TOWN OF PONCE INLET, A FLORIDA MUNICIPAL CORPORATION, PETITIONER,
v.
EDMOND R. RANCOURT AND PAULA RANCOURT, HUSBAND AND WIFE, RESPONDENTS
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The Town of Ponce Inlet sought review of a circuit court order that granted a writ of certiorari directing the Town's Board of Adjustment to hold a de novo hearing on the Rancourts' variance request. The appellate court held that the Board properly denied the variance because the Rancourts failed to meet the statutory prerequisites for zoning variances, and reversed the circuit court's decision.
The appellate court reversed the circuit court's order and quashed the writ of certiorari. The Board of Adjustment properly denied the variance because the Rancourts failed to satisfy the four statutory prerequisites: they did not demonstrate a special condition unique to their property, the condition resulted from their own unauthorized actions, they suffered only economic hardship rather than undue hardship depriving them of rights enjoyed by similarly zoned property owners, and they presented no evidence supporting the final two requirements.
[1] A prerequisite to granting a zoning variance is the presence of an exceptional and unique hardship that is not self-created.
[2] A hardship arising from mere economic disadvantage is insufficient to justify a zoning variance.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a prerequisite to the granting of a zoning variance is the presence of an exceptional and unique hardship. The hardship cannot be self created.”
Establishes the foundational requirement for variances and prohibits self-created hardships from supporting variance requests.
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Join FLexlaw to unlock all legal intelligenceThe Rancourts purchased oceanfront property with a partially completed house and deviated from approved building plans by constructing a screened pool…
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PETERSON, Judge.
The Town of Ponce Inlet (Town) petitions for a writ of certiorari seeking review of the circuit court’s order granting a writ of certiorari. The circuit court’s order directed the Town’s Board of Adjustment to hold a de novo hearing on the Rancourts’ petition for a variance of the Town’s setback ordinance. We grant the Town’s petition and quash the circuit court’s order. The Rancourts purchased oceanfront property on which was located a partially completed house. In completing the construction,-they deviated from the plans submitted for the Town’s issuance of a building permit by constructing a screened pool enclosure into the eight foot side setback required by section 700.09 of the Town’s ordinance 85-27. After receiving a notice of violation the Ranc-ourts filed an application for a variance to allow the encroachment.
During the hearing on the variance application, letters from two neighbors were submitted indicating absence of objections and Rancourts’ counsel argued .that they would suffer economic hardship if the encroachment was removed and that removing the encroachment would expose the pool to the elements. He candidly admitted that the location of the enclosure was a “matter of personal preference” and that if it was extended only to the roof line of the house, the pool would have protection although the size of the usable pool area would be reduced.
Relying upon this court’s decision in Snyder v. Board of County Com’rs of Brevard County, Fla., 595 So. 2d 65 (Fla. 5th DCA 1991), the circuit court granted the application for the writ. In Snyder this court held that a rezoning decision is subject to close judicial scrutiny and that effective judicial review, constitutional due process, and other essential requirements of law require a governmental agency to state reasons for its action and to make findings of fact. We also held that the initial burden is on a landowner to demonstrate that his application complies with the reasonable procedural requirements of the ordinance and is consistent with the comprehensive land use plan. Upon meeting this burden, this court held that a landowner is presumptively entitled to use his property in the manner sought unless the agency asserts and proves by clear and convincing evidence that a specifically stated public necessity requires a more restrictive use.
The supreme court partially reversed Snyder in Board of County Commissioners v. Snyder, 627 So. 2d 469 (Fla.1993) by specifically holding that an agency would not be required to make findings of fact but that on review of a quasi-judicial decision a circuit court must determine whether there was competent substantial evidence presented to support the agency’s decision. The basis for the circuit court’s decision in the instant case was the agency’s failure to make findings of fact. The trial court properly relied on this court’s then-existing decision in Snyder, but both the trial court and this court must now follow the standard later reestablished by the supreme court, that is, whether there was substantial evidence to support the denial of the variance.
In Nance v. Town of Indialantic, 419 So. 2d 1041 (Fla.1982), the supreme court held that a prerequisite to the granting of a zoning variance is the presence of an exceptional and unique hardship. The hardship cannot be self created. Josephson v. Autrey, 96 So. 2d 784 (Fla.1957). The hardship cannot be one of mere economic disadvantage. See Metropolitan Dade County v. Reineng Corp., 399 So. 2d 379 (Fla. 3d DCA 1981); Burger King v. Metropolitan Dade County, 349 So. 2d 210 (Fla. 3d DCA 1977), appeal dism’d., 355 So. 2d 512 (Fla.1978).
No evidence was presented to the Board of Adjustment in the instant case other than the neighbors’ letters showing lack of objection,1 pictures of the Rancourts’ property, and section 1003.01 of the zoning ordinance. The record indicates that one of the Board members reviewed the requirements of section 1003.01 which must be met before a variance is granted, and remarked that none of the requirements had been met. We agree that the requirements were not met:
1. The first requirement is that there must be a special condition peculiar to the land or building not applicable to others in the same zoning classification. The Rancourts argued that they had an approved wall constructed within the setback area. However, this was not unique because it appears that the ordinance allows a wall within the setback area for similarly zoned property.
2. The second requirement is that the special condition must not result from the applicant’s actions. The Rancourts admitted that the screen enclosure did not exist when they purchased the property, that the approved plans did not show the enclosure, and that a permit was never sought. Additionally, Mr. Rancourt had developed other property in the town and he should have been familiar with the zoning ordinances. The special condition requiring the variance occurred as a direct result of the Rancourts’ unilateral and unauthorized action in violation of the existing zoning ordinance.
3. The third requirement is that literal interpretation of the ordinance would work an unnecessary and undue hardship on the Rancourts, depriving them of rights commonly enjoyed by others of the same zoning classification. The Rancourts argued only that the enclosure was already in place and that they would suffer economically if required to remove it. They further initially argued that the pool could not be screened if the existing enclosure was disallowed; this argument was later modified when it was admitted that the pool could still be enclosed but that it would result in several feet of “unusable” land between a rear enclosure and the wall. The argument fails because the hardship was one of mere economic disadvantage and because it was self-created.
4. No evidence was presented to support the final two requirements that the variance be the minimum necessary to allow reasonable use and that granting it would be in harmony with the general intent of the zoning ordinance.
Accordingly, we quash the circuit court’s order and grant the Town’s petition.
PETITION GRANTED; ORDER QUASHED.
HARRIS, C.J., and DIAMANTIS, J., concur. . The agreement of neighbors should not be a sufficient or sound basis to allow a variance although it could be a consideration in a close case. Neighbors and their attitudes change from time to time while the variance does not. Objections of neighbors have been determined to be insufficient to deny a zoning application. Pollard v. Palm Beach County, 560 So. 2d 1358 (Fla. 4th DCA 1990); City of Apopka v. Orange County, 299 So. 2d 657 (Fla. 4th DCA 1974).
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Debes v. The City OF KEY W., 690 So. 2d 700 (Fla. 3d DCA 1997)…e a zoning regulation — or any governmental action adversely affecting the [*703] rights of others — which is based on no more than the fact that those who support it have the power to work their will. Accord, e.g., Town of Ponce Inlet v. Rancourt, 627 So. 2d 586, 588 n. 1 (Fla. 5th DCA 1993); City of Apopka v. Orange County, 299 So. 2d 657 (Fla. 4th DCA 1974). For these reasons, we conclude that the circuit court decision so fundamentally and seriously departs from the controlling law that a miscarriage of…
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Miami-Dade Cnty. v. Brennan, 802 So. 2d 1154 (Fla. 3d DCA 2001)…327 So. 2d 769 (Fla.1975)[City of Tampa]; Josephson v. Autrey, 96 So. 2d 784 (Fla.1957)[City of Daytona Beach]; Tau Alpha Holding Corp. v. Board of Adjustments, 126 Fla. 858, 171 So. 819 (1937)[City of Gainesville]; Town of Ponce Inlet v. Rancourt, 627 So. 2d 586 (Fla. 5th DCA 1993); Maturo v. City of Coral Gables, 619 So. 2d 455 (Fla. 3d DCA 1993); Herrera v. City of Miami, 600 So. 2d 561 (Fla. 3d DCA 1992); Bernard v. Town Council of Palm Beach, 569 So. 2d 853 (Fla. 4th DCA 1990); Thompson [*1156] v. Plann…
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Mills v. Town of Windermere (9th Cir. Ct. App. Div. 2015)…e, Mills can and is building a house (and plans to build a guest house) on his property. The setback requirement does not cause him to lose all reasonable use of the property. This is similar to the pool enclosure in Town of Ponce Inlet v. Rancourt, 627 So. 2d 586 (Fla. 5th DCA 1993). In Rancourt, a pool enclosure built to comply with the zoning regulations would leave some unusable space on the property. Id. at 587. Instead of building such an enclosure, the owners built one that did not comply with the…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bd. OF Cnty. Comm'rs OF Brevard Cnty. v. Snyder, 627 So. 2d 469 (Fla. 1993)
- Norton Josephson v. Autrey, 96 So. 2d 784 (Fla. 1957)
- The City OF Apopka v. Orange Cnty., 299 So. 2d 657 (Fla. 4th DCA 1974)
- Warriner v. Maxine Hotel Corp., 96 So. 2d 784 (Fla. 1957)
- Nance v. Town OF Indialantic, 419 So. 2d 1041 (Fla. 1982)
- Snyder v. Bd. OF Cnty. Comm'rs OF Brevard Cnty., 595 So. 2d 65 (Fla. 5th DCA 1991)
- Burger King Corp. v. Metro. Dade Cnty., 349 So. 2d 210 (Fla. 3d DCA 1977)
- Pollard v. Palm Beach Cnty., 560 So. 2d 1358 (Fla. 4th DCA 1990)
- Emil Morton v. Goldman, 399 So. 2d 379 (Fla. 3d DCA 1981)
- Metro. Dade Cnty. & Hill Bros., Inc. v. Reineng Corp., 399 So. 2d 379 (Fla. 3d DCA 1981)