Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Site Plan Application – testimony of neighbors – as site plan application met all Code criteria, burden shifted to the City to demonstrate that the application did not meet Code standards and was adverse to the public interest – City departed from essential requirements of law in denying application solely upon neighbors’ concerns about increase in traffic and need for traffic signal - three experts testified that traffic signal was not needed – City could not rely on lay opinion of neighbors on matter that required technical expertise – Petition granted.  Bay Arbor Place, LLC  v. City of Oldsmar, Appeal No. 06-0022AP-88B (Fla. 6th Cir. App. Ct. Jan. 18, 2007).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

BAY ARBOR PLACE, LLC,

a Florida limited liability corporation,

                        Petitioner,

 

vs.                                                                                                Appeal No.06-0022AP-88B

                                                                                                    UCN522006AP000022XXXXCV

 

CITY OF OLDSMAR,

a Florida 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 and the Reply.  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.

            The Petitioner, Bay Arbor Place, LLC, a Florida limited liability corporation (Bay Arbor), seeks review of the decision of the City of Oldsmar, a Florida municipal corporation (City), to deny Bay Arbor’s site plan application.  In reviewing the administrative action taken in the proceedings below, the Court must consider whether procedural due process was afforded, whether the essential requirements of law were observed and whether the final 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 Bay Arbor does do not argue that they were denied due process, the Court need not address that prong.

            The record shows that Bay Arbor Place is the record title owner of a parcel of real property located northeast of the intersection of Tampa Road and Bay Arbor Boulevard, in the City of Oldsmar.  The property consists of 9.21 acres, including surrounding wetlands, and is zoned L-1, light industrial.  On May 31, 2005, Pantera Development Group, LLC, submitted a conditional use application to the City, which included a proposed site plan for development and requested thirty percent of the proposed development to be devoted to restaurant use.  The site plan included a vehicular access point from the property onto Bay Arbor Boulevard and did not provide for a traffic signal at the intersection of Bay Arbor Boulevard and Tampa Road.  On July 5, 2005, the City Council approved the conditional use to locate up to 19,488 square feet of restaurant uses in the proposed Bay Arbor Place development contingent upon submission of a traffic study. 

On November 3, 2005, Bay Arbor Place submitted its site plan application seeking approval of a 66,418 square foot mixed-use development on an 8.17 acre site.  The proposed development would consist of 36,355 square feet of retail space, including 19,488 square feet of restaurant use, and 30,063 square feet of office use.  As required by the City’s Code, Bay Arbor filed several documents with its site plan application, including the site plan, a contiguous land statement, certificate of ownership, certificate from owner of record, list of surrounding property owners, legal description of the property, a certified boundary survey of the property, a concurrency test statement, and other documents.  The site plan contained one vehicular access point to the property via Tampa Road and one vehicular access point to the property via Bay Arbor Boulevard.  The access point via Bay Arbor Boulevard was consistent with the site plan that was approved with the application for conditional use.

Bay Arbor also submitted an in-depth transportation analysis, dated October 28, 2005.  The report stated that, from a level of service perspective, a traffic light at the intersection of Tampa Road and Bay Arbor Boulevard was not warranted and that placement of a traffic signal could only be permitted by the Florida Department of Transportation (FDOT).  The traffic study also found that, “[a]lthough the proposed link volumes are above capacity in the existing condition and with the addition of the project traffic, transportation management plan strategies have been implemented as encouraged by Pinellas County for constrained facilities.”

On January 11, 2006, the City’s Planning and Redevelopment Director issued a Staff Report recommending approval of the site plan contingent upon an updated traffic study being conducted within the first six months of operation of Bay Arbor Place.  On January 17, 2006, the City Council considered Bay Arbor’s site plan application and determined that the site plan met all the conditions and criteria of the City’s Code.  The City Council acknowledged the FDOT’s findings that a traffic light at the intersection of Bay Arbor and Tampa Road was not warranted and considered the testimony of David Trommel, a traffic engineer and the City’s traffic expert, who concurred with the FDOT’s finding that one access point from Tampa Road was appropriate.  Mr. Trommel made clear that the FDOT had no power to impose access points along Bay Arbor Boulevard. 

The City Council also heard from several neighboring residents about excessive traffic on Bay Arbor Boulevard and safety issues with ingress and egress on Tampa Road.  Due to traffic concerns, the City Council continued the hearing pending input from the school board regarding school access into the Bay Arbor subdivision and input from the FDOT regarding possible signalization at the intersection of Bay Arbor Boulevard and Tampa Road.  On February 9, 2006, the City Manager issued a second Staff Report again finding the proposed site plan was consistent in all regards with the City’s Code.  The Staff Report recommended approval of the site plan contingent upon Bay Arbor updating the current traffic study within the first six months of operations and to work with FDOT to achieve several goals, including the installation of “No U-Turn” signs, the addition of a west turn signal at East Lake Oaks, increased east bound storage on Tampa Road entering onto Bay Arbor Boulevard, and the widening of Bay Arbor Boulevard to allow for a school bus to make a complete turn-around. 

            On February 21, 2006, the City Council reconvened to consider the site plan application.  The City Council again acknowledged that the site plan met all applicable Code criteria.  The City Council heard expert testimony from Mr. Trommel, as well as testimony from Anthony Shaumont, from the FDOT, and Gary Thompson, the district traffic engineer.  Mr. Trommell testified that he concurred with the City’s staff that the site plan’s provision for a vehicular access point on Bay Arbor Boulevard, along with the conditions recommended in the Staff Report, was the most appropriate design to address the current traffic and safety related concerns.  Mr. Shaumont testified that the traffic studies and projections did not show a volume of traffic on Bay Arbor Boulevard that met the requirements necessary for signalization at the intersection.  Mr. Thompson testified that studies have shown that it is safer to have residents turn right out of Bay Arbor Boulevard than to install a traffic light at the intersection and also recommended approval of the site plan.

The City Council also considered the testimony from fourteen surrounding residents about the present traffic situation and how the proposed development would exacerbate a dangerous traffic situation.  At the conclusion of the hearing, the City Council denied the site plan application.  Before this Court, Bay Arbor argues that the City Council departed from the essential requirements of law and that its decision is not supported by competent substantial evidence because it denied its site plan application based on the lay opinion of neighbors regarding traffic safety. 

            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 the 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.

 

As a preliminary matter, the City’s Motion to Strike, filed July 31, 2006, is denied.  The Court previously ruled that documents generated as part of Bay Arbor’s application and developed during the proceedings below would be considered by this Court.  Further, there is no requirement that Bay Arbor provide an entire transcript of the hearings as suggested by the City.  However, this is a moot point since Bay Arbor filed, on August 25, 2006, complete certified transcripts of the hearings.  There was not a written order entered by the City Council.  While written findings of fact and an order are preferred, they are not required for certiorari review.  See Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469, 476 (Fla. 1993). 

            The Court finds that the City Council’s decision must be quashed.  There is no dispute that Bay Arbor’s site plan application complied with all applicable Code criteria.  Since Bay Arbor met its initial burden of showing that the site plan met all criteria, the burden then shifted to the City to demonstrate, by competent substantial evidence, that the application did not meet Code standards and was adverse to the public interest.  See Broward County v. G.B.V. International, LTD, 787 So.2d 838, 842 (Fla. 2001).  As emphasized in City of Lauderdale Lakes v. Corn, 427 So.2d 239, 242 (Fla. 4th DCA 1983), in discussing administrative approval of site plans, “[n]o element of discretion remains once the legal requirements have been met.” 

In this case, the transcripts clearly show that the City Council denied the site plan based on the neighbors’ traffic concerns.  However, this is not competent substantial evidence to support the City Council’s decision.  All three experts, including the City’s expert, concluded that a traffic signal was not warranted and could even make the traffic situation worse.  While it is clear that the City Council could consider the opinions of the neighbors as to the current traffic conditions, the City Council improperly relied on the neighbors’ insistence that a traffic light be installed at the intersection of Tampa Road and Bay Arbor Boulevard in denying the site plan application.  See Jesus Fellowship, Inc. v. Miami-Dade County, 752 So.2d 708, 710 (Fla. 2d DCA 2000).

            The best manner in which to direct traffic from a safety standpoint requires technical expertise, something the City obviously found important since it hired its own traffic engineer to provide an analysis.  Several additional development conditions were imposed upon Bay Arbor in the second Staff Report, designed to improve ingress and egress in that area without installing a traffic signal.  Ironically, as demonstrated by the expert testimony, the neighbors’ desire to have a traffic light installed at the subject intersection is more likely to be fulfilled if the site plan is approved since the actual traffic patterns post-development could then be ascertained.  Indeed, the developer does not object to having FDOT install a traffic light even though the expert testimony indicated that this was not the best option.

            The Court further finds that the facts of this case are unlike like those in Board of County Commissioners of Pinellas County v. City of Clearwater, 440 So.2d 497 (Fla. 2d DCA 1983), cited by the City in support of its argument that lay testimony, by itself, can support the denial of a site application.  In Board of County Commissioners, the applicable rules and regulations specifically provided that the governing authority had the right to deny a construction permit if it determined that such construction would “adversely affect the natural beauty and recreational advantages of the county.”  There are no comparable rules and regulations, or code criteria, applicable in the case at bar, nor does this case involve ethereal factual matters, but rather the installation of a traffic signal.

            Accordingly, the Court finds that the City Council departed from the essential requirements of law in denying the site plan application based solely on the neighbors’ traffic concerns and insistence that a traffic light be installed and, hence, its decision is not supported by competent substantial evidence.  See Haines, 658 So.2d at 527.  The City failed to demonstrate that the application did not meet its Code requirements and was adverse to the public interest.  See G.B.V. International, LTD, supra.  In reaching this conclusion, the Court finds that input from neighbors in such proceedings is extremely valuable and important in making development decisions.  However, under the facts of this case, the City could not rely solely on the neighbors’ lay opinions on a matter that required technical expertise, particularly when the neighbors did not object to the development project as a whole and neither the City nor the developer had control over the installation of a traffic light.

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the City Council’s decision to deny the site plan application is quashed.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of January 2007.

 

                                                         _________________________________

                                                         DAVID A. DEMERS

                                                         Circuit Judge, Appellate Division

 

 

 

 

 

_______________________________                      ______________________________

PETER RAMSBERGER                                          ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

Copies furnished to:

 

Darryl R. Richards, Esquire

911 Chestnut Street

Clearwater, FL  33756

 

Jerry Beverland, Mayor

100 State Street West

Oldsmar, FL  34677

 

Thomas J. Trask, Esquire

595 Main Street

Dunedin, FL  34698