Here is the full text of the order by Judge R. Lee Smith, denying any relief to the developer of the St. Augustine Beach Embassy Suites hotel, which demanded to add an ugly "multicolored monstrosity" at the south end of Anastasia State Park.
IN THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT, IN AND FOR ST. JOHNS COUNTY, FLORIDA
CASE NO.: CA18-815 DIVISION: 55
KEY BEACH NORTH, LLC, a Florida limited liability company,
Petitioner,
vs.
CITY OF ST. AUGUSTINE BEACH,
a Florida municipal corporation, Respondent,
-----------------I
ORDER DENYING AMENDED PETITION FOR WRIT OF MANDAMUS, OR IN THE ALTERNATIVE, FOR WRIT OF CERTIORARI
This matter came before the Court for a hearing held January 17, 2019, on Key Beach Nmih, LLC's Amended Petition for Writ of Mandamus (Key Beach Nmih, LLC shall hereinafter be referred to as the "Petitioner"), or in the Alternative, for Writ of Certiorari (DIN 12); the City of St. Augustine Beach's Response to Order to Show Cause (the City of St. Augustine Beach shall hereinafter be refen·ed to as the "City") (DIN 17); and the Petitioner's Reply thereto (DIN 21). Representing the Petitioner at the hearing were Cindy A. Laquidara, Esq. and Tom Ingram, Esq. Representing the City at the hearing were Jeremiah Mulligan, Esq. and Jim Wilson, Esq. The Comi has reviewed and considered the Petition, the Response, and the Reply, as well as all appendices and supplemental authority; has heard and considered the argument of counsel; and being otherwise fully advised in the premises finds as follows:
Petitioner challenges the final order issued by the City denying Petitioner's application for modification to a final development order in which Petitioner sought to build a splash park on a
hotel presently under construction. Petitioner asserts that the City's denial deprived Petitioner of procedural due process, depmied from the essential requirements of law, was not based upon competent substantial evidence, and was predicated on "arbitrary criteria" in contravention of the City's own rules. Petitioner seeks mandamus relief compelling the City to permit approval for the modification. Alternatively, Petitioner seeks certiorari review of the City's final order denying the application for modification. This Comi has jurisdiction pursuant to Fla. R. App. P. 9.030(c)(3) and 9.100.
General Standard of Review
Mandamus
A writ of mandamus is a remedy available "to enforce an established legal right to compel a person in an official capacity to perform an indisputable ministerial duty required by law." Poole
v. City of Port Orange, 33 So.3d 739, 741 (Fla. 5th DCA 2010). For mandamus to lie, "the
Respondent must have an indisputable legal duty to perform the requested action, and the Petitioner must have no other adequate remedy available." Barnett v. Antonacci, 122 So.3d 400, 404 (Fla. 4th DCA 2013). Notably, mandamus may not be used "to compel a public agency to exercise its discretionary powers in a given mam1er." Dep't of Children and Family Servs. v. Burton, 802 So.2d 467,468 (Fla. 2d DCA 2001).
Certiorari
In reviewing quasi-judicial orders of local agencies and boards, ce1iiorari review is available wherein the Comi must consider: (i) whether procedural due process was afforded to the pmiies; (ii) whether the essential requirements of law were observed; and (iii) whether the administrative findings and judgment are supported by competent substantial evidence. Haines
City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) (citing City of Deerfield Beach v.
Vaillant, 419 So. 2d 624, 626 (Fla. 1982)). The Comi is not entitled to reweigh evidence or
substitute its judgment for that of the agency or board. See Dep't. of Highway Safety and Motor Vehicles v. Trimble, 821 So. 2d 1084, 1085 (Fla. 1st DCA 2002). The Court is restricted solely to the record of the proceedings below and can only consider facts presented at that proceeding. Battaglia Fruit Co. v. City of Maitland, 530 So. 2d 940, 943 (Fla. 5th DCA 1988). The Court's ce1iiorari review power does not allow the Court to direct the agency or board to take any action but is limited to quashing the order being reviewed, if appropriate. See City of Kissimmee v. Grice, 669 So. 2d 307, 309 (Fla. 5th DCA 1996) (citing ABG Real Estate Dev. Co. of Florida, Inc. v. St. Johns County, 608 So. 2d 59 (Fla. 5th DCA 1992)).
Procedural History
Petitioner is the owner of real property located within the City's Commercial land use district (hereinafter referred to as the "Property"). The Property fronts on State Road AIA (a/k/a "AIA Beach Boulevard"). In 2015, Petitioner received an approved final development order for development of the Property as a 175-room resort hotel (hereinafter refen-ed to as the "Hotel"). On April 6, 2018, Petitioner filed an application for amendment to the 2015 final development order to incorporate an additional commercial structure located on the northeast corner of the Hotel site: a spray-playground interactive water park structure, which includes water slides, a large water dumping bucket, and various other architectural features (hereinafter referred to as the "Splash Park").
Construction of the Splash Park is subject to the City's development plan review process as set forth in Section 1.02.03 of the Saint Augustine Beach Land Development Regulations (hereinafter referred to as the "LDRs"). The development plan review process set forth in the LDRs is comprised of four steps: a pre-application conference, a preliminary development plan/concept review, a final development plan review, and the issuance of construction
(development) permits. Pursuant to Section 12.02.lO(B) of the Code of the City of St. Augustine
(hereinafter refened to as the "Code"), amendments to final development plans for commercial structures must be considered in the same manner as the original application, subject to the development plan review process delineated in LDR § 1.02.03, with the exception that the preliminary concept review is not required. Additionally, Section 12.02.10 of the Code requires that any amendment to a final development order be reviewed by the City's Comprehensive Planning and Zoning Board (hereinafter referred to as the "PZB").
The initial review of the development plan for the Splash Park was conducted by the City's Building and Zoning Depaiiment official (hereinafter referred to as the "BZD Official") pursuant to Section 12.02.10 of the Code. The BZD Official, in accordance with Code§ 12.02.10, submitted a repo1i to the PZB verifying the Splash Park's setback and height requirements and recommending approval of the modification application. On May 15, 2018, the PZB held a public hearing on the application, at which it heard both presentation by Petitioner as well as evidence and testimony from other interested witnesses. Following the hearing, the PZB issued a unanimous recommendation to the City Commission that the commission deny the requested amendment to the final development order.
On June 4, 2018, the City Commission held a separate public hearing on the application. The City Commission heard evidence and testimony from Petitioner, as well as other lay and expert witnesses interested in the project; and ultimately voted unanimously to deny the proposed amendment. On June 29, 2018, the City Commission rendered a written Order Denying Application for Modification Development Order 2015-01, in which it specified ten (10) findings of fact and concluded that the application for modification of the development order failed to comp01i with LDR § 12.02.07(F) (hereinafter referred to as the "Final Order").
Analysis
Mandamus
Petitioner asserts that the City should be compelled to issue a permit approving the application for modification because the Splash Park satisfies the requirements set forth in the Code and the LDRs. Accordingly, Petitioner contends the City was afforded no discretion to deny the proposed modification. The Court finds this argument wholly unpersuasive. Petitioner seeks review of the City Commission's quasi-judicial process wherein it necessarily employed discretion in determining whether the proposed modification comports with the City's Code and LDRs. Consequently, mandamus is not a proper remedy. See Orange County v. Quadrangle Development Co., 780 So.2d 994,996 (Fla. 5th DCA 2001) ("The circuit court misapplied the law, however, in issuing the writ of mandamus. Certiorari, not mandamus, was the proper remedy in the instant case, since the Board's quasi-judicial proceeding was being reviewed.") (Internal citations omitted). Mandamus is also unavailable because ce1iiorari provides an adequate remedy to address Petitioner's instant arguments. Id. ("[M]andamus is not available if there is another adequate remedy. In the instant case, ce1iiorari provided an adequate remedy. When a decision is quashed by ce1iiorari, the comi should not direct that any specific action be taken.") (Internal citations omitted). For these reasons, insofar as Petitioner requests that the Court issue a writ of mandamus compelling the City to approve the Splash Park application, the Petition will be denied.
Certiorari
Due Process
The initial determination at ce1iiorari review is to determine whether Petitioner was afforded procedural due process. Petitioner argues the City did not adequately afford procedural due process in arriving at its decision to deny the Splash Park application.
Standard
Both the United States and Florida Constitutions protect individuals from arbitrary and umeasonable governmental interference with their right to life, libe1iy, and property. State v. Robinson, 873 So. 2d 1205, 1212 (Fla. 2004). Procedural due process affords notice of a possible government deprivation and a meaningful oppmiunity to contest it, usually before it is imposed. Id. The extent of procedural due process afforded to a paiiy in a quasi-judicial hearing is not as great as that afforded to a party in a full judicial hearing. Carillon Cmty. Residential v. Seminole County, 45 So 3d 7, 10 (Fla. 5th DCA 2010). There is no single unchanging test which may be applied to determine whether the requirements of procedural due process have been met; courts instead consider the facts of the paiiicular case to determine whether the paiiies have been accorded that which the state and federal constitutions demand. Id.
Analysis
Here, Petitioner appeared at both the May 15, 2018 PZB meeting and the June 4, 2018 City Commission meeting. The record demonstrates, and the paiiies acknowledge, that the PZB and the City Commission provided Petitioner with a meaningful oppmiunity to present argument and testimony at both hearings. At both meetings, the PZB and City Commission heard argument from Petitioner pertaining to whether the proposed modification complied with the Code. Petitioner argues that the City Commission's failure to "apply its own rules," as well as its "actions in creating new standards at the hearing for the approval of a permit," violated Petitioner's procedural due process. Whether the City Commission's findings compmied with the requirements set forth in the Code is an issue more appropriately addressed under an essential requirements oflaw analysis. It is apparent from the record that Petitioner was afforded notice and a meaningful oppmiunity to be heard at both the May 15, 2018 PZB meeting and the June 4, 2018 City Commission meeting. Even if the Court were to find that the City Commissioners failed to correctly apply the Code in
arriving at their decision to deny the modification application, the record nonetheless reflects Petitioner was afforded procedural due process.
Essential Requirement of Law
Petitioner asse1is that the Final Order departs from the essential requirements of law for three reasons: it fails to specify the applicable law supporting denial; it fails to contain sufficient written findings supp01ting denial; and it misapplies LDR § 12.02.07(F).
Standard
A ruling constitutes a depaiiure from the essential requirements of law when it amounts to a violation of a clearly established principle of law resulting in a miscarriage of justice. Clay County v. Kendale Land Development, Inc., 969 So. 2d 1177 (Fla. 1st DCA 2007) (citing Combs
- State, 436 So.2d 93, 96 (Fla.1983)). Generally, a reviewing court should defer to the interpretation given a statute or ordinance by the agency responsible for its administration. Shamrock-Shamrock, Inc. v. City of Daytona Beach, 169 So. 3d 1253, 1256 (Fla. 5thDCA 2015). However, "that deference is not absolute, and when the agency's construction of a statute amounts to an umeasonable interpretation, or is clearly erroneous, it cannot stand." Id. (quoting Las Glas Tower Co. v. City of Ft. Lauderdale, 742 So.2d 308, 312 (Fla. 4th DCA 1999) (Citations omitted in original.)). In Heggs, supra., the Florida Supreme Comi concluded that the term "applied the correct law" is synonymous with "observing the essential requirements oflaw." 658 So.2d at 530. Municipal zoning ordinances are subject to the same rules of construction as are state statutes. Shamrock, 169 So.3d at 1256. The only criteria upon which a local government can legally base its quasi-judicial decisions is its local criteria enacted to govern their actions. Miami-Dade v. Omnipotent Holdings, Inc., 863 So.2d 375, 377 (Fla. 3d DCA 2003); City of Naples v. Central Plaza of Naples, 303 So.2d 423, 425 (Fla. 2d DCA 1974).
Analysis
Petitioner first argues that the City Commission's Final Order departs from the essential requirements of law because it fails to contain written findings identifying the applicable portions of the ordinance, rule, statute, or other legal authority in writing as supports its denial as required by section 166.033(2), Florida Statutes. § 166.033(2), Fla. Stat. (2017) ("When a municipality denies an application for a development permit, the municipality shall give written notice to the applicant. The notice must include a citation to the applicable pmiions of an ordinance, rule, statute, or other legal authority for the denial of the permit."). The City Commission's Final Order reads as follows: "[B]ased on the above findings of fact, [the] City Commission hereby denies the Application for Modification of Development Order 2015-01 for failure to comply with the standards set fmih in the St. Augustine Beach Code, Land Development Regulations, Section 12.02.07F.[sic], as it applies to this application." The Final Order specifically identifies the applicable pmiion of the LDRs supporting its denial; consequently, it does not depaii from the essential requirements of law in this respect.
Petitioner next argues that the Final Order depaiis from the essential requirements of law because LDR § 12.02.07(F) requires that for any application that is disapproved, "the comprehensive planning and zoning board1 shall detail in its findings the criterion or criteria that are not met"; and the Final Order fails to detail in its findings how the proposed modification does not meet criteria specified in the LDRs. To evaluate whether the findings set f01ih in the Final Order appropriately indicate how the proposed modification does not satisfy specified criteria, the Court must first look to the specific provision of the LDRs with which the Final Order finds the Splash Park fails to comply. Section 12.02.07(F) of the LDRs provides as follows:
1 By Ordinance 15-08, as codified in Code§ 12.02.05(B), the final hearing and final determination of approval or denial at the time of the underlying proceedings in the instant case were to be made by the City Commission, rather than the PZB. Certain Code and LDR provisions have not yet been updated to mticulate the adoption of Ordinance 15-08; however, the parties stipulate that the City Commission was responsible for issuing the Final Order regarding the Petitioner's application.
The front, rear, and side architectural elevations for commercial structures as submitted pursuant to subsection 12.02.07.D.2.b(2) hereof shall demonstrate compliance with the following criteria:
- The plan for the proposed structure or project is in conformity with good taste, good design, and in general contributes to the image of the city as a place of beauty, spaciousness, harmony, taste, fitness, broad vistas and high quality.
- The proposed structure or project is not, in its exterior design and appearance, of inferior quality such as to cause the nature of the local environment or evolving environment to materially depreciate in appearance and value.
4. The proposed structure or project is in harmony with the proposed developments in the general area ....
(Emphasis supplied).
The Final Order contains the following ten (10) findings of fact: (1) That the applicant has failed to sufficiently address parking concerns; (2) That the applicant has failed to use sufficient screening to reduce the visual hazards along roadways and parking areas surrounding the site; (3) That the applicant failed to address sufficient landscaping plans; (4) That there was evidence of adverse visual impact on the smrnunding enviromnent; (5) That hazards are proposed by the elements of the proposed playground itself; (6) That the proposed development presents an attractive nuisance to the community; (7) That the proposed development is a substantial deviation from the final development order because the element was not conceived of constituting a pool as defined at the time of the final development order; (8) That the photographic evidence presented to the commission was misleading; (9) That the mass of the structure and elements sufficiently expand the silhouette and mass of the rest of the developed structure and therefore constitutes a substantial deviation from the final development order; and (10) That the proposed structure and usage is incompatible with surrounding uses.
Upon reviewing the findings of fact stated in the Final Order, the Court finds that several
of the findings depart from the essential requirements of law in that they are impertinent to the LDR section cited in the Final Order. However, the following findings sufficiently specify how
the proposed Splash Park fails to comply with the aforementioned provisions set forth in LDR § 12.02.07(F): (4) That there was evidence of adverse visual impact on the sunounding environment; and (10) That the proposed structure and usage is incompatible with smrnunding uses. Because the Final Order contains written findings supporting that the proposed Splash Park is not in conformance with LDR § 12.02.07(F), the Court finds it does not depart from the essential requirements of law in this respect.
Finally, Petitioner argues that the Final Order departs from the essential requirements of law because it misapplies Section 12.02.07(F) of the LDRs. Petitioner contends Section 12.02.07(F) must be read in pari materia with the remaining provisions in the LDRs to be construed as only prohibiting those structures whose architectural elevations are inconsistent with the elevation restrictions contained elsewhere in the LDRs. Petitioner further argues that because
the highest elevation of the proposed Splash Park does not exceed the maximum allowable building height set forth in Code§ 6.01.03(B)(4), the Splash Park is in technical compliance and
§ 12.02.07(F) of the LDRs must be interpreted to permit its construction. The Court is disinclined to read LDR § 12.02.07(F) so broadly. The criteria specified in subsection 12.02.07(F) specifically govern the "front rear, and side architectural elevations for commercial structures," and provide additional restrictions pertaining to those architectural elevations. If the City, in drafting its Code, had intended that all commercial structures technically complying with the architectural elevation specifications set forth elsewhere in the LDRs and the Code be ubiquitously approved, LDR § 12.02.07(F) would serve no purpose. Thus, it is clear that §12.02.07(F) was intended to p1;ovide additional criteria that commercial structures must satisfy with respect to their architectural elevations. The City Commission conectly interpreted Section 12.02.07(F) of the LDRs; and consequently did not depart from the essential requirements of law.
Competent Substantial Evidence
Petitioner contends that there was no competent substantial evidence at the hearing before the City Commission to support the written findings that the proposed Splash Park does not conform to the LDRs.
Standard
At the outset, the Court observes that the City Commission's decision comes to this Cami "clothed with the presumption of correctness." Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998); Craig v. Craig, 982 So. 724 (Fla. 1st DCA 2008). This Cami may not go beyond the scope of review and re-weigh the evidence and substitute its own opinion for that of the City Commission. Marion Cnty. v. Priest, 786 So.2d 623 (Fla. 5th DCA 2001); see also Orange Cnty. v. Butler, 877 So.2d 810,812 (Fla. 5th DCA 2004); Dorian v. Davis, 874 So.2d 661, 663 (Fla. 5th DCA 2004); Eckler v. Orange Cnty., 763 So.2d 545 (Fla. 5th DCA 2000). The Florida Supreme Court has explained that "competent substantial evidence" is evidence a reasonable mind would accept as adequate to support a conclusion. DeGroot v. Sheffield, 95 So.2d 912,916 (Fla. 1957); see also Town a/Indialantic v. Nance, 400 So.2d 37, 40 (Fla. 5thDCA 1981). This Court may not quash the decision if there is any competent substantial evidence in the record to supp01i the City Commission's decision. Butler, 877 So.2d at 812. Additionally, layperson, non-expe1i testimony in land use matters may constitute substantial competent evidence, provided the testimony is fact-based. Priest, 786 So.2d at 626-27.
Analysis
The Cami finds that there exists substantial competent evidence supp01iing the written findings that "there was evidence of adverse visual impact on the smTounding environment" and "the proposed structure and usage is incompatible with surrounding uses." At the June 4, 2018 hearing, several residents, as well as the PZB chair and several Commissioners, testified as to the
adverse visual impact of the Splash Park, specifically with respect to the architectural elevation of
the proposed water slide and dump bucket. The record reflects testimony from numerous individuals supporting that the architectural elevation of the slide and dump bucket were both visually inconsistent with the sunounding environment and obscured the view from the recently developed scenic overlook at Anastasia State Park. Specifically, Commissioner Rich O'Brien expressed concerns regarding the impact of the proposed structure on the scenic overlook. (App. 147, 14-20). Jane West, the chair of the PZB, testified that the proposed height of the structure, combined with the finished floor elevation upon which the structure would be built, resulted in an elevation that would create an adverse visual impact on the surrounding beach and park environments. (App. 153, 8-14). Resident Carolyn Karger specifically referenced Section 12.02.0?(F) of the LDRs and provided testimony that the architectural elevation of the structure would be incompatible with the "image of the city as all of these wonderful qualities that we know and love." (App. 181, 23 - 182, 14).
Residents Kate Ramsey and Susan Thompson both provided fact-based testimony supporting the adverse visual impact of the Splash Park on the neighboring environment as well as its incompatibility with surrounding uses, paiiicularly given that its elevation would permit it to be viewed from the adjacent scenic overlook at Anastasia State Park. Ms. Thompson testified: "[M]y concern is it does not physically fit with what's going on around it, just as it is. To the left you've got Anastasia State Park." (App. 167, 6-9). Ms. Ramsey stated: "The state park is next door. That's protected land. Turtles nest in the sand in front of the resort. Fishe1man use the pier as a source of sustenance and relaxation." (App. 166, 13-16). Resident Karger fu1iher observed: "Later on the code acknowledges that harmony with the general area is a valid factor in approving or disapproving a commercial structure, and this is a structure. So I would say that it is adjacent to a conservation area. Even that little parking area that is next to it is owned by the state park -
by the State of Florida Depaiiment of Recreation and Parks." (App. 182, 15-22). Resident Jodi
Kotrady-Hatin testified: "Clearly ... a massive colorful slide is incongruent with a beautiful natural state park, which is right next door." (App. 188, 4-7). All of the aforementioned statements constitute fact-based citizen testimony regarding the visual impact of the architectural elevation of the proposed Splash Park on the surrounding areas. Priest, 786 So.2d at 626-27; Metropolitan Dade Cnty. v. Blumenthal, 675 So.2d 598, 607 (Fla. 3d DCA 1995). Accordingly, the Court finds the record contains ample competent substantial evidence in the form of fact-based testimony from residents, the chair of the PZB, and the City Commissioners supporting the Commission's findings.
Conclusion
In reaching its determination, the Court is limited to those matters appropriate for certiorari review. It is not for this Court to determine whether ultimately the Petitioner's application should be granted or denied. It is for this Court to determine whether Petitioner was afforded procedural due process, whether the essential requirements of law were observed, and whether the City Commission's findings are supp01ied by competent substantial evidence. Because the record reflects that the City Commission's decision was based on competent substantial evidence, afforded Petitioner procedural due process, and observed the essential requirements of law, as described more paiiicularly above, the Petition for Writ of Ce1iiorari must be denied.
Therefore, it is ORDERED AND ADJUDGED that:
1. Petitioner's Amended Petition for Mandamus, or in the Alternative, Writ of Ce1iiorari is hereby DENIED.
DONE AND ORDERED in Chambers, in St. Johns County, St. Augustine, Florida, this
- day of April, 2019.
R.LEESMITH
Circuit Judge
Copies to:
Cindy A. Laquiarda, Esq. Thomas O'Neal Ingram, Esq. Counsel for Petitioner
Jeremiah Sean Mulligan, Esq. James Patrick Wilson, Esq.
Counsel for Respondent
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