Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government: ZONING – County did not observe the essential requirements of law.  Earl and Judell Fow v. Pasco County, No. 2011-CA-000564-WS, (Fla. 6th Cir.App.Ct. February 7, 2012).

 

 

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

 

EARL FOW and JUDELL FOW,     

                     Petitioners,

 

v.                                                           Case No:      51-2011-CA-000564-WS/P

                                                                       

 

PASCO COUNTY, FLORIDA,                                    

                     Respondent.                                                  

_____________________________/

Petition for Writ of Certiorari

Lee Wm. Atkinson, Esq.

for Petitioners

 

Joseph D. Richards, Esq. 

for Respondent

 

 

 

ORDER AND OPINION

 

Petitioner challenges the Pasco County Zoning Administrator’s determination, as upheld by the Board of County Commissioners, through the instant Petition for Writ of Certiorari.  Petitioners argue that they were not afforded procedural due process; the essential requirements of law were not observed; and the decision was not supported by substantial, competent evidence.  Since this Court finds that the essential requirements of law were not observed, the decision below must be quashed.  Petitioners’ Petition for Writ of Certiorari shall be granted, as set forth below.

FACTUAL BACKGROUND

On December 8, 2009, Petitioners were issued a permit to remove an old dock and install a new dock with a roof.  In reliance of the permit, Petitioners began construction.  Neighbors subsequently raised concern about the construction of the dock’s roof in that it was not authorized by their deed restrictions and was in violation of the waterfront property setback requirements in the Land Development Code 530.15.  In response, Code Officer Tom Pirozzi visited the site and noticed an individual working on the roof who was not authorized by the permit.  The contractor listed on the permit informed Mr. Pirozzi that he did not intend to construct the roof and would be withdrawing the permit.  On April 21, 2010, an improper code enforcement cease and desist order for a county ordinance violation was issued, indicating that no construction should be done on the roof.  Since the permit was withdrawn, Petitioners submitted a new dock permit application for the roof on April 22, 2010 and supplemental information on May 12, 2010.  On April 23, 2010, a cease and desist order was posted on the property. 

While the county staff began reviewing Petitioners’ second permit application for compliance with the dock ordinance and building code requirements, the Office of the County Attorney began drafting an opinion that stated all structures (including structures over water such as docks) required building code review.  Apparently, it had previously been the practice of Pasco County that structures over water did not receive building permits or building code review.  On June 1, 2010, the Zoning Administrator issued an opinion stating that the dock ordinance did not allow roofs, concluding that the dock ordinance permitting program does not authorize construction of any structures except those limited to the berthing of vessels, boating, and access to water.  According to the opinion, allowable structures would include decking for what is typically referred to as a dock, boat lifts, and stand alone pilings needed to moor boats and floating platforms.  Roofs, other enclosed rooms, and other vertical structures above the dock platform would not be authorized except for boat lifts, pilings, and safety rails.  Vertical structures would not be authorized by the dock ordinance since they were not essential to accessing water for boating.  Petitioners’ permit application was denied the same day the Zoning Administrator issued its opinion.   

The Board of County Commissioners heard Petitioners’ appeal of the denial of their second permit at a public hearing on December 7, 2010.  A written order was issued on February 12, 2011.  Petitioners filed the instant Petition for Writ of Certiorari on February 4, 2011.       

 

LAW AND ANALYSIS

This Court’s review of Petitioners’ Petition for Writ of Certiorari is limited to whether: (1) Petitioners were afforded procedural due process; (2) the essential requirements of law were observed; and (3) the decision was supported by substantial, competent evidence.  Dusseau v. Metro Dade County Board of County Commissioners, et al., 794 So. 2d 1270, 1273-75 (Fla. 2001); City of Deerfield Beach v. Valliant, 419 So. 2d 624 (Fla. 1982).  Although Petitioners argue all three points, this Court finds that the essential requirements of law were not observed; therefore, the other challenges need not be addressed.

In determining whether there has been a departure from the essential requirements of law, a Court must consider the seriousness of the error.  Combs v. State, 436 So. 2d 93, 95 (Fla. 1983).  A legal error is serious enough to constitute a departure from the essential requirements of law only when there has been a “violation of clearly established principle of law resulting in a miscarriage of justice.” Haines City Community Development v. Heggs, 658 So. 2d 523, 528 (Fla. 1995).  This Court finds that Petitioners have met their burden of proving that Pasco County departed from the essential requirements of law. 

Florida law follows the well-established principle that a reviewing court must defer to the interpretation given a rule by the agency responsible for its administration; and if an agency’s interpretation is but one of several which could be reasonably drawn from the rule’s language, such interpretation is not clearly erroneous and must stand.  McKenzie Check Advance of Fla., LLC v. Betts, 928 So. 2d 1204, 1215 (Fla. 2006); Fla. Dep't of Educ. v. Cooper, 858 So.2d 394, 396 (Fla. 1st DCA 2003).  A reviewing court is never required to give deference to an agency’s interpretation of a rule, however, when the interpretation cannot be reconciled with the rule’s plain language.  Pub. Employees Relations Comm'n v. Dade County Police Benevolent Ass'n, 467 So. 2d 987, 989 (Fla. 1985); Kessler v. Department of Management Services, Div. of State Group Ins., 17 So. 3d 759 (Fla. 1st DCA 2009); PAC for Equal. v. Dep't of State, Fla. Elections Comm'n, 542 So. 2d 459, 460 (Fla. 2d DCA 1989).  When the language of the rule is clear and unambiguous with a clear and definite meaning, it is unnecessary to resort to the rules of statutory construction and interpretation; rather, the rule must be given its plain and obvious meaning.  Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). 

A plain reading of Pasco County’s Land Development Code section 114-40, which is challenged in this case, requires that we quash the decision below.  Section 114-40 is extensive and comprehensive, but does not prohibit the construction of a roofed dock.  Furthermore, this court is unaware of any provision, or any reasonable interpretation, of Pasco County’s Code of Ordinances prohibiting the construction of roofed docks.  This Court finds Pasco County’s interpretation is so strained and inconsistent within the range of reasonable interpretations of section 114-40 that Pasco County’s interpretation cannot stand.  We feel confident that Pasco County knows how to craft a rule to prohibit the construction of roofed docks if it so desires.  See, City of Coral Gables Code Enforcement Board v. Tien, 967 So. 2d 963, 966 (Fla. 3d 2007).     

It is therefore,

          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 7th day of February 2012.

Original order entered on February 7, 2012 by Circuit Judges Stanley R. Mills, Daniel D. Diskey and Patricia A. Muscarella.