NOTICE: THIS OPINION IS SUBJECT TO REVISION OR WITHDRAWAL
UNTIL TIME EXPIRES FOR REHEARING OR FURTHER APPELLATE
REVIEW AND, IF FILED, DETERMINED
for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and
Commissions of Local Government: ZONING
– variance – standing – essential requirements of law – statutory construction
- neighbor has standing to appeal City’s issuance of construction permit to
renovate apartment complex – neighbor lives adjacent to the subject property, located
in a special flood plain, and had attempted to intervene several times in
proceedings due to unauthorized construction – City failed to follow it’s Code
requirements in issuing construction permit for the repair of property that was
destroyed in a 2004 hurricane – record established that property suffered a
“total loss” and that damage was “catastrophic” – property owner failed to
timely obtain building permit to repair apartments as a grandfathered,
nonconforming use – with loss of grandfathered status, apartments could only be
repaired with either a variance or in adherence to current Code requirements - City’s decision to issue building permit,
including adding an additional 200 feet to property, was a departure from the
essential requirements of law - Petition granted. Sowa v. City of
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
WALTER SOWA, JR.,
Petitioner, Appeal No. 06-0087AP-88A
Appeal No. 07-0042AP-88A
THIS CAUSE came before the
Court on the briefs filed in Appeal No.
06-0087AP-88A and Appeal No. 07-0042AP-88A.
These petitions, consolidated by the Court on August 20, 2007, involve
the redevelopment of property, located in St. Pete Beach at
the first petition, the Petitioner, Walter Sowa, Jr. (Sowa), a neighbor, argues
that the Respondent, City of
The record shows that the property consists of a two-story, four-unit apartment complex. It is considered a grandfathered, nonconforming use since it was built in 1956, prior to the enactment of the City’s Code. It is undisputed that if the property lost its grandfathered status, it could only be redeveloped as a single family use according the City’s current Code. Following Hurricane Jean, the Owner sought to renovate the property and the following action ensued:
· In September 2005, the Owner submitted an Application for Substantial Improvement/Damage Review. The Owner swore the cost of repair to be $ 54,620.00. On September 23, 2005, the City approved the Application and issued Construction Permit # 20051531, detailing the work to be completed:
INTERIOR RESTORATION OF WATER DAMAGE, REPLACE CABINETS, REPLACE DRYWALL, REPLACE FIBERGLASS DUCTBOARD, REFINISH FLOORS AND TILE, NO STRUCTURAL WORK, NO NEW ELECTRICAL SERVICE (REPAIR SWITCHES & RECEPTACLES AS NEEDED), NO NEW MECHANICAL EXCEPT DUCTS AND ALL EXISTING PLBG SUPPLIES AND WASTE TO REMAIN. CHANGE OUT (4) SINKS & (4) TOILETS.
The work was not completed and the permit expired.
· On February 9, 2006, the Owner filed a Variance Application, seeking a variance to rebuild the apartment building from 4 units to 3. The Owner stated that:
The roof was blown off during Hurricane Jean. The cost of repair far exceeds the 50 % F.E.M.A. rule making the building a total loss. I would like to reduce the density from 4 units to three. Need additional ftg [footage] to provide suitable ceiling height. Hardship is loss of Bldg. due to hurricane and change in code (for height). Loss of one unit.
The estimate of repair attached to the Application put the cost of renovations to return the apartment building back at its pre-loss condition at $ 309,515.06. Following a hearing on March 26, 2006, the City’s Board of Adjustment denied the Application.
· On October 4, 2006, the Owner submitted a Variance Application to “extend the grandfather ordinance.” After a public hearing on October 24, 2006, the City Commission approved the Application and entered Development Order # 20060014A, finding:
Section 3.10(d)(6) Grandfathered nonconforming residential uses: Permits to rebuild under these provisions shall be obtained within one year of the catastrophic loss unless a general extension of time has been granted by the City Commission.
Grant an extension to the deadline to obtain a building permit, to rebuild the structure lost through a catastrophic event, to April 6, 2007.
· On December 28, 2006, the City entered Development Order # 20060014, denying a Variance Application. While not succinctly stated, the Order indicates that the variance request was denied because it failed to comply with Code Section 3.10(d)(3) & (4), replacement structures; Code Section 20.10(a), maximum height of structures; Code Section 7.2(k), height limitations (elevator tower); and, Code Section 11.7(a)(1) & (2), minimum setback requirements. The Owner did not seek any other building permits or variances and the extension granted by Development Order # 20060014A expired on April 6, 2007.
· On April 16, 2007, Permit # 20051531, which had previously expired, was “reinstated to get inspections to close out permit.” On June 12, 2007, the City received a letter from Sowa expressing that the contractor was going beyond the scope of work.
· On June 19, 2007, Permit # 20051531, was voided because the City found that the contractor had exceeded the scope of the work permit.
· On July 9, 2007, the City issued Construction Permit # 20070789, for the renovation of the property with an estimated cost of $ 187,000.00. The Permit History shows that the Owner’s site plan was approved without a hearing after several revisions were made. The Permit states that the work to be completed includes:
INTERIOR AND EXTERIOR RENOVATION OF AN EXISTING FOUR UNIT APARTMENT COMPLEX (AN APPROX 200 ADDITIONAL SQ FT)
this Court, Sowa argues that Development Order # 20060014A and Construction
Permit # 20070789 do not comply with the essential requirements of law and are
not supported by competent substantial evidence. The standard of review applicable in
reviewing administrative action taken by the City is whether the petitioner 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 the 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 (
Initially, on the face of the record
the Court must strike several documents contained within the appendices which
were not developed as part of the proceedings below prior to the entry of the
last order for which Sowa seeks review, the Construction Permit issued on July
9, 2007. See Altchiler v. Department of Professional Regulation,
442 So.2d 349 (Fla. 1st DCA 1983)(stating that when a party on appeal includes
in an appendix material or matters outside of the record, or refers to such
material or matters in its brief, it is proper for the court to strike the
same). Those documents include, from the
Appendix filed August 8, 2007: # 9, July
19, 2007, letter from Barry Flaherty; # 15, e-mail correspondence; and, from
the Second Supplemental Appendix, filed November 13, 2007: # 30, July 12, 2007, Letter from
the Court must determine whether Sowa has standing to appeal the City’s actions. In both petitions, Sowa asserts that he has
standing because his property, located at
While there is no evidence in the record that Sowa will be in the path of windborne and waterborne debris, the record does show that Sowa’s property is directly east of the subject property and that Sowa has attempted to intervene several times in the City’s actions because of concerns about unauthorized construction. The record shows that the City voided Construction Permit # 20051531 as a direct result of Sowa complaining that the permit exceeded the scope of work. The work details set forth in the various permits that were issued or sought show that the Owner intends to complete significant interior and exterior renovations at the property. This anticipated (or completed) development, coupled with the proximity of Sowa’s property, sufficiently establishes that Sowa’s property interests will be adversely affected to give him standing. See id.
The Court must next determine
whether it has jurisdiction to review the appealed orders. As to Development
Order # 20060014A, the extension granted by the City Commission expired on
April 6, 2007, without any construction or building permits being issued. Therefore, the issues raised in the first petition
are arguably moot since any action the Court may take apparently will have no
affect. See Merkle v. Guardianship of Jacoby, 912 So.2d 595,
However, the problem presented by the facts of this case is that, although the extension granted in the Development Order had expired, the City’s Building Official nonetheless issued Construction Permit # 20070789 for the renovation of the 4-unit apartment building. It is unclear from what authority this permit was issued. Without having to determine the exact cost of the various repairs and renovations sought, the record shows that the Owner had already informed the City that the building’s roof had blown off, that the cost of repair “far exceeded” the 50 % F.E.M.A. rule, and that the building was a “total loss.” In entering Development Order # 20060014A, the City Commission found that the damage to the apartments following Hurricane Jean was “catastrophic.” In its follow-up Development Order # 20060014, entered December 28, 2006, the Board denied the Owner’s Variance Application because the requested development did not comply with the City’s Code. Hence, assuming, arguendo, that the extension granted by the Development Order was lawful in the first place, the only way that the Owner could renovate and repair his apartment complex as a grandfathered, nonconforming use, was to obtain a building permit before April 6, 2006. As the City concedes, this was not done.
The Court finds that the issuance of Construction Permit # 20070789, on July 9, 2007, is further perplexing in light of the fact that the City had just revoked Permit # 20051531, on June 19, 2007, for renovations to the building that exceeded the scope of the permit. The City’s Code, section 3.10(b)(1), provides that, “[n]o such structure may be enlarged, altered or improved in a manner which increases its non-conformity.” Code sections 3.10(d)(3) and (4), also require that the grandfathered structure be repaired with the same square footage and footprint. See footnote 6, supra.
City must adhere to the requirements of its Code, which are subject to the same
rules of construction as statutes. See
Rinker Materials Corp. v. City of
summary, the Court finds that Sowa has standing and that the Court has
jurisdiction to review both the Development Order # 20060014A, and the
subsequent issuance of Construction Permit # 20070789, which was made in the
midst of quasi-judicial proceedings from which certiorari review is proper. See Haines City, supra.; see also Board of
Therefore, it is,
ORDERED AND ADJUDGED that the Petition is granted and Construction Permit # 20070789 is quashed.
AND ORDERED in Chambers, at
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
GEORGE M. JIROTKA GEORGE W. GREER
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
John R. Thomas, Esquire
Russell L. Cheatam, III, Esquire
Timothy Patrick Driscoll, Esquire
 The owner of the property, Ronald Holehouse, doing business as Ron’s Investment, Inc. (Owner), is not a party to this action.
 The Uniform Residential Appraisal Report, dated August 23, 2005, placed the market value of the property at
 There is no development order or transcript of this hearing in the record.
 The Court notes that the Board granted the extension, in part, because of confusion as to who had the authority to approve an extension to obtain a permit following a catastrophic event. The record shows that, on January 12, 2006, the City’s Building Official erroneously approved the Owner’s request for an extension, through May 2006, to obtain all the necessary permits to renovate and repair the property. In any event, the record reflects that no permits were obtained by the Owner during this period.
 The Board was apparently reconsidering the Owner’s previous Variance Application, submitted February 9, 2006, to reduce the apartment building from 4 units to 3 units.
 Code Section (d)(3) states: “The replacement structure(s) shall be no larger in square footage, nor taller than the original structure, except that structure height may be increased by the height of the base flood elevation where necessary to comply with the flood hazard mitigation requirements.” Code Section (d)(4) states: “Provided there are no conflicts with other codes and that no adverse impacts on adjacent properties will be created, the replacement structure(s) may be permitted to be constructed with the same footprint as the original structure(s).”
 Stricter building code requirements apply to property located in a special flood plain.
 This conclusion does not affect the trial court’s authority to proceed with Sowa’s declaratory action currently pending in circuit civil court.