LUCY CASTRO
v.
CITY OF SWEETWATER, FLORIDA, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA ET AL
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Lucy Castro petitioned to quash a Sweetwater City Commission resolution granting setback variances to Jose Diaz for residential construction. The court held that while the Notice of Appeal was procedurally sufficient, the City Commission violated its own Land Development Code by conducting a de novo hearing instead of an appellate review limited to the record made before the Planning & Zoning Board.
The Notice of Appeal was procedurally sufficient and any technical deficiencies were harmless. However, the City Commission violated its own Land Development Code by conducting a de novo hearing; the Code limits the Commission's appellate review to the record made before the Planning & Zoning Board, with authority only to affirm, reverse, or modify the Board's decision based on that record.
[1] A notice of appeal is procedurally sufficient if it provides ample notice of the grounds for appeal, even if minor technicalities exist.
[2] A municipal commission's appellate review is restricted to reviewing the record made before a lower body, absent specific provisions allowing for de novo evidentiary hear…
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“Based on the express provisions of the City's Land Development Code, the City Commission's scope of appellate review is restricted to a review of the record made below, as the City Commission is only empowered to 'affirm, reverse, or modify the actions of the Planning & Zoning Board' based on the record made before the Planning & Zoning Board.”
Establishes the legal standard limiting the City Commission's appellate authority to record review rather than de novo proceedings
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJose Diaz appealed an adverse land use decision and filed a Notice of Appeal with the City. The City Commission accepted this appeal and conducted a d…
The full statement of facts, procedural history, and disposition for this case are member content.
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Before, CRISTINA MIRANDA, MIGUEL M. DE LA O, VERONICA DIAZ, JJ.
DIAZ, J.
Petitioner, Lucy Castro, comes before this Court seeking to quash the City of Sweetwater’s (“City”) Resolution No. l5-4054 (“Resolution”), which grants three variances to setback requirements to accommodate a game room and other construction near the Side and rear property lines of a residential home. Petitioner raises two arguments on appeal. One, that the City failed to follow the essential requirements of law when it accepted Respondent Jose M. Diaz’ (“Diaz”) Notice of Appeal as a de novo application; and two, that the City failed to follow [*2] Page 2 of 4 Case No. I5-258AP the essential requirements of law when the City Commission conducted a dc novo evidentiary hearing instead of an appellate proceeding as the City Code requires. I This Court finds that the Notice of Appeal was procedurally sufficient under the City Code of Ordinances. The City Commission has elected to enact, by ordinance, land development regulations which are embodied in the City's Land Development Code, which is a subpart of the City’s Code of Ordinances. The Land Development Code prescribes the procedure for appealing adverse land use decisions, including filing notices of appeal, and for conducting appellate hearings before the Plamiing & Zoning Board and the City Commission. The City’s Land Development Code provides that the Notice of Appeal must state “[t]he specific error alleged as the grounds for appeal.” §9.08.03 (C), Sweetwater, Florida, Land Development Code. The Notice of Appeal provided ample notice to Petitioner and any other interested parties as to what Respondent Diaz’ issues were on appeal. The sufficiency of the notice is evident by the fact that Petitioner appeared at the hearing, with counsel, and presented relevant evidence ‘to the City Commission. Any deficiencies in the Notice were mere technicalities which would not have affected the City Con1mission’s ability to address the merits ofthe appeal. See Duarte v. RMC South Florida, Inc. , 973 So. 2d 495 (Fla. 3d DCA 2007). Petitioner’s second point bears more weight. Based on the express provisions of the City’s Land Development Code, the City Commission's scope of appellate review is restricted to a review of the record made below, as the City Commission is only empowered to "affirrn, reverse, or modify the actions ofthe Planning & Zoning Board" based on the record made before the Planning & Zoning Board. §9.08.06, Sweetwater, Florida, City’s Land Development Code. Specifically, §§9.08.00 through 9.08.06 of the Land Development Code sets forth the precise methods and standards for reviewing land use decisions rendered by city officials, the Planning & Zoning Board, and the City Commission. Sections 9.08.05 and 9.08.06 of the City’s Land Development Code, in particular, govern the procedure for reviewing an order, decision, or [*3] Page 3 of4 Case No. 15-258AP administrative determination when the Plamiing & Zoning Board or the City Commission acts as an appellate body. Those provisions state: 9. 08. 05. Appellate hearingeiplanning and zoning board. The planning and zoning board shall conduct a public hearing on the appeal. Any person may appear by agent or attorney. All materials transmitted to the zoning board upon the notice of appeal shall be a part of the record in the case. New materials may be received by the planning and zoning board where such materials are pertinent to the determination of the appeal. In exercising authority to review the decision of the city official, the planning and zoning board shall have all the powers of the officer from whom the appeal is taken and, in conformity with the provisions of law and this code may reverse or affirm, wholly or in part, or may modify the decision appealed from and may make such decision as ought to be made. The concurring votes of five-sevenths of the members of the planning and zoning board shall be necessary to reverse any decision of such city official, or to decide in favor ofthe appellant. (Emphasis added). 9.08.06. Appellate hearing-—Cily commission. The city commission on review shall have full power to affirm, reverse, or modify the action of the planning and zoning board. Based on §9.08.05 of the City’s Land Development Code, the Planning & Zoning Board is the only governing body authorized to re-determine or disregard the factual basis upon which the city official relied in reaching his or her decision. In addition, only the Planning & Zoning Board may substitute its own decision, since the Board has "all the powers of the officer from whom the appeal is taken." Conversely, §9.08.06 limits the City Commission's review in a manner that is identical to the manner in which a court would conduct judicial review. This section of the Land Development Code suggests that the City Commission is confined to a determination of the sufficiency of the evidence and the lawfulness of the procedure before the Planning & Zoning Board based on a review of the record of the Board's proceedings. It further suggests that the City Commission may only alter the Planning & Zoning Board's decision if the City Commission can reach a different conclusion from the facts drawn from the record. I i l s‘ l I I [*4] Page 4 of4 Case No. 15-258AP Because it also appears the provisions vary as to the parameters and manner of review based on the official or authority whose decision is being appealed, it is logical to conclude that a de novo review is limited when the decision below incorporates adequate procedures which have the potential of eliminating errors made earlier by an administrative official. This judicial circuit, sitting in its appellate capacity, has clarified that municipal ordinances, addressing the particular subject of the decision being appealed, control the method and scope of review. See, e.g, Dougherty v City ofMiami, 13 Fla. L. Weekly Supp. 959a (Fla. llth Jud. Cir., July 14, 2006) (holding the City of Miami Commission departed from the essential requirements of the law by conducting a de novo proceeding when the then-governing code did not provide for de novo proceedings); Daugherty v. City ofMiami, 16 Fla. L. Weekly Supp. 18b (Fla. llth Jud. Cir., Nov. I3, 2008) (approving the City Con1mission’s de novo proceedings in light of amendments to Miami’s City Code which expressly permit de novo proceedings). _ Until the City Commission enacts or amends its local laws to expand the appellate function of the Commission, it does not have the authority to conduct de novo hearings. For these reasons, this Court grants the Petition, quashes the July 6, 2015, Sweetwater City Commission Resolution 15-4054 granting the setbacks and other variances passed to accommodate Respondent Diaz’ proposed construction.
CRIST
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