Case No.: 20-CA-0068
CITY OF ZEPHYRHILLS,
a Florida municipal corporation,
CBD REAL ESTATE INVESTMENT, LLC,
a Florida limited liability company,
and WARECO-PASCO II, LLC, a Florida limited liability company,
Respondents.
/
Opinion Filed
Petition for Writ of Certiorari from Decision of the City of Zephyrhills
Kasey A. Feltner, Esq.
and Meredith S. Delcamp, Esq.,
Shutts & Bowen, LLP for Petitioners,
No response required from Respondents.
PER CURIAM.
Petitioners F. Gary Kovac and Janet B. Kovac seek appellate review of Respondent City of Zephyrhills’ (the City) passage of City Ordinance 1395-19 (the ordinance). Upon review, the Petition for Writ of Certiorari is denied.
There appear to be two issues possibly fatal to this petition before reaching the merits of Petitioners’ arguments. First, Petitioners assert that they have been unable to obtain a copy of the ordinance approving the rezoning. Instead, a prior draft of the ordinance has been included in the appendix. Thus, Petitioners have not included a conformed copy of the order under review. See Fla. R. App. P. 9.220(b) (requiring that
an appendix include, in relevant part, “a conformed copy of the opinion or order to be reviewed”). Second, Petitioners did not provide a transcript of either of the two public table readings on the ordinance despite part of their petition relying upon their assertion that they raised the traffic study issue in a motion before the City during the second public table reading. However, even taking the assertions in their petition and appendix as true, Petitioners are not entitled to relief.
STATEMENT OF THE CASE AND FACTS1
Respondent Wareco-Pasco II, LLC (Wareco) owns land in Zephyrhills. Wareco and Respondent CBD Real Estate Investment, LLC (CBD) initiated a rezoning request via city ordinance. The application states that CBD and Wareco seek to rezone the project area from an Agricultural-Residential (AR) zoning district to a Residential 3 (Res-3) zoning district. However, the ordinance states that rezoning is from a mix of County Residential 1 (R1) and Commercial 2 (C2) to City Planned Unit Development (PUD). Regardless, the question of under which zoning district the land will end up is not before this Court.
Relevant to this petition, CBD and Wareco’s rezoning application contained a traffic impact statement. The statement estimated that each residential unit would produce 9.52 Annual Average Daily Trips (AADT).2 For the planned 91-unit subdivision, this would result in an estimated 8673 AADT. The impact statement provided that the basis of these estimates was the ITE 9th edition.4 A proposed ordinance was drafted and two public table readings with public comment periods were held. During the second public table reading, Petitioners moved to delay the reading for one month so that a traffic study could be conducted. The motion was denied and the City voted to pass the ordinance. Petitioners then filed the petition at bar.
1 The Statement of the Case and Facts is based upon the facts asserted in Petitioners’ petition and appendix.
2 Per the petition, AADT in the traffic impact statement is synonymous with the term “gross daily trips” in the City’s LDC. Accordingly, this order uses the terms interchangeably.
3 Rounded up by this Court from 866.32.
4 ITE 9th edition is short for “Institute of Transportation Engineers Common Trip Generation Manual, 9th edition.”
STANDARD OF REVIEW
While this rezoning occurred via passage of a city ordinance, it was the result of an owner-initiated and site-specific rezoning request. Therefore it is of “sufficiently judicial character” to qualify as a quasi-judicial decision by an administrative agency “appropriate for appellate review.” Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So. 2d 996, 1001 (Fla. 2d DCA 1993).
This Court may review quasi-judicial action by an administrative board to determine (1) whether the parties were afforded adequate due process; (2) whether there was a departure from essential requirements of law; and, (3) whether the board’s decision is supported by competent, substantial evidence. See Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000); City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982); Powell v. City of Sarasota, 953 So. 2d 5, 6 (Fla. 2 DCA 2006).
Competent substantial evidence is a standard of review, which the reviewing court must apply. Dusseau v. Metro. Dade County Bd. of County Com'rs, 794 So. 2d 1270, 1274 (Fla. 2001). It is tantamount to legally sufficient evidence. Id.
ANALYSIS
Procedural Due Process
Petitioners first argue that the City failed to afford them procedural 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. 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 commission acts.” Sunbelt Equities, II, Ltd. Partnership, 619 So. 2d at 1002.
The basis of Petitioners’ due process argument is that the City approved the ordinance despite evidence that the City may not have followed its own Land Development Code (LDC) by not requiring a traffic study be conducted. Petitioners further argue that their due process rights were violated when the City denied their request for a one month delay to conduct a traffic study. Petitioners’ arguments are competent substantial evidence and essential requirement of law arguments clothed as due process arguments.
The Court holds that Petitioners were afforded procedural due process by the City. The petition itself states that Petitioners were provided notice and an opportunity to be heard at a public hearing. The petition further states that Petitioners were permitted to move for a traffic study and a delay of the public hearing. The petition does not assert that they were not permitted to present evidence, cross-examine witnesses, or be informed of all the facts upon which the City acted. Nor does the petition assert any other basis for this Court to hold that Petitioners were denied procedural due process.
Departure from the Essential Requirements of Law
Petitioners argue that the City’s passage of the ordinance was a departure from the essential requirements of law. A departure from the essential requirements of law is not mere legal error, but instead, involves a “gross miscarriage of justice.” Sutton v. State, 975 So. 2d 1073, 1081 (Fla. 2008). The concern is the seriousness of the legal error. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 528 (Fla. 1995). There is a departure from the essential requirements of law where the legal error violates a “clearly established principle of law resulting in a miscarriage of justice.” Id. (quoting Combs v. State, 436 So. 2d 93, 95-96 (Fla. 1983)). It is “an error so fundamental in character as to fatally infect the judgment and render it void.” Id. at 527 (quoting State v. Smith, 118 So. 2d 792, 795 (Fla. 1st DCA 1960)).
Applicable Provisions of the City’s Land Development Code
Section 5.04.01 of the Zephyrhills LDC provides that “[a]n application for . . . a rezoning or site plan approval of a proposed development shall determine the impact of the project. . .” and that “[a] traffic impact analysis shall be prepared . . . that includes a projection of the gross daily trips to be generated by the project . . .” § 5.04.01, LDC. “Institute of Traffic Engineers trip generation rates or another approved source shall be used as the basis for trip generation calculations.” § 5.04.01(A), LDC.
“A development may be defined as de minimus if the development is anticipated to generate less than 1,200 gross daily trips. No additional concurrency analysis will be required for de minimus developments.” § 5.04.01(B), LDC.
“A traffic study is required if the development is anticipated to generate more than
1,200 gross daily trips.” § 5.04.01(C), LDC.
Petitioners’ Arguments
Petitioners put forth three arguments in support of their assertion that the City departed from the essential requirements of law by passing the rezoning ordinance without first requiring a traffic study: (1) the LDC required a traffic study under the facts of this case, (2) the planned subdivision only has one point of ingress and egress, and (3) the maximum number of residential units allowed in a Res-3 zone is 213 which would generate more than 1,200 gross daily trips.
City did not follow the LDC
Petitioners argue that the City did not follow the LDC when it passed the rezoning ordinance without first having a traffic study conducted. As noted in the Statement of the Case and Facts section of this order, the application states that the proposed subdivision will contain 91 residential units. The impact statement provides a trip generation rate of
9.52 AADT’s or gross daily trips per unit. Based upon that information, the development is anticipated to generate 867 gross daily trips. This is well under the 1,200 gross daily trips that would trigger the traffic study requirement under LDC section 5.04.01(C).
Because a traffic study was not required for this project, the City did not depart from the essential requirements of law by not requiring a traffic study before passing the rezoning ordinance.
Single point of ingress and egress
Petitioners next argue that even though the estimated number of gross daily trips does not exceed 1,200, a traffic study should still have been conducted because the development will have only one point of ingress and egress. However, Petitioner does not cite to, and the Court cannot find, a provision of the City’s LDC containing such a requirement. Per the LDC, a traffic study is only required in one situation: where the estimated number of gross daily trips generated by the development exceeds 1,200. Accordingly, the City did not depart from the essential requirements of law.
Maximum number of residential units in a Res-3 zone
Petitioners assert that the maximum allowable number of residential units in a Res- 3 zone is 213. Petitioners correctly note that according to the traffic impact statement, 213 units would produce an estimated 2,028 gross daily trips. Petitioners argue that this exceeds the 1,200 gross daily trips triggering the traffic study requirement and therefore a traffic study was required before the rezoning ordinance could be approved. However, this argument fails to consider the entirety of LDC section 5.04.01.
LDC section 5.04.01 and the traffic study requirement of LDC section 5.04.01(C), are based upon the number of planned residential units in the application itself, not the maximum number of possible residential units permitted in a particular zoning district. See LDC § 5.04.01 (providing that “an application for . . . a rezoning or site plan approval
. . . shall determine the impact of the project. . .” and that the “traffic impact analysis” must include “a projection of the gross daily trips to be generated by the project”) (emphases added). Assuming arguendo that a maximum of 213 residential units are permitted in a Res-3 zoning district, this does not change the fact that the application and its corresponding traffic impact analysis only contain 91 residential units. Thus, for the reasons detailed in Section II(B)(1) of this order, a traffic study was not required and the City did not depart from the essential requirements of law.
Competent Substantial Evidence