Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Standing – Competent substantial evidence – redevelopment plan – interpretation of City’s Code – neighbors in close proximity to proposed redevelopment had standing to challenge City’s decision – Court must defer to City’s interpretation and application of the term “perimeter” since it was not contrary to law – City’s decision to allow for a 48-unit credit for demolished nursing home was clearly erroneous when developer failed to seek approval of its redevelopment application prior to demolition as the City’s Code specifically required – no competent substantial evidence to support City’s finding that there were 293 existing dwelling units – developer’s own figures put the number of existing dwelling units at 241 – City departed from the essential requirements of law when it failed to enter written findings as required by the City’s Code – Petition granted. Bayou Bonita Neighborhood, Inc., et. al.  v. City of St. Petersburg, et. al., Appeal No. 05-0083AP-88B (Fla. 6th Cir. App. Ct. Dec.  6, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

BAYOU BONITA NEIGHBORHOOD, INC., MARK D.

RUTTNER, LINDA E. LUCAS, DONALD HALL & WADE HOY,

                        Petitioners,

vs.                                                                                                Appeal No.05-0083AP-88B

                                                                                                    UCN522005AP000083XXXXCV

CITY OF ST. PETERSBURG and

WESTMINSTER SHORES, INC.,

                        Respondents.

__________________________________________/

 

ORDER GRANTING AMENDED PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Amended Petition for Writ of Certiorari, the Responses, and the Reply.  Upon consideration of the briefs, the record and being otherwise fully advised, the Court finds that the Amended Petition must be granted as set forth below.

            The Petitioners, Bayou Bonita Neighborhood, Inc., Mark D. Ruttner, Linda E. Lucas,

 

Donald Hall, and Wade Hoy (Petitioners), seek review of the decision of the City of St. Petersburg, Board of Adjustment (Board), entered September 16, 2005, to approve a Redevelopment Plan for Westminster Shores.  In reviewing the administrative action taken in the proceedings below, the Court must consider whether the Petitioners were afforded procedural due process, whether the essential requirements of law were observed and whether the Board’s decision 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); see also County of Volusia v. City of Deltona, 925 So.2d 340, 343 (Fla. 5th DCA 2006).  Since the Petitioners do not argue that they were denied due process, the Court need not address that prong.

            As a preliminary matter, the Court finds that Petitioners Bayou Bonita Neighborhood, Inc., Mark D. Ruffner, Linda E. Lucas, and Donald Hall have sufficiently established that they have standing to appeal the Board’s decision.  Bayou Bonita Neighborhood, Inc., is a neighborhood association recognized by the City as the representative of the Bayou Bonita Neighborhood, which abuts the western boundary of the project.  Bayou Bonita challenges the manner in which the underlying development was approved, specifically the interpretation and application of the City’s Code to Westminster’s Application.  See Wingrove Estates Homeowners Association v. Paul Curtis Realty, 744 So.2d 1242 (Fla. 5th DCA 1999)(finding that neighborhood associations have been determined to have standing in matters involving procedural irregularity). 

            Petitioners Ruffner, Lucas, and Hall all live within 200 feet of the project, were given notice of the proposed development, and participated in the proceedings below.  See 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).  The Court finds that Petitioner Wade Hoy does not have standing as he lives almost ¼ mile north of the proposed development, across the water from Westminster, on Little Bayou.  In any case, it only takes one Petitioner with standing to invoke this Court’s jurisdiction to review the Board’s decision. 

            The record shows that Westminster Shores, Inc. (Westminster), owns and operates a continuing care residential community for elderly retirees on 20.4 acres located at 125 – 56th Avenue South, St. Petersburg.  The property abuts Tampa Bay on the east and Little Bayou bay to the north.  The property is within the Bahama Shores neighborhood to the south, and abuts the Little Bayou neighborhood to the west.  On August 1, 2005, Westminster filed its Application for Redevelopment with the City’s zoning official, or POD (“person officially designated”), John Hixenbaugh, seeking to redevelop the existing retirement community.  Mr. Hixenbaugh, along with other City Staff, reviewed the Application as a redevelopment plan and prepared an in-depth Staff Report.[1]   

At the time of submitting its Application, the subject property consisted of 38 small, one-story apartment buildings, 2 two-story apartment buildings, 5 single-family homes, and a chapel.  A 120-bed nursing home facility that was located on the property was demolished in August 2004.  Westminster stated in its Application that there were 293 existing independent/living units on the property and requested that it be approved for 341 units.  The Staff Report also found that there were 293 existing units and concluded that 341 units were permissible under the City’s Code.  In arriving at the total number of 341, the POD applied the density formula prescribed under the RM-12/15 zoning district to the previously demolished 120-bed nursing home to conclude that Westminster was permitted 1 unit for every 2.5 nursing home units, or 48 units, to add to the 293 existing units.  In developing these units, Westminster sought to build 6 multi-story buildings, ranging from 5 to 7 stories, or 60.5 to 70.5 feet in height above FEMA base flood elevation, and 42 townhouse units in two-story buildings. 

The Petitioners, particularly Bonita Bayou Neighborhood, Inc., voiced several objections to the proposed redevelopment.  One objection was the POD’s decision to use the 120-bed nursing home to arrive at an additional 48 developable units.  The City’s Code, Section 29-113(8)a.3. states: 

 

In cases involving demolition of a grandfathered use, a redevelopment plan shall be approved prior to demolition.  If a redevelopment plan is not approved prior to demolition, new development shall conform to the regulations for the district in which the property is located. “Voluntary demolition” shall mean any demolition which is not necessary because of damage to a structure as the result of an unforeseen event (fire, hurricane, etc.).

 

As set forth in the Staff Report, the POD recognized that Westminster did not get approval of its application prior to demolition of the nursing home, but the POD found that:  “To address this timing issue, it was determined that the most prudent manner in which to approach the issue would be to allow the opportunity for the redevelopment plans to be considered by the Board for both voluntary and involuntary demolitions within one (1) year from the date of adoption.”[2]  The POD found that this waiver of the filing requirements of Section 29-113(8)a.3. was “fair and reasonable given that serious discussions and the presentation of plans to City Staff commenced long before the demolition and the adoption of the ordinance.”  

In addition to disputing the use of the 120 units from the demolished nursing home, the primary number of grandfathered units was also disputed by the Petitioners during the proceedings below.  The Petitioners presented the following evidence:  Westminster’s executive director stated that there were 240 existing units on the property; the records of the Pinellas County Property Appraiser’s office showed there were 222 units on the property; a field audit on December 16, 2004, found that there were 221 units; Westminster’s Annual Report, filed on March 31, 2005, with the Office of Insurance Regulation, showed 241 units.  The POD testified that Westminster had 293 grandfathered units based on what the property card showed.  The property card, apparently the only evidence that supported the finding of 293 units, was not offered into evidence and no testimony from Westminster was offered during the proceedings below to support this finding.

            As reflected in the Staff Report, the POD also found that the term “perimeter,” as used in Code Section 29-113(8)f.1., excluded any development along Tampa Bay and Little Bayou.  The POD found that the “perimeter” was any building within 120 feet of the abutting rights-of-way, or double the 60-foot lot depth of property on the opposite side of the street from the proposed developmeent.  Section 29-113(8)f.1. states, in regards to building type, setbacks, and scale, that:  “Structures on the perimeter of the project shall be required to match the predominant building type, setbacks, and scale in the block face across the street.  Structures on the interior of the project shall be permitted as permitted by the zoning district.”  As a co-author of this section, the POD stated that:

Thus, the intent was to have projects be consistent on the perimeter with the surrounding built environment.  There was never any discussion of a perimeter abutting a natural area or water feature.  Furthermore, it was never intended that the perimeter would consist of an area deeper than the existing development on lots on the opposite side of the street.  Therefore, in this case, the “perimeter” only applies to an area within 120 feet of the project boundary that abuts existing development across the street, since 120 feet is the approximate depth of the surrounding lots.

 

The POD concluded that the only part of the project that abuts existing development “across the street” is that part that lies north of 57th Avenue North.  Since no buildings were proposed in that 120-foot perimeter, no building type, setbacks, or scale were required.  The record shows that Westminster purchased and owned several single-family residences on the perimeter, or outlying areas, of its property and that the POD considered these homes as part of the redevelopment plan, acting as buffers between the existing neighboring homes (not owned by Westminster) and the proposed redevelopment.

            Another dispute centered on the construction phasing of the redevelopment project.  Westminster estimated that it would take 13 years to complete the 7-phase project, identified as Buildings A through G.  The City’s Code, Section 29-113(7)a. provides that the Board “is authorized to allow a compliance period to bring properties into compliance with the Board’s decision . . . however, the total length of the original compliance period plus approved extensions shall not exceed two years.”  In addressing this issue, as set forth in condition # 4, the Staff Report determined:

The applicant shall secure certificates of occupancy by September 16, 2007.  Any phase under vertical construction and more than 50 percent complete by such date shall be deemed in compliance with the Board’s approval and shall be permitted to reach completion.  All other buildings and site improvements for which construction has not commenced shall be subject to re-approval of a development plan. 

 

In approving the application, with condition # 4, the Board acknowledged that the redevelopment plan was not a 2-year project and that an estoppel argument may be presented by Westminster to impede the City from denying future applications.  As explained to the Board by the City’s attorney:  “You are certainly bound by the precedent - - by your decision today, and in the past you’ve looked back at what other boards have even done 10, 15 years ago and saying, you know, the board has already decided this issue 10 years ago.”  While finding that Westminster would have to re-submit a new application every 2 years to comply with Section 290-113(7)a., the POD stated that the 7-phase redevelopment plan is “a single, unified plan.”

            At the conclusion of the hearing, the Board approved the redevelopment application as submitted, subject to all the conditions stated in the Staff Report, excluding conditions # 3 and # 7.  The Board’s decision was recorded in the Meeting Minutes of September 16, 2005.  The Board did not enter a written order and no specific findings of fact were made. 

 

Before this Court, the Petitioners argue that the Board departed from the essential requirements of law and that the Board’s approval of the application is not supported by competent substantial evidence.  Specifically, the Petitioners assert that the Board erroneously interpreted the term “perimeter,” that the inclusion of the nursing home beds in arriving at the total number of developable units was error and not supported by competent substantial evidence, that the total number of existing legal units is not supported by competent substantial evidence, and that the Board’s failure to make specific findings of fact in approving the redevelopment is a departure from the essential requirements of law.  As stated in their Reply, the Petitioners abandoned the issue that the Board’s approval of a 13-year project fails to comply with the City’s Code and departs from the essential requirements of law, and the issue that the Board erred in approving a dock.  The Meeting Minutes show that the Board did not approve the dock, but did approve the development of a 13-year project, contingent upon Westminster re-filing a new application every 2 years.

            The Court reiterates that its review is limited to whether the essential requirements of law were observed and whether the Board’s decision 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).  In determining whether the Board 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.

 

In addressing the issues presented, the Court finds that the interpretation of the City’s Code to the proposed redevelopment is paramount.  It is well-settled that zoning regulations are subject to the same rules of construction as statutes.  See Rinker Materials Corp. v. City of North Miami Beach, 286 So.2d 552, 553 (Fla. 1973).  Before principles of statutory construction are applied, the Court must first apply the plain and ordinary meaning of the words used unless this would lead to an unreasonable or clearly erroneous result.  See Baker v. State, 636 So.2d 1342, 1343 (Fla. 1994)(stating that “[i]t is well established that construction and interpretation of a statute are unnecessary when it is unambiguous”); see also Gallagher v. Manatee County, 927 So.2d 914, 919 (Fla. 2d DCA 2006)(explaining that a statute’s plain and ordinary meaning must control unless this leads to an unreasonable result or a result clearly contrary to legislative intent). 

A court’s function is to interpret statutes to give effect to each word and avoid interpretations that would render portions of it useless.  See Florida Dept. of Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 324 (Fla. 2001); see also Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273 (Fla. 2000).  When two statutory provisions conflict, the specific statute controls over the general statute.  See Palm Beach, 772 So.2d at 1287.  A court must defer to an agency’s interpretation of a statute it is charged with enforcing unless it is contrary to law.  See id. at 1283; see also Florida Dept. of Revenue, 789 So.2d at 323.

Interpretation and Application of the term “perimeter”

The Court finds that it must defer to the Board’s interpretation of the term “perimeter” as used in Section 29-113(8)f.1.  “Perimeter” is not defined in the code, but, as stated by one Board member during the hearing, is commonly understood to be the “boundary of a defined area.”  As used in the section:  “Structures on the perimeter of the project shall be required to match the predominant building type, setbacks, and scale in the block face across the street.”  (emphasis added).  There obviously are no structures “across the street” for development along the waterfront such that it can’t be said that limiting criteria for the perimeter to the surrounding built development is contrary to law.  See Palm Beach, 772 So.2d at 1283; see also Florida Dept. of Revenue, 789 So.2d at 323.

The Court must also defer to the Board’s interpretation of the 120-foot depth of the perimeter, based on the lot sizes, as well as its decision to allow Westminster to use single-family residences that it owns as a buffer between the surrounding neighborhood and its proposed redevelopment.   See Dusseau, 794 So.2d at 1276 (stating that the Court must defer to the City’s superior technical expertise and special vantage point in its policy determinations and factual findings).[3]

48-Unit Credit for Demolished 120-Bed Nursing Home

The Court finds that the Board’s decision to allow for a 48-unit credit for the demolished 120-bed nursing home is clearly erroneous and 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”).  It is undisputed that Westminster voluntarily demolished the nursing home, in 2004, prior to approval of its application, which was submitted to the City in August 2005.  Unlike Section 29-113(8)a.2., which provides a one-year window for the submission of a redevelopment plan after the involuntary destruction of a structure due to a fire or hurricane, Section 29-113(8)a.3., specifically requires “[i]n cases involving [voluntary] demolition of a grandfathered use, a redevelopment plan shall be approved prior to the demolition.  (emphasis added). 

The language of the Code is clear and there is no room for interpretation.   See Baker, supra; see also Gallagher, supra.  The Board has no authority to deviate from the plain language of its Code, even in situations when it is deemed to be the “fair” thing to do.  Further, as stated in the Staff Report, the City was aware of Westminster’s plan to redevelop the property at the time Section 29-113 was passed.  If the City had wanted to consider the redevelopment of the nursing home after its voluntary demolition, the City would have added the appropriate language to its Code to accommodate such situations. 

Number of 293 as Existing Legal Dwelling Units

The Court finds that there is not competent substantial evidence to support the finding that there were 293 existing dwelling units.  See Trimble, supra.  The POD stated that he had confirmed the 293 number, but offered no evidence to support his finding.  Officials from Westminster did not testify on the matter.  An abundance of evidence was offered by the Petitioners to refute that there were 293 units, including Westminster’s own Annual Report, filed on March 31, 2005, with the Office of Insurance Regulation, that showed it had 241 units.  Given the importance of the number of existing legal dwelling units, the Court finds that the POD should have offered evidence to support his opinion that there were 293 units, in the form of the property card or otherwise.

Board’s Requirement to Enter Findings of Fact

The Board did not enter a written order, nor make any findings of fact.  Generally, a Board is not required to make findings of fact.  See Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469, 476 (Fla. 1993).  However, in this case, the City’s Code, Section 29-113(9)b.4., states:

            In taking any action listed above, the Board shall make a finding that the action:

(a)  Will not adversely affect the health, safety, welfare, comfort, convenience or order of the City of its residents;

(b) Will not prevent the orderly and reasonable use of the permitted or legally established uses of the property in the zoning district wherein the use is located; and

(c)  Will be in harmony with the general purpose and intent of the ordinances with the City.  (emphasis added).

 

            As set forth in the analysis above, the Board was required to follow the clear and unambiguous language of the Code.  See Baker, supra.; see also Gallagher, supra.  The Court finds that the Board departed from the essential requirements of law in failing to make these three findings in approving Westminster’s redevelopment Application filed under Section 29-113.  For the reasons set forth above, the Court finds that certiorari relief must be granted. 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Amended Petition for Writ of Certiorari is granted and the Board’s decision to approve Westminster’s Redevelopment Plan is quashed.

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

 

 

                                                         _________________________________

                                                         DAVID A. DEMERS

                                                         Circuit Judge, Appellate Division

 

 

 

 

 

_______________________________                      ______________________________

PETER RAMSBERGER                                          ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

Copies furnished to:

Paul C. Scherer, Esquire

2255 5th Avenue North

St. Petersburg, FL  33713

 

Pamela D. Cichon, Esquire

Senior Assistant City Attorney

Post Office Box 2842

St. Petersburg, FL  33731

 

Stephen C. Chumbris, Esquire

200 Central Ave., Suite 1600

St. Petersburg, FL  33701



[1] As set forth in the Staff Report, the POD found that Westminster was permitted, by right, to develop 245 units, or, 240 as testified to at the hearing.  Since the Westminster proposed 341 units, seeking to add the grandfathered units from the demolished nursing home, the Application had to be reviewed as a redevelopment plan, rather than a development plan, and was subject to the redevelopment criteria in Section 29-113.   

 

[2] Section 29113(8)a.2, gives a one-year period from the destruction of a structure to submit a plan, to wit:  “A redevelopment plan for a structure which had been destroyed (excluding voluntary demolition) shall be filed not more than one year from the event that caused the destruction of the structure (e.g. the date of the fire, hurricane, etc.).”

[3] While it can’t be concluded that the POD/Board’s interpretation of “perimeter” is clearly erroneous or contrary to law, it does appear that the lack of clarity in the Code in the application of the term gives the POD a tremendous amount of discretion in reviewing redevelopment applications.  It may be prudent for the City to clarify its Code criteria for redevelopment requests to prevent unbridled authority and inconsistent decisions.