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Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – due process – competent substantial evidence - petitioner was not denied due process by Board’s decision not to continue hearing – record shows that petitioner was provided a full opportunity to present his case to the Board – Board’s decision to fine petitioner for having a grass parking lot not supported by competent substantial evidence – the undisputed evidence presented to the Board showed that the grass lot had been used for parking for the past 30 years – the addition of gravel over the grass did not alter the grandfathered use of the lot for parking  - Petition granted.  Bleasdale v. City of Clearwater, Appeal No. 07-0040AP-88A (Fla. 6th Cir. App. Ct. Feb. 28, 2008).

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

GEORGE T. BLEASDALE,

                        Petitioner,                                                       

 

vs.                                                                                            Appeal No.  07-0040AP-88A                                                                        

                                                                                                UCN522007AP000040XXXXCV

 

CITY OF CLEARWATER, FLORIDA,

                        Respondent.

__________________________________________/

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

            THIS CAUSE came before the Court on the Petition for Writ of Certiorari and the Response.  The Petitioner, George T. Bleasedale (Bleasdale), seeks review of the decision of the Respondent, City of Clearwater, Florida (City), finding that Bleasdale had violated the City of Clearwater Code by parking vehicles on an unpaved surface.  Upon review of the briefs, the record, and being otherwise fully advised, the Court finds that certiorari relief must be granted.

The record shows that Bleasdale owns two lots located in Clearwater at 1212 and 1216 North Ft. Harrison.  The 1216 property has been used in various aspects of the automotive business since 1979, and is currently Clearwater Muffler and Brakes.  The 1212 property is undeveloped and has served as storage for vehicles over the years.  In December 2006, Bleasedale was issued citations for both properties, designated as Case 14-07 and Case 15-07,[1] for parking cars on an unpaved area in violation of the City of Clearwater Code, Section 3-1403.B.1[2] and Section 3-1502.k.4.[3]  On May 23, 2007, the matter came before the City’s Code Enforcement Board for a second hearing, after being continued from a first hearing held on April 25, 2007.[4]  The Code Enforcement Inspector, Cornelius Collins, explained that the parking violations had not been corrected since his initial inspection on December 8, 2006.  Mr. Collins testified that the grass parking surface had been changed recently to a gravel surface.  Mr. Collins informed Bleasdale that he’d either have to pave the surface or remove the vehicles and other items from the grass parking area. 

            Bleasdale testified that the grass surface has been used for parking for 30 years and that it was his understanding that the grass parking lot would be grandfathered in.  Mr. Bleasdale confirmed that he recently changed the parking surface from grass to gravel.  Mr. Bleasdale stated that he did not contact the City prior to laying the gravel and that he was informed by City staff afterwards that it was a Code violation.  The City attorney informed the Board that changing the grass lot to gravel was an expansion of a nonconforming use.  Mr. Bleasdale stated that he could remove the gravel, but did not want to “put a lot of money into the property” since developers had approached him about selling.  Mr. Bleasdale testified that he has used the property as it has always been used, to store vehicles.  This testimony was undisputed.  The Board discussed whether the “grandfathering provision” applied in this case.  A motion was unanimously approved to continue the hearing to June 27, 2007, so that the Board’s attorney could research whether the use of the property for parking/storing vehicles was a legal nonconforming use.

At the beginning of the hearing on June 27, 2007, the Board’s attorney[5] stated that the use of the lots for parking had not been grandfathered.[6]  No evidence or legal analysis was presented to support this conclusion.  Bleasdale requested a continuance stating that he’d retained an attorney who could not appear at the hearing.  The Board decided not to continue the hearing and did not take further testimony from Bleasdale.  At the conclusion of the hearing, the Board unanimously agreed that Bleasdale was in violations of Code Sections 3-1502.K.4 and 3-1403.B.1.  The Board imposed a fine of $ 100 per day if the violations were not corrected by August 1, 2007.  Bleasdale timely sought certiorari review before this Court.

            Bleasdale frames two issues for review:   (1) whether or not use of the south parking lot and the north parking lot are grandfathered in for parking on unpaved surfaces; and, (2) whether or not the Board unlawfully prevented Bleasdale from presenting further evidence regarding use of the property at the meeting held on June 27, 2007.    The standard of review applicable in reviewing administrative action taken by the City is whether Bleasdale 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); see also County of Volusia v. City of Deltona, 925 So.2d 340, 343 (Fla. 5th DCA 2006).  While not succinctly framed, the issues raised focus on whether Bleasdale was afforded due process and whether the Board adhered to the essential requirements of law.  Bleasdale does not argue that the Board’s decision is not supported by competent substantial evidence, so the Court need not address that prong.[7]

            In determining whether the Board 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”).  In applying the procedural due process prong, the Court must consider whether Bleasdale was provided with fair notice and an opportunity to be heard.  See Keys Citizen for Responsible Government, Inc. v. Florida Keys Aqueduct Authority, 795 So.2d 940, 938 (Fla. 2001)(explaining the parameters of due process within an administrative proceeding). 

The Court first finds that Bleasdale was not denied due process by the Board’s decision not to continue the hearing for a third time, so that Bleasdale could have his newly-retained attorney appear on his behalf.  The citations were issued in December 2006, so that Bleasdale had ample notice to prepare for the May hearing.  The record shows that Bleasdale was given an opportunity to present his entire case to the Board at hearing on May 23rd.  See Keys Citizen, supra. 

Even so, the Court finds that the Board departed from the essential requirements of law in determining that the lots were not a legal nonconforming use.  The “[t]ermination of a ‘grandfathered’ nonconforming use can constitute a compensable taking.”  See 3M National Advertising Company v. City of Tampa Code Enforcement Board, 587 So.2d 640, 641 (Fla. 2d DCA 1991).  Initially, the premise upon which the citations were issued, that the lots did not have “unity of title,” is erroneous.  There is no question that the lots have been used in conjunction for similar purposes since at least 1979 and have been titled in the name of the same person at any given time.  See Tyler v. Price, 821 So.2d 1121, 1125 (Fla. 4th DCA 2002)(stating that “unity of title has been defined as unity of valid title, title in the name of the same person, and, of course, simultaneous ownership”).  The City concedes in its Response that the lots do have unity of title. 

Additionally, in 2005, the City permitted Bleasdale to add to his existing occupational license the “storage for vehicles,” for lot 1216.  While there is a notation at the bottom of the application that “storage of vehicles must be on a permanent surface,” it is clear that the occupational license was never revoked, indicating that the license was not premised upon the construction of a paved or permanent parking lot.  The fact that the City granted Bleasdale permission to park vehicles on 1216, a license that is apparently still valid, runs contrary to the issuance of a Code violation for parking on a grass lot.

In specifically addressing whether parking vehicles on the grass lots is a legal nonconforming use, the only evidence in the record is that the grass area has been used in substantially the same manner for almost thirty years.  As set forth in a letter from the City’s attorney to the Board’s attorney, dated June 7, 2007, the City’s staff recognized, as early as 1986, that the owner of lot 1216 had legal nonconforming rights.  While no mention is made of lot 1212, it would follow that unity of title would support the same recognition for that lot.

The City’s Code, section 6-103.B. states: “Nonconforming use of land or structures shall not be expanded but normal repair and maintenance may be performed to allow the continuation of the nonforming use.”  In applying the plain and ordinary meaning of this section,[8] there is nothing in the record to show that Bleasdale expanded or changed in any way the use of the lots.  There is nothing in the record to show that the addition of gravel affected the use of the lots for parking. 

Even if it could be said that the gravel altered a legal nonconforming use, such does not automatically result in the loss of a “grandfathered” use, absent an express provision in the City’s Code.  See 3M National Advertising, supra.  As stated above, the only express provision in the City’s Code is that the use not be expanded.  Lastly, assuming, arguendo, the gravel was a prohibited change in use, Bleasdale must be given the opportunity to return the property to its previous state.  See id.  The Court concludes that the City departed from the essential requirements of law in the proceedings below.  Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted and the Orders are quashed. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of February 2008.

 

 

                                                         _________________________________

                                                         JOHN A. SCHAEFER

                                                         Circuit Judge, Appellate Division

 

 

 

 

_______________________________                      ______________________________

GEORGE M. JIROTKA                                          GEORGE W. GREER

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division

Copies furnished to:

 

David E. Platte, Esquire

603 Indian Rocks Road

Bellair, FL  33756

 

Andrew J. Salzman, Esquire

Post Office Box 15309

Clearwater, FL  33766

 

 


[1] These citations are not in the record.  Bleasdale does not argue that he was not given proper notice.

 

[2] Code Section 3-1403.B.1. states:  “No parking, displaying, or storing of motor vehicles shall be permitted on any grass or other unpaved area unless specifically authorized in this section.”

[3] Code Section 3-1502.k.4. states:  “Parking lot and driveway surfaces shall be maintained in a safe and clean condition by the owner of the parcel of land.  The owner shall, at a minimum, keep such surface free of pot holes, litter, trash, debris, equipment, weeds, dead vegetation and refuse and shall promptly repair cracked or heaved parking lot surfaces.”

[4] The minutes of this hearing are not in the record and there is no explanation provided as to why the hearing was continued. 

[5] Ron Freeman, Esquire, appeared on behalf of Andy Salzman, Esquire, the Board’s regular attorney.  Mr. Salzman was present at the May hearing and was to research whether the lots were a legal nonconforming use.

[6] The minutes from the June 27th hearing, A-6 through A-9, are marked as “DRAFT.”  The City does not dispute that these minutes are accurate.

[7] While Bleasdale did not raise it as an issue, there is absolutely no evidence in the record, competent, substantial or otherwise, to show that Bleasdale violated Code Section 3-1502.k.4.  (emphasis added).

[8] See e.g. 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).