Petition
for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and
Commissions of Local Government: ZONING — Petitioners’ due process
rights were not at Port Richey City Council meeting to approve a subdivision
application when Petitioners were already afforded due process at a prior
Planning and Zoning proceeding. Petitioners’ Motion for Rehearing or
Clarification of order dismissing their Petition for Writ of Certiorari denied.
Simpson, et al. v. City of Port Richey,
No. 512007CA000624WS (Fla. 6th Cir.
App. Ct. March 29, 2011).
IN THE CIRCUIT COURT OF THE SIXTH
JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR
PASCO COUNTY
APPELLATE DIVISION
JEFFREY
L. SIMPSON, LAURIE L. SIMPSON,
RICHARD
R. STOUT, NANETTE STOUT,
ELOISE
TAYLOR, JAMES P. HOSTER,
And
JANE HOSTER,
Petitioners,
v.
Appeal
No: 51-2007-CA000624-WS/P
CITY
OF PORT RICHEY,
Respondent.
______________________________________/
Appeal from Order
Dismissing Petition for Writ of Certiorari
(Motion for Rehearing or
for Clarification)
Eloise Taylor, Esq.
for Petitioners
Michael J. Brannigan, Esq.
for Respondent
ORDER DENYING MOTION
FOR REHEARING OR CLARIFICATION
On
February 8, 2007, Petitioners filed a Petition for Writ of Certiorari, arguing
that Port Richey failed to provide due process and base its decision on
substantial, competent evidence regarding the preliminary plat approval of a
subdivision called Limestone Estates.
Their Petition for Writ of Certiorari was amended on June 8, 2007. On September 23, 2008, this Court dismissed
Petitioners’ petition. Petitioners’
timely filed a Motion for Rehearing or Clarification, on October 8, 2008. After supplemental briefing, a review of the
entire record, and otherwise being fully aware of the case, this Court finds
that Petitioners’ Motion for Rehearing or Clarification should be denied.
FACTUAL BACKGROUND
In
their Petition for Writ of Certiorari, Petitioners sought review of Port Richey’s
granting of the preliminary plat approval for a small subdivision called
“Limestone Estates,” a small seven-unit subdivision on the north side of
Limestone Drive in Port Richey. The
original application for subdivision approval was submitted on December 19,
2005. Subsequently, the applicants
applied for a variance from certain set-back requirements, which was ultimately
rejected by the Board of Adjustment on July 17, 2006, and again denied by City
Council on August 8, 2006. After losing
its attempt for a variance, Limestone Estates proceeded with its application
for preliminary plat approval. On December 13, 2006, a proceeding was
held on the plat approval before the Planning and Zoning Board. Building Official Ed Winch gave a staff
report indicating that the Technical Review Committee found Limestone Estates
to be in compliance with the minimum standard subdivision preliminary plat
requirements. The development would be a
private community with no streets or sidewalks dedicated to Port Richey, rather
owned and maintained by the property owners.
There was no objection from public works, utility, fire, or police; all
city departments recommended approval.
Before them were the site plan, ordinance, the developer, and the
engineer. Rolly
Dove with Spring Engineering was present to answer questions and concerns on
behalf of the developer. The public had
an unlimited opportunity to voice their concerns and ask questions, before the
Planning and Zoning Board made their decision.
Laura
Simpson spoke at the Planning and Zoning proceeding. She and her husband owned an acre of property
north of the proposed development. Her
guesthouse was exceptionally close to the bordering property line. About ten years ago, Ms. Simpson was told by
Port Richey’s building department that only two homes could be built on the Limestone
property because it has 150 feet of public road frontage. She questioned the legality of using a
private road for the set-back (instead of the edge of the property line) to
create more houses on the property. Since
Ms. Simpson had never seen that done before, she was concerned about its
precedent. Ms. Simpson argued that
cramming seven houses on the property was ridiculous.
Jim
Priest believed the subdivision would have to meet traffic constraints. The level of service on U.S. 19 was an “F,”
which would mean that only one home per acre could be built. Mr. Priest thought that seven homes on that
lot were more than extreme.
Eloise
Taylor owned the property one lot removed from the proposed subdivision. Ms. Taylor voiced her concerns about the
city potentially having to take over the subdivision when it becomes no longer
cohesive. Emergency vehicles may not be
able to turn around. Ms. Taylor believed
that it would be better for long range planning to consider the density that was
compatible with the surrounding houses in the neighborhood.
Bill
Bennett had a problem with using the street as part of the lot setback and
right of ways. Two cars could not fit in
a driveway. Emergency vehicles would
also have issues. Mr. Bennett had a
problem with the city having to take over at a later date. He would feel comfortable with three houses,
but seven was too much. Mr. Bennett
believed that this development would be going in the opposite direction of
doing better for the city.
Randy
Stout argued that seven homes on a small lot were too much since the
immediately adjacent properties averaged two acres per house and the twenty-one
adjacent properties averaged over one acre each.
Pat
Rogers, a realtor, who owned two houses on each side of the property, commented
that the developer was being unethical by stating that the lot was a certain
size, but that included their half of the road.
Buyers may sue as a result. The
concern about the project’s density, emergency vehicles, and compatibility with
the area was again reiterated.
John
Sansbury spoke as the owner of the property. He stated that each lot was over 8,300 square
feet, which was over the 7,500 minimum requirement when
he applied. Each home would be three
stories with the minimum square footage at 2,500 square feet. Houses being built further west were being
built on smaller pieces of property. The
subdivision would be a private community with no expense to the city. Port Richey could expect $30,000 to $35,000
in annually in taxes. They claimed to
have met all requirements and requested approval.
Planning
and Zoning Board Member William Sitton agreed that
seven homes was a lot for the neighborhood.
He questioned the engineer on where the storm water would
discharge. Rolly
Dove with Spring Engineering responded that the city required them to collect
the storm water, pipe it through an approved device to remove the pollutants,
and discharge it offsite into a canal about eighty feet along the road. Mr. Sitton
responded that he was still concerned about the drainage. Rolly Dove stated
that a retention pond would be designed, SWIFTMUD issued a permit, and all
requirements had been met from the City and Water Management District. The Planning and Zoning Board voted in favor
except for William Sitton who voted against it and
Shawn Poole who abstained.
At
the City Council hearing, on January 9, 2007, Building Official Ed Winch informed
them that the recommendation of Staff and the Planning and Zoning Board were
for approval. Mayor Abbott opened the floor
for public comment, but limited each speaker to three minutes. The public was refrained from asking
questions.
Building
Official Ed Winch stated that the application was submitted prior to the Land
Development Code being adopted and prior to the new state concurrency
requirements. It also fell under the old
code requirements, which do not require any type of landscaping. Nonetheless, the developer was providing
landscaping. Nothing in the old code
required them to provide any more than they already have. The plat would remain the same. The only request had been for a variance for
the setbacks, which was denied. The
houses were then reduced in size to be in compliance.
Laurie
Simpson repeated her concerns from the Planning and Zoning proceeding at the
City Council meeting. She added that she
was worried that the driveways were too short in that there was not enough room
for guests to park, causing problems with emergency vehicles and diminishing
property values. The majority of the
neighborhood was historic homes; thus, the applicant should be required to
specify the type of gate it will use.
Ms. Simpson did not think that the community was marketable as proposed
because it offered no golf course, pools, or waterfront access. She believed that Planning and Zoning Board
Member William Sitton was the only board member to
walk the property, and he voted against it due to concerns about proper
drainage. The property currently acted
as a retention pond for the neighborhood, which created concerns about
storm-water drainage. The council
members all responded that they either were familiar with the property or had walked
it.
Jim
Priest reiterated his position that he expressed at the Planning and Zoning
proceeding, but pointed that the drainage was not in compliance with the
previous or current codes. There was no
traffic study, which he believed was required of subdivisions. The developer was also required to post a
bond for damages and provide street lighting.
The lots were platted over 80 years ago.
The idea that the subdivision be private was just a way to get around
the rules. The planned cul-de-sac was 22
feet, as opposed to the minimum city standards of 35 feet to provide a
turn-around for emergency vehicles.
Subdivision standards also required the developer to save as many trees
as possible, but it appeared that they will flatten the entire area. The developer had not provided enough space
for a roadside clear zone.
Eloise
Taylor also repeated her thoughts that she presented at the Planning and Zoning
meeting. Ms. Taylor added that the
project did not comply with the Land Development Code and Comprehensive
Plan. Port Richey must comply with state
statute requiring an assessment of concurrency and a schedule of capital
improvements. Ms. Taylor argued that it
could not be approved until these requirements were met.
Bill Bennett reiterated his concerns about the
precedent that would be set with allowing this subdivision to improperly use
the road setbacks. The driveways were
too short because cars’ bumpers would hang out into the street by two
feet. Mr. Bennett also shared with Ms.
Taylor’s concern that emergency vehicles could not turn around and that the
project was too dense.
At
the City Council meeting, Randy Stout added that he believed that there was a
connection between the property and the dredging of the river. He read an article in the Tampa Tribune that
Port Richey was going to meet with the Florida Department of Environmental
Protection to get a permit to dredge the river to remove miles of polluted
river and clogged channels. In the
article, DEP spokeswoman Pamela Vasquez stated that with a project of this
size, it’s Port Richey’s responsibility to make sure that the negative impact
on the environment was not substantial.
Mr. Stout supported the dredging project and thought that it would behoove
the city to show that they were willing to limit the amount of development in
the area to reduce the pollution to the river.
Other
individuals, who attended the Planning and Zoning proceeding, repeated their
concerns before City Council. Pat Rogers
and John Sansbury reiterated their positions without
any additional comments. An unidentified
speaker wanted to speak a second time, but was not allowed because he or she
already had their three minutes.
Jim Hoster did not speak at the Planning and Zoning proceeding. At the City Council meeting; however, he wanted
to ask the City Attorney which Land Development Code and Comprehensive Plan the
project fell under, and if Port Richey was required to follow state statute. Mayor Abbott stated that if he allowed Mr. Hoster to ask questions, then everyone else could ask
questions. If he wanted to make a
comment though, he could. Jim Hoster stated that Florida Statute 163.318 dictates that
the project was not in compliance with concurrency, and U.S. 19 was over 110
percent of capacity.
Councilmembers
addressed their concerns. Councilmember
Britton asked whether a fire truck could turn around in a 22-foot cul-de-sac. Fire Chief Russell stated that it takes about
thirty feet for a truck to turn around, unless it was the MAC truck that could
turn around in that amount of space. Councilmember
Britton asked whether a traffic study was conducted. Mr. Winch stated that one was not required at
the time of submittal. Councilmember Massad commented that the same people kept coming up, the
applicant did what was asked to become legal, and there was nothing else to
discuss. When put to a vote, only
Councilmember O’Neil voted against it.
LEGAL
ANALYSIS
Petitioners
are basing their Petition for Writ of Certiorari on the failure of Port Richey
to provide a quasi-judicial hearing with basic due process at the City Council
meeting. Petitioners argue that the
applicants provided no competent, substantial evidence on which the City
Council could base its approval of the subdivision request. They further contend that the City Council
also failed to follow the essential requirements of law.
Petitioners
argue that they were denied due process at the City Council meeting. Since rezoning hearings are quasi-judicial in
nature, basic due process must be afforded to insure a fair hearing. Board of County
Commissioners v. Snyder, 627 So. 2d 469 (Fla.
1993). As such, interested
parties must be afforded notice, a fair opportunity to be heard, and an
impartial decision maker. Jennings v.
Dade County, 589 So. 2d 1337, 1340-1341 (Fla. 3d DCA
1991). Petitioners contend that the
City of Port Richey failed to meet two of the three requirements: a fair
opportunity to be heard and an impartial decision-maker.
Petitioners
argue that the City of Port Richey failed to provide a fair opportunity to present
their case, treating the hearing before City Council like a legislative matter,
not a quasi-judicial hearing. Instead of
evidence being presented and witnesses cross-examined, participation was
limited to three minutes of input for each member of the public. The applicant, John Sansbury,
gave no initial presentation, no witnesses were called on his behalf, no sworn
testimony was taken, and no evidence was presented. Petitioners also argue that they were denied
an impartial decision-maker in that the council members were biased against the
local residents who opposed the subdivision.
We
find that Petitioners’ argument is misplaced, as they were provided a fair opportunity
to present their case before an impartial decision-maker at the Planning and
Zoning proceeding. Section 8.01(c) of
the City Charter specifically defines the duties of the Planning and Zoning
Board. The City Code details the
Preliminary Plat Plan requirements in section 3.20(f). When read together, it is apparent that the Planning
and Zoning Board was the correct forum for the review process, not City
Council.
Once
an applicant demonstrates that its preliminary plat complies with Florida
Statutes and the city’s plat requirements, it is entitled to preliminary plat
approval as a matter of law. Broward County v. Narco, 359 So.
2d 509, 511 (Fla. 4th DCA 1978); G.B.V. Int’l, Ltd. v.
Broward County, 709 So. 2d 155, 156 (Fla. 4th DCA
1998). The procedure in Port
Richey is that once the Planning and Zoning Board has conducted a hearing and
determined that the plat requirements are met, approval by City Council is only
ministerial, as they may only incorporate modifications and revisions.
In
this case, a quasi-judicial hearing was held by the Planning and Zoning Board,
wherein due process was afforded. The
plat requirements were met with no conditions, rendering the City Council’s
approval merely ministerial. City
Council had the opportunity to incorporate modifications or revisions, but did
not. There was nothing in the City of
Port Richey Charter or Code and no case law to substantiate the need for a
second hearing. Thus, City Council had
no obligation to provide due process at a quasi-judicial hearing.
Next,
Petitioners allege that the applicants provided no competent, substantial
evidence on which the City Council could base its approval of the subdivision
request. A landowner seeking to rezone
property has the burden of proving that the proposal is consistent with the
comprehensive plan and complies with all the procedural requirements of the
zoning ordinance. Board
of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469, 476 (Fla. 1993).
The applicant was required to provide competent, substantial evidence at
the Planning and Zoning hearing. At that
hearing, the principal of the applicant and his expert from Spring Engineering
both testified. The building official
also testified and explained staff recommendations. Both the Planning and Zoning Board and City
Council made their decisions on the facts and documents presented. The applicant had already met his burden of
proof in a quasi-judicial proceeding before the Planning and Zoning Board.
Finally,
Petitioners argue that the decision by the City to approve the subdivision
failed to apply the correct law, which resulted in a miscarriage of
justice. See, Haines City Community Development v. Heggs,
658 So. 2d 523, 526-527 (Fla. 1995). Specifically, Petitioners contend that there
were violations of the subdivision requirements of ordinances of the City,
Florida Statutes, and Chapter 633 pertaining to Uniform Fire Code. After a thorough review, this Court can find
no failure to apply the correct law.
While
our decision may appear to be in conflict with our decisions in Priest, et al.
v. City of Port Richey, No. 512007CA2224WS and 512007CA2226WS (Fla. 6th
Cir. App. Ct. April 27, 2010), it is distinguishable. In those cases, this Court was not presented
with such clear evidence of a prior quasi-judicial hearing where due process
was afforded. Here, it is clear that
Petitioners were afforded due process at the Planning and Zoning hearing and
were not entitled to a second opportunity before the City Council.
Therefore,
it is
ORDERED
AND ADJUDGED that the Petitioner’s Petition Motion for Rehearing or
Clarification is DENIED.
DONE
AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 29th
day of March 2011.
Original
order entered on March 29, 2011 by Circuit Judges Stanley R. Mills, W. Lowell
Bray, Jr., and Daniel D. Diskey.