IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
APPELLATE DIVISION
UCN 522002**001847XXCI*P
LEONARD A. PIOTTI,
Petitioner,
v.
CITY OF
Respondents.
_______________________________________/
THIS MATTER
is before the Court on a Petition for Writ of Certiorari, pursuant to Fla.
R. App. P. 9.190(b)(3) and 9.100(b), (c) after the Board of Adjustment of
the City of Madeira Beach denied Petitioner’ request for a zoning variance.
The property in question contains a two-story building, a duplex, consisting
of two single-family units. Although it conformed to the building code when
built, in 1994 it became a nonconforming structure because of a 2.5 foot encroachment
in the newly-established side lot setback requirement. In 1994 Petitioner
purchased the property and established one of the single-family units as his
primary residence. In 1997 Petitioner and his wife became custodian of two
grandchildren and eventually, in an effort to create more space,
began converting the two-car garage. The half of the garage closest to his
kitchen would be the recreation area and laundry facility for his unit and
the front half of the garage would be a laundry facility for the rental unit
and a storage area. Upon discovery of the lack of necessary permits, all renovation
was stopped until the necessary permits were pulled. Because the building
is nonconforming, however, permits could not be issued until a variance was
obtained.
The Petitioner’s request for the zoning variance was summarized before
the Madeira Beach Board of Adjustment by the Acting Building Official. It
was noted that no correspondence had been received after public notice to
the abutters; and Petitioner was granted an opportunity to state his case.
After several questions between Board members and Petitioner, the Board deliberated,
and approved a motion to deny the variance by a vote of 4 to 1. The Board’s
findings of fact stated that the application for variance failed to meet the
criteria established by the City of
The jurisdiction of this Court having been timely invoked, review of
the quasi-judicial decision of the Madeira Beach Board of Adjustment is procedurally
governed by Fla. R. App. P. 9.190(b)(3), (c)(4), and 9.030(c)(3) and is limited
to a review of (1) whether procedural due process was accorded; (2) whether
the essential requirements of the law were observed; and (3) whether the administrative
findings and judgment were supported by competent, substantial evidence. Acting
in its appellate capacity, the Circuit Court has no jurisdiction, in certiorari,
to make factual findings or to enter a judgment on the merits of the underlying
controversy. See Evergreen Tree Treasurers of Charlotte County, Inc.
v. Charlotte County Board of County Commissioners, 810 So.2d 526 (Fla.
2d DCA 2002).
The City of Madeira Beach Code of Ordinances, Section 110-93(3) provides
as follows:
Sec 110-93. Intent concerning nonconforming property, structures and uses.
It is the intent of the land development regulations that these nonconformities
shall be considered to be incompatible with the permitted uses within the
city districts. Such nonconformities shall not be enlarged or extended in
any respect.
.
. .
(3)
Nonconforming structures. Where a lawful structure exists
at the time of the passage or amendment of the land development regulations
which could no longer be built under the terms of the land development regulations
by reason of restrictions on area, lot coverage, height, or other characteristics
of the structure or location on lot, such structure may be continued so long
as it remains otherwise lawful, subject to the following provisions: a. That
any addition, alteration or renovation to the structure shall not increase
the degree of nonconformity or result in the conversion of a nonconforming
carport, garage, screen enclosure, patio roof, storage area or other nonhabitable
area into a habitable area unless specifically approved by the board of adjustment…”
The Madeira Beach Board of Adjustment authorizes variances from the
terms of the city land development regulations as not being contrary to the
public interest where, owing to special conditions, a literal enforcement
of the provisions of the land development regulations will result in unnecessary
and undue hardship.
1.
Special conditions and circumstances exist which are peculiar to the
land, structure, or building involved and which are not applicable to other
lands, structures, or buildings in the same zoning district.
2.
Special conditions and circumstances do not result from the action of
the applicant.
3.
Granting the variance will not confer on the applicant any special privilege
that is denied to other lands, buildings, or structures in the same zoning
district.
4.
Literal interpretation would deprive the applicant of rights commonly
enjoyed by other properties in the same zoning district under the terms of
the land development regulations, subpart B of this Code and would work unnecessary
and undue hardship on the applicant.
5.
The variance granted is the minimum variance that will make possible
the reasonable use of the land, and
6.
The granting of the variance will be in harmony with the general intent
and purpose of the city land development regulations, and that such variance
will not be injurious to the area involved or otherwise detrimental to the
public welfare.
See
also Gomez v City of
In this case, the transcript reveals that the Board members discussed at length what constituted the unique hardship in this case and appeared to determine that the addition to Petitioner’s family of his grandchildren and the resulting overcrowding, as well as the existing nonconformity of the building, caused Petitioner to apply for the variance. They then made general findings of fact that there was no hardship and that the claimed hardship was self-created. On that basis, the variance request was denied.
The additional family members occupying one of the single-family units
in the duplex resulted in a self-created hardship for which no relief need
be granted. Although the fact of the structure’s nonconformity requires a
variance before permits for renovation may be pulled, that does not mean that
a variance must automatically be granted. The Madeira Beach Code of Ordinances
makes it clear that the type of renovation contemplated in this case, which
increases the degree of nonconformity, is disfavored.
It is the Petitioner’s burden to come before the Board and establish
the requirements for a variance, such as a showing that the granting of the
variance would be in harmony with the general intent and purpose of the city
land development regulations. Based on a review of the transcript, this Court
finds that the Board accorded procedural due process, observed the essential
requirements of the law and that its decision was supported by competent,
substantial evidence. It is therefore
ORDERED that the above-styled Petition for
Certiorari is denied.
DONE AND ORDERED
in Chambers, at
_________________________________________
JOHN A. SCHAEFER
cc:
Joel D. Broida, Esq.,
Thomas
J. Trask, Esq., Frazer, Hubbard, Brandt & Trask,