Petition
for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and
Commissions of Local Government: ZONING
– Standing – neighbors lacked standing to appeal decision of the City to
grant adjoining landowner’s variance request for an after-the-fact permit –
neighbors, who did not testify at variance hearing, failed to show how de
minimus variance of 3.5 feet adversely affected property interests - Petition
dismissed. Urban v. City of
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
ROBERT C. URBAN and
MARIA L. URBAN,
Petitioners,
vs. Appeal No. 06-0066AP-88B
UCN522006AP000066XXXXCV
CITY OF
a municipal corporation,
Respondent.
________________________________________/
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 dismissed as set forth below.
The record shows that the Petitioners, Robert
C. Urban and Maria L. Urban (the Urbans), own real property located at 6439
Second Palm Point, St. Pete Beach, and live immediately next door to Stephen
McFarlin (McFarlin), who owns the subject property, located at 6449 Second Palm
Point, St. Pete Beach. The McFarlin
property has a dock with moorings for two boats. The original dock was built in 1970 and was
added onto after McFarlin was granted a dock permit by the Respondent, City of
Upon review of a complaint in 2006, it was
determined that the City erred in granting the dock permit as the length of the
dock exceeded the “one-half length rule” based on the waterfront frontage. The McFarlin property is 75.0 feet in width
and one-half would allow a dock length of 37.5 feet. The existing dock was mistakenly permitted to
be built at a length of 41 feet, a 3.5-foot encroachment. McFarlin requested a variance from the City
to permit the total dock length of 41 feet.
The Staff Report recommended denying the variance request as McFarlin
was unable to meet two out of the five Code criteria for granting a variance,
including that there were no conditions and circumstances peculiar to the land
nor a finding that an enforcement of the Code would deny McFarlin reasonable
use of the structures resulting in a hardship.
The matter came before the City for a hearing, during which McFarlin
testified as to why he believed he should be granted a variance. The Urbans did not testify. The City granted McFarlin’s variance request
from which the Urbans have sought certiorari review before this Court.
The Urbans argue that the City departed from the essential requirements of law and that the approval of the variance request is not supported by competent substantial evidence. The City responds that the Urbans lack standing to bring this action and that, in any case, the City’s decision conforms to the essential requirements of law and is supported by competent substantial evidence. After a review of the record and the applicable case law, the Court concludes that the Urbans lack standing and that the above-styled Petition must be dismissed.
In the City of St. Petersburg, Board of
Adjustment v. Marelli, 728 So.2d 1197, 1198 (Fla. 2d DCA 1999), the Second
District found that neighboring property owners affected by zoning changes have standing to challenge the changes.
(emphasis added). Marelli cites
to Rinker Materials Corp. v. Metropolitan Dade County, 528 So.2d 904
(Fla. 3d DCA 1987), and the cases cited therein, in concluding that the
neighbors had standing to challenge the City’s decision to grant a variance for
a proposed development to permit 7 parking spaces instead of the required 14
spaces. Rinker provides the
following analysis:
In considering whether a property owner has
standing because its interests have been adversely affected, a court is to
consider “the proximity of [its] property to the area to be zoned or rezoned,
the character of the neighborhood, … and the type of change proposed.” (citations omitted). If Rinker could have demonstrated that the
commission’s action had adversely affected the value of its property interests,
which surely represents a legally recognizable interest (citation omitted), it
would have established that it had standing to pursue its suit. Cf.
Renard, 261 So.2d 832 (re-zoning of petitioner’s neighbor’s property from
industrial to residential use conferred standing upon petitioner to challenge
validity of zoning action as unreasonable because it adversely affected her
legally recognizable interests by increasing her setback requirements); Hoeksema, 475 So.2d at 244 (owner of
single family home directly across from land re-zoned for apartment and
condominium buildings had been affected by zoning and hence had standing to
bring action questioning interpretation of zoning ordinance); Elwyn v. City of Miami, 113 So.2d 849
(Fla. 3d DCA)(property owners whose property values would be adversely affected
by variance granted to adjacent property owner had standing to challenge the
validity of the granted variance), cert.
denied, 116 So.2d 773 (Fla. 1959), approved
Renard, 261 So.2d at 832. Since the
trial court improperly prevented Rinker from presenting expert testimony
concerning the effect the ordinance had on the value of its interests, its
decision that Rinker’s legally recognizable property interests were not
adversely affected and, therefore, that Rinker lacked standing, was erroneous.
In this case, the complainants, Robert and
Maria Urban, chose not to testify or participate in the proceedings in any
manner after bringing its initial complaint.
The Urbans did not present expert testimony or submit evidence regarding
the impact of the variance on their property rights. While the Urbans live next door to the McFarlins
and the evidence reflects that the Urbans can see the McFarlin’s dock from
their back yard, there is nothing in the record to show that the Urbans’
property interests are adversely affected by the City’s decision to grant the
3.5-foot variance on a dock that lies approximately 105 feet away from the Urbans’
house. There was no evidence presented
that the additional 3.5 feet of dock in any way impedes the Urbans’ view of the
waterway or affects their property value.
Rather, McFarlin’s undisputed testimony was
that the Urbans only complained about the dock after a “personal issue” arose,
5 years after the construction of the dock, and that the complaint was lodged
after Mr. Urban “was appointed to this board about four months ago.” (No one refuted or clarified this
statement). The record evidence shows
that an audit was then conducted upon which the 3.5-foot mistake was discovered. There is nothing in the record to show that
any party knew of the mistake until after the audit was conducted.
Further,
while counsel for the Urbans stated during the variance hearing below that the
Urbans objected to the construction of the dock before it was built, there was
no evidence or testimony presented to support this statement. McFarlin’s undisputed testimony was that he
never approached the Urbans to get their written consent to build the dock in
2001 because he didn’t think their consent was required. As McFarlin pointed out during the hearing
below, had the Urbans initially objected to the dock, it is likely that the
dock would not have been permitted for 41 feet unless the McFarlins first
obtained a variance. McFarlin also
testified that shortly after completion of the dock the Urbans were on the dock
and complimented him on the construction and stain of the dock.
Lastly,
the Court finds that the character of this neighborhood and the code formula
used to compute the length of a dock allow various lengths of docks within the
same neighborhood. That formula permits
dock lengths up to one-half of the width of the property without a
variance. The testimony was that, for the lot directly
north of McFarlin’s property, a dock can be built out 59 feet. Hence, there is nothing in the record to show
that the additional 3.5 feet of McFarlin’s dock, for a total length of 41 feet,
impacts the character of the neighborhood.
Based on Marelli and Rinker, the Court finds that the
facts of this case compel the conclusion that Urban lacks standing to appeal
the City’s decision and that the Petition must be dismissed.
Ramsberger, J., specially concurring with written opinion
I concur with the opinion set forth above, but would add that the application of the doctrines of estoppel, laches, and waiver apply under the facts of this case. See e.g. Bethea v. Langford, 45 So.2d 496, 498 (Fla. 1950)(explaining that: “The doctrine of laches is bottomed not simply upon the number of years which have elapsed between the accruing of rights and the assertion of them, but upon unreasonable delay in enforcing a right, coupled with a disadvantage to the person against whom the right is sought to be asserted”). The facts show that the Urbans were clearly aware that the dock was being built and I find that, given the lapse of time and the de minimis nature of the additional dock length, the Urbans gave their implied consent by not objecting for over five years and only after a personal dispute arose between the parties.
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is dismissed.
DONE
AND ORDERED in Chambers, at
_________________________________
DAVID
A. DEMERS
Circuit Judge, Appellate Division
_______________________________ ______________________________
PETER RAMSBERGER AMY M. WILLIAMS
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Thomas E. Reynolds, Esquire
Timothy P. Driscoll, Esquire
[1] There was testimony presented at the hearing that McFarlin actually owned the northern lot at the time the signature of “no objection” was submitted. The City’s Clerk stated that had a signature of “no objection” also been obtained from the southern lot owners, the Urbans, then no variance would be needed. This has no bearing on the outcome of this Petition.