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
JEFFREY L. SIMPSON, LAURIE L. SIMPSON,
RICHARD R. STOUT, NANETTE STOUT,
ELOISE TAYLOR, JAMES P. HOSTER,
And JANE HOSTER,
v. Appeal No: 51-2007-CA000624-WS/P
CITY OF PORT RICHEY,
Appeal from Order Dismissing Petition for Writ of Certiorari
(Motion for Rehearing or for Clarification)
Eloise Taylor, Esq.
Michael J. Brannigan, Esq.
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.
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.
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.