Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Standing – neighbors lacked standing to appeal decision of the City to grant adjoining landowner’s variance request for an after-the-fact permit – neighbors, who did not testify at variance hearing, failed to show how de minimus variance of 3.5 feet adversely affected property interests - Petition dismissed.  Urban v. City of St. Pete Beach, Appeal No. 06-0066AP-88B (Fla. 6th Cir. App. Ct. May 29, 2007).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

ROBERT C. URBAN and

MARIA L. URBAN,

                        Petitioners,

 

vs.                                                                                                 Appeal No. 06-0066AP-88B

                                                                                                     UCN522006AP000066XXXXCV

CITY OF ST. PETE BEACH, FLORIDA

a municipal corporation,

                        Respondent.

________________________________________/

 

ORDER DISMISSING 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 dismissed as set forth below.

The record shows that the Petitioners, Robert C. Urban and Maria L. Urban (the Urbans), own real property located at 6439 Second Palm Point, St. Pete Beach, and live immediately next door to Stephen McFarlin (McFarlin), who owns the subject property, located at 6449 Second Palm Point, St. Pete Beach.  The McFarlin property has a dock with moorings for two boats.  The original dock was built in 1970 and was added onto after McFarlin was granted a dock permit by the Respondent, City of St. Pete Beach (City), in June 2001, for a boat lift and a catwalk.  As part of being granted the dock permit, McFarlin submitted a signature of “no objection” from the northern property owner.[1] 

Upon review of a complaint in 2006, it was determined that the City erred in granting the dock permit as the length of the dock exceeded the “one-half length rule” based on the waterfront frontage.  The McFarlin property is 75.0 feet in width and one-half would allow a dock length of 37.5 feet.  The existing dock was mistakenly permitted to be built at a length of 41 feet, a 3.5-foot encroachment.  McFarlin requested a variance from the City to permit the total dock length of 41 feet.  The Staff Report recommended denying the variance request as McFarlin was unable to meet two out of the five Code criteria for granting a variance, including that there were no conditions and circumstances peculiar to the land nor a finding that an enforcement of the Code would deny McFarlin reasonable use of the structures resulting in a hardship.  The matter came before the City for a hearing, during which McFarlin testified as to why he believed he should be granted a variance.  The Urbans did not testify.  The City granted McFarlin’s variance request from which the Urbans have sought certiorari review before this Court.

The Urbans argue that the City departed from the essential requirements of law and that the approval of the variance request is not supported by competent substantial evidence.  The City responds that the Urbans lack standing to bring this action and that, in any case, the City’s decision conforms to the essential requirements of law and is supported by competent substantial evidence.  After a review of the record and the applicable case law, the Court concludes that the Urbans lack standing and that the above-styled Petition must be dismissed.

In the City of St. Petersburg, Board of Adjustment v. Marelli, 728 So.2d 1197, 1198 (Fla. 2d DCA 1999), the Second District found that neighboring property owners affected by zoning changes have standing to challenge the changes. (emphasis added).  Marelli cites to Rinker Materials Corp. v. Metropolitan Dade County, 528 So.2d 904 (Fla. 3d DCA 1987), and the cases cited therein, in concluding that the neighbors had standing to challenge the City’s decision to grant a variance for a proposed development to permit 7 parking spaces instead of the required 14 spaces.  Rinker provides the following analysis:

In considering whether a property owner has standing because its interests have been adversely affected, a court is to consider “the proximity of [its] property to the area to be zoned or rezoned, the character of the neighborhood, … and the type of change proposed.”  (citations omitted).  If Rinker could have demonstrated that the commission’s action had adversely affected the value of its property interests, which surely represents a legally recognizable interest (citation omitted), it would have established that it had standing to pursue its suit.  Cf. Renard, 261 So.2d 832 (re-zoning of petitioner’s neighbor’s property from industrial to residential use conferred standing upon petitioner to challenge validity of zoning action as unreasonable because it adversely affected her legally recognizable interests by increasing her setback requirements); Hoeksema, 475 So.2d at 244 (owner of single family home directly across from land re-zoned for apartment and condominium buildings had been affected by zoning and hence had standing to bring action questioning interpretation of zoning ordinance); Elwyn v. City of Miami, 113 So.2d 849 (Fla. 3d DCA)(property owners whose property values would be adversely affected by variance granted to adjacent property owner had standing to challenge the validity of the granted variance), cert. denied, 116 So.2d 773 (Fla. 1959), approved Renard, 261 So.2d at 832.  Since the trial court improperly prevented Rinker from presenting expert testimony concerning the effect the ordinance had on the value of its interests, its decision that Rinker’s legally recognizable property interests were not adversely affected and, therefore, that Rinker lacked standing, was erroneous.

 

In this case, the complainants, Robert and Maria Urban, chose not to testify or participate in the proceedings in any manner after bringing its initial complaint.  The Urbans did not present expert testimony or submit evidence regarding the impact of the variance on their property rights.  While the Urbans live next door to the McFarlins and the evidence reflects that the Urbans can see the McFarlin’s dock from their back yard, there is nothing in the record to show that the Urbans’ property interests are adversely affected by the City’s decision to grant the 3.5-foot variance on a dock that lies approximately 105 feet away from the Urbans’ house.  There was no evidence presented that the additional 3.5 feet of dock in any way impedes the Urbans’ view of the waterway or affects their property value.

Rather, McFarlin’s undisputed testimony was that the Urbans only complained about the dock after a “personal issue” arose, 5 years after the construction of the dock, and that the complaint was lodged after Mr. Urban “was appointed to this board about four months ago.”  (No one refuted or clarified this statement).  The record evidence shows that an audit was then conducted upon which the 3.5-foot mistake was discovered.  There is nothing in the record to show that any party knew of the mistake until after the audit was conducted. 

            Further, while counsel for the Urbans stated during the variance hearing below that the Urbans objected to the construction of the dock before it was built, there was no evidence or testimony presented to support this statement.  McFarlin’s undisputed testimony was that he never approached the Urbans to get their written consent to build the dock in 2001 because he didn’t think their consent was required.  As McFarlin pointed out during the hearing below, had the Urbans initially objected to the dock, it is likely that the dock would not have been permitted for 41 feet unless the McFarlins first obtained a variance.  McFarlin also testified that shortly after completion of the dock the Urbans were on the dock and complimented him on the construction and stain of the dock. 

            Lastly, the Court finds that the character of this neighborhood and the code formula used to compute the length of a dock allow various lengths of docks within the same neighborhood.  That formula permits dock lengths up to one-half of the width of the property without a variance.    The testimony was that, for the lot directly north of McFarlin’s property, a dock can be built out 59 feet.  Hence, there is nothing in the record to show that the additional 3.5 feet of McFarlin’s dock, for a total length of 41 feet, impacts the character of the neighborhood.  Based on Marelli and Rinker, the Court finds that the facts of this case compel the conclusion that Urban lacks standing to appeal the City’s decision and that the Petition must be dismissed.

 

 

 

 

Ramsberger, J., specially concurring with written opinion

 

            I concur with the opinion set forth above, but would add that the application of the doctrines of estoppel, laches, and waiver apply under the facts of this case.  See e.g. Bethea v. Langford, 45 So.2d 496, 498 (Fla. 1950)(explaining that:  “The doctrine of laches is bottomed not simply upon the number of years which have elapsed between the accruing of rights and the assertion of them, but upon unreasonable delay in enforcing a right, coupled with a disadvantage to the person against whom the right is sought to be asserted”).  The facts show that the Urbans were clearly aware that the dock was being built and I find that, given the lapse of time and the de minimis nature of the additional dock length, the Urbans gave their implied consent by not objecting for over five years and only after a personal dispute arose between the parties.

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is dismissed.

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

 

 

                                                         _________________________________

                                                         DAVID A. DEMERS

                                                         Circuit Judge, Appellate Division

 

 

 

 

 

 

_______________________________                      ______________________________

PETER RAMSBERGER                                          AMY M. WILLIAMS

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 Avenue North, Suite 340

St. Petersburg, FL  33701

 



[1] There was testimony presented at the hearing that McFarlin actually owned the northern lot at the time the signature of “no objection” was submitted.  The City’s Clerk stated that had a signature of “no objection” also been obtained from the southern lot owners, the Urbans, then no variance would be needed.  This has no bearing on the outcome of this Petition.