Land Use and Local Government Law and Litigation

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The 2d DCA Needs to Adopt the 3d's Strong Position on Judicial Review of QJ Decisions (or)

Circuit courts sitting in their appellate capacity keep abdicating their constitutional responsibility to police local boards and the implementation of local ordinances.

The travesty below was issued by a 3 judge appellate panel in Pinellas County, which in the same term issued several other similar decisions simply abdicating their responsibility to provide judicial oversight in the name of various policies respecting the "wisdom" of lower governments.

Here's the ugliest (opinion is below, taken as an excerpt from Fla Law Supp): St Pete Code Enforcement decides that a handicapped van is a "commercial vehicle" because it's too high to meet a "domestic vehicle" definition. A commercial vehicle is a "any vehicle and/or equipment not contained within the definition of domestic equipment. that is designed or used for commercial or industrial function. "

The city, and the court, simply ignored the rules of construction that a) demand that zoning regulations be strictly construed against the government, and that b) that courts (and quasi-tribunals) may neither add nor subtractlanguagee from an ordinance. Here, the local government simply wrote the last part out, and then the court found that there was competent substantial evidence to support the application of the ordinance as re-written (noting that the record is completelyy absent of any indication that the van was "designed or used for a commercial or industrial function.")

In effect, the Board put the burden of proof on the applicant - not for the variance, but for the need for one. This is just plain wrong.

BAD, BAD, BAD. We desperately need statutory correction, because nothing else will really fix this. But in the meantime, some appellate direction indicating that lower courts must interpret the law AND NOT DEFER TO SELF SERVING, NON-JUDICIAL (INTEMPERAMENTT OR RESULT) INTERPRETATIONS OF LOCAL BOARDS. The judiciary is our ONLY bulkwart against authoritarianism at that local level. We need the judiciary to take its supervisory role seriously.

And in this case, the result is simply vile. Go on, handicapped people, move outbecausee you're not welcome in a good residential neighborhood anymore. Or at least not if actually want to have access to transportation of your own. Maybe you can live in your van behind a mall somewhere. It's enough to cause one to wish Lou Gherig's disease on whatever self-righteous code enforcement officer who actually brought this case forward.

Here's the opinion. The really bad stuff is in bold.

13 Fla. L. Weekly Supp. 776a
FRANK RIGO, Petitioner, vs. CITY OF ST. PETERSBURG, FLORIDA, and the BOARD OF ADJUSTMENT of the CITY OF ST. PETERSBURG, FLORIDA, Respondents. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 05-0065AP-88B. UCN522005AP000065XXXXCV. April 25, 2006. Counsel: Aubrey O. Dicus, St. Petersburg. Pamela D. Cichon, Sr. Assistant City Attorney, St. Petersburg.


THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the
Response, and the Reply. Upon consideration of the briefs, the record and being
otherwise fully advised, the Court finds that the Petition must be denied as set
forth below.

The Petitioner, Frank Rigo (Rigo), seeks review of the
Development Order, entered July 15, 2005, in which the Respondents, City of St.
Petersburg, Florida (City) and the Board of Adjustment of the city of St.
Petersburg, Florida (Board), denied Rigo's variance request to allow a
commercial vehicle to be parked on his residential property. In reviewing the
administrative action taken by the Board, the Court must consider whether the
Petitioner was afforded procedural due process, whether essential requirements
of law were observed, and whether the Board's findings and judgment are
supported by competent substantial evidence. See Haines City Community
Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995)(setting forth the standard
of certiorari review of administrative action).

The record shows that Rigo lives within a residential zoning district within the City of St. Petersburg. Rigo is physically impaired and relies on handicap-equipped vehicles for transportation. The subject van measures 7.5 feet in height, is less than 20
feet in length, and resembles a box or bread van. The van was fitted by Rigo to
include a wheelchair lift. Rigo's property has a driveway in the front, entering
from a public roadway, where the van is parked. The Codes Compliance Assistance
Division determined that the van was a commercial vehicle/equipment and cited
Rigo for violating the City of St. Petersburg City Code (Code), Sec. 29-209(c),
which prohibits the parking of commercial equipment in any residential district.
Rigo filed an application for a variance to allow his van to be parked at
his residence. Between filing his application and the variance request hearing,
Rigo re-registered the van from Â?commercial vehicleÂ? to Â?handicapped personal
vehicle.Â? After the hearing, the Board denied the variance request finding that
the request did not meet Code criteria. The Board gave Rigo one year from the
date of the hearing to remove the van from his residential property.

Before this Court, Rigo argues that the Board's decision is not supported by competent substantial evidence and that the Board departed from the essential requirements of law during the proceedings below. Initially, the Court finds that the Code generally allows for the parking of passenger motor vehicles and motorcycles on residential property. See Code, Sec. 29-209(a). To be considered a passenger
motor vehicle, the vehicle must be 20 feet or less in overall length and 7 feet
or less in overall height. It is undisputed that Rigo's van is 7.5 feet in
height and thus falls outside of the definition of a passenger motor vehicle.
Â?Commercial equipmentÂ? is defined in the City's Code as Â?any vehicle and/or
equipment not contained within the definition of Â?domestic equipment'1 which is
designed or used for a commercial or industrial function. . .Â? See Code, Sec.
29-2. The Code does allow one commercial vehicle, designed as a van or pick-up
truck, to be parked on residential property but only if the commercial vehicle
meets the length and height restrictions of a passenger motor vehicle, 20 feet
or less in length and 7 feet or less in height. As recognized above, the
Petitioner's vehicle does not meet this test.

While the record does not show what the van was originally designed for, the Court finds that under these facts, it must defer to the City's interpretation that the subject van is a prohibited commercial vehicle. See Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1283 (Fla. 2000)(explaining that courts will defer to an agency's interpretation of statutes and rules the agency is charge with
enforcing unless contrary to law); see also Paloumbis v. City of Miami Beach, 840 So.2d 297, 298-98 (Fla. 3rd DCA 2003)(holding that administrative interpretation of personnel rules is entitled to judicial deference as long as it is within the range of possible interpretations).
It is undisputed that the van exceeds the height restrictions for a passenger or commercial vehicle to be parked on residential property. The Court finds that it is of no consequence that the van is currently registered as a handicapped personal vehicle.

The Court also finds that it must defer to the City's finding that Rigo did not meet the requirements for a variance. See Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1276 (Fla. 2001) (providing that the certiorari standard of review requires this Court to defer to the City's Â?superior technical expertise and special vantage pointÂ? in its policy determinations and factual findings). The burden was on Rigo to demonstrate Â?an
exceptional and unique hardship to the individual landowner, unique to that
parcel and not shared by other property owners.Â? See Nance v. Town of
Indialantic, 419 So.2d 1041, 1041 (Fla. 1982). The Board considered the City's
Staff Report which outlined the variance criteria that Rigo's application failed
to meet, as well as testimony that Rigo's previous handicap-equipped van was
code compliant and used by Rigo for 10 years.

Accordingly, the Court finds that there is competent substantial evidence in the record to support the Board's decision and this Court is not permitted to reweigh the evidence presented. See Heggs, 658 So.2d at 530; see also Town of Manalapan v. Gyongyosi, 828 So.2d 1029, 1033 (Fla. 4th DCA 2002). Likewise, the Court can find no support for Rigo's argument that the City departed from the essential requirements of law in the proceedings below. Hence, the request for certiorari
relief must be denied.

Therefore, it is,
ORDERED AND ADJUDGED that Petition for Writ of Certiorari is hereby denied. (DAVID A. DEMERS, PETER RAMSBERGER, and ANTHONY RONDOLINO, JJ.)

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