Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances – Planning and Zoning Board did not depart from the essential requirements of law in its denial of variance.  Even though the proposed variance would bring residence more closely into compliance with land use regulations and above the base flood elevation, Petitioners failed to demonstrate that denial of the variance deprived them of reasonable use of the property.  Board afforded Petitioners due process, and their decision is supported by competent substantial evidence.  Petition denied; motion denied as moot.  Morrison v. City of Treasure Island, Florida, No. 11-000005AP-88B (Fla. 6th Cir. App. Ct. August 11, 2011).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

JACK MORRISON;

ELEANOR MORRISON,

                  Petitioner,

v.                                                                                             Ref. No.:  11-000005AP-88B

                                                                                                UCN:  522010AP000005XXXXCV

CITY OF TREASURE ISLAND,

FLORIDA,

                  Respondent.

                                                                        /

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

            THIS CAUSE is before the Court on the Petition for Writ of Certiorari filed by Petitioners, Jack and Eleanor Morrison, on January 14, 2011.  Petitioners seek review of the denial of a variance request by the Planning and Zoning Board of the Respondent, City of Treasure Island.  Respondent filed a response in opposition and motion to dismiss for failure to state a cause of action under Rule 1.140.  Petitioners filed a response in opposition to the motion to dismiss.  Respondent filed a Motion to Strike Petitioner’s response or, in the alternative, a Supplemental Response.

            Petitioners are the owner of real property located at 346 Bay Plaza, Treasure Island, Florida.  The existing waterfront residence is nearly sixty years old and non-conforming, that is, it encroaches 100% into the 20-foot waterfront set-backs required by Treasure Island, Florida, Code § 68-541, and the entire living space is below the Base Flood Elevation (“BFE”).     Petitioners submitted a Request for Variance to the City’s Planning and Zoning Board.  They propose to build a new residence that conforms but whose accessory uses (balcony and stairs) encroach into waterfront set-back by 8 feet (of the 20 required), thereby reducing the current encroachment.  Petitioners point out that the property is located in a neighborhood established and built prior to the passage of any zoning or land use ordinances, and the neighborhood is composed primarily of non-conforming structures.  The adjacent properties also have structures that encroach into the waterfront setback by 100%.  According to Petitioners, a new structure built to conform to the 20-foot setback would virtually eliminate the view to the Intracoastal Waterway except straight ahead, largely because the view would be blocked by the neighboring, nonconforming residences.  Moreover, their current residence, which would be expensive and labor intensive to repair and remodel, is below the BFE, whereas the new structure would be above the BFE.

            On December 16, 2010, the Board conducted a hearing on Petitioner’s request.  After consideration of the application and exhibits and staff recommendations, the Board denied variance.  Petitioners filed the instant Petition for Writ of Certiorari seeking an Order quashing the Board’s decision.           

            When the circuit court reviews a decision of a local administrative agency, the court must determine (1) whether procedural due process was provided, (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and the decision were based on competent substantial evidence.  City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).  

            Upon consideration of the parties’ positions and the administrative record, the Court finds that Petitioners have failed to demonstrate that the Respondent failed to accord them procedural due process, that the Respondent did not observe the essential requirements of law, or that the findings and variance denial were not based on competent substantial evidence.  Instead, Petitioners argue only that the denial of the variance denies them reasonable use of their property and that a grant of the variance would bring their home more closely into compliance with land use regulations. 

            While this Court is sympathetic to the difficult situation faced by the homeowners,[1] the record is clear that the Petitioners were afforded an opportunity to be heard and that the Board followed the essential requirements of law in considering the Petitioner’s application.  Although Petitioners disagree with the Board’s decision, it is nonetheless supported by competent substantial evidence.

            Accordingly, it is

            ORDERED and ADJUDGED that the Petition for Writ of Certiorari is DENIED.   It is further Ordered that Respondent’s Motion to Strike and Request for Oral Argument are DENIED AS MOOT.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida, on August 11, 2011.

 

Original order entered on August 11, 2011 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.

 

Copies furnished to:

 

Jack W. Morrison

Eleanor F. Morrison

10105 Woodsong Way

Tampa, FL 33618

 

Maura Kiefer, Esquire

City Attorney, City of Treasure Island

535 Central Avenue

St. Petersburg, FL 33701-3703

Attorney for Respondent

 



               [1]Particularly where the proposed variance would bring the home above the Base Flood Elevation, a grant of the variance requested in this instance arguably would have furthered the goals of land use regulations.