Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Site Plan Application – City did not depart from the essential requirements of law in denying site plan application that did not meet Code criteria – City was not estopped from denying final site plan at final review hearing based upon previous approval of preliminary site plan – City could consider whether site plan was compatible with the surrounding community at the final review hearing based upon new interpretation of term “compatibility” provided by City’s attorney - Petition denied.  Dunedin Marina View, LLC v. City of Dunedin, Appeal No. 06-0058AP-88B (Fla. 6th Cir. App. Ct. April 17, 2007).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

DUNEDIN MARINA VIEW, LLC,

a Florida limited liability company,

                        Petitioner,

 

vs.                                                                                                Appeal No.06-0058AP-88B

                                                                                                    UCN522006AP000058XXXXCV

 

CITY OF DUNEDIN,

a Florida municipal corporation,

                        Respondent.

__________________________________________/

 

 

Ramsberger and Williams, JJ;

Demers, J., Concurring

 

ORDER DENYING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response and the Reply.  Upon consideration of the briefs, the record and being otherwise fully advised, the Court finds that the Petition must be denied as set forth below.

            The record shows that, in July 2005, the Petitioner, Dunedin Marina View, LLC (Dunedin Marina), submitted its application to the Respondent, City of Dunedin (City), for approval of a preliminary site plan to develop property located at 715 Edgewater Drive, directly east from Edgewater Park and the waterfront.  Dunedin Marina proposed to eliminate an existing 8-unit apartment building and redevelop the site into a five story,12-unit condominium project.  The property is located a few blocks west of downtown Dunedin, in the Downtown Core (DC) zoning district and required preliminary and final site plan approval.  The project, with a projected height of sixty feet, was given an exemption from the City’s Code requirements limiting the height of buildings to fifty feet. 

From the initial filing of the application, the project went through several revisions to address concerns raised by City staff.  In several Memorandums, dated August 29, 2005, October 5, 2005, and December 9, 2005, the Director of Community Services, Kevin Campbell, found “[t]he proposed residential use project is compatible with the existing and emerging development pattern within the surrounding area.”[1]  However, Mr. Campbell recommended that any action on the application be postponed to allow Dunedin Marina to address staff concerns.  In a Memorandum, dated December 22, 2005, Mr. Campbell again found the project was compatible with the surrounding area and recommended approval subject to Dunedin Marina submitting a Park Land application and addressing concerns raised by the City’s engineering department. 

            The minutes from the first meeting of the Local Planning Agency (LPA), on October 12, 2005, to review the preliminary site application reflect that aesthetics and compatibility was a concern.  At the City Commission’s January meeting, on January 5, 2006, Dunedin Marina’s preliminary site plan was unanimously approved “with conditions as recommended by staff with the added condition of step-back provisions consistent with the precedent set by the other proposed developments in the immediate area.”  The minutes reflect that the Commission had continuing concerns regarding the aesthetics and architectural appearance of the project.  In discussing the final footprint of the project, Commissioner Hackworth suggested that a “virtual drawing” of the architectural design would be useful at a final site plan review when the Commission “has the benefit of professional architects and designers to give explanations.”

            In a Memorandum, dated June 2, 2006, Mr. Campbell recommended that the LPA deny Dunedin Marina’s final site plan “as a result of several outstanding issues that have yet to be resolved between the City’s Engineering Section and the applicant regarding the revised site plan” and suggested that a revised final site plan be submitted.  In his Memorandum, Mr. Campbell states that the final site plan is “considerably different than the previously reviewed layout.”  The City Manager, in a Memorandum, dated June 8, 2006, recommended denial of the final site plan.  On June 14, 2006, the LPA unanimously denied Dunedin Marina’s final site plan, again finding aesthetic and architectural issues with the project, as well as concerns from the engineering and fire departments.[2] 

On June 29, 2006, Mr. Campbell authored another Memorandum, again recommending denial of the final site plan, from which the City Manager also recommended denial.  The matter then went back before the LPA, on July 12, 2006, for reconsideration of the final site plan.  The rehearing was conducted to ensure that Dunedin Marina had an opportunity to present evidence and testimony due to the scheduling mix-up regarding the June 14th hearing.  In addition to the City’s staff analysis, the LPA considered the testimony of Ty Maxey, an expert retained by the City, who discussed the compatibility of the proposed project with the surrounding community, and the testimony from several neighbors.  The LPA also applied the new interpretation of “compatibility” as set forth by the City’s attorney, John Hubbard, in a Memorandum to the Commission, dated May 3, 2006.  The LPA decided not to send the project back to the preliminary review stage and denied approval of the final site plan.             

            In a Memorandum, dated August 15, 2006, Mr. Campbell recommended to the Commission that the final site plan be denied citing that: “…the building foot print on the revised final site plan is considerably different than the preliminary site plan layout previously approved by the City Commission and LPA.  The final site plan represents 3.6 percent greater impervious lot coverage and the overall building is 8.2 percent greater in mass.”[3]  (emphasis original).  Mr. Campbell concluded that, because of the changes in the site plan and expanded interpretation of “compatibility,” the final site plan did not meet code criteria.  The City Manager recommended denial of the final site plan.[4]  The record shows that all issues raised by the City’s fire and engineering departments had been resolved at this point. 

            At the final hearing, held on August 24, 2006, the Commission considered the testimony of numerous witnesses and evidence presented in favor, and against, the project.  After much debate, the Commission denied Dunedin Marina’s final site plan.  A focal point of the hearing was whether the project was compatible with the surrounding community, within the context of the City’s Code, as recently interpreted by the City’s attorney.

Before this Court, Dunedin Marina seeks certiorari relief and requests that the Commission’s decision be quashed.  Dunedin Marina argues that the Commission departed from the essential requirements of law in considering previously undisclosed criteria to the final site plan review process and by not applying principles of equitable estoppel.  The City responds that it adhered to its Code in the proceedings below and that the City was not estopped from denying the final site plan based upon any preliminary approvals. 

In reviewing the administrative action taken during the proceedings below, the Court must consider whether Dunedin Marina was afforded procedural due process, whether the essential requirements of law were observed and whether the final decision is supported by competent substantial evidence.  See Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action).  Since Dunedin Marina does not argue that they were denied due process or that the final decision is not supported by competent substantial evidence, the Court need not address those prongs.

In determining whether the City observed the essential requirements of law, the

Court must consider whether an error occurred and, if so, whether such error resulted in a gross miscarriage of justice.  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”).  While Dunedin does not argue that the decision to deny its final site plan is not supported by competent substantial evidence, it is important to point out that this Court is not entitled to reweigh the evidence or substitute its judgment for that of the agency.  See Department of Highway Safety and Motor Vehicles v. Trimble, 821 So.2d 1084, 1087 (Fla. 1st DCA 2002)(citing De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957). 

Further, as aptly explained by the Florida Supreme Court in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001), the certiorari standard of review requires this Court to defer to the City’s “superior technical expertise and special vantage point” in its policy determinations and factual findings.  As Dusseau further clarified,

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.

 

There are two City Code sections that are relevant to this Petition, Section 134-231, Preliminary Site Plan, and Section 134-232, Final Site Plan.  Section 134-231, Preliminary Site Plan, states, in pertinent part:

The preliminary site plan shall be submitted for review by the local planning agency and by all agencies, departments, consultants or other persons deemed necessary by the city manager.  The preliminary site plan shall be reviewed, among other things, for compatibility to the surrounding development, the degree to which it implements the comprehensive plan, the adequacy of existing facilities to supply the project and ability of the project to adequately serve the health, safety and general welfare of both the residents and surrounding population. . . The preliminary site plan is only for purposes of determining the general reasonableness of the project and while adequate information is required to make this determination, detailed engineering or site plans are not required.  (emphasis added).

 

Section 134-231 then provides a list of detailed information the preliminary site plan must include.  Section 134-232, Final Site Plan, states, in pertinent part:

The final site plan shall serve as the basis for the project development.  All construction or establishment of use shall be in strict conformity to the final site plan as adopted at the second reading.  Amendments deemed desirable by the city commission shall be required at the first reading of the ordinance for a zone change.  A final site plan, as amended, shall be adopted by the city commission at the second reading and recorded by the city clerk as an integral part of the adopted ordinance for zone change, if granted. . . The final site plan shall include, at least, the following:

 

            (1) Information required on the preliminary site plan.   (emphasis added).

 

In addition to these Code provisions, the City’s Comprehensive Plan, Future Land Use, also discusses components of compatibility in reviewing development projects.  Policy 4, under Objective D, specifically provides:  “During the review process for new development or modifications or expansions to existing development, special attention will be focused on issues of compatibility.  New or expanding development incompatible with adjacent land uses shall be denied.”  (emphasis added). 

            In addressing the issues presented by Dunedin Marina, 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 North Miami Beach, 286 So.2d 552, 553 (Fla. 1973).  Before principles of statutory construction are applied, the Court must first apply the plain and ordinary meaning of the words used unless this would lead to an unreasonable or clearly erroneous result.  See Baker v. State, 636 So.2d 1342, 1343 (Fla. 1994)(stating that “[i]t is well established that construction and interpretation of a statute are unnecessary when it is unambiguous”); see also Gallagher v. Manatee County, 927 So.2d 914, 919 (Fla. 2d DCA 2006)(explaining that a statute’s plain and ordinary meaning must control unless this leads to an unreasonable result or a result clearly contrary to legislative intent). 

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 Florida Dept. of Revenue v. Florida Municipal Power Agency, 789 So.2d 320, 324 (Fla. 2001); see also Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273 (Fla. 2000).  When two statutory provisions conflict, the specific statute controls over the general statute.  See Palm Beach, 772 So.2d at 1287.  A court must defer to an agency’s interpretation of a statute it is charged with enforcing unless it is contrary to law.  See id. at 1283; see also Florida Dept. of Revenue, 789 So.2d at 323.

            Accordingly, the Court finds that, in applying the plain and ordinary meaning of the City’s Code, Dunedin Marina’s argument that the Commission improperly considered aspects of compatibility must fail.  See id.; see also Las Olas Tower Company v. City of Fort Lauderdale, 742 So.2d 308, 313 (Fla. 4th DCA 1999)(finding that the City did not depart from the essential requirements of law in denying site plan approval for condominiums based on its finding that the height of the project was not compatible with nearby properties).  The City’s Code specifically states that a proposed development must be compatible with the surrounding development and that the final site plan review must contain everything set forth in the preliminary site plan review, which specifically addresses issues of compatibility.  While Mr. Campbell may have stated in his earlier Memorandums that, “[t]he proposed residential use project is compatible with the existing and emerging development pattern within the surrounding area,” it is clear from the record that the site plan application had several problems from the beginning and that various City departments, including the engineering and fire departments, had issues with the proposed development. 

            Additionally, there is nothing unlawful about having the City’s attorney provide a legal analysis to the Commission on the application of the term “compatibility” as used in the City’s Code.  The analysis was timely and relevant, due to a “flurry” of new development in downtown Dunedin and along the waterfront, and the Commission had legitimate concerns that new development be consistent with maintaining the “character and charm” of the area.  As established by the City’s Code, compatibility could be considered at the final review stage and form a basis for denial of the final site plan.  Under these facts, the Court finds that the burden never shifted to the Commission since Dunedin Marina did not meet the City’s Code criteria for compatibility with surrounding development.  See Premier Developers III Associates v. City of Fort Lauderdale, 920 So.2d 852, 853-54 (Fla. 4th DCA 2006).  

Likewise, Dunedin Marina’s argument that the Commission should have been estopped from applying an expanded definition of “compatibility” to deny its final site plan must fail.  The City’s Code clearly anticipates an intensive review process up to, and even beyond, the final review hearing.  The Commission is not to act merely as a rubber stamp of a preliminary site plan approval, particularly in a case such as this when the submitted final site plan was different than the preliminary site plan that was approved.  There is nothing in the record to indicate that the proposed development would absolutely be approved to support any substantial change made on behalf of Dunedin Marina.  The Court finds that the facts of this case simply do not support the application of equitable estoppel.  See City of Lauderdale Lakes v. Corn, 427 So.2d 239, 243 (Fla. 4th DCA 1983)(providing that a municipality may be equitably estopped to enforce a zoning change when one has substantially altered his position in reliance upon the original regulation).  

Demers, J., concurring with written opinion

            I concur with the majority opinion in all respects.  And I write to make one point concerning estoppel.  The transcript reveals that the City’s attorney advised the Commission that it could not consider the doctrine of equitable estoppel in considering the final site plan.  This advice is unclear.  If the attorney was suggesting that the doctrine of equitable estoppel does not apply to such proceedings, that advice is wrong as a matter of law.  See Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10, 15 (Fla. 1976)(stating “[t]he doctrine of equitable estoppel may be invoked against a municipality as if it were an individual”); Charlotte County v. Vetter, 863 So.2d 465, 469 (Fla. 2d DCA 2004)(finding the fact that the property owners had not received the building permit or made physical changes to their land did not preclude the application of the doctrine of equitable estoppel).  If, however, counsel was advising that the evidence and the facts in this case do not support application of the doctrine, that is correct as a matter of law.    

           

 

 

 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is denied.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of April 2007.

 

 

                                                         _________________________________

                                                         DAVID A. DEMERS

                                                         Circuit Judge, Appellate Division

 

 

 

 

 

 

_______________________________                      ______________________________

PETER RAMSBERGER                                          AMY M. WILLIAMS

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

 

 

 

Copies furnished to:

 

Darryl R. Richards, Esquire

E. D. Armstrong, III, Esquire

Post Office Box 1100

Tampa, FL  33601-1100

 

Shauna F. Morris, Esquire

595 Main Street

Dunedin, FL  34698

 


[1] The record reflects that the analysis of such projects is provided by the Director of Community Services in a memorandum format, as opposed to the more common method of an in-depth staff analysis, in one document, laying out the details of the entire proposed project, input from a city’s various departments, and the application of the City’s code to the proposed project.  

[2]  Dunedin Marina did not attend this hearing, which the LPA thought showed a lack of interest.  It was later discovered that Dunedin Marina had timely requested a continuance. 

[3] Testimony presented at the hearing was that the total was 7.7 percent, not 8.2 percent.

[4] The record reflects that the City went through several City Managers during the time Dunedin Marina’s application was pending.  However, in each instance, the acting City Manager always followed the recommendation of Mr. Campbell.