NOTICE:  THIS OPINION IS SUBJECT TO REVISION OR WITHDRAWAL

UNTIL TIME EXPIRES FOR REHEARING OR FURTHER APPELLATE

REVIEW AND, IF FILED, DETERMINED

 

Petition 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 St. Pete Beach, Appeal No. 06-0087AP-88A (Fla. 6th Cir. App. Ct. Feb. 28, 2008).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

WALTER SOWA, JR.,

                        Petitioner,                                                         Appeal No.  06-0087AP-88A

                                                                                                UCN522006AP000087XXXXCV

vs.                                                                                           

                                                                                                Appeal No.  07-0042AP-88A

                                                                                                UCN522007AP000042XXXXCV

CITY OF ST. PETE BEACH,

                        Respondent.

__________________________________________/

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

            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 1907 Gulf Way, following Hurricane Jean in September 2004.[1]  Upon review of the briefs, the record, and being otherwise fully advised, the Court finds that certiorari relief must be granted. 

            In the first petition, the Petitioner, Walter Sowa, Jr. (Sowa), a neighbor, argues that the Respondent, City of St. Pete Beach (City), was without authority to issue Development Order # 20060014A to the Owner since there had been no extension of time obtained within one year of the “catastrophic loss” caused by the hurricane.  The City’s Land Development Code, section 3.10(d)(6) requires permits to rebuild to be obtained within one year of the catastrophic loss unless a general extension of time has been granted by the City Commission.  In the second petition, Sowa challenges the City’s subsequent issuance of Construction Permit # 20070789, for the development of the same property. 

      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.[2]  Following a hearing on March 26, 2006, the City’s Board of Adjustment denied the Application.[3] 

 

·                 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.

 

ORDERED:

 

Grant an extension to the deadline to obtain a building permit, to rebuild the structure lost through a catastrophic event, to April 6, 2007.[4]

 

·                 On December 28, 2006, the City entered Development Order # 20060014, denying a Variance Application.[5]  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),[6] 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)

                

Before 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 (Fla. 1995); see also County of Volusia v. City of Deltona, 925 So.2d 340, 343 (Fla. 5th DCA 2006).  Sowa does not argue that he was denied due process, so the Court need not address that prong. 

            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 (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.

            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 W. Sowa to Community Development Director; # 31, July 26, 2007, Letter from W. Sowa to City Manager; and, # 32, July 29, 2007, Letter from W. Sowa to Mayor/City Commission.

Next, 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 108 – 20th Avenue, St. Pete Beach, is adjacent to 1907 Gulf Way, and that his property will “be in the path of windborne and waterborne debris emanating from the inadequate construction.”  The Court must assess whether the record contains sufficient evidence that Sowa’s property interests will be adversely affected by the City’s actions.  See  City of St. Petersburg, Board of Adjustment v. Marelli, 728 So.2d 1197, 1198 (Fla. 2d DCA 1999).  “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.’”  Id. (citing Rinker Materials Corp. v. Metropolitan Dade County, 528 So.2d 904 (Fla. 3d DCA 1987).

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, 599-600 (Fla. 2d DCA 2005)(explaining that “[i]t is the function of a judicial tribunal to decide actual controversies by a judgment which can be carried into effect, and not to give opinions on moot questions, or to declare principles or rules of law which cannot affect the matter in issue”). 

            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.                 

The 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 North Miami Beach, 286 So.2d 552, 553 (Fla. 1973).  The Court finds that the City departed from the essential requirements of law in issuing a permit to renovate the apartment building, including adding an additional 200 feet, without complying with its Code.  This error is serious since the building is located in a special flood plain[7] and because new Code requirements are geared towards minimizing the risks to life and property.  See Housing Authority of the City of Tampa, supra.  

            In 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 County Commissioners of Brevard County v. Synder, 627 So.2d 469, 474-75 (Fla. 1993)(explaining what types of proceedings are quasi-judicial, reviewable by petition for certiorari).  The Court concludes that certiorari relief must be granted because the City departed from the essential requirements of law in entering the Construction Permit without adhering to its Code.[8] 

Therefore, it is,

            ORDERED AND ADJUDGED that the Petition is granted and Construction Permit # 20070789 is quashed. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of February 2008.

 

                                                         _________________________________

                                                         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

233 Third Street North, Suite 101

St. Petersburg, FL  33701

 

Russell L. Cheatam, III, Esquire

3862 Central Avenue, Suite A

St. Petersburg, FL  33711

 

Timothy Patrick Driscoll, Esquire

146 Second Street North, Suite 202-A

St. Petersburg, FL  33701



[1] The owner of the property, Ronald Holehouse, doing business as Ron’s Investment, Inc. (Owner), is not a party to this action. 

[2] The Uniform Residential Appraisal Report, dated August 23, 2005, placed the market value of the property at

 $ 1,340,000.00.

[3] There is no development order or transcript of this hearing in the record.

[4]  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.

[5]  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.

[6] 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).”

[7] Stricter building code requirements apply to property located in a special flood plain. 

 

[8] This conclusion does not affect the trial court’s authority to proceed with Sowa’s declaratory action currently pending in circuit civil court.