Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variance – flexible development application – stringent variance criteria did not apply to flexible development application, as permitted by City’s Code, that sought reductions in minimum setbacks and increase in height of building – Petitioners must challenge consistency of Development Order with local comprehensive plan as an original action in circuit court – record supported City’s conclusion that development application complied with City’s Code - Court cannot substitute its judgment for that of the City – Petition denied.  Weiland  v. City of Clearwater, Appeal No. 05-0095AP-88B (Fla. 6th Cir. App. Ct. August 7, 2006). 










vs.                                                                                                Appeal No.05-0095AP-88B










            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 Petitioners, adjacent land owners west of the proposed development, seek certiorari review of the Final Order, entered October 31, 2005, by Administrative Law Judge, T. Kent Wetherell, II.[1]  In a thorough and detailed 25-page order, Judge Wetherell affirmed the decision of the City’s Community Development Board (Board) to approve the flexible development application of Spinecare Properties, LLC (Spinecare),[2] subject to the following conditions:

            1.  the conditions set forth in the Development Order;

            2.  the City Council’s approval of the related annexation, FLUM change, rezoning, and

            Development Agreement; and

            3.  a requirement that Spinecare construct and maintain a wall or fence of at least three

            feet in height, which is landscaped on the external side with a continuous hedge or non-

            deciduous vine, along the west property line.


With the exception of finding that the Board departed from the essential requirements of law in finding that a wall or fence wasn’t required along the west property line, as mandated by Code Section 2-204.C.3., Judge Wetherwell otherwise found that the Board’s Level Two approval of Spinecare’s flexible development application was lawful and  supported by competent substantial evidence. 

            The underlying application was filed by Spinecare as a “comprehensive infill redevelopment project,” per Code Section 2-1204.A.1.-8.,[3] seeking approval to develop a 4.5 acre parcel of land into a 2-story, 45,000 square foot medical clinic with non-residential off-street parking.  At the time of filing the application, the property consisted of 13 “low-income” apartments in two, one-story buildings.  The project required Level Two approval because it proposed reductions in the minimum setbacks and an increase in the maximum height specified in the Code and because the parking lot will be zoned Low Medium Density Residential (LMDR) under the provisions of Code Section 2-204.C. 

            Specifically, as set forth in the Development Order, Spinecare sought:  a reduction to the front (west) setback from 25 feet to 15 feet to pavement; a reduction to the side (south) setback from 10 feet to 4 feet for parking, and; an increase in building height from 30 feet to 35 feet for top of parapet and to 43 feet for an elevator/stair tower.  The proposed building would be located 40 feet from the front (east) property line along McMullen Booth Road, 52 feet from the side (north) property line, 70 feet from the side (south) property line and 545 feet from the rear (west) property line.  In granting the application, the Board imposed 16 enumerated conditions, including that the City’s Staff must approve the final design and color of the building and that all requirements of the Fire and Traffic Departments must be met prior to issuing any permits.   

In addition to the flexible development application, Spinecare filed an application to annex 0.358 acres of the property along McMullen-Booth Road into the City, an application to change the designation of the property on the future land use map (FLUM), and an application to rezone the property.  The City has deferred final action on those matters pending the resolution of this appeal. 

            Before this Court, the Petitioners argue that the City departed from the essential requirements of law in its actions below and that the Board’s findings and judgment are not supported by competent substantial evidence.  Initially, the Court reiterates that the appropriate standard of review:  the Court must consider whether the Petitioners were afforded procedural due process, whether the essential requirements of law were observed and whether the Final Order and Development Order 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).[4]  The Petitioners do not argue that they were denied due process, so the Court need not address that prong. 

            In determining whether the City observed the essential requirements of law, the Court must consider whether an error occurred and, if so, whether such error resulted in a gross miscarriage of justice.  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”). 

            In evaluating 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 (Fla. 1st DCA 2002)(citing De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957).  The Court is not entitled to reweigh the evidence or substitute its judgment for that of the agency.  See id.    As aptly explained by the Florida Supreme Court in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001), 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.  As Dusseau further clarified,

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.


            First, the Petitioners argue that the Board’s decision is contrary to the goals and objectives of the FLUM and departs from the essential requirements of law.  The Court finds that the Petitioners cannot challenge the consistency of the Development Order with the local comprehensive plan in this certiorari action.  See Parker v. Leon County, 627 So.2d 476, 478-79 (Fla. 1993).  The Petitioners have filed a separate declaratory action pursuant to Florida Statutes, Section 163.3215, that is currently pending in circuit court.


However, whether the proposed development is compatible with the surrounding neighborhood was considered by the Board pursuant to Section 3-913.A.1.-6., as well as Sections 2-204 and 2-1204, thus bringing the matter under the Court’s certiorari review.  The Petitioners’ arguments focus on the proposed parking lot.  As stated in the Reply Brief, the “Petitioners’ compatibility argument is not that the eastern portion of the property for a medical facility is incompatible, but that the large parking lot extending far to the west is incompatible with the single-family homes that surround it” as the parking lot will create excessive noise, smell, and lights. 

Neither party disputes Judge Wetherell’s finding that the Board departed from the essential requirements of law by not requiring Spinecare to construct a wall or fence at least 3 feet in height along the western property line as required by Section 2-204.C.3., in a LMDR zoning.  Otherwise, the record shows that the parking lot complies with Code requirements for flexible development approval.  As set forth in the Staff Report, the residential uses to the west will be buffered from the parking lot by approximately 160 feet in which a retention pond will be located.  There will also be several trees to the west of the parking lot.  The residential uses to the north and south will be buffered by solid fencing and walls six feet in height.  The record shows that the parking lot lights must be turned off at 9:00 p.m. 

            Additionally, as recognized by one Board member, from a safety standpoint, a well-lit, open parking lot in place of the existing “blighted” apartment complex in which one neighbor testified the police had to be called severable times, is a preferable use of the property.   In considering the restrictions imposed, the current use of the property, and surrounding property uses, the Court finds that the Board did not depart from the essential requirements of law in approving the proposed development.   


            The Petitioners next argue that the Board’s findings and judgment are not supported by competent substantial evidence.  The Petitioners argue that Mark T. Parry, the City’s Consulting Planner who prepared the Staff Report, was not qualified to testify at the hearing as an expert because he failed to submit a resume as required by Code Section 4-206.  The Court finds that the Petitioners waived that argument as no objection was made during the proceedings below.  See Clear Channel Communications, Inc. v. City of North Bay Village, 911 So.2d 188, 190 (Fla. 3d DCA 2005).

The Petitioners assert that the evidence presented to the Board shows that there is competent substantial evidence to support the Petitioners’ position that the proposed development will overdevelop the property and is inconsistent with the surrounding residential community.  This Court’s review is constrained to determine simply whether the Board’s decision is supported by competent substantial evidence.  See  Florida Power & Light Company v. City of Dania, 761 So.2d 1089, 1093 (Fla. 2000).  It is irrelevant that there may also be competent substantial evidence in the record to support the Petitioners’ position. 

The record shows that the Board considered an in-depth Staff Report which evaluated each of the applicable code criteria.  The record also shows that the proposed medical facility will be located on the east side of the property, adjacent to McMullen-Booth Road, on a portion of the property zoned Industrial.  Spinecare’s proposed medical facility is similar to other institutional uses along McMullen-Booth road, including medical office facilities and an assisted living facility in close proximity.  The Board considered the testimony of Mr. Parry and the testimony of Spinecare’s attorney, who outlined the additional restrictions imposed by the Development Agreement, an agreement reached between Spinecare, the City, and the homeowner’s association that includes residents to the north of the proposed development.  The Development Agreement limits the number of parking spaces along the north property line, restricts the hours of operation of the medical facility to 9:00 p.m., and requires Spinecare to attempt to preserve 70 percent of all existing trees over 12 inches in diameter. 

            The Board further considered testimony from neighboring property owners, both those for the project and against it.  Notably, neither Mr. Parry nor any witness in favor of the project was cross-examined by the Petitioners.  The Court concludes that the evidence and testimony presented to the Board is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.”  See Trimble, 821 So.2d at 1087.  Hence, the Petitioners’ request for certiorari relief must be denied.

            It is therefore,

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

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




                                                               DAVID A. DEMERS

                                                               Circuit Judge, Appellate Division






_________________________________                              ______________________________

PETER RAMSBERGER                                                      ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                               Circuit Judge, Appellate Division






Copies furnished to:


Alan S. Zimmet, Esquire

Jeanne E. Hoffman, Esquire

Post Office Box 15309

Clearwater, FL  33766


Leslie K. Dougall-Sides, Esquire                                              

City Attorney’s Office, City of Clearwater                                

Post Office Box 4748                                                              

Clearwater, FL  33758                                                


David A. Theriaque, Esquire

S. Brent Spain, Esquire

Timothy E. Dennis, Esquire

1114 East Park Avenue

Tallahassee, FL  32301


[1] While an Administrative Law Judge, T. Kent Wetherell, II, was acting in a hearing officer capacity pursuant to the City’s Code, Sections 4-501.B.1. and 4-505.

[2] Spinecare is not a party to this petition.

[3] This Section allows for the deviation from development standards, including “[f]lexibility in regard to lot width, required setbacks, height and off-street parking.”  Hence, the more stringent variance standard, i.e. that the property owner demonstrate undue hardship, is not applicable in this case.  The Petitioners do not dispute the validity of the City’s Code.


[4] The fact that this matter was “appealed” to a hearing officer pursuant to the City’s Code, does not abrogate this Court’s certiorari review.  See Haines City, 658 So.2d at 530 (explaining that “certiorari in circuit court to review local administrative action under Florida Rule of Appellate Procedure 9.030(c)(3) is not truly discretionary common-law certiorari, because the review is of right”);  see also Soboleski v. City of Clearwater, Appeal No. 03-5007AP-88A (Fla. 6th Cir. App. Ct. Dec. 2003)(applying the 3-prong certiorari review under similar facts).