LAZARO TEJERA

v.

TOWN OF MIAMI LAKES

Before: WALSH, TRAWICK and SANTOVENIA, JJ.

WALSH, J.

Filing # 163733191 E-Filed 12/28/2022 10:26:26 See Villa Lyan, Inc. v. Perez, 159 So. 3d 940, 942 (Fla. 3d DCA 2015) (“when a party improperly files a timely notice of appeal, the appellate court cannot dismiss for lack of jurisdiction, but rather must treat the appeal as a petition for writ of certiorari”). Background Petitioners applied for a variance with the Town of Miami Lakes to decrease the required setback at the rear of their residence to install a swimming pool and attached canopy. According to the staff analysis report submitted to the Planning and Zoning Board, the reason for the request was: “due to the fact they additionally plan on building an attached canopy in their backyard; in their view the additional room provided by the proposed variance is necessary for aesthetic reasons and to increase their utility and enjoyment of the planned improvements.” (Answer Brief at Exhibit A)¹ [*3] The request for variance was scheduled for a hearing before the Planning and Zoning Board. Although not framed by their written request, Petitioners were permitted to orally make an additional request at the hearing for a second variance to decrease the side setback to 5 feet from 7.5 feet required by the zoning code. According to the parties, Reina Tejera’s disabled mother visits the home occasionally, and the decreased side setback was needed to allow her wheelchair to maneuver through the doors to the outside patio. Following testimony and evidence presented by the parties at a hearing, the Board approved the request for a variance to decrease the side setback but denied the request to decrease the rear setback. Specifically, the order provided: 1. In accordance with Section 13-305(f)(1) of the Town’s Land development Code (LDC), the Planning and Zoning Board, having considered the testimony and evidence in the record presented by all parties, finds that the Applicant’s request does not comply with the variance criteria at Section 13.305(f)(1)(a) through (g) of the Town LDC, which are as follows [listing seven criteria for a variance]:

(Exhibit B to Answer Brief) The order listed each of the criteria for a variance and denied the request for a variance to the rear setback.

[*4] Standard of Review This Court applies a three-part standard of review to an administrative agency’s decision: “(1) whether procedural due process has been accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence.” See Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) (citation omitted). Analysis Petitioners argue in a two-page brief, without citation to a record appendix or transcript, that they were improperly denied a variance to their rear setback that was needed to accommodate Reina Tejera’s disabled and wheelchair-bound mother. They do not address any of the elements constraining our narrow standard of review. The Petitioners were not deprived of due process. “A quasijudicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard.” Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991). Further, “the parties must be able to present evidence, [*5] cross-examine witnesses, and be informed of all the facts...” Id. The Petitioners were properly noticed and were given the right to be heard and present evidence at a hearing. From the order, it is apparent that they were permitted to present arguments and make an additional variance request to adjust the side setback of their property, a request that was granted. And in contrast to their argument on appeal that the rear setback variance was needed to accommodate a disabled visitor, their written request for the rear variance was based on their desire to build a canopy and increase aesthetics and enjoyment of their property. (Answer Brief, Exhibits A and B) Petitioners were therefore afforded due process.

Competent substantial evidence supported the Board’s ruling. Exhibit A to the Answer Brief is the detailed staff analysis submitted to the Board prior to the hearing. Staff analysis constitutes competent substantial evidence to support a zoning decision. See Village of Palmetto Bay v. Palmer Trinity Private Sch., Inc., 128 So. 3d 19, 26-27 (Fla. 3d DCA 2012). In addition to the staff analysis, the Petitioners were permitted to testify and introduce evidence. The plans for the pool and patio accoutrements were admitted as were [*6] letters from interested neighbors. Therefore, competent substantial evidence supported the Board’s decision.

In denying the variance to the rear setback, the Board did not depart from the essential requirements of law. Within the order, the Board applied the Town ordinances governing variances from the Town’s land development code. The requirements of law were therefore abided.

Finally, we note that Petitioners did not file an appendix, as required by Rules 9.190(4) and 9.220, Florida Rules of Appellant Procedure. Neither did they file a transcript of the hearing before the Board, as required by Rule 9.200(b), Florida Rules of Appellate Procedure. The burden is on the Petitioners to demonstrate error, and “the lack of a trial transcript or a proper substitute results in a record that is inadequate to demonstrate reversible error and requires affirmance.” Fuhrman v. Sara G 01, LLC, 3D22-0904, 2022 WL 17660319 (Fla. 3d DCA Dec. 14, 2022), citing Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.1979). (citation omitted) The Petition for Writ of Certiorari is therefore DENIED.

[*7] SANTOVENIA and TRAWICK, JJ., CONCUR. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL [*8] Copies Furnished to: [email protected] [email protected]