Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING — Competent Substantial Evidence — Petitioners’ due process rights were violated when Port Richey City Council’s approved the rezoning of two properties without competent, substantial evidence that it was consistent the comprehensive plan and the zoning regulations. Arguments that the development order was inconsistent with the comprehensive plan are not properly addressed in a Petition for Writ of Certiorari, but in an action pursuant to Florida Statute 163.3215.  Petition granted in part, denied in part. Priest, Et Al. v. City of Port Richey, No. 512007CA2224WS and 512007CA2226WS (Fla. 6th Cir. App. Ct. April 27, 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

 

JAMES PRIEST, DEBORAH PRIEST,

HOWARD M. CONDER, ROSE CONDER,

ELOISE TAYLOR, JAMES HOSTER,

JANE HOSTER, WILLIAM COLUMBO

AND CAROL COLOMBO,     

                        Petitioners,                                        UCN:               51-2007-CA002224-WS/P

                                                                                                            51-2007-CA002226-WS/P

 

v.                                                                                

 

 

CITY OF PORT RICHEY,                                        

                        Respondent.                                                 

___________________________________/

 

Petition for Writ of Certiorari

 

Eloise Taylor, Esq.

for Petitioners

 

Michael J. Brannigan, Esq. 

for Respondent

 

 

ORDER AND OPINION

 

            On May 11, 2007, Petitioners filed two Petitions for Writ of Certiorari, seeking review of Port Richey City Council’s approval of the rezoning of two properties on Sunset Boulevard.  This Court dismissed Petitioners’ petitions, on September 23, 2008.  Petitioners filed timely Motions for Rehearing or Clarification.  On December 7, 2010, oral argument was held on Petitioners’ motions, after which supplemental briefing was ordered.   Upon review of the briefs, the record, oral arguments, and being otherwise fully advised, this Court withdraws its prior opinion, filed on September 23, 2008, and substitutes the following opinion.  Petitioners’ Petition for Writ of Certiorari is granted in part and denied in part. 

            Petitioners sought review of Port Richey City Council’s approval of the rezoning of two nearby properties on Sunset Boulevard.  Petitioners were property owners whose land was in close proximity to the rezoned property.  The rezoning was requested by property owners, Frank and Susan Perrott, who wanted their properties rezoned from residential to commercial.  Their property also included two adjoining properties, owned by their corporation Sunset Landing Marina. 

            The initial staff review recommended a denial of the rezoning application.  The Planning and Zoning Board held a public hearing, on February 14, 2007, after which the applicants and opposition agreed to an informal mediation.  After the mediation reached an impasse, the application for rezoning returned to the Planning and Zoning Board, on March 17, 2007, for its decision and recommendation to City Council.  The Board voted to recommend that the property be rezoned to commercial, but with the condition that the use be limited to an office for the marina.  By majority vote, the City Council voted to conditionally rezone the property.  Petitioners filed a Petition for Writ of Certiorari for each property challenging this decision. 

            In its prior order, this Court found Petitioners’ arguments that the development order was inconsistent with the comprehensive plan not properly addressed in a Petition for Writ of Certiorari, but in an action pursuant to Florida Statute 163.3215, as outlined in Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997).  Subsequently, Petitioners filed a motion for rehearing or clarification, arguing that Yusem was not on point, as it dealt with a plan amendment to a comprehensive plan.  Petitioners also asserted that this Court overlooked other issues and facts that were raised in their petitions.  Regarding Petitioners’ arguments that the development order was not consistent with the comprehensive plan, this Court reaffirms its prior order.  Those actions are not properly brought in a Petition for Writ of Certiorari and are hereby denied.   

            In their Petitions for Writ of Certiorari, Petitioners also argue that since rezoning hearings are quasi-judicial in nature, basic due process must be afforded to ensure a fair hearing.  Board of County Commissioners v. Snyder, 627 So. 2d 469 (Fla. 1993).  As such, interested parties must be afforded notice, a fair opportunity to be heard, and an impartial decision maker.  Jennings v. Dade County, 589 So. 2d 1337, 1340-1341 (Fla. 3d DCA 1991).  Petitioners argue that the City of Port Richey failed to meet these requirements.   

            The applicant did not meet its burden of proof in providing competent, substantial evidence that the proposed rezoning was consistent the comprehensive plan and the zoning regulations.  After two hearings, the attorney representing the applicants provided nothing more than a summary of their request with a policy argument that marina facilities should be encouraged.  Since the applicants offered no evidence that the proposed rezoning was consistent with the comprehensive plan, Petitioners were denied their due process rights.  Without documents, testimony, or evidence presented by the applicants, the Council did not have substantial competent evidence to grant the rezoning.  The Council’s decision must be based on the record before it, including testimony or evidence presented at the public hearing and recommendations of staff.  Miami Dade County v. Walbert, 739 So. 2d 115 (Fla. 3d DCA 1999).  Moreover, this denied Petitioners a fair opportunity to present their cases. 

            The exclusive action available to challenge the consistency of a developmental order is an action pursuant to Florida Statute 163.3215.  Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997).   A petitioner would have standing, however, to make a due process challenge that insufficient evidence was offered on a rezoning application by Petition for Writ of Certiorari.  Since Petitioners demonstrated that the rezoning application was granted without substantial, competent evidence, this Court grants Petitioners’ Petitions for Writ of Certiorari on that issue.

            Petitioners also argue that Port Richey failed to provide proper notice, a fair opportunity to present their cases, and an impartial decision-maker.  Since this case is remanded for further proceedings, this Court will decline to address these arguments.  When conducting the new proceedings, however, Respondent is reminded that rezoning hearings are quasi-judicial.  As such, basic due process must be afforded to all interested parties.

            Therefore, it is 

 

ORDERED AND ADJUDGED that the Petitioner’s Petition for Writ of Certiorari is DENIED in part and GRANTED in part with directions on remand.     

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 27th day of April 2010.

 

Original order entered on April 27, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.