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 dust, noise, and the possibility of business creating carcinogenic material – no competent substantial evidence in the record to support these concerns – Petition granted.  SAC Chic, LLC v. City of Pinellas Park, Appeal No. 06-0059AP-88A (Fla. 6th Cir. App. Ct. April 13, 2007).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

 

SAC CHIC, LLC,

                        Petitioner,

 

 

vs.                                                                                                Appeal No.06-0059AP-88A

                                                                                                    UCN522006AP000059XXXXCV

 

CITY OF PINELLAS PARK,

FLORIDA, 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 same and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The Petitioner, SAC Chic, LLC (SAC), seeks review of the decision of the City Council, City of Pinellas Park (City), denying SAC’s request to amend the Pinebrook Industrial Complex Master Plan and a Preliminary Site Plan approval, for a change in use from wholesale/warehouse to light manufacturing.  In reviewing the administrative action taken below, the Court must consider whether SAC was afforded procedural due process, whether the essential requirements of law were observed and whether the 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). 

            The record shows that SAC owns real property located at 7301 – 114th Avenue North, a 5.18 parcel of land located in the City.  The commercial property is in an area designated as Industrial Planned Unit Development (IPUD)[1] and is zoned “M-1,” Light Industrial Zoning District.[2]  To the north of the subject property is Pinebrook Estates, zoned R-1 as a residential development; to the south is Ven-Tel Plastics, zoned M-1 as an industrial business, and; to the east and west of the property are two complexes zoned IPUD and designated as industrial/office and office/warehouse respectively.  Prior to SAC’s purchase of the property in November 2005, the property was used by Ace Beauty Supplies as office/warehouse. 

            On May 31, 2006, SAC filed its Application on behalf of its tenant, Surface Technology Corporation (STC), a company that fabricates countertop products,[3] requesting a major amendment to the Pinebrook Industrial Complex Master Plan, IPUD, and Preliminary Site Plan approval.  SAC sought to change the use of the property from wholesale/warehouse to light manufacturing to allow outdoor storage for granite, the installation of a 12’ x 14’ door on the east side of the building, and the installation of mechanical equipment on the north side of the building.  Pursuant to the City’s Code, Section 18-1506.23, subsection C., Preliminary Site Plan approval by the City Council was required since SAC’s commercial property is located in an M-1 zoning district and is abutted by residential property. 

After conducting an in-depth staff analysis, the City’s Zoning Division found that the Application met and conformed to all the City’s Code requirements.  The staff analysis provides, under II.D., that the Zoning Division requested input from twelve of the City’s departments.  The Assistant City Manager requested that the dust collector system be moved indoors to eliminate noise and the Community Planning Department had no objection provided that there would be appropriate buffering and all manufacturing impacts would be contained in the building.  The remaining departments either did not object or had no comment.  In response to the two suggestions, SAC agreed to move all mechanical equipment inside, including the dust collection system,[4] and committed to install an 8-foot masonry solid wall along the north side of the property in addition to the existing 50-foot wide buffer, retention pond, and shrubbery.  The record shows that the building that would house the dust collector system was constructed with 10-foot block walls, that the ceilings were insulated, and that the fabrication area inside the building was either 80 or 120 feet from the nearest door, on the east side of the building, where sand or dust could emanate. 

            The City’s Zoning Director, in the Agenda Memorandum, dated August 24, 2006, recommended approval of the Application, citing the approval of the Application by the City’s Planning and Zoning Commission on August 3, 2006.[5]  After a hearing on the matter in which the City Council considered evidence presented by the parties and the testimony of numerous individuals, the City Council voted to deny the Application.  In a letter, dated August 25, 2006, the Zoning Director informed SAC that it’s Application had been denied without setting for specific reasons for the denial.[6]  SAC filed its Petition for Writ of Certiorari before this Court seeking review of the City Council’s decision.   

SAC argues that the City’s actions failed to satisfy procedural due process and that the City’s decision to deny SAC’s site plan Application departs from the essential requirements of law and is not supported by competent substantial evidence.  Initially, the Court reiterates that the standard of review requires this Court to establish whether SAC was afforded procedural due process, whether the essential requirements of law were observed and whether the City’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).  In applying the procedural due process prong, the Court must consider whether SAC was provided with fair notice and an opportunity to be heard.  See Keys Citizen for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940, 938 (Fla. 2001)(explaining the parameters of due process within an administrative proceeding).  

            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 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.   

Accordingly, the Court finds that there is nothing in the record to support SAC’s general allegation that it was denied procedural due process.  The record shows that SAC was afforded notice and a meaningful opportunity to be heard.  Rather, SAC’s arguments focus on whether the City Council departed from the essential requirements of law in failing to adhere to its Code and whether there is competent substantial evidence in the record to support the City Council’s decision to deny its Application. 

The City’s Code sets forth several criteria which must be met before a Preliminary Site Plan can be approved.  See Code Sec. 18-1506.23(C)-(I).  As provided in Code Section 18-1506(I)6, the City Council may approve, approve with conditions, or deny a Preliminary Site Plan application based on the standards set forth in the Section.  The City Council must adhere to the requirements of its Code, which is 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). 

            In this case, the Court finds that SAC’s proposed use of the property to make countertops is a permitted use within the M-1 zoning classification, an area of the City that is designated Industrial.  The staff analysis states that the proposed use is “Manufacturing and Outdoor Storage” and evaluates SAC’s Application based on the criteria specified in Code Section 18-1506.  As provided in Section 18-1506(C)1.(b), a permitted use includes:  “Light Manufacturing, including Fabrication and Assembly, Production, Processing, Cleansing, Testing, Manufacturing, or Repair, such as:…”  While the list of possible permitted uses under this category did not specifically state fabricating countertops, it is clear that this industrial activity is fabrication and production as contemplated under Light Manufacturing, particularly when the following enumerated list includes such activities as woodworking, electrical manufacture and assembly, machine shops for tool making, metal finishing, making products from finished material such as plastic, and soldering and welding.  The Court finds that the plain words of the City’s Code provide that fabricating countertops is a permitted use within the M-1 zoning district.  See Gallagher, supra.

The Court next finds that the City’s Code anticipates that, as an industrial area, there may be issues with air, water quality and noise.  Section 18-1506(H), Performance Standards, states:

All uses shall be controlled to prevent the emission of smoke, particulate matter, odor, gasses, radiation, noise, vibration, or pollution of any kind.  Industries shall comply with all applicable standards for air and water quality and noise regulations; in such cases where agency standards conflict, the most stringent standards apply.

 

The staff analysis, as well as the City Attorney and the City’s Zoning and Planning Commission, all found that the Application met Code Criteria and recommended approval, indicating that there were no concerns that the business would violate applicable standards.  The record supports that conclusion.  Since SAC met its initial burden of showing that the Preliminary Site Plan met all Code 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); see also Redner v. City of Tampa, 827 So.2d 1056, 1059 (Fla. 2d DCA 2003)(explaining the burden shifting analysis for an exception).  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 applying this burden-shifting analysis,[7] the Court finds that the only evidence in the Petitioner’s Appendix that may support the City’s decision to deny the Application is the transcript of the hearing.[8]  In reviewing the transcript, there was no objection to the storage of the granite outside, no objection to the installation of a 12’ x 14’ door on the east side of the building, two of the three requests made by SAC in its Application.  The third request, the exterior placement of a vacuum/dust collector system was modified by SAC in agreeing to move the machinery inside of the building. 

The transcript reflects that the City Council denied the Application based on neighbors’ concerns about dust, noise, and the possibility that Corian may contain carcinogenic material.  However, there is not competent substantial evidence in the record to support these concerns.  It was undisputed that operations would occur exclusively inside the building and that the emission of dust or noise levels would not exceed those permitted by the City’s Code or State-mandated standards.  Most of the neighbors’ testimony was along the line of “not in my back yard.”  However, the fact remains that the City’s Code specifically designates this area as M-1 and Industrial.   

            Hence, while the City Council could consider the lay opinions of the neighbors, the City Council could not rely solely on their testimony without any supporting evidence.  See Jesus Fellowship, Inc. v. Miami-Dade County, 752 So.2d 708, 710 (Fla. 2d DCA 2000)(stating that “[w]here technical expertise is required lay opinion is not valid evidence upon which a special exception determination can be based in whole or in part”); see also BML Investments v. City of Casselberry, 476 So.2d 713, 715 (Fla. 5th DCA 1985)(explaining that lay opinions of surrounding landowners could not, by themselves, support the denial of the preliminary development plan).  Further, testimony about the dust and noise from the Gulfport operation does not support the denial of SAC’s Application to operate its business in Pinellas Park when SAC has meet all the City’s Code criteria.  Indeed, there was no evidence presented that the Gulfport operation had ever violated any local code or state standards.  Even if SAC had been cited for a code violation, as explained in Jesus Fellowship, “[p]ast violations are not a basis to deny a present pending application that meets the code standards.”   

            Lastly, the Court 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), in which the Second District concluded 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. 

The Court concludes that the City Council departed from the essential requirements of law and that its decision is not supported by competent substantial evidence.  See Haines, 658 So.2d at 527.  The City Council failed to demonstrate that the Application did not meet its Code requirements and that it was adverse to the public interest.  See G.B.V. International, LTD, supra. 

            Therefore, it is,

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

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of April 2007.

 

 

                                                         ________________________________

                                                         R. TIMOTHY PETERS

                                                         Circuit Judge, Appellate Division

 

 

 

 

______________________________                        ______________________________

GEORGE M. JIROTKA                                          CYNTHIA J. NEWTON

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

Copies furnished to:

 

Aubrey O. Dicus, Jr., Esquire

Brian P. Battaglia, Esquire

Post Office Box 41100

St. Petersburg, FL  33743

 

James William Denhardt, Esquire

2700 First Avenue North

St. Petersburg, FL  33713-8724



 

[1] The City’s Code, Section 18-1508(A), explains that a Planned Unit Development District, or PUD, “serves as an overlay to existing zoning classifications” and, among other goals, is to provide a creative approach to the development of land located in the City.  Section 18-1508(O), provides that the Industrial PUD, or IPUD, is a specific classification within the PUD and is only permitted in areas zoned either “M-1” or “IH.” 

[2] The City’s Code, Section 18-1506.23(A), Statement of Intent, provides:  “The ‘M-1’ Light Industrial District is established in order to identify and provide those geographic areas within the City of Pinellas Park that are appropriate for the development and maintenance of a light industrial environment, which does not create hazardous or other serious detrimental effects upon the public health in the surrounding areas.  This district is intended primarily for a wide variety of industrial uses and compatible retail, whole, distributing operations, and in limited situations as provided in (B) below, single and multi-family dwellings, together with accessory uses and public facilities customary to or required for such environment.”

[3] The record shows that STC has been a manufacturer of granite and Corian countertops for over twenty years, with over 700 employees and 8 facilities in the United States, including a local facility in Gulfport, Pinellas County.

[4] The undisputed testimony provided that the dust collector system used to cut Corain, described as “fancy plastic,” would collect 99.99 % of the dust emanating from the machines.  A wet machine is used to cut the granite, so that there is no emanation of dust.

[5] The City’s Attorney, who is representing the City before this Court, also recommended approval of the Application finding it to be legal sufficient.

[6] 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). 

 

[7] The City does not dispute that the burden-shifting analysis applies in this case.

[8] The City did not file a supporting appendix, choosing instead to rely on the Appendix filed by SAC.  The record does not contain pictures apparently submitted by one neighbor showing dust on a vehicle at the SAC’s Gulfport operation.