria in that it “[w]ould have a material adverse affect upon the uplands surrounding or necessarily affected by such plan or development.”  See Code Sec. 166-281(b)(7).  There is no record evidence that the dock would have a material adverse affect on the uplands, specifically Fernandez’s neighboring property.  Lastly, the Court finds no support for Fernandez’s argument that he is entitled to an unobstructed view of Mandalay Channel, which is west of Fernandez’s property.   

            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 2006.

 

 

 

                                                _______________________________

                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division

 

 

 

 

_______________________________                      ______________________________

LAUREN LAUGHLIN                                            JAMES CASE

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division

 

Copies furnished to:

John D. Fernandez

918 Drew Street

Clearwater, FL  33755

 

Jewel White Cole, Esquire

Managing Assistant County Attorney

315 Court Street

Clearwater, FL  33756



 

[1] Exhibit 1 is a vessel registration for the boat dry-stored by Mr. Buck; Exhibit 2 is photograph of the subject boat lift, built while this appeal was pending, and; Exhibit 3 is a letter addressed to Mr. Buck from Jewel White Cole, dated June 8, 2005.