Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances – County Board of Adjustment did not depart from the essential requirements of law when it denied variance for an existing carport erected without a permit.  No showing of unnecessary hardship, rather there was a "self-created" hardship; no showing of equitable estoppel.  Petition denied.  Joseph M. Medwick, as Trustee of the Joseph M. Medwick Revocable Trust v. Pinellas County Board of Adjustment, No. 09-000035AP-88A (Fla. 6th Cir. App. Ct. October 27, 2010).

 

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

JOSEPH M. MEDWICK, as Trustee of the

Joseph M. Medwick Revocable Trust,

      Petitioner,

                                                                      Case No. 09-000035AP-88A

                                                                      UCN522009AP000035XXXXCV

v.

 

 

PINELLAS COUNTY BOARD OF

ADJUSTMENT,

      Respondent.

______________________________________/

 

Opinion Filed  ______________

 

Petition for Writ of Certiorari

from decision of Board of Adjustment,

Pinellas County, Florida

 

David L. Levy, Esq.

Attorney for Petitioner

 

Jason C. Ester, Esq.

Attorney for Respondent

 

 

PER CURIAM.

          Joseph M. Medwick, as Trustee of the Joseph M. Medwick Revocable Trust, seeks certiorari review of the decision of the Pinellas County Board of Adjustment denying his request for a variance.  The petition is denied.

          In 1991 Petitioner purchased the residential property involved in this matter that is located in Seminole, Pinellas County.  The residence has a two-car garage.  In 2004, without a permit, Petitioner built a sixteen-foot by twenty-foot carport over the driveway of the residence.  Petitioner keeps two cars under the carport.  In 2006, an anonymous complaint about the carport was received by Pinellas County Department of Environmental Management.  No action was taken in 2006, but on March 10, 2009, Petitioner was given a notice of violation of Pinellas County Land Development Code, section 138-151[1] because the carport is within the twenty-foot setback required by the Code. 

          Petitioner requested a variance to continue to maintain the carport.  At the June 3, 2009, hearing on the variance Petitioner indicated that both he and his wife are disabled and the carport is necessary for ingress and egress of their vehicles.  He indicated that the residence garage is merely used as a storage area for two vehicles that Petitioner does not drive.  After considering Petitioner's argument, letters from neighbors indicating no objection to the variance, two letters from neighbors stating an objection to the variance, and the staff recommendation of denial, the Board denied the request for a variance in a split vote.

Standard of Review

          This Court in its appellate capacity has jurisdiction to review this matter under Florida Rule of Appellate Procedure 9.100.  We must decide (1) whether procedural due process was accorded; (2) whether the essential requirements of the law were observed; and (3) whether there was competent, substantial evidence to support the administrative findings.  See Falk v. Scott, 19 So. 3d 1103, 1104 (Fla. 2d DCA 2009).  The appellate court is not "permitted to re-weigh conflicting evidence and is primarily relegated to assaying the record to determine whether the applicable law was applied in accordance with established procedure."  Dade County v. Gayer, 388 So. 2d 1292, 1294 (Fla. 3d DCA 1980).

Analysis

Due Process 

          A quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard.  Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991).  In quasi-judicial zoning proceedings, the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the board acts.  Id.  In the present case, although Petitioner makes the statement in his petition that there has been a violation of due process, he does not present any argument in support of this allegation.

          Petitioner appeared at the variance hearing.  He did not state at the hearing that he was not properly notified or that he needed additional time to prepare for the hearing.  Petitioner has failed to demonstrate that there was a violation of procedural due process.

Essential Requirements of Law

          Petitioner claims that the Board departed from the essential requirements of law because it failed to consider or ignored the criterion for granting a variance set forth in section 138.113 of the Pinellas County Land Use Development Code.  Specifically, Petitioner directs this Court to the following subsections:  "(3) Unnecessary hardship.  That literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of this chapter" and "(6) Detriment to public welfare.  That such variance will not be injurious to the area involved or otherwise detrimental to the public welfare."

          The term "unnecessary hardship" has been defined as "a non-self created characteristic of the property in question which renders it virtually impossible to use the land for the purpose or in the manner for which it is zoned."  Fine v. City of Coral Gables, 958 So. 2d 433, 434-35 (Fla. 3d DCA 2007); Thompson v. Planning Comm'n of City of Jacksonville, 464 So. 2d 1231, 1237-38 (Fla. 1st DCA 1985) ("The requisite hardship may not be found unless there is a showing that under present zoning, no reasonable use can be made of the property. . . .[A] self-created hardship cannot constitute the basis for a variance.")  Petitioner erected a non-permitted carport that did not comply with setback restrictions.  This was a "self-created" code violation.  The property is in a residential "R-3" zoning district.  The denial of the variance does not render use of the property as a residence impossible.  Petitioner has failed to demonstrate that the denial of the variance creates an unnecessary hardship. 

          Further, with regard to the second criteria outlined above, the Petitioner had the burden to prove that the granting of the variance would not be injurious to the area involved or otherwise detrimental to the public welfare.  Petitioner testified that the carport is "hurricane proof" and presented the Board with photographs of the residence.  Petitioner stated that the carport "blends in very well with the property.  You can't hardly see it."  (6/3/09 Transcript, p. 4)  Petitioner indicated that the carport is situated sixteen feet from the street and "it doesn't obstruct anybody's view."  He presented no further argument that the granting of the variance would not be injurious to the area involved or otherwise detrimental to the public welfare.

          The Board received an anonymous complaint about the carport that started the investigation of the violation in 2006.  Although the Board receive correspondence stating there was no objection to the variance for the carport, two of Petitioner's neighbors had written to the Board "strongly objecting" to the variance.  It was noted that there are no other similar structures in the neighborhood.  In discussing the carport a board member stated, "I would be offended by it if I lived on the street.  I don't want to set this precedent."  (6/3/09 Transcript, p. 6-7).  Petitioner has failed to meet his burden of proof. 

          Petitioner has not demonstrated that the Board did not consider these criterion and has not shown that the Board failed to observe the essential requirements of the law when it denied the variance.

Equitable Estoppel

          Petitioner asserts that the fact that the Board did not take action in 2006 when the violation of the setback restriction was first reported created a reasonable belief by Petitioner that the carport was a permitted structure on his property.  In the petition he claims that it is undisputed that Petitioner and his wife are disabled and "consideration should be given to the Petitioner and his wife to permit them to park their automobiles which will not reasonably fit in their garage under a carport to facilitate their use by the Petitioner and his wife and to protect them as a garage otherwise would do."  Further, Petitioner claims that he is entitled to relief under the doctrine of equitable estoppel because the Board "failed to exercise its zoning power in good faith."

          "Although it is well-settled under Florida law that the doctrine of equitable estoppel may be invoked against a governmental body under the appropriate circumstances, those circumstances are rare and exceptional."  Lyon v. Lake County, 765 So. 2d 785, 790-91 (Fla. 5th DCA 2000).  Equitable estoppel is appropriate where the evidence shows (1) a property owner's good faith reliance (2) on some act or omission of the government and (3) a substantial change in position, or the incurring of excessive obligations and expenses, so that it would be highly inequitable and unjust to destroy the right the property owner has acquired.  City of Jacksonville v. Coffield, 18 So. 3d 589, 597 (Fla. 1st DCA 2009). 

          In the present case, equitable estoppel has not been established.  The evidence demonstrates that the carport was erected in 2004.  The Petitioner did not change his position and did not incur obligations or expenses based on the "omission" by the Board in 2006 when it failed to issue a notice of violation for the carport. 

Competent, Substantial Evidence

          This Court is not to reweigh the evidence presented to the Board, but merely to determine if competent, substantial evidence supports its findings.  Gayer, 388 So. 2d at 1294.  Upon review of the record before this Court we conclude that there is competent, substantial evidence to support the Board's decision to deny the variance.

Conclusion

          The Petition for Writ of Certiorari is denied.

          DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 27th day of October, 2010.

 

Original order entered on October 27, 2010 by Circuit Judges Linda R. Allan, George W. Greer, and John A. Schaefer.

 

Copies furnished to:

 

David L. Levy, Esq.
1608 Hampton Court

Safety Harbor, FL 34695

 

Jason C. Ester, Asst. County Atty

315 Court Street, 6th Floor

Clearwater, FL 33756


[1]   Sec. 138-151. - Zoning clearance required.

            Prior to the use of any land or structure or the expansion of any use of land or structure and prior to the issuance of a building permit, a zoning clearance must be obtained.  For the purpose of this chapter, a zoning clearance is defined as a lawful written certification granted to an applicant indicating the zoning district classification, property legal description, authorized use, required setbacks, street frontage, site area requirements, height and other such similar requirements of this division as they would apply to the application for such clearance.  A zoning clearance shall be dated and signed by an authorized employee of the zoning division. The issuance of a zoning clearance does not exempt an applicant from complying with all laws properly affecting the use or development of land.  This clearance is required regardless of any other provision of this division.  Failure to obtain such clearance shall be deemed a violation of this chapter.