Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government: ZONING—Essential Requirements of the Law—Where special exception is sought, petitioner bears only initial burden of showing it meets statutory criteria, and then burden shifts to opposing party to demonstrate that the special exception does not meet relevant standards—development board failed to follow essential requirements of law where it placed ultimate burden on petitioner to show that property could not be developed without the requested use deviation—petition for writ granted.  CEPCOT Corp. v. City of Clearwater, No. 03-5083AP-88B (Fla. 6th Cir. Ct. App. Div. January 19, 2005).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

 IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

CEPCOT CORPORATION and

CLEARWATER TRANSPORTATION,

INC.,

                                                Petitioners,

 

vs.                                                                                            Appeal No. 03-5083AP-88B

                                                                                                UCN 522003AP0050083XXXXCV

CITY OF CLEARWATER,

                                                Respondent.

______________________________________/

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

            This matter is before the Court on the Petition for Writ of Certiorari, the Response and the Reply.  Upon consideration of the same and being otherwise fully advised, the Court grants the Petition as set forth below.

            Petitioners Cepcot Corporation and Clearwater Transportation (Cepcot) seek review of the Final Order entered December 2, 2003, by the City of Clearwater’s (City) hearing officer, Administrative Law Judge Robert E. Meale.[1]   This Order found that Cepcot had not met its burden of showing that the “decision of the community development cannot be sustained by the evidence before the board, or that the decision of the board departs from the essential requirements of the law.”  Clearwater, Fla., Community Development Code (Code) § 4-505.C (2002) (setting forth the standard of review of decisions entered by the Community Development  Board (Board)).   Consequently, this Order affirmed the Board’s June 20, 2003, Order, denying Cepcot’s Flexible Development Application to build a convenience store with two islands for pumping gas.

            Cepcot owns real property located at 657 Court Street in the downtown zoning district of the City.  The property is actually on the “fringe” of downtown and surrounding uses include offices, warehouses, and a utility plant.

At the time Cepcot acquired the property, it housed a restaurant, thrift store and park.  Cepcot, however, desired to replace the existing uses with a 3,200-square foot convenience store with two gas pump islands.  A large impetus for this desire was the pending completion of the Memorial Causeway Bridge between the mainland and Clearwater Beach, which would bring a dramatic increase in traffic to the two streets bordering the property to the east and west.

            Because an automobile service station is not a permitted use within the downtown zoning district, Cepcot filed a Flexible Development Application for a comprehensive infill redevelopment project (CIRP) on December 17, 2002.  In support of its application, Cepcot submitted detailed plans outlining the proposal’s aesthetic features and consideration of both vehicular and pedestrian traffic from the nearby recreational Pinellas Trail. 

However, after reviewing Cepcot’s plans, the City’s Planning Department issued a Staff Report recommending that the application be denied.  At the close of a public hearing on the application on June 17, 2003, the  Board denied the application by a 4-2 vote.  Cepcot then appealed the Board’s decision to the City’s hearing officer, who upheld the Board’s determination.  Cepcot then filed the present Petition.

In reviewing the hearing officer’s Final Order and the administrative action taken by the City, this Court must consider three factors: (1) whether Cepcot was afforded procedural due process; (2) whether the Board observed the essential requirements of the law; and (3) whether the Board’s action is supported by competent substantial evidence.  Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) (setting forth standard of certiorari review of administrative action).   As the first factor is not at issue in this matter, the Court’s analysis will focus solely on the second and third factors.

            Cepcot claims that the Board departed from the essential requirements of the law by forcing it to bear the ultimate burden of establishing that the property could not be developed without the requested use deviation.  Indeed, where a special exception is sought, the petitioner bears only the initial burden of showing that its application meets the pertinent statutory criteria. Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1091 (Fla. 2000).   If petitioner meets its burden, then the burden shifts to the party opposing the special exception to demonstrate, by competent substantial evidence presented at the hearing and made part of the record, that the special exception does not meet the standards and that granting it would be adverse to the public interest.  Id. at 1091-92. [2]

            The City contends that burden shifting was not appropriate because CEPCOT never met its initial burden of showing that it met the statutory criteria.  This Court, however, finds that Cepcot met its prima facie burden; therefore, the Board erred in failing to present competent substantial evidence to refute Cepcot’s showing.

            Section 2-903.C of the Code sets forth the following criteria for evaluating a CIRP:

1.                                  The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards;

 

2.                                  The development of the parcel proposed for development as a Comprehensive Infill Redevelopment Project will not reduce the fair market value of abutting properties;

 

3.                                  The uses within the comprehensive infill redevelopment project are otherwise permitted in the City of Clearwater;

 

4.                                  The uses or mix of uses within the comprehensive infill redevelopment project are compatible with adjacent land uses;

 

5.                                  Suitable sites for development or redevelopment of the uses or mix of uses within the comprehensive infill redevelopment project are not otherwise available in the City of Clearwater;

 

6.                                  The development of the parcel proposed for development as an comprehensive infill redevelopment project will upgrade the immediate vicinity of the parcel proposed for development;

 

7.                                  The design of the proposed comprehensive infill redevelopment project creates a form and function which enhances the community character of the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole;

 

8.                                  Flexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character and the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole;

 

9.                                  Adequate off-street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development;

 

10.                              The design of all buildings complies with the Downtown District design guidelines in Division 5 of Article 3.

 

Code § 2-903.C.  

While the Planning Staff’s report maintained that Cepcot failed to meet several of these criteria, Judge Meale found that Cepcot had failed to meet numbers 1 and 7 only, and the City has not argued the applicability of any other criteria. Therefore, this Court will focus on the first and seventh criteria as well.

            Cepcot maintained before both the Board and Judge Meale that it did not have to comply with the first criterion because it was not seeking a deviation from use, intensity and development but from use only.   However, the Board certainly considered the other uses to which the property could be put, and Judge Meale specifically found that although the criterion uses the conjunctive “and,” it should instead be interpreted as a disjunctive “or.”  Otherwise, the City would be unable to regulate certain uses at certain intensities.

            While an “or” reading other than an “and” reading might allow for a greater range of regulation, this Court cannot agree with Judge Meale that the City’s use of “and” was inadvertent and should hence be disregarded.  In evaluating statutory language, a court must first examine the provision’s plain meaning.  Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898, 900 (Fla. 1996).   “When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning."  Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157, 159 (Fla. 1931)).

          Here, the plain and obvious meaning of the first criterion is that the applicant does not have to present evidence that development is otherwise impractical unless it seeks a deviation from use, intensity, and development.   While this might be a rare situation, it is certainly within the realm of possibility, and it is equally possible that the City intended to limit this criterion to applicants seeking a wide variety of deviation from the Code.  Furthermore, there is no evidence in the record justifying a contrary interpretation.  Therefore, this Court finds that by imposing this criterion upon Cepcot, the Board and the hearing officer failed to observe the essential requirements of the law.

            Judge Meale also found that Cepcot had failed to meet the seventh criterion, which provides that the proposed project must enhance the community character of the immediate vicinity of the parcel proposed for development and of the city as a whole.  On this provision, he noted:

The immediate vicinity of the Property is occupied by offices, warehouses, and a small utility plant.  A gas station and convenience store would serve the beach-bound traffic, although it would serve as well the nontransportation functions of surrounding uses.  Additionally, the proposed project, as a nonurban convenience store with a couple of gas pumps, would cover little of the Property, and [the Board] may lawfully determine that the proposed project would appear disharmonious with the surrounding bulkier structures.

 

However, a review of the transcript of the Board’s hearing on Cepcot’s Petition contains absolutely no discussion on whether the convenience store would be “disharmonious” with existing structures in the area.   Further, a review of the record establishes that Cepcot met its prima facie burden as to the seventh criterion by, inter alia, presenting the testimony of Ethel Hammer, a noted urban planner, whom the Board recognized as an expert.  Ms. Hammer testified that numerous urban areas allow for the type of development proposed by Cepcot and that furthermore, Cepcot’s plan would provide the most pedestrian-friendly venue for users of the Pinellas Trail.

As provided in Dania, once Cepcot met its prima facie burden of showing that its plan satisfied the seventh criterion, it was incumbent upon the Board to find by substantial competent evidence placed in the record that the criterion was indeed not satisfied.  However, a review of the record shows that no such finding was made.  Therefore, once again this Court determines that by placing the ultimate burden of proof regarding the seventh criterion upon Cepcot, the  Board and the hearing officer failed to observe the essential requirements of the law.[3]

As this Court has determined that the Board failed to observe the essential requirements of the law, it need not consider whether the Board’s determination was supported by substantial, competent evidence.  For purposes of clarity on remand, however, this Court will address three additional issues.

First, the Court is troubled by the Board’s heavy reliance upon the planning report.  While such a report may constitute competent, substantial evidence for or against approval of a proposal, see generally ABG Real Estate Dev. Co. v. St. Johns County, 608 So. 2d 59, 63 (Fla. 5th DCA 1992), in the present matter a great deal of the report was based upon pending changes to the Downtown Plan that would expressly prohibit gas pumps.

However, Florida law specifically provides that revisions to a land use plan shall not take effect until they are adopted by the local government.  § 163.3197, Fla. Stat. (2004);  Gardens Country Club, Inc. v. Palm Beach County, 590 So. 2d 488 (Fla. 4th DCA 1991)  (finding that county’s review of special exception request under pending rather than existing land use plan was erroneous).  In the present matter, no such adoption had yet occurred, and the Board was bound to follow the existing land use plan.[4]

This Court recognizes that the Board expressed concern over considering the pending changes and actually voted to eliminate those changes as a stated basis for its denial of Cepcot’s proposal.  However, the planning report was so rife with references to these changes, and the City Planner cited them so many times during the Board meeting on Cepcot’s application, that it is difficult to conclude that they played no role in the Board’s deliberations.  Therefore, this Court would suggest that the Planning Office prepare a new report eliminating all consideration of the pending downtown plan.

            Second, the parties dispute whether the Board may consider the general applicability requirements in Section 3-913 of the Code in deciding whether to approve an application.  Cepcot contends that Section 3-913 places no additional requirements on applicants, but instead merely lists requirements that the Board must meet if it places any conditions on an approval. The City, however, maintains that since § 2-903 states that proposed uses are subject to the criteria set forth and other applicable provisions of Article 3, Article 2 “captures” the Article 3 requirements.

            This Court agrees with Cepcot that, under the plain language of the provisions, § 3-913 does not impose requirements on the applicant.  Under § 2-903, qualifying uses are Level II permitted uses, and § 3-913 states that “[c]onditions which are imposed by [the Board] pursuant to a . . . Level Two approval shall ensure that” the listed criteria are met.  Therefore, § 3-913 imposes requirements on the Board only; furthermore, these requirements do not come into play until the Board has approved an application but desires to place conditions on its approval.  In deciding whether to approve the application in the first instance, however, the Board must limit its review to the criteria of § 2-903.

            Finally, the Court notes that the Board made no specific findings of fact in its Order.  However, special exceptions may require that the Board enter specific findings of fact upon which its action is taken.  See  Redner v. City Council, 10 Fla. L. Weekly Supp. 84a  (Fla. 13th Cir. Ct. Dec. 5, 2002) (stating that “due process and equal protection requires [sic] every final order entered by an administrative agency in the exercise of quasi-judicial functions to contain specific findings of fact upon which its ultimate action is taken”); see also Vichich v. DHSMV, 799 So. 2d 1069, 1074 (Fla. 2d DCA 2001) (finding that, in the quasi-judicial context, certiorari review works best when the lower tribunal creates and maintains case-specific evidentiary records).   For both ease of review and due process concerns, the Court recommends that any subsequent orders of the Board make specific findings of fact.

            Therefore, it is

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is hereby GRANTED.  The Final Order dated December 2, 2003, is quashed and this cause is remanded for action consistent with this Order.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida, this ­­­­ day of January, 2005.

 

                                                                                                _________________________

                                                                                                DAVID A. DEMERS

                                                                                                Circuit Judge, Appellate Division

Copies furnished to:

 

Darryl R. Richards, Esq.

Johnson, Pope, Bokor, Ruppel & Burns, PA

Post Office Box 1100

Tampa, FL  33601-1100

 

 

Leslie K. Dougall-Sides, Esq.

Assistant City Attorney

City of Clearwater

Post Office Box 4748

Clearwater, FL  33758

 

The Honorable Robert E. Meale

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL  32399-3060

 

 

           

           

           

           

 

 

 

           


[1] Although Judge Meale is an Administrative Law Judge with the Division of Administrative Hearings, he was not acting in that capacity in this matter.  Instead, he was sitting as a hearing officer under § 4-505 of the City’s Community Development Code.  See Clearwater, Fla., Community Development Code § 4-505 (2002) (setting forth first level of appeal process from decisions of the Community Development Board ).

[2] In its Response, the City briefly argues that Cepcot’s application was for a conditional use rather than a special exception, apparently in an effort to persuade the Court that the burden would remain on Cepcot at all times.  See Redner v. City of Tampa, 827 So. 2d 1056, 1059 (Fla. 2d DCA 2002) (indicating that in application for a variance, burden remains on applicant at all times).  However, the City cites no law in support of its contention, and this Court agrees with Cepcot that its application was in the nature of a special exception. See id. (while a variance seeks relief from literal enforcement of a zoning ordinance to permit a use otherwise prohibited upon finding of practical difficulty or unnecessary hardship, a special exception involves a departure from the general provisions of a zoning ordinance granted by the legislative process under the express provisions of the ordinance).

[3] Cepcot has also argued that the Board failed to observe the essential requirements of the law by insisting that it satisfy all 10 CIRP criteria.  However, this Court is to give great deference to an agency’s interpretation of its own provisions.  See Golfcrest Nursing Home v. State, 662 So. 2d 1330, 1333 (Fla. 1st DCA 1995) (appellate court will give deference to any interpretation by an agency that falls within the permissible range of statutory interpretations).  Without any language in the Code as to how these provisions are to be weighed, this Court cannot conclude that it would be unreasonable for the Board to determine that all 10 need be met.

[4] In contrast to pending land use plan changes, pending zoning changes may be considered when reviewing a land use application.   Smith v. City of Clearwater, 383 So. 2d 681, 689 (Fla. 2d DCA 1980).   Gardens Country Club explained this difference in treatment by noting that while a land use plan is “a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality,” zoning “is the means by which the comprehensive plan is implemented, and involves the exercise of discretionary powers within limits imposed by the plan.”  590 So. 2d at 490 (quoting Machado v. Musgrove, 519 So. 2d 629, 631-32 (Fla. 3rd DCA 1987)) (citations omitted).