Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING– Site plan application— The City did not depart from the essential requirements of the law by treating an application as a modification to an existing plan rather than as a new application. There was competent substantial evidence to support the Commission’s finding that site plan was compliant with Land Development Regulations.  Ch. 2011-139, s. 79, Laws of Florida, which provides that any local government development order with an expiration date between January 1, 2012 and January 1, 2014 is extended and renewed for a period of two years after its previously scheduled date of expiration, trumps the City’s Code provision for only one extension, therefore, granting an extension was not a departure from the essential requirements of the law. Petition denied. Belmont v. City of St. Petersburg, No. 12-000030AP-88B (Fla. 6th Cir. App. Ct. February 5, 2013).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

PETER BELMONT,

            Petitioner,

v.                                                                                             Ref. No. 12-000030AP-88B

                                                                                                UCN: 522012AP000030XXXXCV

CITY OF ST. PETERSBURG,

            Respondent.

__________________________________/

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

            THIS CAUSE comes before the Court on Petitioner’s Petition for Writ of Certiorari seeking to quash the City’s resolution of June 7, 2012 denying Petitioner’s appeal and upholding the Development Review Commission’s approval of site plan modifications associated with the previously approved site plan for 145 4th Avenue Northeast.  

 

Background

            The site plan that is the subject of this Petition is a mixed use development, residential condominiums and retail space, located in downtown St. Petersburg on 4th Avenue NE.  Originally, the site plan for the Project was approved in 2007, for a 21 story building.  On July 2, 2008, the Development Review Commission (DRC) considered and approved a request for an extension to the Project’s 2007 site plan approval from August 23, 2007, until September 9, 2012.  On May 2, 2012, the Project applicant returned to the DRC and requested consideration and approval of site plan modifications.  The City staff recommended approval of the Project’s site plan modifications, and the DRC approved the modifications.  Petitioner appealed the decision of the DRC to approve the site plan modifications, and the City of St. Petersburg City Council denied the appeal.

             

Issues

            The Petition raises three issues.  First, Petitioner argues that the City departed from the essential requirements of the law by applying the wrong standard to the application.  Petitioner next argues that competent substantial evidence does not support the finding that the building and side setbacks did not change between the 2007 approved plan and the modified plan.  Finally, Petitioner argues that the City departed from the essential requirements of the law by, in effect, granting the project applicant a second extension when the Code of St. Petersburg provides that applications granted prior to September 10, 2007 shall be entitled to only one extension, and said extension shall expire on September 9, 2012.

 

Standard of Review

In reviewing the Petition for Writ of Certiorari, this Court must determine: (1) whether procedural due process was accorded; (2) whether the essential requirements of the law have been observed; and (3) whether the administrative findings and judgment were supported by competent, substantial evidence. See City of Deerfield Beach v. Vaillant, 419 so.2d 624, 626 (Fla. 1982).

 

Analysis

Modification to Existing Plan

            Petitioner first argues that the application should have been reviewed as a new application rather than as a modification to an existing plan.  If the site plan had been reviewed as a new application rather than a modification to an existing plan, the entire site plan would have to comply with the standards in the current Land Development Regulations (LDR). However, as a modification to an existing plan, only the specifically requested changes must comply with the current LDRs, not the entire site plan.  Since the 40 foot side setbacks in the current plan do not comply with required 60 foot setbacks in the current code, the plan would not be in compliance if submitted as a new application.

            Petitioner argues that the application should have been reviewed as a new application because there are differences between the 2007 approved plan and the current plan.  St. Petersburg City Code s.16.70.040.1(H) provides what changes require a new site plan to be submitted, and what changes may be submitted as modifications to a previously approved site plan.  Only if modifications would cause: a variance from any provisions of the City Code, a change in use, an increase in residential density, waive any condition or conditions expressly specified by the Commission, or change the basic intent of the approved site plan, would the project’s modifications have to be reviewed as a new site plan application.  The modified site plan does not cause a variance, does not include a change of use, decreases the residential density, and does not change the basic intent of the site plan as the plan remains a high rise tower with residential units.  Further, no conditions of approval were waived other than those conditions which are no longer applicable due to the proposed modifications.  The City did not depart from the essential requirements of the law by treating the application as a modification rather than a new application.

 

Side Setbacks

            Petitioner’s second argument is based on Petitioner’s belief that the side setbacks above the building’s 50 foot level changed from the 2007 plan to the current plan.  Petitioner bases this belief only by looking at and comparing the 2007 and the current building plans.  If the side setbacks were modified in the new plan, they would need to conform to the current Land Development Regulations (LDR) which provide for a minimum side set back of 60 feet (as opposed to the 40 foot setback requirement in the 2007 LDRs).  The side setbacks above the building’s 50 foot level in both the 2007 and the current site plan are 40 feet.  If the side setbacks above the 50 foot level did not change from the 2007 plan to the current plan, they do not need new approval, and must only comply with the 2007 LDRs.  Despite Petitioner’s assertion that the side setbacks changed, both the 2007 building plan and the City Staff Report confirm that the side setback in both plans is 40 feet.  Since the side setbacks did not change, it is not a modification and must only be compliant with the 40 foot setback requirement in the 2007 LDRs.  There was competent substantial evidence in the record to support the City’s finding that the side setbacks in the current plan had not changed from the 2007 plan, and therefore the City applied the correct standard to the application and did not depart from the essential requirements of the law.

 

Duration of Approval

            Petitioner also contends that the City departed from the essential requirements of the law by, in effect, granting the project applicant a second extension when the Code of St. Petersburg provides that applications granted prior to September 10, 2007 shall be entitled to one extension and said extension shall expire on September 9, 2012.  Ch. 2011-139, s. 79, Laws of Florida, provides that any local government issued development order which had an expiration date between January 1, 2012 and January 1, 2014 is extended and renewed for a period of two years after its previously scheduled date of expiration.  This law trumps the City Code’s provision for only one extension, and granting the automatic extension was not a departure from the essential requirements of the law.

Conclusion

            The City correctly treated the site plan application as a modification of an existing application.  There was competent substantial evidence to support the City’s finding that there was no change to the side setbacks from the 2007 site plan to the current site plan, and thus the 2007 LDRs applied to the side setbacks.  The side setbacks in the current plan are compliant with the 2007 LDRs.  Finally, the City did not depart from the essential requirements of law in granting the automatic extension provided for by Florida law.

 

Accordingly, it is

            ORDERED that the above styled Petition for Writ of Certiorari is DENIED.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida, on this ______day of ___________ 2013.

 

Original order entered on February 5, 2013, by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A. M. Campbell.

           

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Copies Furnished to:

 

PETER B. BELMONT, ESQUIRE

102 FAREHAM PLACE NORTH

ST. PETERSBURG, FL 33701

 

 

JEANNE E. HOFFMANN

ASSISTANT CITY ATTORNEY

CITY OF ST. PETERSBURG

PO BOX 2842 ST. PETERSBURG, FL 33713