CARMEN M. GOMEZ, PETITIONER,
v.
CITY OF ST. PETERSBURG, A FLORIDA MUNICIPALITY, RESPONDENT
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Carmen Gomez sought a variance to operate a triplex in a single-family zoned district in St. Petersburg, claiming the property was grandfathered as a pre-existing nonconforming use. The circuit court upheld the Board of Adjustment's denial of the variance, finding Gomez failed to meet her burden of proving continuous triplex use and failed to maintain the required occupational license.
The court held that the Board of Adjustment's denial of the variance was supported by substantial, competent evidence and that Gomez failed to meet her burden of proof. The circuit court properly upheld the denial, and the Board was not required to present affirmative evidence when Gomez's own evidence was found insufficient to support her claim.
[1] A circuit court reviewing a zoning board's denial of a variance is limited to determining if the denial was supported by substantial, competent evidence.
[2] The applicant bears the burden of establishing the requirements for a zoning variance before the Board of Adjustment.
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Join FLexlaw to unlock all legal intelligence“As a general rule, the applicant has the burden to come before the Board of Adjustment and establish the requirements for a variance.”
Establishes that Gomez, as the variance applicant, bore the burden of proof to demonstrate entitlement to the variance.
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Join FLexlaw to unlock all legal intelligenceGomez purchased a three-unit dwelling in 1980 without realizing it was in a single-family zoning district established in 1950. She did not know she ne…
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ALTENBERND, Judge.
Mrs. Gomez seeks review from a circuit court appeal which upheld the denial of a variance. She had requested the variance to permit a triplex in a district zoned for single-family units. The circuit court found that the denial of the variance was supported by substantial, competent evidence. We cannot revisit that issue. City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla.1982). We deny the writ because the circuit court afforded procedural due process and applied the correct law. Educ. Dev. Center, Inc. v. City of West Palm Beach Zoning Bd. of Appeals, 541 So. 2d 106 (Fla.1989).
Mrs. Gomez purchased the three-unit dwelling in 1980. She bought the property directly from the prior owner without the help of a realtor. When she purchased the property, she did not know that the triplex was in an area which had been zoned for single-family units since 1950. She did not realize that she needed an occupational license for the facility. The prior owner had never obtained an occupational license.
In October 1987, the City of St. Peters-burg notified Mrs. Gomez that the triplex violated the city zoning code and suggested that she apply for a variance. In December 1987, she applied for a variance on grounds that the unit had been a triplex continuously from a time prior to the zoning regulation and, thus, was grandfathered.
At the hearing before the Board of Adjustment, Mrs. Gomez did submit evidence which supported her theory that the house had been a triplex as' early as 1947. The City presented no evidence at the hearing, but argued that Mrs. Gomez’s evidence was insufficient to satisfy her burden of proof. Specifically, Mrs. Gomez’s proof did not establish that the property had been a triplex continuously from 1947 to 1987.
Moreover, under the St. Petersburg City Code, a grandfathered use is abandoned if the owner fails to obtain an occupational license for two years. § 64.07(6)(c), (11), St. Petersburg City Code. In this case, it is undisputed that Mrs. Gomez failed to obtain the occupational license. The Board of Adjustment voted unanimously to deny the variance. On petition for writ of certiorari to the circuit court, that court found the decision was supported by substantial, competent evidence.
As a general rule, the applicant has the burden to come before the Board of Adjustment and establish the requirements for a variance. Bd. of County Comm ’n v.
First Free Will Baptist Church, 374 So. 2d 1055 (Fla. 3d DCA 1979).
The burden upon a petitioner for a variance is more extensive than the burden upon a party seeking a permissible use by special exception. Irvine v. Duval County Planning Comm’n, 466 So. 2d 357, 364 (Fla. 1st DCA 1985) (Zehmer, J., dissenting), quashed, 495 So. 2d 167 (Fla.), dissent adopted, 504 So. 2d 1265 (Fla. 1st DCA 1986).
The Board of Adjustment in this case simply found that Mrs. Gomez’s proof was insufficient to support her claim for a variance. While there surely was evidence supporting Mrs. Gomez’s claim, the circuit court was entitled to review the weaknesses in that evidence to determine that the Board’s decision was supported by substantial, competent evidence. The rule of law requiring substantial, competent evidence to support the Board’s decision did not require the City to present affirmative evidence when the Board simply weighed Mrs. Gomez’s evidence and determined that it was insufficient. While we sympathize with Mrs. Gomez’s predicament, it is clear that the circuit court provided procedural due process to her and applied the correct rules of law.
Accordingly, we must deny the petition.
The petition for writ of certiorari is denied.
LEHAN, A.C.J., and PARKER, J., concur.
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The Bd. OF Cnty. Comm'rs OF Sarasota Cnty. v. Webber, 658 So. 2d 1069 (Fla. 2d DCA 1995)…so, however, we emphasize that nothing in this opinion should be construed as indicating whether such evidence does or does not exist because that is beyond the reach of our certiorari jurisdiction in this case. See Gomez v. City of St. Petersburg, 550 So. 2d 7 (Fla. 2d DCA 1989). Certiorari granted, order quashed, and cause remanded with directions. RYDER, A.C.J., and ALTENBERND, J., concur. . The Department's written analysis recommend-mg denial was also before the Board. . The proceedings as to coun…
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Sarasota Cnty. v. Kemper, 746 So. 2d 539 (Fla. 2d DCA 1999)…did the court in Webber, that “nothing in this opinion should be construed as indicating whether such evidence does or does not exist because that is beyond the reach of our certiorari jurisdiction in this case. See Gomez v. City of St. Petersburg, 550 So. 2d 7 (Fla. 2d DCA 1989).” Id. at 1073. Certiorari granted, order quashed, and cause remanded with directions. WHATLEY, A.C.J., and GREEN and CASANUEYA, JJ„ Concur.…
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09 05 (9th Cir. Ct. App. Div. 2009)…the Board saying that it could not establish the necessary hardship, we recognize that it is “the applicant [who] has the burden to come before the Board of Adjustment and establish the requirements for a variance.” Gomez v. City of St. Petersburg, 550 So. 2d 7, 8 (Fla. 2d DCA 1989) (emphasis added). Special Conditions, Special Circumstances and the Self-created Hardship Rule In its response to the Amended Petition, the City asserts that the Beatties not only “had particular knowledge of the restrictive…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982)
- Educ. Dev. Ctr., Inc. v. City OF W. Palm Beach Zoning Bd. OF Appeals, 541 So. 2d 106 (Fla. 1989)
- State v. Green, 541 So. 2d 106 (Fla. 1989)
- Irvine v. Duval Cnty. Planning Comm'n, 495 So. 2d 167 (Fla. 1986)
- Irvine v. Duval Cnty. Planning Comm'n & the City Of Jacksonville, 466 So. 2d 357 (Fla. 1st DCA 1985)
- Bd. OF Cnty. Comm'rs OF Dade Cnty. v. First Free Will Baptist Church, 374 So. 2d 1055 (Fla. 3d DCA 1979)
- Irvine v. Duval Cnty. Planning Comm'n & the City of Jacksonville, 504 So. 2d 1265 (Fla. 1st DCA 1986)