Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variance – code criteria – property owner failed to meet each code criteria for granting of a variance – the subject property did not have conditions or circumstances peculiar to the land – a literal enforcement of the City’s Code would not deprive the property owner of reasonable use of his property – while subject lot was small, such was common in that area – a variance is not appropriate to cure a hardship that was apparent when property was purchased – Petition granted. Pletcher  v. City of St. Pete Beach, Appeal No. 05-0078AP-88A (Fla. 6th Cir. App. Ct. Sept. 7, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

ROBERT E. PLETCHER and

GERALDINE E. PLETCHER,

                        Petitioners,

 

vs.                                                                                                Appeal No. 05-0078AP-88A

                                                                                                    UCN522005AP000078XXXXCV

 

CITY OF ST. PETE BEACH, FLORIDA,

a municipal corporation,

                        Respondent.

________________________________________________/

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response filed by the City of St. Pete Beach (City), the Response filed by the property owners, John F. Woods and Bette E. Woods (the Woods), and the Reply thereto.  Upon consideration of the briefs, the record and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.[1]

            The Petitioners, Robert E. Pletcher and Geraldine E. Pletcher (the Pletchers), seek review of the Development Order # 20050031, entered August 25, 2005, in which the City granted the Woods’ variance requests.  In reviewing the administrative action taken by the City, the Court must consider whether the Pletchers were afforded procedural due process, whether the essential requirements of law were observed and whether the Development Order is 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).  As the Pletchers do not argue that they were denied due process, the Court need not address that prong. 

            The record shows that the Petitioners own real property in the Pass-a-Grille area of St. Pete Beach which abuts the rear of the Woods’ property.[2]  The Woods property is a 50’ by 40’ lot developed with a one-story, single-family residence, built in approximately 1920.  The house is a nonconforming structure described as “dilapidated” and does not meet several code requirements, including the current code setbacks for residential structures which require a 20-foot setback for the front and rear yard, and a 4-foot setback for the sideyard.  The residence sits only 1 foot from the Petitioners’ rear property line, 2 feet from the front property line, and 3.5 feet from the east property line. 

            The Woods sought the variance requests for the purpose of elevating the house to 7 feet from the existing footprint to comply with FEMA’s “fifty percent rule”[3] as the Woods intend to extensively remodel the home.  The Woods were required to seek variance approval of the three existing setbacks as the City’s Code, specifically Section 3.10(b)(3), states that: “should such [nonconforming] structure be moved, either vertically or horizontally, for any reason, for any distance, it shall completely conform to the regulations for the district in which it was located.”   

            Prior to the public hearing, the City’s Staff prepared a Variance Application Analysis which analyzed the Woods’ variance requests to determine if they complied with the criteria set forth in Section 3.12.  The Staff Analysis found that, out of the five listed criteria, that Woods’ request did not meet criteria 1 and 5.  For these criteria, the Staff commented: “There do not appear to be any conditions or circumstances that are peculiar to the land or structure to preclude the applicant from reasonable use,” and; “A literal enforcement of the land development code would not deny the applicant reasonable use of his property.” 

            The matter came before the City Commission on August 23, 2005, for a public hearing in which testimony and evidence was presented.  At the conclusion of the hearing, the Commission

approved the variance requests so that the house could be elevated with the one condition that gutters be installed on the rear of the structure.  The Commission made several oral findings of fact, including: (1) the lot size, 40’ by 50’ was substandard; (2) the inability to comply with FEMA regulations at ground level is a hardship not created by the Woods; (3) the building is of a historic nature; (4) if the building is not elevated, it cannot comply with FEMA and this deprives the Woods of reasonable use of the property; (5) the variances will not change the district boundary on the zoning map nor constitute the granting of a nonconforming structure as it is already a nonconforming structure; (6) the variance will be in harmony with the general purpose and intent of the land development regulations and will not be detrimental to the neighborhood; (7) the Commission received several letters and testimony in support of the variances; and (8) a hardship would unnecessarily result from a literal enforcement of the provisions of the land development regulations as set forth in the application and the variance proposed is a minimum variance that will make possible the reasonable use of the land and structure.  The Commission also incorporated the findings set forth in the Variance Application Analysis into its ruling.

            Before this Court, the Pletchers argue that the Commission erred in granting the variance requests as the Woods failed to meet each variance criteria.  Under the specific facts presented in this case, the Court must agree with the Pletchers that the Commission’s decision to grant the variance requests was error.  Initially, the Court recognizes that it must defer to the Commission’s decision and review the record to find support for its decision.  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).  However, the Woods had the burden to establish that each requirement for the variance requests was met.  See Nance v. Town of Indialantic, 419 So.2d 1041, 1041 (Fla. 1982); Gomez v. City of St. Petersburg, 550 So.2d 7, 8 (Fla. 2d DCA 1989).  The Woods were required to demonstrate “an exceptional and unique hardship to the individual landowner, unique to that parcel and not shared by other property owners.”  See Nance, 419 So.2d at 1041. 

            As set forth in the Staff Analysis, the Woods’ property does not have conditions or circumstances peculiar to the land or structure, nor would a literal enforcement of the Code deny the Woods reasonable use of their property.  As recognized by the Commission, that area of Pass-A-Grille has many small, substandard lots that do not meet the current Code requirements due to the age of the structures.  Hence, the Woods’ residence is not peculiar in that community.  The hardship created by the small size of the lot is common in this area such that a change in zoning for this neighborhood, instead of seeking a change through a variance, is the appropriate remedy.  See Metropolitan Dade County v. Betancourt, 559 So.2d 1237, 1238-39 (Fla. 3d DCA 1990).  The Court also finds that the use of a variance is not appropriate to cure a hardship that was apparent when the Woods purchased the property.  See id.

            Further, as pointed out by the Pletchers, there is nothing to preclude the Woods from remodeling their home to the extent possible without having to comply with current Code or FEMA requirements, or, in the alternative, to pursue having the home designated a historic building to avoid the FEMA requirements.  While the Commission recognized that the building was of a “historic” nature, it is unclear why the Commission approved the variance requests when there were other alternatives that could be explored that would not involve raising a dilapidated house 7 feet with setbacks as minimal as 1 foot from neighboring property.  Hence, without reweighing the evidence, the Court concludes that there is not competent substantial evidence in the record to support the Development Order since the record shows that each variance criteria was not met.    

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Development Order is quashed.

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

 

 

 

                                               

 

 

______________________________                        ______________________________

LAUREN LAUGHLIN                                              BRANDT C. DOWNEY, III

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

Copies furnished to:

Thomas E. Reynolds, Esquire

535 Central Avenue

St. Petersburg, FL  33701

 

Timothy P. Driscoll, Esquire

100 First Ave. South, Suite 340

St. Petersburg, FL  33701

 

David A. Bacon, Esquire

2959 First Avenue North

St. Petersburg, FL  33713



[1] Judge John Schaefer, Appellate Division, did not participate in this appeal.

 

[2] The Pletchers, as neighboring property owners, have standing to seek certiorari review of the Development Order.  See City of St. Petersburg v. Marelli, 728 So.2d 1197, 1198 (Fla. 2d DCA 1999); Wingrove Estate Homeowner’s Association v. Paul Curtis Realty, Inc., 744 So.2d 1242, 1244  (Fla. 5th DCA 1999).

[3] This rule provides that if the cost of constructing the improvements exceeds 50% of the value of the existing structure, excluding land value, then the property must be constructed in accordance with the applicable FEMA requirements.