Petition
for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and
Commissions of Local Government: ZONING – Standing – Competent substantial
evidence – redevelopment plan – interpretation of City’s Code – neighbors in
close proximity to proposed redevelopment had standing to challenge City’s
decision – Court must defer to City’s interpretation and application of the
term “perimeter” since it was not contrary to law – City’s decision to allow
for a 48-unit credit for demolished nursing home was clearly erroneous when
developer failed to seek approval of its redevelopment application prior to
demolition as the City’s Code specifically required – no competent substantial
evidence to support City’s finding that there were 293 existing dwelling units
– developer’s own figures put the number of existing dwelling units at 241 –
City departed from the essential requirements of law when it failed to enter
written findings as required by the City’s Code – Petition granted. Bayou Bonita Neighborhood, Inc., et. al. v.
City of
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
BAYOU BONITA NEIGHBORHOOD, INC., MARK D.
RUTTNER, LINDA E. LUCAS, DONALD HALL & WADE HOY,
Petitioners,
vs. Appeal No.05-0083AP-88B
UCN522005AP000083XXXXCV
CITY OF
WESTMINSTER SHORES, INC.,
Respondents.
__________________________________________/
THIS CAUSE came before the Court on the Amended Petition for Writ of Certiorari, the Responses, and the Reply. Upon consideration of the briefs, the record and being otherwise fully advised, the Court finds that the Amended Petition must be granted as set forth below.
The Petitioners, Bayou Bonita Neighborhood, Inc., Mark D. Ruttner, Linda E.
Lucas,
Donald Hall, and Wade Hoy (Petitioners), seek review
of the decision of the City of St. Petersburg, Board of Adjustment (Board),
entered September 16, 2005, to approve a Redevelopment Plan for Westminster
Shores. In reviewing the administrative
action taken in the proceedings below, the Court must consider whether the
Petitioners were afforded procedural due process, whether the essential
requirements of law were observed and whether the Board’s decision is supported
by competent substantial evidence. See
Haines City Community Development v. Heggs, 658 So.2d 523, 530 (
As a preliminary matter, the Court
finds that Petitioners Bayou Bonita Neighborhood, Inc., Mark D. Ruffner, Linda
E. Lucas, and Donald Hall have sufficiently established that they have standing
to appeal the Board’s decision. Bayou
Bonita Neighborhood, Inc., is a neighborhood association recognized by the City
as the representative of the Bayou Bonita Neighborhood, which abuts the western
boundary of the project. Bayou Bonita
challenges the manner in which the underlying development was approved, specifically
the interpretation and application of the City’s Code to
Petitioners Ruffner, Lucas, and Hall
all live within 200 feet of the project, were given notice of the proposed
development, and participated in the proceedings below. See City of St. Petersburg, Board
of Adjustment v. Marelli, 728 So.2d 1197, 1198 (Fla. 2d DCA
1999)(recognizing that neighboring property owners affected by zoning changes
have standing to challenge the changes).
The Court finds that Petitioner Wade Hoy does not have standing as he
lives almost ¼ mile north of the proposed development, across the water from
The record
shows that Westminster Shores,
Inc. (
At the time of submitting its Application,
the subject property consisted of 38 small, one-story apartment buildings, 2
two-story apartment buildings, 5 single-family homes, and a chapel. A 120-bed nursing home facility that was located
on the property was demolished in August 2004.
The Petitioners, particularly Bonita Bayou
Neighborhood, Inc., voiced several objections to the proposed
redevelopment. One objection was the
POD’s decision to use the 120-bed nursing home to arrive at an additional 48
developable units. The City’s Code,
Section 29-113(8)a.3. states:
In cases involving demolition of a grandfathered use, a redevelopment
plan shall be approved prior to demolition.
If a redevelopment plan is not approved prior to demolition, new
development shall conform to the regulations for the district in which the
property is located. “Voluntary demolition” shall mean any demolition which is
not necessary because of damage to a structure as the result of an unforeseen event
(fire, hurricane, etc.).
As set forth in the Staff Report, the POD
recognized that Westminster did not get approval of its application prior to
demolition of the nursing home, but the POD found that: “To address this timing issue, it was
determined that the most prudent manner in which to approach the issue would be
to allow the opportunity for the redevelopment plans to be considered by the
Board for both voluntary and involuntary demolitions within one (1) year from
the date of adoption.”[2] The POD found that this waiver of the filing
requirements of Section 29-113(8)a.3. was “fair and reasonable given that
serious discussions and the presentation of plans to City Staff commenced long
before the demolition and the adoption of the ordinance.”
In addition to disputing the use of the 120
units from the demolished nursing home, the primary number of grandfathered
units was also disputed by the Petitioners during the proceedings below. The Petitioners presented the following
evidence: Westminster’s executive
director stated that there were 240 existing units on the property; the records
of the Pinellas County Property Appraiser’s office showed there were 222 units
on the property; a field audit on December 16, 2004, found that there were 221
units; Westminster’s Annual Report, filed on March 31, 2005, with the Office of
Insurance Regulation, showed 241 units.
The POD testified that
As reflected in the
Staff Report, the POD also found that the term “perimeter,” as used in Code
Section 29-113(8)f.1., excluded any development along
Thus, the intent was to have projects be consistent on the perimeter with
the surrounding built environment. There
was never any discussion of a perimeter abutting a natural area or water
feature. Furthermore, it was never
intended that the perimeter would consist of an area deeper than the existing
development on lots on the opposite side of the street. Therefore, in this case, the “perimeter” only
applies to an area within 120 feet of the project boundary that abuts existing
development across the street, since 120 feet is the approximate depth of the
surrounding lots.
The POD concluded that the only part of the
project that abuts existing development “across the street” is that part that
lies north of
Another dispute centered
on the construction phasing of the redevelopment project.
The applicant shall secure
certificates of occupancy by September 16, 2007. Any
phase under vertical construction and more than 50 percent complete by such
date shall be deemed in compliance with the Board’s approval and shall be
permitted to reach completion. All other
buildings and site improvements for which construction has not commenced shall
be subject to re-approval of a development plan.
In approving the application, with condition
# 4, the Board acknowledged that the redevelopment plan was not a 2-year
project and that an estoppel argument may be presented by
At the conclusion of the
hearing, the Board approved the redevelopment application as submitted, subject
to all the conditions stated in the Staff Report, excluding conditions # 3 and
# 7. The Board’s decision was recorded in
the Meeting Minutes of September 16, 2005.
The Board did not enter a written order and no specific findings of fact
were made.
Before this Court,
the Petitioners argue that the Board departed from the essential requirements
of law and that the Board’s approval of the application is not supported by
competent substantial evidence.
Specifically, the Petitioners assert that the Board erroneously
interpreted the term “perimeter,” that the inclusion of the nursing home beds
in arriving at the total number of developable units was error and not
supported by competent substantial evidence, that the total number of existing
legal units is not supported by competent substantial evidence, and that the
Board’s failure to make specific findings of fact in approving the
redevelopment is a departure from the essential requirements of law. As stated in their Reply, the Petitioners
abandoned the issue that the Board’s approval of a 13-year project fails to
comply with the City’s Code and departs from the essential requirements of law,
and the issue that the Board erred in approving a dock. The Meeting Minutes show that the Board did
not approve the dock, but did approve the development of a 13-year project,
contingent upon
The Court reiterates that its review
is limited to whether the essential requirements of law were observed and
whether the Board’s decision is supported by competent substantial
evidence. See Haines
City Community Development v. Heggs, 658 So.2d 523, 530 (
In evaluating last prong of review,
competent substantial evidence has been described as evidence that is
“sufficiently relevant and material that a reasonable mind would accept it as
adequate to support the conclusion reached.”
See Department of Highway Safety and Motor Vehicles v. Trimble,
821 So.2d 1084, 1087 (
The issue before this court is not whether the agency’s decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency. The circuit court has no training or experience – and is inherently unsuited – to sit as a roving “super agency” with plenary oversight of such matters.
In addressing the
issues presented, the Court finds that the interpretation of the City’s Code to
the proposed redevelopment is paramount.
It is well-settled that zoning regulations are subject to the same rules
of construction as statutes. See Rinker
Materials Corp. v. City of
A court’s function
is to interpret statutes to give effect to each word and avoid interpretations
that would render portions of it useless.
See
Interpretation and Application of the term “perimeter”
The Court finds
that it must defer to the Board’s interpretation of the term “perimeter” as
used in Section 29-113(8)f.1. “Perimeter” is not defined in the code, but,
as stated by one Board member during the hearing, is commonly understood to be
the “boundary of a defined area.” As
used in the section: “Structures on the
perimeter of the project shall be required to match the predominant building
type, setbacks, and scale in the block face across
the street.” (emphasis added). There obviously are no structures “across the
street” for development along the waterfront such that it can’t be said that
limiting criteria for the perimeter to the surrounding built development is
contrary to law. See
The Court must also
defer to the Board’s interpretation of the 120-foot depth of the perimeter,
based on the lot sizes, as well as its decision to allow
48-Unit Credit for Demolished 120-Bed Nursing Home
The Court finds
that the Board’s decision to allow for a 48-unit credit for the demolished
120-bed nursing home is clearly erroneous and a departure from the essential
requirements of law. See Haines,
658 So.2d at 527; see also Housing Authority of the City of Tampa v.
Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004)(explaining that in determining
whether there has been a departure from the essential requirements of law, the
appellate court “should not be as concerned with the mere existence of legal
error as much as with the seriousness of the error”). It is undisputed that
The language of
the Code is clear and there is no room for interpretation. See Baker, supra; see also Gallagher,
supra. The Board has no authority to deviate from
the plain language of its Code, even in situations when it is deemed to be the
“fair” thing to do. Further, as stated
in the Staff Report, the City was aware of
Number of 293 as Existing Legal Dwelling Units
The Court finds that there is not competent
substantial evidence to support the finding that there were 293 existing
dwelling units. See Trimble,
supra. The
POD stated that he had confirmed the 293 number, but offered no evidence to
support his finding. Officials from
Board’s Requirement to Enter
Findings of Fact
The Board did not enter a written order, nor
make any findings of fact. Generally, a
Board is not required to make findings of fact.
See Board of
In taking any action listed above,
the Board shall make a finding that
the action:
(a) Will not adversely affect the
health, safety, welfare, comfort, convenience or order of the City of its
residents;
(b) Will not prevent the orderly and reasonable use of the permitted or
legally established uses of the property in the zoning district wherein the use
is located; and
(c) Will be in harmony with the
general purpose and intent of the ordinances with the City. (emphasis added).
As
set forth in the analysis above, the Board was required to follow the clear and
unambiguous language of the Code. See
Baker, supra.; see also
Gallagher, supra. The Court finds that the Board departed from the essential requirements of law in failing to
make these three findings in approving
Therefore, it is,
ORDERED
AND ADJUDGED that the Amended Petition for Writ of Certiorari is granted
and the Board’s decision to approve
DONE
AND ORDERED in Chambers, at
_________________________________
DAVID
A. DEMERS
Circuit Judge, Appellate Division
_______________________________ ______________________________
PETER RAMSBERGER ANTHONY RONDOLINO
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Paul C. Scherer, Esquire
Pamela D. Cichon, Esquire
Post Office Box 2842
Stephen C. Chumbris, Esquire
[1] As set forth in the Staff
Report, the POD found that
[2] Section 29113(8)a.2, gives a one-year period from the destruction of a structure to submit a plan, to wit: “A redevelopment plan for a structure which had been destroyed (excluding voluntary demolition) shall be filed not more than one year from the event that caused the destruction of the structure (e.g. the date of the fire, hurricane, etc.).”
[3] While it can’t be concluded that the POD/Board’s interpretation of “perimeter” is clearly erroneous or contrary to law, it does appear that the lack of clarity in the Code in the application of the term gives the POD a tremendous amount of discretion in reviewing redevelopment applications. It may be prudent for the City to clarify its Code criteria for redevelopment requests to prevent unbridled authority and inconsistent decisions.