Petition for Writ of Certiorari to Review Quasi-Judicial
Action: Agencies, Boards, and Commissions of Local Government: ZONING – Essential Requirements of the Law
– Misapplication of correct law does not amount to departure from essential
requirements of the law; instead, there must be application of incorrect law –
Development Board did not apply incorrect law – in reviewing substantial
competent evidence, court is limited to examining evidence in support of
Board’s decision – even though evidence existed contrary to Board’s decision,
substantial competent evidence also existed to support the Board’s decision –
Petition denied. Williams v. City of
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILES, DETERMINED
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
BELLEVIEW BILTMORE, LLC,
ORDER DENYING PETITION FOR WRIT OF CERTIORARI
THIS MATTER is before the Court on the
Petition for Writ of Certiorari of several residents of the Sand Key area of
is currently undertaking a major renovation of the landmark Belleview Biltmore
Hotel in the Town of
The Sand Key property currently houses a restaurant of approximately 7,000 square feet that has been vacant since 1998. The Belleview plans to reduce this restaurant to about 5,000 square feet and have about 165 seats distributed among the restaurant proper, a grill area, and a pool area. It also plans to eliminate banquet facilities in the current restaurant.
In Belleview’s proposal, it presented the restaurant as an accessory to the Cabana Club under the terminology of the Code. The Code defines an accessory structure as
a building or structure which: 1) is subordinate to and serves a principal building; 2) contributes to the comfort or necessity and convenience of the users or occupants of the principal building; 3) is located on the same lot as the principal building and is not attached to such building and (4) is detached from principal structure.
Further, the Code imposes the following standards on accessory uses:
1. The accessory use and structure is subordinate to and serves an established and conforming principal use.
2. The accessory use and structure is subordinate in area, extent, and purpose to the principal use.
3. The accessory use and structure contributes to the comfort, convenience or use of the principal use.
4. The accessory use and structure is located on the same property as the principal use and located behind the front edge of the principal structure.
5. The accessory use(s) and structures, unless otherwise allowed as a permitted use in the zoning district, shall not cumulatively exceed ten percent of the gross floor area of the principal use. Such structures may be permitted up to 25 percent of the gross floor area of the principal use through a Level One (flexible standard) approval process. Gross floor area of the principal building includes the floor area of any attached garage or carport.
Id. § 3-210.B.
status is at the heart of the parties’ dispute because under the Code,
accessories to hotels do not require any additional parking beyond that
required for the hotel itself (in this instance, one space per hotel room, or
38 spaces). Code Table 2-704. However, if a restaurant is considered a
principal use, it must have its own parking.
In addition to regulating the number of parking spaces for the hotel/restaurant, the Code also imposes a stacking requirement—that is, a minimum distance between the public roadway and the first aisleway or parking spot of a lot to lessen the possibility that cars will back out onto the roadway. For county roads, the minimum distance is 40 feet. However, the Code authorizes the Board to approve a lesser distance if supported by a traffic study. Id. § 3-1406.B.6.
The Clearwater Planning Department (Department) reviewed a substantial amount of documentation from the developers, including two traffic studies and a parking study. It then recommended approval of the project in a report prepared by Planner III staff member Wayne Wells. This report did not address the stacking issue in any detail other than to note that the project met all parking and traffic requirements. However, regarding accessory use, the report included the following:
The Planning Department has determined
the restaurant of 4,981 square feet to be accessory to the hotel. The determination is based on the
relationship of the Cabana Club with the Belleview Biltmore Hotel, where
operation and marketing will be by a common hotel operator. . . . To ensure the maintenance of the
operational, management and marketing characteristics with the Belleview
Biltmore Hotel in the Town of
Further, in the delineated conditions of approval at the close of the report, the Department states that if common operation is discontinued, “this site shall be required to reduce the size of the accessory restaurant to a square footage more in line with a 38-room/unit hotel, acceptable to the Planning Department.”
The Board conducted an extensive public hearing on this project on September 16, 2008. During the hearing, Wells read the common management provision into the Record and noted that if the relationship ceased between the Biltmore and the Cabana Club, “they may have to take and reduce the restaurant to what the required parking is based on a separate free-standing—or not separate, but another primary use on the property.” However, he also testified that since the Code has no specific figures on what constitutes an accessory use, the Planning Department makes that determination.
Richard Heisenbottle, the project architect, also testified that while the restaurant might be larger than typical for a 38-room hotel, “there is no such thing as a typical 38 room hotel.” He also noted that the size of the restaurant was well within 10 to 25 percent of the principal use, as required by section 3.210.B.5. of the Code.
Vicky Gagliano, a parking expert who conducted a study for the Cabana Club on the Biltmore’s behalf, testified that even at peak hours, parking industry standards indicated that the combined demand from the Cabana Club and restaurant would still be only 38 spaces. She also noted that for unusual demand, valet parking could increase the lot to 67 spaces, and a shuttle would be available from the Biltmore. Hence, the proposed 56-space lot would be more than adequate.
However, Sue Murphy, a land planning expert retained by the Petitioners, disputed that the parking would be sufficient. She also testified that while other high level beach resorts in the area had an average of about one restaurant seat per hotel room, the Cabana Club restaurant would have over four seats per hotel room. Murphy maintained that this large proportion, coupled with the proposed condition requiring joint management, established that the restaurant could not be regarded as an accessory of the Cabana Club standing alone.
In contrast to the accessory issue, little testimony was given regarding the stacking issue. All Department review documents and testimony from the Planning Department and Biltmore’s parking and traffic experts simply stated that the proposal was in compliance with various provisions pertaining to parking and traffic. However, Murphy testified that the stacking space would be only about 20 feet, but the Code requires a minimum distance of 40 feet. She did not go into any further detail on this issue, though.
Finally, on cross-examination, the Petitioners’ attorney attempted to ask Vicky Gagliano about a similar parking study she had done for the Biltmore itself, to which she had referred in her direct testimony. However, when the Petitioners’ attorney attempted to refresh her recollection with a copy of the study, the Board’s attorney objected that since the Board apparently had no chance to evaluate the Biltmore study, Gagliano could not be questioned about it. The assistant city attorney and the Biltmore’s attorney also objected, arguing that the Biltmore study was outside the scope of direct. While Petitioners’ attorney argued that evidentiary rules allowed him to use Gagliano’s own report to refresh her memory, the Board heeded its attorney’s advice and disallowed use of the Biltmore report.
At the close of
the hearing, the Board unanimously approved the project with a list of
conditions, including the one concerning the ongoing relationship between the
Biltmore and the Cabana Club.
Petitioners then appealed this decision under section 4-505 of the Code,
which provides for review by a hearing officer.
By decision dated April 13, 2009, ALJ Robert E. Meale upheld the Board’s action, finding that substantial competent evidence existed to support the Board’s decisions and that the Board did not depart from the essential requirements of the law. While he acknowledged that the Board had impermissibly considered the Biltmore in evaluating whether the restaurant was an accessory, he found that the Code could be interpreted to give accessory status to the restaurant without regard to the Biltmore. He also found that substantial competent evidence existed to support the conclusion that the restaurant was an accessory.
stacking, he noted the ambiguity on
Although Petitioners did not raise the Board’s refusal to allow them to ask Vicky Gagliano about her Biltmore parking study, Judge Meale commented on this subject. He noted that although the use of the earlier study was “clearly not improper, nor was it outside the scope of direct examination, the CDB complied with the advice of its counsel and excluded the material.”
This Court’s review of the
administrative action below is limited to whether Petitioners were afforded
procedural due process, the essential requirements of law were observed, and
the Board’s action is supported by competent substantial evidence. See Haines City Cmty. Dev. v. Heggs,
658 So. 2d 523, 530 (
essential requirements of the law, the Court must consider whether an error
occurred and, if so, whether such error resulted in a gross miscarriage of
justice. See Haines, 658
So. 2d at 527; see also Housing Auth. v.
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 &
Motor Vehicles v. Trimble, 821 So. 2d 1084, 1087 (
Also, 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. Dusseau v.
The issue before the court is not whether the agency’s decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency. The circuit court has no training or experience—and is inherently unsuited—to sit as a roving “super agency” with plenary oversight in such matters.
As the essential requirements and substantial evidence prongs often involve the same arguments and evidence, these prongs will be discussed together with regard to both the accessory and stacking issues. First, however, the Court will address the cross-examination issue, which was raised under essential requirements only.
Petitioners claim that the Board departed from the essential requirements of the law by denying their attorney the opportunity to cross-examine the development’s parking expert, Vicky Gagliano, about a similar parking study she had done for the Belleview Biltmore. Petitioners note that the Florida Evidence Code allows the use of any document to refresh a witness’s recollection, see Fla. Stat. § 90.613, and it is indeed the present recollection of the witness that is the evidence—not the document itself. K.E.A. v. State, 802 So. 2d 410, 411 (Fla. 3d DCA 2001). Petitioners also argue that since Gagliano made reference to the Biltmore parking situation in her direct testimony, the study was in no way outside the scope of such testimony.
Respondents reply that since Petitioners did not raise this argument before the hearing officer, they are barred from raising it in the instant Petition. However, this Court has made clear that the Code’s requirement of administrative review does not abrogate this Court’s first tier certiorari review, which is granted to Petitioners as of right. See Soboleski, n.2. Petitioners did object at the hearing to having their cross-examination barred, and the Court finds this sufficient to invoke its review.
Although the Court agrees with Petitioners that the Board was incorrectly advised on the rules of evidence, this mistake did not result in any miscarriage of justice. The Record indicates that Petitioners wanted to ask Ms. Gagliano about the Biltmore parking study because she had apparently concluded that at any given time, the Biltmore guests would occupy about 268 parking spaces there. Presumably, Petitioners wanted to use that information to argue that many more cars might be driven from the Biltmore to the Cabana Club than the Cabana Club could accommodate.
However, the Record also shows that the Board members were skeptical about how many Biltmore guests would choose a shuttle or water taxi—two transportation options the developers proposed to alleviate car traffic—over their cars. In fact, the Board chairman stated his concern that the approximately 300 members of the Belleview Biltmore Golf Club would not drive back to the Biltmore itself to take a shuttle, but would instead just drive on over to the Cabana Club.
Therefore, although the Board’s refusal to allow reference to the Biltmore parking study was in error, this did not amount to a departure from the essential requirements of the law. Instead, Board members’ comments showed that the Board was aware of the potential for a large number of drivers from the Biltmore. Thus, any testimony elicited from Ms. Gagliano on the Biltmore study would have been cumulative on this potential.
II. Accessory Status of the Restaurant
In arguing that the Board departed from the essential requirements of the law by deeming the restaurant an accessory under the Code, Petitioners stress the condition requiring the downsizing of the restaurant if the Cabana Club and Biltmore parted ways. In Petitioners’ view, this condition establishes that the Board regarded the restaurant as an accessory only if the Biltmore and Cabana Club were lumped together as the dominant use. However, they could not be lumped together under the Code because it requires that the dominant and accessory use be on the same property. Code §§ 3-201.B., 8-102.
Judge Meale acknowledged that, to the extent that the Board considered the Biltmore in its accessory analysis, it erred. However, he found that “even if this misconception of law had permeated the CDB proceeding, and it did not, it would not have been a departure from the essential requirements of the law because it would not have resulted in a miscarriage of justice.” Instead, he determined that even eliminating the Biltmore from the analysis, the restaurant could qualify as an accessory use.
This Court agrees
that in considering the Biltmore in its evaluation of whether the restaurant
was an accessory, the Board incorrectly applied the relevant Code provisions. However, the Court disagrees with Petitioners
that this misapplication was sufficient to constitute a departure from the
essential requirements of the law. While
Petitioners cite several cases which they claim to
support their position, a review of these cases shows that the lower tribunal did
not misconstrue an applicable provision but instead applied the incorrect provision of law. See Verizon Wireless Personal Commc’ns,
L.P. v. Sanctuary at Wulfert Point Cmty. Ass’n, Inc., 916 So. 2d 850, 855 (
The only case Petitioners cite that arguably supports their
position is Maturo v. City of Coral Gables, 619 So. 2d 455 (
Thus, the district court itself noted that its ruling was subject to disagreement. Also, on second-tier certiorari review, the district court was prohibited from examining whether substantial competent evidence supported the circuit court’s decision. Stevenson v. Department of Highway Safety & Motor Vehicles, 17 So. 3d 1260, 1261 (Fla. 2d DCA 2009). Therefore, this Court does not find the reasoning of Maturo persuasive.
In the present
matter, while there was a deviation from the law in considering the Biltmore
with the Cabana Club as a principal use, the Board did apply the proper code
provisions, and the Court does not find the Board’s error to be so egregious or
fundamental so as to constitute a departure from the essential requirements of
the law. See
Therefore, the Board did not depart from the essential requirements of the law in deeming the restaurant an accessory use. Likewise, there is substantial competent evidence to support the Board’s decision that the restaurant is an accessory use.
Petitioners advance a valid argument that given the size and seating of the restaurant relative to the Cabana Club, the restaurant cannot logically be deemed an accessory to the Cabana Club standing alone. However, on certiorari review, this Court is limited to examining the adequacy of evidence in support of the Board’s decision and may not reweigh the pros and cons of conflicting evidence. Dusseau, 794 So. 2d at 1276. Focusing on the evidence supporting the Board’s decision, the Court finds it to be adequate.
On cross-examination, Petitioners’ counsel tried to get both Wayne Wells and Richard Heisenbottle to concede that without the Biltmore, the restaurant could not be considered an accessory. However, both of these witnesses testified that the Code was rather open-ended on what constituted an accessory use and that the restaurant did qualify as an accessory to the Cabana Club on its own.
Also, noting the Code provision that an accessory use could be approved at up to 25 percent of the gross floor area of the dominant use, Heisenbottle testified that the restaurant was just over 10 percent of the Cabana Club. Petitioner argues that this provision does not apply because it is for accessories that are otherwise not allowed by the Code, and the restaurant would otherwise be allowed. However, a more logical reading of this provision is that if the accessory is not an otherwise allowed use, the City wanted to cap its size at 25 percent. For allowed uses, the maximum size would be left to the discretion of the Board.
Therefore, while Petitioners have raised valid questions about whether the Biltmore is the true dominant property in this case, this Court cannot conclude that the Board lacked substantial competent evidence to support its decision.
III. Stacking Requirements
stacking, Petitioners’ evidence showed the distance from
However, while the Respondents’ witnesses did not expressly address stacking, an expert in civil engineering testified that the traffic circulation for the project met all Code requirements. Certainly, flow could be regarded to encompass the flow from the public roadway into the lot, and as one Board member noted after hearing all the evidence, “the flow of traffic is going to be corrected.”
Also, section 3-1406.B.6. of the Code expressly allows a reduction of the stacking area if supported by a traffic study. Two traffic studies and a parking study were submitted by Respondents, and since the Planning Department never mentioned any stacking concerns in its report to the Board, it could reasonably be assumed that the Department was satisfied with the stacking situation even if it did not allow for a 40-foot distance.
Therefore, although the Board could have addressed the stacking issue in more detail, there was substantial competent evidence to support the conclusion that the stacking requirements were satisfied. Likewise, it does not appear that the Board departed from the essential requirements of the law, particularly when it could reduce the stacking distance if supported by a parking study.
Therefore, it is hereby
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED.
DONE AND ORDERED in Chambers in
Original order entered on February 26, 2010 by Circuit Judges Pamela A.M. Campbell, George W. Greer, and John A. Schaefer.
Robert E. Meale
Administrative Law Judge
Division of Administrative Hearings
Leslie K. Dougall-Sides, Esq.
Alan S. Zimmet, Esq.
Thomas E. Reynolds, Esq.
 There is
some confusion in the Record over whether
 Under the Code, the hearing officer’s review may not consider due process. Code § 4-505.C.
circuit court found a hardship justifying a variance because the landowner, who
owned contiguous lots in