Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variance – undisputed evidence was that Petitioner’s handicapped-accessible vehicle was 7.5 feet in height, 6 inches over the allowable height for passenger or commercial vehicles to be parked on a residential lot – Court must defer to City’s interpretation that the Petitioner’s van is a prohibited commercial vehicle and that Petitioner did not meet the exceptional and unique hardship requirements for a variance - Court cannot substitute its judgment for that of the City – Petition denied.  Rigo  v. City of St. Petersburg, No. 05-0065AP-88B (Fla. 6th Cir. App. Ct. April 25, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

FRANK RIGO,

                        Petitioner,

 

vs.                                                                                            Appeal No. 05-0065AP-88B

                                                                                                UCN522005AP000065XXXXCV

CITY OF ST. PETERSBURG,

FLORIDA, and the BOARD OF

ADJUSTMENT of the CITY OF

ST. PETERSBURG, FLORIDA,

                        Respondents,

 

____________________________________/

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 briefs, the record and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The Petitioner, Frank Rigo (Rigo), seeks review of the Development Order, entered July 15, 2005, in which the Respondents, City of St. Petersburg, Florida (City) and the Board of Adjustment of the city of St. Petersburg, Florida (Board), denied Rigo’s variance request to allow a commercial vehicle to be parked on his residential property.  In reviewing the administrative action taken by the Board, the Court must consider whether the Petitioner was afforded procedural due process, whether essential requirements of law were observed, and whether the Board’s 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). 

            The record shows that Rigo lives within a residential zoning district within the City of St. Petersburg.  Rigo is physically impaired and relies on handicap-equipped vehicles for transportation.  The subject van measures 7.5 feet in height, is less than 20 feet in length, and resembles a box or bread van.  The van was fitted by Rigo to include a wheelchair lift.  Rigo’s property has a driveway in the front, entering from a public roadway, where the van is parked.  The Codes Compliance Assistance Division determined that the van was a commercial vehicle/equipment and cited Rigo for violating the City of St. Petersburg City Code (Code), Sec. 29-209(c), which prohibits the parking of commercial equipment in any residential district. 

Rigo filed an application for a variance to allow his van to be parked at his residence.  Between filing his application and the variance request hearing, Rigo re-registered the van from “commercial vehicle” to “handicapped personal vehicle.”   After the hearing, the Board denied the variance request finding that the request did not meet Code criteria.  The Board gave Rigo one year from the date of the hearing to remove the van from his residential property.

            Before this Court, Rigo argues that the Board’s decision is not supported by competent substantial evidence and that the Board departed from the essential requirements of law during the proceedings below.  Initially, the Court finds that the Code generally allows for the parking of passenger motor vehicles and motorcycles on residential property.  See Code, Sec. 29-209(a).  To be considered a passenger motor vehicle, the vehicle must be 20 feet or less in overall length and 7 feet or less in overall height.  It is undisputed that Rigo’s van is 7.5 feet in height and thus falls outside of the definition of a passenger motor vehicle.  “Commercial equipment” is defined in the City’s Code as “any vehicle and/or equipment not contained within the definition of ‘domestic equipment’[1] which is designed or used for a commercial or industrial function…”  See Code, Sec. 29-2.  The Code does allow one commercial vehicle, designed as a van or pick-up truck, to be parked on residential property but only if the commercial vehicle meets the length and height restrictions of a passenger motor vehicle, 20 feet or less in length and 7 feet or less in height.  As recognized above, the Petitioner’s vehicle does not meet this test.

            While the record does not show what the van was originally designed for, the Court finds that under these facts, it must defer to the City’s interpretation that the subject van is a prohibited commercial vehicle.  See Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1283 (Fla. 2000)(explaining that courts will defer to an agency’s interpretation of statutes and rules the agency is charge with enforcing unless contrary to law); see also Paloumbis v. City of Miami Beach, 840 So.2d 297, 298-98 (Fla. 3rd DCA 2003)(holding that administrative interpretation of personnel rules is entitled to judicial deference as long as it is within the range of possible interpretations).  It is undisputed that the van exceeds the height restrictions for a passenger or commercial vehicle to be parked on residential property.  The Court finds that it is of no consequence that the van is currently registered as a handicapped personal vehicle.

            The Court also finds that it must defer to the City’s finding that Rigo did not meet the requirements for a variance.  See Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001)(providing that the certiorari standard of review requires this Court to defer to the City’s “superior technical expertise and special vantage point” in its policy determinations and factual findings).  The burden was on Rigo to demonstrate  “an exceptional and unique hardship to the individual landowner, unique to that parcel and not shared by other property owners.”  See Nance v. Town of Indialantic, 419 So.2d 1041, 1041 (Fla. 1982).  The Board considered the City’s Staff Report which outlined the variance criteria that Rigo’s application failed to meet, as well as testimony that Rigo’s previous handicap-equipped van was code compliant and used by Rigo for 10 years. 

            Accordingly, the Court finds that there is competent substantial evidence in the record to support the Board’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 Rigo’s argument that the City departed from the essential requirements of law in the proceedings below.  Hence, the request for certiorari relief must be denied. 

            Therefore, it is,           

ORDERED AND ADJUDGED that Petition for Writ of Certiorari is hereby denied.

DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of April 2006.

 

 

                                                                                    _________________________________

                                                                                    DAVID A. DEMERS

                                                                                    Circuit Judge, Appellate Division

 

 

 

 

                                                                                    _________________________________

                                                                                    PETER RAMSBERGER

                                                                                    Circuit Judge, Appellate Division

 

 

 

 

                                                                                    ________________________________

                                                                                    ANTHONY RONDOLINO

                                                                                    Circuit Judge, Appellate Division

 

Copies furnished to:

 

Aubrey O. Dicus, Esquire

Post Office Box 41100

St. Petersburg, FL  33743

 

Pamela D. Cichon, Sr. Assistant City Attorney

Post Office Box 2842

St. Petersburg, FL  33731


[1] Section 29-2 defines domestic equipment as:  “Domestic equipment, in connection with allowable parking on a residential lot or on a street in a residential district, means accessory equipment not designed, used or intended to be used for commercial purposes and shall be limited to the following types of equipment:  all portable structures built or designed to be carried on a chassis and operated or transported whether or not self-propelled, including, but not limited to:  motor homes, mobile homes, campers, travel trailers, recreational vehicles, tent trailers, pop-out campers, pick-up campers, houseboats, boats, boat trailers and utility trailers.”