Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances – The City of Port Richey departed from the essential requirements of law by granting two variance requests that were not supported by substantial, competent evidence. Granted. Christensen, et al. v. City of Port Richey, No. 08-CA-8225-WS, (Fla. 6th Cir.App.Ct. October 1, 2010).

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

DENNIS CHRISTENSEN,

JUDITH CHRISTENSEN,

WILLIAM COLUMBO, CAROL COLOMBO,

WILLIAM BENNETT, CONSTANCE

BENNETT, JAMES PRIEST,

DEBORAH PRIEST, RICHARD STOUT,

ANNETTE STOUT, JANE HOSTER,

JAMES HOSTER, and ELOISE TAYLOR,

Petitioners,

v. Case No: 51-2008-CA008225-WS/P

CITY OF PORT RICHEY,

Respondent.

____________________________________/

Petition for Writ of Certiorari

Shauna F. Morris, Esq.

for Petitioners

Michael J. Brannigan, Esq.

for Respondent

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

Petitioners challenge whether the City of Port Richey departed from the essential requirements of law by granting two variance requests and that Port Richey’s decision was not supported by substantial, competent evidence. We agree. This Court finds that the Petition for Writ of Certiorari must be granted as set forth below.

FACTUAL BACKGROUND

On May 19, 2008, Whiskey River Restaurant applied for three separate variances for two of their properties in Port Richey. The first variance request was to reduce the parking space widths from ten to nine feet on their lot next to their restaurant. The second variance request was to reduce the required ten-foot minimum buffer of landscaping between non-residential and residential zones to only one foot in their overflow lot across the street. This gravel lot was vacant with no parking surface or striping. The third variance request was withdrawn, but related to five parking spaces that would be reconfigured into sixteen motorcycle parking spaces. The Board of Adjustment recommended approval of the two remaining variances without any additional conditions.

The City Council met on August 27, 2008 to consider Resolution 08-08, which was the Board of Adjustment’s recommendation to allow the variances. Prior to this hearing, the applicant and homeowners had attempted to compromise and had made a tentative agreement. Petitioners, however, withdrew when they realized at the hearing that the applicant was not trying to resolve the existing parking problem, but had been trying to reach a “magic number” of parking spaces to allow them to expand the second floor of their restaurant. The applicants ultimately withdrew their third variance request, resulting in an inadequate amount of parking spaces to expand their restaurant. The Council ultimately approved the remaining variance requests. The City of Port Richey issued a written confirmation, on September 4, 2008. Petitioners timely filed this Petition for Writ of Certiorari challenging their decision.

LAW AND ANALYSIS

Review of this Court is limited to whether: (1) Port Richey allowed Petitioners procedural due process; (2) Port Richey followed the essential requirements of law; and (3) Port Richey’s decision was supported by substantial, competent evidence. City of Deerfield Beach v. Valliant, 419 So. 2d 624 (Fla. 1982). As Petitioners do not contend that they were denied due process, this Court need not address that prong. Petitioners argue that Port Richey departed from the essential requirements of law by failing to follow the requirements of the Land Development Code in granting both variance requests and that their decision was not supported by substantial, competent evidence.

For a variance to be granted under §301.19(b) of the Land Development Code, the applicant has the burden to prove that eight separate conditions are met:

a. Special conditions and circumstances exists [sic] which are peculiar to the land, structure, or building involved and which are not applicable to other lands, buildings, or structures in the same zoning district;

b. Special conditions and circumstances do not result from the actions of the applicant;

c. Granting the variance requested will not confer on the applicant any special privilege that is denied by this Land Development Code to other lands, buildings or structures in the same zoning district;

d. Literal interpretation of the provisions of this Land Development Code would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of this Land Development Code and would work unnecessary and undue hardship on the applicant;

e. The variance granted is the minimum variance that will make possible the reasonable use of the land, building, or structure;

f. The granting of the variance will be in harmony with the general intent and purpose of this Land Development Code and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare;

g. There will be full compliance with any additional conditions and safeguards which the board may prescribe, including, but not limited to, reasonable time limits within which the action for which variance is required shall be started, completed, or both; and

h. The variance granted would not violate the goals, objectives, and policies of the comprehensive plan.

Under the facts presented in this case, Port Richey’s improperly granted the variance requests because the applicants failed to meet each variance criteria.

Although this Court must defer to Port Richey’s decision and review the record to find support for its decision, the applicant had the burden to establish that each requirement for the variance requests was met. Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So. 2d 1270, 1276 (Fla. 2001); Nance v. Town of Indialantic, 419 So. 2d 1041 (Fla. 1982); Gomez v. City of St. Petersburg, 550 So. 2d 7 (Fla. 2d DCA 1989). The record is replete of evidence to demonstrate that the applicant met their burden. Therefore, this Court finds that it was error for Port Richey to grant the variance requests when the applicants failed to establish that all eight conditions were met.

As to the first variance request, the applicants did not meet their burden to demonstrate how each of the eight factors was met. It is well established that a pre-requisite to the granting of a hardship variance is the presence of an exceptional and unique hardship to the individual landowner, unique to that parcel, and not shared by other property owners in that area. Town of Indialantic v. Nance, 400 So. 2d 37 (Fla. 5th DCA 1981). The applicants had been using the adjoining lot for parking for years without needing a variance to reduce the width of the spaces to accommodate their current restaurant’s capacity. The applicants already had the reasonable use of this adjoining lot. Their special conditions and circumstances resulted solely from the applicant’s actions. The first variance should not have been granted.

The City of Port Richey also erred in granting the second variance request to reduce the amount of buffer landscaping on the offsite lot. In an attempt to meet their burden, the applicants had John Moody, a registered professional engineer, present his opinion at the meeting before the Port Richey City Council. His presentation was limited to how there was a hardship—only one of the eight subsections—for needing less buffer landscape on the offsite lot. This gravel was already being used for parking under a previously granted variance. Mr. Moody, however, stated that he could not configure any possible way to use the lot for parking without the reduction in buffer landscaping. No special conditions or circumstances peculiar to the offsite lot were presented—it was simply too small to accommodate the applicant’s desired increase in parking spaces. Interestingly, the applicants never requested a reduction in width for the parking spaces in the offsite lot. Nonetheless, the use of a variance is not appropriate to cure a possible hardship that was apparent when the applicants purchased the lot. Metropolitan Dade County v. Betancourt, 559 So. 2d 1237, 1238-9 (Fla. 3d DCA 1990).

Without reweighing the evidence, this Court concludes that the record lacks substantial, competent evidence to demonstrate that each variance criteria was met for either of the two variance requests. An attorney’s argument alone is insufficient. No substantial, competent evidence was introduced to establish that the Land Development Code’s requirements for a variance were met.

Petitioners also argue that Port Richey departed from the essential requirements of law by granting the two variances because it expands a non-conformity in violation of the Code. The Land Development Code clearly prohibits the expansion of a nonconformity. Section 301.38 that nonconformities cannot be enlarged, expanded, intensified, or extended, or used as grounds for adding other structures or uses. Section 301.42 further requires that a nonconforming use not be enlarged, extended, intensified, or expanded so as to utilize any other portion of the lot or parcel it occupies; nor shall any nonconforming characteristics of use be changed so as to increase the degree of nonconformity with the applicable requirements of the Land Development Code. Moreover, it is the intent of the Land Development Code to allow any non-conformities to exist until they are voluntarily removed, but not to promote or encourage their survival, as outlined in Section 301.38. A non-conformity cannot be expanded in any way and to do so is to act contrary to law. Town of Redington Shores v. Innocenti, 455 So. 2d 642 (Fla. 2d DCA 1984); 3M Nat. Advertising Co., v. City of Tampa Code Enforcement Board, 587 So. 2d 640 (Fla. 2d DCA 1991).

Increasing the number of parking spaces in a non-conformity would be an expansion prohibited by the Land Development Code. The record makes it clear that the restaurant is a legally existing non-conforming structure. An expansion in the intensity of use of this nonconforming property, as well as the physical expansion of the property, is prohibited. See, JPM Inv. Group, Inc. v. Brevard County Bd. of County Com’r, 818 So.2d 595 (Fla. 5th DCA 2002); Town of Redington Shores v. Innocenti, 455 So. 2d 642 (Fla. 2d DCA 1984); 3M Nat. Advertising Co., v. City of Tampa Code Enforcement Board, 587 So. 2d 640 (Fla. 2d DCA 1991). As such, the variance request to decrease the width of the parking spaces to allow for more spaces was improperly granted.

It is unclear as to whether the overflow lot is also non-conforming. Counsel for the applicants stated at the hearing that the overflow lot is zoned residential, but has a commercial land use designation. In contrast, the application indicated that it is both zoned and given a land use designation of commercial. This distinction is inconsequential, however, since the applicants failed to provide any evidence that the eight criteria were met for a variance to be approved. If this land were in fact non-conforming, decreasing the buffer landscaping to provide more parking spaces would be an illegal expansion. Granting the variances would violate the essential requirements of law by allowing an intensification and expansion of parking and seating capacity clearly in violation of the Code.

The City of Port Richey departed from the essential requirements of law by granting both variance requests. The applicants failed to establish that all eight criteria were met for both of their variance requests. As such, Port Richey’s decision was not supported by substantial, competent evidence. In addition, the first variance request, and possibly the second request, was clearly prohibited by the Land Development Code as expanding a non-conformity. This Court grants Petitioner’s Petition for Writ of Certiorari. Therefore, it is

ORDERED AND ADJUDGED that Petitioner’s Petition for Writ of Certiorari is hereby GRANTED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 1^st day of October 2010.

Original order entered on October 1, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.