51-2006-CA-001821-WS/P

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Site Plan Application – Petitioner did not have standing to challenge review of Board of County Commissioners’ decision to uphold approval of a site plan and variance request application, even if he did, his arguments lacked merit – Petition dismissed. Steve Byle v. Pasco County Board of County Commissioners, Appeal No. 51-2006-CA-001821-WS/P (Fla. 6th Cir. App. Ct. December 14, 2009).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

STEVE BYLE,

Petitioner,

v. Case No: 51-2006-CA-001821-WS/P

UCN: 512006CA001821XXXXWS/P

PASCO COUNTY BOARD OF

COUNTY COMMISSIONERS,

Respondent.

________________________/

Petition for Writ of Certiorari

Steve Byle,

Petitioner, Pro Se

Elizabeth Blair, Esq.

Office of the County Attorney

for Respondent

Joel R. Tew, Esq.

for Respondent/Intervenor

ORDER AND OPINION

THIS CAUSE came before the Court by Petition for Writ of Certiorari of which the third amended petition being filed on January 31, 2007. Upon review of the briefs, the record, oral arguments, and being otherwise fully advised, the Court dismisses Petitioner’s Petition for Writ of Certiorari as set forth below.

The record shows that on June 22, 2006, Petitioner filed his initial Petition for Writ of Certiorari, requesting review of the Pasco County Board of County Commissioners’ decision to uphold the Pasco Development Review Committee’s approval of a site plan and variance request application made by Mid-Peninsula Realty Investment Group. Petitioner’s third and last amended petition was filed, on January 31, 2007.

Mid-Peninsula is the owner of about 63 acres of undeveloped land. In 2005, Mid-Peninsula submitted its preliminary plan for a 362-unit townhome project (known as Bayonet Point Townhomes) for review and approval by Pasco County. The property was already zoned for multi-family use. Mid-Peninsula applied for a variance (a) to allow privately owned and maintained streets within the development; (b) to reduce the front setbacks of the townhomes from twenty-five to fifteen feet; and (c) to reduce the widths of the private streets within the development. The Pasco County Development Review Committee subsequently approved the Preliminary Plan and variance request.

The property already had an appropriate Comprehensive Plan designation and an appropriate zoning classification. The Pasco County Comprehensive Plan designated part of the property as R-12 (permitting up to 12 residential units per acre) and the other as R/O/R (permitting up to 24 residential units per acre). The zoning classification for the property had been zoned MF-1 (permitting up to 12 residential units per acre and prohibiting single family homes). In Pasco County, a property is first given its comprehensive plan designation and zoning approval. At this stage, compatability or suitability of use is addressed. Next, an applicant submits a preliminary plan for a project, pursuant to Section 306.3(D)(3) of the Pasco County Land Development Code. Further stages include approval for the site plan and construction site plan, which require more extensive details than the preliminary plan stage.

STANDARD OF REVIEW

Under review is the Preliminary Plan in which the county reviewed and determined whether the plan generally met the standards of the Pasco Land Development Code (“LDC”) and whether any specific LDC issues needed to be addressed prior to the final Construction Site Plan approval. The standard of review for such an issue on a Petition for Writ of Certiorari is whether (1) the Board followed the essential requirements of law; (2) the Board’s findings were supported by substantial, competent evidence; (3) and Petitioner was afforded procedural due process. Florida Power and Light Co. v. Dania, 761 So. 2d 1089, 1092 (Fla. 2000); Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993). Since Petitioner voluntarily abandoned his due process claim, we will only address the merits of the other two issues.

STANDING

To have standing, an individual must have a definite interest greater than the general interest in community good shared by all common citizens. Renard v. Dade County, 261 So. 2d 832, 837 (Fla. 1972). Not everyone in a community has standing to seek judicial review of local government decisions. Id. The aggrieved party must have a legally recognizable interest which will be adversely affected by the government action. Id.

Petitioner claims to have standing as an adversely affected, adjoining property owner. Petitioner asserts that he is more affected than the general public as the proposed project would abut the same canal as his home. Moreover, the 362-unit project’s allegedly proposed boat launch and docks, less than 100 feet from his boathouse, would adversely increase the boat traffic, pollute the waters, and disturb his peace and quiet. All this would negatively impact the wildlife and fishing in the immediate area of Petitioner’s home. While some of Petitioner’s neighbors could make similar claims, Petitioner believes his averments demonstrate that he would be affected by the proposed development more than the citizenry at large.

Despite Petitioner’s claims, he still lacks standing. Even if Petitioner has an interest in the project as a nearby property owner, he has failed to establish his interest is any greater than the general interest in community good. Traffic and environmental issues are matters of general concern. More significantly, the variances that Petitioner challenges (private streets, reduction of front set-backs, and reduction of the street widths) have little, if any, affect on him. In fact, Petitioner would actually indirectly benefit from at least the private streets, as presumably his tax money would not have to pay for their maintenance. Therefore, Petitioner is not an aggrieved or adversely affected party with a legally recognizable interest.

To prove standing, Petitioner points to Dunlap v. Orange County, 971 So. 2d 171 (Fla. 5th DCA 2007), which is distinguishable. In Dunlap, homeowners on a lake challenged a developer’s boat ramp construction. The developer initially failed to apply for or receive a permit before starting its construction, but was later approved. The Fifth District found that homeowners’ had standing to challenge that the inconsistency of the boat ramp with the county’s comprehensive plan. Here, Petitioner does not challenge anything that would have an adverse affect on him. Although Petitioner is upset about Mid-Peninsula’s purported boat docks and ramp, he does not actually legally challenge them in this Petition for Writ of Certiorari. In fact, the record suggests that the boat ramp and docks were abandoned by Mid-Peninsula. Nonetheless, Petitioner’s arguments are confined to issues with the three variance requests, which arguable do not even impact Petitioner. Thus, Dunlap does not apply to Petitioner’s case because he is missing the fundamental element of being adversely affected. Thus, Petitioner does not have standing.

MERITS

Even if Petitioner had standing, his arguments lack merit. Petitioner argues that the Board did not follow the essential requirements of law when it approved Mid-Peninsula’s preliminary plan and that their decision to approve certain variances was not supported by substantial, competent evidence. We disagree.

1. Essential Requirements of Law

Petitioner argues that the Board of County Commissioners departed from the essential requirements of law in numerous ways: (1) The Board exceeded its jurisdiction when it attempted to defeat the zoning conditions of a 1985 BCC Resolution No. 85-273; (2) The Board applied the wrong law; (3) It upheld the approval of a subdivision when the preliminary plan was not in compliance with the LDC; (4) The Board upheld the DRC’s approval without making requisite findings; (5) It approved a preliminary plan that does not allow sufficient right-of-way; (6) The Board concluded that single-family townhomes are permissible in a MF-1 zone; and (7) It approved plans that did not meet the non-use requirements of the MF-1 zoning classification. This Court finds, however, that the Board of County Commissioners followed the essential requirements of law when it approved Mid-Peninsula’s preliminary plan to develop its land with a townhome project. There were no inherent illegalities or irregularities, abuses of judicial power, nor acts of judicial tyranny perpetuated by a disregard or procedural requirements which resulted in a gross miscarriage of justice. Allstate Insurance Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003).

Many of Petitioner’s arguments lack merit due to his confusion of the various stages in the approval process. It is essential to understand that the order upheld by the Board of County Commissioners pertained to the approval of a preliminary plan, not a rezoning, comprehensive plan amendment, site plan, or construction site plan. The land was already designated under the Pasco County Comprehensive Plan as part R-12 and part R/O/R, which would allow from twelve to twenty-four residential units per acre. The land had long been zoned MF-1, which prohibited single family homes, since August 27, 1985. Since the land was properly zoned, Mid-Peninsula had a vested entitlement to develop their property in a manner that was compatible with the zoning and comprehensive plan. See Snyder v. Board of County Commissioners of Brevard County, 595 So. 2d 65 (Fla. 5th DCA 1991). The criteria for the Preliminary Plan approval is whether the plan substantially complied with the LDC standards set forth in Section 306.3(D)(3) of the Pasco County Land Development Code. This Court holds that it did.

a. The 1985 BCC Resolution

Petitioner first argues that the Board exceeded its jurisdiction under Section 317 (governing administrative appeals) when it attempted to defeat the zoning conditions of a 1985 BCC Resolution 85-273. When a portion of the Development of Regional Impact was rezoned in 1985, the Board of County Commissioners placed certain conditions on the approval in that, “Site plan approval shall not be obtained until phases 2 and 3 (the subject parcel) have been further reviewed in accordance with Chapter 380.06 Florida Statutes” (emphasis added). Petitioner’s argument is misplaced in that the challenged approval was for a preliminary plan, not a site plan, which would occur later in the approval process. Even though the Board could have just modified the language of their own resolution, it chose instead to enforce it by requiring certain conditions to be satisfied before site plan approval (later in the process). Therefore, the Board was in compliance.

b. Misapplication of the Law and Delegation of Legislative Authority

Petitioner next argues that the Board misapplied the law when it determined that Sections 301.3 and 306(3)(E)(4) of the Land Development Code authorized the Development Review Committee to grant requests for alternative standards. Petitioner further asserts that allowing the Development Review Committee to approve alternative standards was an unlawful delegation of legislative authority. This argument also lacks merit.

There are limited circumstances in which the Board has authorized the Development Review Committee to permit alternative standards. Two exceptions include right-of-way widths and lot frontages. The criteria for right-of-way widths are set forth in Section 610.3(F) of the Land Development Code. It states, “Unless otherwise approved at the time of preliminary plan approval, the minimum right of way or easement shall be required as follows…” (emphasis added). Lot frontage criteria are set forth in Section 610.2(B) of the Land Development Code. It states, “Each residential lot shall have a minimum frontage along the access street right-of-way or easement line of twenty-five (25) feet unless a reduction is specifically approved at the time of preliminary plan approval” (emphasis added). Clearly, these alternative standard approvals were properly addressed at the preliminary plan stage by the Design Review Board.

c. Requisite Written Findings

Petitioner asserts that the Design Review Board failed to make required written findings before approving the preliminary plan, pursuant to Section 306.3(E)(3) and (4) of the Land Development Code. As a remedy, Petitioner wants the development orders quashed or reversed. The Design Review Board, however, did make the requisite findings. These findings are contained within the final staff memorandum and conditions of approval, which was specifically approved by the Design Review Board. This argument also fails.

d. Code Compliance of the Approval of the Subdivision

Petitioner contends that, pursuant to Section 610.1(A) of the Land Development Code, a subdivision shall not be approved unless the county finds that the proposed subdivision conforms to all of the Code and the Comprehensive Plan. Petitioner argues that the County improperly approved the subdivision knowing that it did not comply with all of the requirements of the LDC. Again, due to Petitioner’s confusion of the process, this argument is also inapplicable.

Under review is not a final construction site plan, or a plat that results in a subdivision of land. This is the preliminary plan stage, which allows the developer or land owner to decide whether or not to proceed with further approvals. These approvals may or may not include a decision to subdivide the land, as set forth in Section 610.1(A). See also Section 201, Pasco Land Development Code. The process of subdividing does not occur until record platting, which would occur much later.

e. Right-of-Way

Petitioner next alleges that the Board violated essential requirements of law when it upheld the approval of the alternative standards of the right-of-ways, as outlined in Section 610.3(F) of the Land Development Code. Section 316 of the Land Development Code, however, permits a variance when such variance (1) will not be contrary to public interest; (2) where, owing to special conditions, a literal enforcement of the provisions of the Code would result in unnecessary hardship; or (3) where improved alternative technology would meet or exceed the development and construction standards. Section 316.1(A)(1) of the Land Development Code also states that the variance should not be granted unless the applicant demonstrates compliance with at least one of five criteria. These criteria include: (a) special conditions peculiar to the property; (b) deprivation of rights commonly enjoyed by others with similar conditions; (c) applicant did not cause the special conditions, (d) no special privilege being granted to applicant, or (e) through improved technology the technology standards in the Code are met or exceeded. As will be discussed, substantial competent evidence was presented to demonstrate that these criteria and conditions were met. There was no legal error, as the Code clearly allows the Board of County Commissioners to approve variances.

f. Single-Family Townhomes in a MF-1 zone

Petitioner contends that townhomes are impermissible in a multi-family zone, as they should actually be considered single-family units. Under Section 200 of the Land Development Code, dwellings other than single-family detached units are considered multi-family. Further, Section 518.2 of the Land Development Code allows multi-family dwellings as a permitted use in a MF-1 zone. Subsection 518.5 sets out area, density, and lot width requirements within that zone. Subsection 518.5 (c) and Subsection 518.7 provide design standards and yard regulations for townhomes in the MF-1 zoning category. Thus, townhome developments are clearly permitted in a MF-1 zone. Ironically, if Petitioner were to have prevailed on this argument, the developer would presumably have to change their plans from townhomes to more densely-populated apartment complexes, which would only serve to further frustrate Petitioner’s concerns. Nonetheless, his argument lacks merit.

g. Non-Use Requirements MF-1 Zones

Finally, Petitioner argues that the project did not meet the non-use requirements of multi-family units under Section 518 of the Land Development Code. Specifically, Petitioner contended that Growth Management found that certain buildings did not meet the requisite forty percent lot coverage and other buildings could not be calculated because the buildings were only partially shown on the plan. Even if accurate, Petitioner’s assertions are not relevant at this stage.

The townhome project meets the standards in Section 306.3(D)(3)(a)-(z) of the Land Development Code. Since this is only a preliminary plan, the items Growth Management were unable to determine were not relevant or required. The Development Review Director, the Design Review Board, and the Board of County Commissioners determined that the preliminary plan met the Land Development Code requirements. Prior to the final Construction Site Plan approval, applicants will have to ensure that all buildings meet the requirements of Sections 518 and 610 of the Land Development Code. The fact that the Preliminary Plan approval required further details prior to the final Construction Site Plan approval, is irrelevant, since the County has the legal right to impose such conditions. Therefore, the Board of County Commissioners did not depart from the essential requirements of law.

2. Substantial, Competent Evidence

Petitioner argues that the Board of County Commissioners’ findings were unsupported by substantial, competent evidence. On a first-tier, certiorari review, this Court must determine whether the Board of County Commissioners’ decision was supported by substantial, competent evidence. Florida Power and Light Co. v. Dania, 761 So. 2d 1089 (Fla. 2000). The issue before this Court is not whether there is evidence contrary to the Board of County Commissioners’ decision, but whether there is substantial, competent evidence to support it. Id. This Court must defer to the Board of County Commissioners’ superior vantage point and superior technical expertise. Dusseau v. Metro. Dade County Bd. of County Commissioners, 794 So. 2d 1270 (Fla. 2001). If substantial, competent evidence exists, then this Court cannot reverse the Board of County Commissioners’ decision. Id.

Specifically, Petitioner contends that the Board of County Commissioners’ decision to grant the variance requests was not supported by substantial, competent evidence. Petitioner argues that the applicant was required to show an unnecessary hardship, but failed to do so. This Court disagrees.

Petitioner’s unnecessary hardship argument is misplaced, as it is only one of three circumstances in which a variance may be granted. Rather, a variance is permitted when it (1) will not be contrary to public interest; (2) where, owing to special conditions, a literal enforcement of the provisions of the Code would result in unnecessary hardship; or (3) where improved alternative technology would meet or exceed the development and construction standards (emphasis added). In Pasco County, an applicant is never required to only show unnecessary hardship under Section 316.

Substantial, competent evidence was presented to demonstrate that the applicant met this preliminary requirement. The three requested variances included: (1) allowing privately maintained streets within the development (benefitting the county and public by not having to pay for maintenance of those roadways; no public facilities would be located wherein a public street would be needed); (2) reduction in the frontage (to accommodate the townhome width); and (3) reduction in the right-of ways (reducing the amount of visual impact of the concrete and lessen storm water impact). Two qualified experts, the Pasco County Development Review Director and Robert E. Fudge, P.E., testified that the variances would not be contrary to public interest. In addition, sufficient evidence was presented to show that not granting the variance would lead to an unnecessary hardship. More than sufficient evidence was shown.

For the Board of County Commissioners to grant Mid-Peninsula’s variance requests, it also had to show at least one of the five criteria: (a) special conditions peculiar to the property; (b) deprivation of rights commonly enjoyed by others with similar conditions; (c) applicant did not cause the special conditions, (d) no special privilege being granted to applicant, or (e) through improved technology the technology standards in the Code are met or exceeded. Section 316.1(A)(1) of the Land Development Code. Not only did Mid-Peninsula meet the initial requirements, but it also exceeded the requisite criteria under Section 316.1(A)(1). Mr. Fudge and others provided evidence to support the first four out of the five criteria. Petitioner’s argument lacks merit, as the Board of County Commissioners’ decision to uphold the variance requests were supported by substantial, competent evidence.

CONCLUSION

Petitioner lacks standing to bring the Petition for Writ of Certiorari. As Petitioner aptly stated in the February 7, 2006 hearing, “I don’t have a dog in this hunt.” Even if Petitioner had standing, his arguments lack merit. The Board followed the essential requirements of law when it approved Mid-Peninsula’s preliminary plan. Their decision to approve certain variances was supported by substantial, competent evidence. Therefore, it is

ORDERED AND ADJUDGED that the Petitioner’s Petition for Writ of Certiorari is DISMISSED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ______ day of December 2009.

Original order entered on December 14, 2009 by Circuit Judges W. Lowell Bray, Jr., Daniel D. Diskey, and Stanley R. Mills.