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Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Site Plan Application – competent substantial evidence supported City Commission’s decision to deny site plan based on its finding that the proposed crematoria would be incompatible with the surrounding neighborhood - Petition denied.  SCI Funeral Services of Florida, Inc.  v. City of Largo, Appeal No. 06-0081AP-88B (Fla. 6th Cir. App. Ct. January 15, 2008).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

SCI FUNERAL SERVICES OF FLORIDA, INC.,

d/b/a SERENITY GARDENS MEMORIAL PARK,

                        Petitioner,

 

vs.                                                                                                Appeal No.06-0081AP-88B

                                                                                                    UCN522006AP000081XXXXCV

 

CITY OF LARGO, a Florida

municipal corporation,

                        Respondent.

__________________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response, and the Reply.  The Citizens in Opposition to Crematorium was permitted to intervene and filed its Brief of Amicus Curiae in Support of Respondent.  Upon consideration of all 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 March 2005 the Petitioner, SCI Funeral Services of Florida, d/b/a Serenity Gardens Memorial Park (SCI), submitted a site plan application to the City of Largo (City), for the construction of a central care facility, or crematory, on an undeveloped portion of Serenity Gardens Memorial Park, a cemetery comprised of 35 acres.  The proposed crematory would be 13,177 square feet, 23 feet tall, utilize three burners, and have area for processing and fleet storage.  The cemetery upon which the crematory would be built is designated as “institutional” and a crematory is expressly permitted by the City’s Comprehensive Development Code (Code).  Surrounding the cemetery, the property to the north is a retirement facility, the property to the south is residential, and the property to the west is a church.  The property to the east is vacant and owned by the Pinellas County School District, which anticipates developing the vacant parcel into a school at some point in the future. 

            While the City’s Code only requires one neighborhood compatibility meeting, SCI met with neighboring property owners twice, on June 21, 2005, and again on July 6, 2005.  Due to concerns from the property owners, SCI was required to submit its development application to the Planning Board and the City Commission for approval before a Development Order could be issued.[1]  As set forth in a memo to the Planning Board, dated August 31, 2006, prepared by Jamal Block, Planner, and Robert E. Jarzen, Planning Manager, the Community Development Director, Assistant Community Development Director, and Planning Manager all recommended approval of the project, finding the proposed use to be consistent with the City’s Code.  The City’s staff also determined that the project was compatible with the surrounding area.  After a hearing on the matter, on September 7, 2006, the Planning Board voted, three to two, against a recommendation of approval to the City Commission.  The Planning Board considered six Code criteria and a majority determined that the project would be incompatible with adjacent land use and would result in negative economic, social, and environmental impacts to the City.

            In a memo to the City Commission, dated September 29, 2006, and prepared by Michael J. Staffopoulos, Community Development Director, and Robert E. Jarzen, Planning Manager, it was reiterated that the proposed crematory was approved by the City’s staff and was found to be compatible with the surrounding area in compliance with the City’s Code.  The matter came before the City Commission on October 3, 2006.  During the lengthy hearing, the City Commission admitted several documents into evidence and heard the testimony of several experts, including the City’s own staff, as well as the testimony from several neighboring property owners.  At the conclusion of the hearing, the City Commission decided, in a five to one vote, to deny SCI’s application finding that it did not meet Code criteria.  The transcript shows that the reasons cited for the denial were that the “development will result in an incompatible land use with the neighborhood, will result in negative environmental impact and will result in diminished air quality for the city.”  A written order was not entered.[2]

Before this Court, SCI argues that the decision of the City Commission to deny its site plan application to construct a crematory is not supported by competent substantial evidence because, primarily, the City Commission improperly relied on the lay testimony of the surrounding property owners.  The applicable standard of review is whether the applicant 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 (Fla. 1995)(setting forth the standard of certiorari review of administrative action).  Since SCI does not argue that they were denied due process or that the City departed from the essential requirements of law, the Court need not address those prongs.

In determining whether the decision of the City Commission is supported by competent substantial evidence, the Court is not entitled to reweigh the evidence or substitute its judgment for that of the agency.  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).  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. 

            In applying this standard, the Court finds that there is competent substantial evidence in the record to support the City’s finding that the proposed crematorium was incompatible with the surrounding community.  Contrary to SCI’s assertion, the record does not demonstrate that the City improperly relied on lay testimony in reaching its decision.  Accordingly, the Court finds that SCI’s request for certiorari relief must be denied.

            Therefore, it is,

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

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of January 2008.

 

                                                         _________________________________

                                                         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

Tampa, FL  33601-1100

 

Alan S. Zimmet, Esquire

Ronal Freeman, Esquire

Post Office Box 15309

Clearwater, FL  33766

 

Scott A. McLaren, Esquire

Marie A. Borland, Esquire

Post Office Box 2231

Tampa, FL  33601

 



[1] See Code Sec. 5002(D):  “An application shall be reviewed by the Planning Board when existing evaluation criteria and development standards may cause a significant impact upon the public interest or surrounding property owners, thereby requiring discretion.”

 

[2]  There is no dispute that the City Commission failed to enter written findings of fact and an order as required by its Code, Section 11100(I)(1)-(4). Section 11100(I), titled findings and order, explicitly sets forth four written findings that the City Commission must enter following a hearing, including:  (1) A statement of the criteria and standards used for evaluation of the proposal; (2) A statement of the findings of fact which the hearing body found establishing compliance or noncompliance with each applicable criteria; (3) The reasons for a conclusion to approve or deny; and (4)  The decision to deny or approve the proposed change with or without conditions, and if appropriate, a statement of the hearing body’s interpretation of what would be required to achieve compliance with the criteria and standards.  The failure of the City Commission to enter a written order requires this Court to evaluate the transcript in order to attempt to determine what standards were used by the Commission to evaluate SCI’s application and its reasons for finding noncompliance with the City’s code.  However, after having the parties brief this matter, the Court decided not to remand the case to the City Commission to enter a written order, primarily due to the lapse of time since the hearing and because both parties requested the Court to proceed on the record without a written order.  The Court reminds the City that it is of the upmost importance that it adhere to its Code and that neither party has the authority to simply waive Code requirements.