12739 FL AVE LLC

v.

HILLSBOROUGH COUNTY

This case is before the circuit court to review an order of the Code Enforcement Special Magistrate finding that Appellant, 12739 FL AVE LLC, violated Hillsborough County Land Development Code, Section 4.01, when it made land alterations without a permit. As a result, Appellant was given 90 days to either obtain a permit and pass inspection for the work already done or remove the fill and pass inspection, plus the imposition of a daily fine if Appellant failed to comply with either option. In support of its appeal, Appellant alleges the administrative findings depart from essential requirements of law because the code does not reference “flood zone.” Also, the order suggests that Appellant adversely impacted neighbors’ property despite a lack of competent substantial evidence supporting the finding. Witness testimony provided competent substantial evidence that Appellant made land alterations without a permit. The finding that the land alterations resulted in flooding on neighboring property is incidental to the finding that Appellant made land alterations without first obtaining a permit, in violation of Section 4.01, and therefore constitutes harmless error.

Accordingly, the decision is affirmed. JURISDICTION AND STANDARD OF REVIEW This court has appellate jurisdiction to review code enforcement orders pursuant to Florida Statute 162.11. Code enforcement orders are reviewed to determine whether Appellant was afforded due process, whether the decision comports with the essential requirements of law, and whether competent, substantial evidence supports the decision. City of Deerfield Beach v. Vaillant, 419 So 2d 624, 626 (Fla. 1982).

FACTUAL BACKGROUND Appellant operates a car sales lot at 12885 North Florida Avenue. Hillsborough County issued the first notice of violation on August 31, 2022. After receiving the notice of violation Appellant submitted a proposed plan to Hillsborough County for review and approval. Hillsborough County conducted a total of six inspections on the property between August 25, 2022 and February 22, 2024; however, Appellant failed to obtain a permit.

On January 25, 2024, Hillsborough County issued a Notice of Hearing and Affidavit of Violation which described the facts supporting the violation as “fill has been added to the site causing flooding to the neighbors” and cited Land Development Code, Section 4.01, as the regulation that had been violated. As a result, Appellant was on notice that flooding had been alleged.

At the hearing on March 1, 2024, Appellant was represented by counsel and presented evidence. Derek Jones, a reviewer and inspector with the Hillsborough County Development Services Department, Stormwater, testified that alterations were made to the property and continued to exist. Mr. Jones also testified that the owner was asked to submit a plan and get it approved but that had not been completed. Mr. Jones recommended the owner could resolve the violation by either obtaining a natural resources permit, completing all work and passing inspection, or removing the fill. Appellant’s representative, Travis Hills, disputed that the property was significantly altered from its historic condition with regard to site, flow and stormwater. He acknowledged a permit application had been filed and stated the matter was moving forward. He argued that photographs showed the driveway had not changed in at least 15 years and the neighboring property had a propensity for flooding over the years. He further testified that water run off would only occur during a 100-year flood and denied flooding had impacted the neighbor. In response, Mr. Jones testified there was a swale that opened and spread into the neighbor’s yard. Mr. Hills conceded that land alterations were made to the property without first obtaining a permit. During the hearing, Hillsborough County’s and Appellant’s representatives debated whether the property was located in a flood zone. Wayne Doyon, a representative of Hillsborough County, stated the focus of the hearing was land alterations made without a permit. Chris Weddle, an engineer hired by Appellant’s neighbor, testified gravel was added to a large area of the property without a permit which affected the property to the north. At the conclusion of the hearing the Code Enforcement Special Magistrate found that the land alterations were made without a permit and violated Land Development Code, Section 4.01. The Order Imposing Fine, issued on March 4, 2024, gave Appellant the option to either 1) obtain a natural resources permit to address the fill material and stormwater requirements, and complete all work, including inspection, within 90 days with a failure to do so resulting in a fine of $200 per day or 2) remove the fill and pass inspection within 90 days with the failure to do so resulting in a fine of $100 per day. Appellant then filed this timely appeal. LEGAL ANALYSIS Decisions of code enforcement boards and magistrates are reviewed on appeal to determine whether the party was afforded due process, whether the decision comports with the essential requirements of law, and whether competent, substantial evidence supports the decision. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).

Appellant first contends the findings in the Order Imposing Fine depart from the essential requirements of law because the order refers to “Unpermitted Fill in a Flood Zone Adversely Impacting Neighbors” despite the Land Development Code making no reference to the term “flood zone.” The record shows Hillsborough County presented evidence that part of Appellant’s property was within a flood zone. Appellant’s witness testified a very small portion of its property was located within a flood zone. The County indicated the focus of the hearing was the addition of fill material without a permit and Appellant’s witness agreed. Appellant’s witness acknowledged fill was added without a permit. As a result, the language referring to flood zone in the order constitutes harmless error. Appellant next alleges the Order Imposing Fine is not supported by competent, substantial evidence. Substantial evidence is “such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.” De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).

Two witnesses testified unpermitted fill was added to the property. Appellant’s witness, Mr. Hills, admitted alterations were done to the property without a permit. Mr. Weddle also testified gravel was added to the property without a permit. Whether the property is located in a flood zone and whether the alterations caused flooding to neighboring property are incidental to whether or not alterations were made to the property, without a permit, in violation of Land Development Code, Section 4.01. The role of the reviewing court is not to reweigh evidence but to ensure that the decision is supported by competent substantial evidence.

Therefore, the presence of contrary evidence does not invalidate the order. The presence of some competent substantial evidence is sufficient to uphold the Code Enforcement Board’s order. City of Deland v. Benline Process Color Co., Inc., 493 So. 2d 26 (1986).

The evidence supports the finding that Appellant made alterations to its property without a permit. It is therefore ORDERED that the Code Enforcement Special Magistrate’s Order Imposing Fine dated March 4, 2024, is AFFIRMED.