for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and
Commissions of Local Government: ZONING
– Site Plan Application – City did not depart from the essential
requirements of law in denying site plan application that did not meet Code
criteria – City was not estopped from denying final site plan at final review
hearing based upon previous approval of preliminary site plan – City could
consider whether site plan was compatible with the surrounding community at the
final review hearing based upon new interpretation of term “compatibility”
provided by City’s attorney - Petition denied.
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No.06-0058AP-88B
Ramsberger and Williams, JJ;
Demers, J., Concurring
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 record shows that,
in July 2005, the Petitioner, Dunedin Marina View, LLC (Dunedin Marina),
submitted its application to the Respondent, City of
From the initial filing of the application,
the project went through several revisions to address concerns raised by City
staff. In several Memorandums, dated
August 29, 2005, October 5, 2005, and December 9, 2005, the Director of
Community Services, Kevin Campbell, found “[t]he proposed residential use
project is compatible with the existing and emerging development pattern within
the surrounding area.” However, Mr. Campbell recommended that any
action on the application be postponed to allow Dunedin Marina to address staff
concerns. In a Memorandum, dated December
22, 2005, Mr. Campbell again found the project was compatible with the
surrounding area and recommended approval subject to Dunedin Marina submitting
The minutes from the first meeting of the Local Planning Agency (LPA), on October 12, 2005, to review the preliminary site application reflect that aesthetics and compatibility was a concern. At the City Commission’s January meeting, on January 5, 2006, Dunedin Marina’s preliminary site plan was unanimously approved “with conditions as recommended by staff with the added condition of step-back provisions consistent with the precedent set by the other proposed developments in the immediate area.” The minutes reflect that the Commission had continuing concerns regarding the aesthetics and architectural appearance of the project. In discussing the final footprint of the project, Commissioner Hackworth suggested that a “virtual drawing” of the architectural design would be useful at a final site plan review when the Commission “has the benefit of professional architects and designers to give explanations.”
In a Memorandum, dated June 2, 2006, Mr. Campbell recommended that the LPA deny Dunedin Marina’s final site plan “as a result of several outstanding issues that have yet to be resolved between the City’s Engineering Section and the applicant regarding the revised site plan” and suggested that a revised final site plan be submitted. In his Memorandum, Mr. Campbell states that the final site plan is “considerably different than the previously reviewed layout.” The City Manager, in a Memorandum, dated June 8, 2006, recommended denial of the final site plan. On June 14, 2006, the LPA unanimously denied Dunedin Marina’s final site plan, again finding aesthetic and architectural issues with the project, as well as concerns from the engineering and fire departments.
On June 29, 2006, Mr. Campbell authored another Memorandum, again recommending denial of the final site plan, from which the City Manager also recommended denial. The matter then went back before the LPA, on July 12, 2006, for reconsideration of the final site plan. The rehearing was conducted to ensure that Dunedin Marina had an opportunity to present evidence and testimony due to the scheduling mix-up regarding the June 14th hearing. In addition to the City’s staff analysis, the LPA considered the testimony of Ty Maxey, an expert retained by the City, who discussed the compatibility of the proposed project with the surrounding community, and the testimony from several neighbors. The LPA also applied the new interpretation of “compatibility” as set forth by the City’s attorney, John Hubbard, in a Memorandum to the Commission, dated May 3, 2006. The LPA decided not to send the project back to the preliminary review stage and denied approval of the final site plan.
In a Memorandum, dated August 15, 2006, Mr. Campbell recommended to the Commission that the final site plan be denied citing that: “…the building foot print on the revised final site plan is considerably different than the preliminary site plan layout previously approved by the City Commission and LPA. The final site plan represents 3.6 percent greater impervious lot coverage and the overall building is 8.2 percent greater in mass.” (emphasis original). Mr. Campbell concluded that, because of the changes in the site plan and expanded interpretation of “compatibility,” the final site plan did not meet code criteria. The City Manager recommended denial of the final site plan. The record shows that all issues raised by the City’s fire and engineering departments had been resolved at this point.
At the final hearing, held on August 24, 2006, the Commission considered the testimony of numerous witnesses and evidence presented in favor, and against, the project. After much debate, the Commission denied Dunedin Marina’s final site plan. A focal point of the hearing was whether the project was compatible with the surrounding community, within the context of the City’s Code, as recently interpreted by the City’s attorney.
Before this Court, Dunedin Marina seeks certiorari relief and requests that the Commission’s decision be quashed. Dunedin Marina argues that the Commission departed from the essential requirements of law in considering previously undisclosed criteria to the final site plan review process and by not applying principles of equitable estoppel. The City responds that it adhered to its Code in the proceedings below and that the City was not estopped from denying the final site plan based upon any preliminary approvals.
In reviewing the
administrative action taken during the proceedings below, the Court must
consider whether Dunedin Marina was afforded procedural due process, 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 (
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”). While
Further, 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.
There are two City Code sections that are relevant to this Petition, Section 134-231, Preliminary Site Plan, and Section 134-232, Final Site Plan. Section 134-231, Preliminary Site Plan, states, in pertinent part:
The preliminary site plan shall be submitted for review by the local planning agency and by all agencies, departments, consultants or other persons deemed necessary by the city manager. The preliminary site plan shall be reviewed, among other things, for compatibility to the surrounding development, the degree to which it implements the comprehensive plan, the adequacy of existing facilities to supply the project and ability of the project to adequately serve the health, safety and general welfare of both the residents and surrounding population. . . The preliminary site plan is only for purposes of determining the general reasonableness of the project and while adequate information is required to make this determination, detailed engineering or site plans are not required. (emphasis added).
Section 134-231 then provides a list of detailed information the preliminary site plan must include. Section 134-232, Final Site Plan, states, in pertinent part:
The final site plan shall serve as the basis for the project development. All construction or establishment of use shall be in strict conformity to the final site plan as adopted at the second reading. Amendments deemed desirable by the city commission shall be required at the first reading of the ordinance for a zone change. A final site plan, as amended, shall be adopted by the city commission at the second reading and recorded by the city clerk as an integral part of the adopted ordinance for zone change, if granted. . . The final site plan shall include, at least, the following:
(1) Information required on the preliminary site plan. (emphasis added).
In addition to these Code provisions, the City’s Comprehensive Plan, Future Land Use, also discusses components of compatibility in reviewing development projects. Policy 4, under Objective D, specifically provides: “During the review process for new development or modifications or expansions to existing development, special attention will be focused on issues of compatibility. New or expanding development incompatible with adjacent land uses shall be denied.” (emphasis added).
addressing the issues presented by Dunedin Marina, 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
A court’s function
is to interpret statutes to give effect to each word and avoid interpretations
that would render portions of it useless.
Accordingly, the Court finds that, in applying the plain and ordinary meaning of the City’s Code, Dunedin Marina’s argument that the Commission improperly considered aspects of compatibility must fail. See id.; see also Las Olas Tower Company v. City of Fort Lauderdale, 742 So.2d 308, 313 (Fla. 4th DCA 1999)(finding that the City did not depart from the essential requirements of law in denying site plan approval for condominiums based on its finding that the height of the project was not compatible with nearby properties). The City’s Code specifically states that a proposed development must be compatible with the surrounding development and that the final site plan review must contain everything set forth in the preliminary site plan review, which specifically addresses issues of compatibility. While Mr. Campbell may have stated in his earlier Memorandums that, “[t]he proposed residential use project is compatible with the existing and emerging development pattern within the surrounding area,” it is clear from the record that the site plan application had several problems from the beginning and that various City departments, including the engineering and fire departments, had issues with the proposed development.
there is nothing unlawful about having the City’s attorney provide a legal
analysis to the Commission on the application of the term “compatibility” as
used in the City’s Code. The analysis
was timely and relevant, due to a “flurry” of new development in downtown
Dunedin and along the waterfront, and the Commission had legitimate concerns
that new development be consistent with maintaining the “character and charm”
of the area. As established by the
City’s Code, compatibility could be considered at the final review stage and
form a basis for denial of the final site plan.
Under these facts, the Court finds that the burden never shifted to the
Commission since Dunedin Marina did not meet the City’s Code criteria for
compatibility with surrounding development.
See Premier Developers III Associates v. City of
Likewise, Dunedin Marina’s argument that the
Commission should have been estopped from applying an expanded definition of
“compatibility” to deny its final site plan must fail. The City’s Code clearly anticipates an
intensive review process up to, and even beyond, the final review hearing. The Commission is not to act merely as a
rubber stamp of a preliminary site plan approval, particularly in a case such
as this when the submitted final site plan was different than the preliminary
site plan that was approved. There is
nothing in the record to indicate that the proposed development would
absolutely be approved to support any substantial change made on behalf of
Dunedin Marina. The Court finds that the
facts of this case simply do not support the application of equitable
Demers, J., concurring with written opinion
concur with the majority opinion in all respects. And I write to make one point concerning
estoppel. The transcript reveals that
the City’s attorney advised the Commission that it could not consider the
doctrine of equitable estoppel in considering the final site plan. This advice is unclear. If the attorney was suggesting that the
doctrine of equitable estoppel does not apply to such proceedings, that advice
is wrong as a matter of law. See Hollywood
Beach Hotel Co. v. City of
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.
AND ORDERED in Chambers, at
DAVID A. DEMERS
Circuit Judge, Appellate Division
PETER RAMSBERGER AMY M. WILLIAMS
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Darryl R. Richards, Esquire
E. D. Armstrong, III, Esquire
Post Office Box 1100
Shauna F. Morris, Esquire
 The record reflects that the analysis of such projects is provided by the Director of Community Services in a memorandum format, as opposed to the more common method of an in-depth staff analysis, in one document, laying out the details of the entire proposed project, input from a city’s various departments, and the application of the City’s code to the proposed project.
 Dunedin Marina did not attend this hearing, which the LPA thought showed a lack of interest. It was later discovered that Dunedin Marina had timely requested a continuance.
 Testimony presented at the hearing was that the total was 7.7 percent, not 8.2 percent.
 The record reflects that the City went through several City Managers during the time Dunedin Marina’s application was pending. However, in each instance, the acting City Manager always followed the recommendation of Mr. Campbell.