Petition for Writ of
Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions
of Local Government: ZONING – standing – Petitioners did not present any
evidence or testimony to demonstrate that rezoning would affect their property
rights and therefore lacked standing. Petitioner who lived 3/4 mile away and
did not show how zoning affected her to a greater degree than the general
public, lacked standing. Petition
dismissed. Deborah
Schechner, Mary Ellen Keller & Henry Keller v. City of
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
DEBORAH SCHECHNER,
MARY ELLEN KELLER, and
HENRY KELLER,
Petitioners,
vs. Appeal No.07-0014AP-88A
UCN522007AP000014XXXXCV
CITY OF
DOLPHIN VILLAGE PARTNERS, L.L.C.,
Respondents.
__________________________________________/
THIS CAUSE came before the Court
on the Petition for Writ of Certiorari, the Responses, and the Reply. Upon
review of the briefs, the record, and being otherwise fully advised, the Court
finds that the Petition must be dismissed as set forth below.
The Petitioners, Deborah Schechner
(Schechner), Mary Ellen Keller, and Henry Keller (the Kellers), seek review of
Ordinance No. 2007-05, approved by the Respondent, City of
Schecher resides at 710 Boca Ciega Isles,
about three-quarters of a mile east of the proposed development. The record indicates that Schechner did
participate in the proceedings below and voiced her objection to the
development. The Kellers reside at
The
Petitioners raise a multitude of issues including that the City’s actions
denied them due process, was a departure from the essential requirements of
law, and that the Ordinance is not supported by competent substantial evidence
because it was not enacted in accordance with Florida Statutes or the City’s
Code. The City argues that the
Petitioners lack standing. Standing
is a preliminary issue that must be decided by the Court. See Fraser v. Department of Highway
Safety and Motor Vehicles, 727 So.2d 1021, 1022 (
The
Court finds that the Petitioners lack
standing as set forth in prior rulings issued by this Court. In Urban v. City of
Each
of these decisions cited to the holding in City of St. Petersburg, Board of
Adjustment v. Marelli, 728 So.2d 1197, 1198 (Fla. 2d DCA 1999). In Marelli, the Second District found
that neighboring property owners affected by zoning changes have standing to
challenge the changes. 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, there is nothing in the record
to demonstrate that the Kellers presented any evidence or testimony to the City
that their property rights will be impacted in any way. Therefore, the Kellers do not have
standing. Schechner, on the other hand,
did participate in the proceedings below and presented several concerns. However, she is not a neighboring property
owner as interpreted by the case law cited to above as she lives three-quarters
of a mile away from the proposed development.
Indeed, due to the lack of proximity, the Petitioners were not entitled
to receive notice. And it is difficult
to see how Schechner is affected to a greater degree by the proposed
development than the general public, particularly given the large number of
individuals that reside much closer to the project. It is also notable that the property has been
used as a shopping center for many years and that will continue to be its
primary use, including the use of
Therefore, it is,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is dismissed.
DONE
AND ORDERED in Chambers, at
_________________________________
JOHN
A. SCHAEFER
Circuit Judge, Appellate Division
_______________________________ ______________________________
GEORGE M. JIROTKA GEORGE W. GREER
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Kenneth L. Weiss, Esquire
11085
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R. Michael Larrinaga, Esquire
Ed Armstrong, Esquire
Timothy P. Driscoll, Esquire
146
[1] In support of this argument, Schechner cites to Appendix 19, the Planned Development Application. There is nothing in the Application to indicate that effluent will be discharged into the Bay.