Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government:  ZONING – standing – Petitioners did not present any evidence or testimony to demonstrate that rezoning would affect their property rights and therefore lacked standing. Petitioner who lived 3/4 mile away and did not show how zoning affected her to a greater degree than the general public, lacked standing.  Petition dismissed.  Deborah Schechner, Mary Ellen Keller & Henry Keller v. City of St. Pete Beach & Dophin Village Partners, LLC 07-0014AP-88A ( Fla. 6th Cir.App.Ct. May 19, 2008).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

DEBORAH SCHECHNER,

MARY ELLEN KELLER, and

HENRY KELLER,

                        Petitioners,

vs.                                                                                                Appeal No.07-0014AP-88A

                                                                                                    UCN522007AP000014XXXXCV

CITY OF ST. PETE BEACH, and

DOLPHIN VILLAGE PARTNERS, L.L.C.,

                        Respondents.

__________________________________________/

 

ORDER DISMISSING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Responses, and the Reply.  Upon review of the briefs, the record, and being otherwise fully advised, the Court finds that the Petition must be dismissed as set forth below.

The Petitioners, Deborah Schechner (Schechner), Mary Ellen Keller, and Henry Keller (the Kellers), seek review of Ordinance No. 2007-05, approved by the Respondent, City of St. Pete Beach, on February 13, 2007.  The Ordinance rezones property, located at 4901 Gulf Boulevard, from CG-1 Commerical to PD Planned Development.  The purpose of rezoning the property, known as Dolphin Village, is to permit the developers, Dolphin Village Partners, L.L.C., also a Respondent, to renovate the existing Publix and to add commercial services, as well as 175 residential units.  The Ordinance does not grant any permits and indicates that approval for several aspects of the development must still be obtained.  The Ordinance is premised on Division 43 of the City’s Land Development Code, entitled Planned Development Districts, which sets forth criteria for property designated as Planned Development.

Schecher resides at 710 Boca Ciega Isles, about three-quarters of a mile east of the proposed development.  The record indicates that Schechner did participate in the proceedings below and voiced her objection to the development.  The Kellers reside at 105 Lido Drive, a little less than a half-mile southeast of the proposed development.  The Kellers did not participate in the proceedings below.  Neither party was entitled to notice of the hearings before the City as they live beyond the City’s notice requirement of 300 feet.  The Petitioners assert that they having standing as their property will be affected to a greater than the general public due to increased traffic on 46th Avenue, from which trucks will access the property.  Schechner argues that this roadway is the only route to her property.  (The Kellers do not make this argument).  The Petitioners argue that the increased traffic will decrease the value of their property and will hamper their evacuation should there be a hurricane.  Schechner also argues that her property is located on Boca Ciega Bay into which Dolphin Village will discharge effluent.[1]  The City argues that the Petitioners lack standing to seek certiorari review of Ordinance 2007-05.

            The Petitioners raise a multitude of issues including that the City’s actions denied them due process, was a departure from the essential requirements of law, and that the Ordinance is not supported by competent substantial evidence because it was not enacted in accordance with Florida Statutes or the City’s Code.  The City argues that the Petitioners lack standing.  Standing is a preliminary issue that must be decided by the Court.  See Fraser v. Department of Highway Safety and Motor Vehicles, 727 So.2d 1021, 1022 (Fla. 4th DCA 1999)(agreeing that standing is a preliminary issue  to be decided by the court). 

            The Court finds that the Petitioners lack standing as set forth in prior rulings issued by this Court.   In Urban v. City of St. Pete Beach, 14 Fla. L. Weekly Supp. 909 (Fla. 6th Cir. App. Ct. May 2007), the Court dismissed the Petition for lack of standing as there was no evidence or testimony presented by the Petitioners, who lived next door, during the proceedings below regarding the impact of the dock variance on their property.  This decision was affirmed by the Second District Court of Appeal.  See Urban v. City of St. Pete Beach, 33 Fla. L. Weekly D356 (Fla. 2d DCA 2008).  In Bayou Bonita Neighborhood, Inc., et. al. v. City of St. Petersburg, 14 Fla. L. Weekly Supp. 243 (Fla. 6th Cir. App. Ct. December 2006), the Court found that one of the Petitioners lacked standing as he lived a quarter mile away from the proposed development and across the water.  The Court found that the remaining Petitioners did have standing because they all lived within 200 feet of the proposed project, were given notice of the development, and participated in the proceedings below.  In Lange v. City of St. Petersburg, 12 Fla. L. Weekly Supp. 612 (Fla. 6th Cir. App. Ct. February 2006), the Court dismissed the Petition finding that the Petitioner, who lived several blocks away, failed to establish how the City’s approval of residential garage doors adversely affected him.  Most recently, in Sowa v. City of St. Pete Beach, Appeal No. 06-0087AP-88A (Fla. 6th Cir. App. Ct. February 2008), the Court determined that the Petitioner did have standing, in part because he lived adjacent to the property.  See id.; see also Concerned Citizens of Tarpon Springs, Inc., et. al. v. City of Tarpon Springs, 14 Fla. L. Weekly Supp. 639 (Fla. 6th Cir. Ct. April 2007)(finding that plaintiff lacked standing to challenge development order for proposed retail center where plaintiff lived four miles away and alleged concerns regarding traffic, hurricane evacuation, and potential pollution did not exceed general community interest). 

            Each of these decisions cited to the holding in City of St. Petersburg, Board of Adjustment v. Marelli, 728 So.2d 1197, 1198 (Fla. 2d DCA 1999).  In Marelli, the Second District found that neighboring property owners affected by zoning changes have standing to challenge the changes.  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, there is nothing in the record to demonstrate that the Kellers presented any evidence or testimony to the City that their property rights will be impacted in any way.  Therefore, the Kellers do not have standing.  Schechner, on the other hand, did participate in the proceedings below and presented several concerns.  However, she is not a neighboring property owner as interpreted by the case law cited to above as she lives three-quarters of a mile away from the proposed development.  Indeed, due to the lack of proximity, the Petitioners were not entitled to receive notice.  And it is difficult to see how Schechner is affected to a greater degree by the proposed development than the general public, particularly given the large number of individuals that reside much closer to the project.  It is also notable that the property has been used as a shopping center for many years and that will continue to be its primary use, including the use of 46th Avenue as an access point.  Therefore, the Court finds that Schechner lacks standing.

Therefore, it is,

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

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of May 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:

Kenneth L. Weiss, Esquire

11085 – 9th Street East

Treasure Island, FL  33706

 

R. Michael Larrinaga, Esquire

5025 East Fowler Avenue, Suite 19

Tampa, FL  33617

 

Ed Armstrong, Esquire

911 Chestnut Street

Clearwater, FL  33756

 

Timothy P. Driscoll, Esquire

146 Second Street North, Suite 202-A

St. Petersburg, FL  33701



[1] In support of this argument, Schechner cites to Appendix 19, the Planned Development Application.  There is nothing in the Application to indicate that effluent will be discharged into the Bay.