DUVAL COLINTY, FLORIDA

Filing # 53870793 E-Filed 03/17/2017 11:30:46 AM

IN THE CIRCUIT COURT, FOURTH

IN AND FOR DUVAL COLINTY, FLORIDA

JUDICIAL CIRCUIT, CASE NO.:

16-2016-CA-004097

DIVISION:

CV.E

BARRY L. ADEEB, an individual, d/b/a Atlantic ATLANTIC BEACH DINER, INC.. a Florida corporation.

Beach Diner. and

Petitioner, VS

CITY OF ATLANTIC BEACH" a

Political Subdivision

o1 the State

of |lorida.

Respondent and

GATE PETROLEUM CO..

a Florida Corporation.

Intervenor/Respondent.

ORDER DENYING PETITION FOR WRIT OF CERTIORARI This matter has been brought to this court by Petition for Writ of Certiorari filed on behalf

of

Petitioners, Bany

L. Adeeb and Atlantic Beach Diner, Inc. (collectively "Beach

Diner"), following their unsuccessful appeal

of an adverse zoning decision to the City

Commission for the City of Atlantic Beach ("the City Commission"). The City Commission's decision was quasi-judicial in nature and this court has jurisdiction to review such a decision by

writ of certiorari. Art. V, $5(b), Fla. Const.; Fla. R. App. P. 9.030(c)( I )C;

see also Broward

County v. G.B.V. International, Ltd.,787 So. 2d 838, 843 (Fla. 2001) (Explaining that under

Florida law the common law writ of certiorari is appropriate to review a decision by a local

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govemmental agency not subject to review under the Administrative Procedure

Act).

For the

reasons detailed below, Beach Diner's petition must be denied.

I. Factual Background Intervenor/Respondent, Gate Petroleum Company ("Gate"), purchased a parceI of land in October

of20l4 that is located

on Atlantic Boulevard in the City of Atlantic Beach. The parcel

is zoned Commercial General (Zone CG) and contained, at the time of purchase, a

small

shopping center known as the "Atlantic Palms Plaza" at 535 Atlantic Boulevard. Since 1997, Beach Diner leased a flree-standing restaurant located at 501 Atlantic Boulevard that was also

included within this same parcel

of land. As part of the arrangement with the original

landowner, Beach Diner's customers were able to utilize a parking area that was shared with the shopping plaza. When Gate purchased the property, it acquired the entire parcel subject to the provisions ofBeach Diner's original 1997 long-term lease agreement.

Shortly after the purchase, Gate submitted a site development plan to the Atlantic Beach Community Development Board ("CDB") where Gate proposed to demolish the shopping center and construct a 6,400 square foot store for the retail sale of food, beverages, medicine, and other

convenience items. The site plan also called for the installation of seven pumps with fourteen

fueling positions lor the retail sale of gasoline. The site plan did not include the demolition of the Beach Diner, but did require a reduction in the available parking spaces traditionally used by the diner's customers.

The CDB initially approved Gate's proposal and found that it was authorized as a mixed use project

for Zone cG under the city's Land Development code found at section 24 oi the

Code of Ordinances of the City of Atlantic Beach, Florida (2016)

('LDC).

Specifically, the

CDB Director, Jeremy Hubsch, determined that the proposed project qualified as an "automotive

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service station" and a "retail sales outlet" which were both permitted uses-by-right in Zone CG

under section 24- l I 1 of the LDC. The CDB then issued a "Preliminary Site Development

Permit" approving the project. In response, Beach Diner, along with other individuals and businesses

in the immediate vicinity, filed an appeal of the CDB's decision to the full City

Commission in accordance with section 24-49 of the LDC.

After a fourteen-hour quasi-judicial hearing, the City Commission issued its "Order Confirming Approval of Site Development Plan, 15 CVPR-2411 With Modifications" where it expressly lound competent and substantial evidence that Gate's proposal "[met] the applicable

City regulations for site development plan approval for automotive service station in the CG Zoning District." The City Commission also determined that the CDB committed no enor by approving the site plan, but conditioned its confirmation of the CDB's decision upon Gate's dedication

of thirty parking spaces on the parcel of land for Beach Diner's exclusive

use.

Although more than what was contemplated in Gate's original site plan, the number of parking spaces required by the

City Commission was still

a reduction

from the parking that was available

to Beach Diner before Gate's purchase ofthe property. This petition followed.

II. Jurisdiction As a threshold issue, Respondents have moved to dismiss Beach Diner's petition on grounds that this court does not have jurisdiction because the petition was not timely filed within

thirty days of the City Commission's order. Fla. R. App. P. 9.100(c)(2) ("The following shall be filed within 30 days of rendition of the order to be reviewed: ... (2) A petition to review quasi-

judicial action of agencies, boards, and commissions of local govemment, which action is not directly appealable under any other provision of general law, but may be subject to review by

certiorari...."). Beach Diner actually filed

a document entitled "Petition

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for Writ of Certiorari"

with the Clerk of the Circuit Court before the expiration of the thirty day time period, but Respondents maintain that the original petition failed to comply with the requirements of Florida

Rule of Appellate Procedure 9.100(g) and, therefore, cannot provide the basis for invoking the original jurisdiction of this court. Rule 9.100(g) states, in part, that petitions "shall contain basis for invoking the jurisdiction nature

l)

the

ofthe court; 2) the facts on which the petitioner relies; 3) the

ofthe relief sought; and 4) argument in support ofthe petition and appropriate citations of

authority." The rule further

mandates that

"[i]f

the petition seeks an order directed to a lower

tribunal, the petition shall be accompanied by an appendix as prescribed by rule 9.220, and the petition shall contain references to the appropriate pages ofthe supporting appendix." According

to the Respondents, compliance with rule 9.100(g) is mandatory under the express language of the rule (the petition "shall" contain) and the defects in Beach Diner's original petition are jurisdictional in nature. Without question, Beach Diner's original petition failed to comply with the requirements of rule 9.100(g). The original petition contained no facts, no argument, no mention of the nature

of the relief sought, no attached appendix with a conlormed copy of the lower tribunal's order under review (as required by Florida Rule of Appellate Procedure 9.220), and no citations to the

appropriate pages

ol the supporting appendix. Beach Diner filed an amended petition

conformed to all of the specific requirements under the rule, but

it filed the

that

amended petition

well after the thirty-day deadline. At oral argument, counsel for Beach Diner described its original petition as a "placeholder" that was simply fited in order to invoke the jurisdiction of the

circuit court and allow the petitioner more time to provide a fully compliant amended petition. The original petition was, in fact, more akin to a notice of appeal that must be timely filed

Page 4

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pursuant to Florida Rule of Appellate Procedure 9. 1 l0 in cases involving the direct appeal of a

final order.

Although woefully lacking in even the most basic requirements under rule 9.100(9), Beach Diner's original petition was still sufficient to invoke the jurisdiction of this court. There appears at first pass

to be sound reasons to dismiss petitioner's action, namely the express

language of rute 9.100(g) and the lack

ofany authority for a "placeholder" petition, but to do

so

would be inconsistent with the long-standing policy that lavors the resolution of claims on their merits and precedent in suppo( of that policy. For example, the district court in Cbof v. City o.f

Ilinter Haven Police Department,

S3T

So.2d 492 (Fla. 2d DCA 2003), faced a situation where

the circuit court dismissed a petition for writ ofcertiorari because the petition failed to contain an appendix, supporting citations to the appendix, and a preliminary basis for relief. In quashing the

circuit court's decision, the panel in Coolr provided the following observations:

As a general policy, all parties should be given a full and fair opportunity to have their disputes settled on the merits. This policy is evident in our rules of appellate procedure with regard to supplementing the record and may reasonably and logically be extended to amending petitions to add or supplement appendices. See Fla. R.App. P.9.200(0(2) Clf the court finds the record is incomplete, it shall direct a pa(y to supply the omitted parts of the record. No proceeding shall be determined, because of incomplete record, until an opportunity to supplement the record has been given.") (Emphasis added). Furthermore, amendments to petitions for writ of certiorari are generally allowed to include additional substantive argument when the interests ofjustice require. Fla. R.App. P. 9.040(d) (.'At any time in the interest ofjustice, the court may permit any part olthe proceeding to be amended so that it may be disposed of on the merits."); see also N. Beach Ass'n of St. Lucie County, Inc. v. St. Lucie County, 706 So.2d 62, 63 (Fla. 4th DCA 1998). If amendments which include substantive changes are permissible, certainly a party should be able to amend a petition to comply with procedural rules requiring an appendix and appropriate relerences thereto.

Id. at 434. Respondents recognize the line

of

cases similar

to Cook that underscore the judicial

preference for determining issues on their merits and for avoiding substantive outcomes based on

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procedural technicalities, but insist that the original petition is more than technically flawed. They argue that Beach Diner's original petition was utterly devoid ofany content and, outside

of

calling it a petition for writ of certiorari, made no pretense at compliance with the requirements

of rule 9.100(9). Under such

circumstances, Respondents urge this court

to recognize

a

distinction between this case and decisions llke Cook and find that a "placeholder" petition, even

if filed within

the applicable thirty-day time period, is insufficient to invoke the circuit court's

jurisdiction to issue a writ of certiorari. Respondents' invitation is one that this court must decline to accept. First and foremost, Respondents have provided this court with no authority for the proposition that the requirements

ofrule 9.100(g)

are

jurisdictional in nature. There are numerous cases where certiorari reliefhas

been denied on the basis that a petitioner has not supplied a petition in conformity with rule

9.100(g). See, e.g., Dunn v. Sentry Ins., 434 So.2d 45 (Fla. 5th DCA 1983) (denying petition for

writ of certiorari due to petitioner's failure to supply an appendix); Aleshire v. Ackerman, 418 So.2d 307 (Fla. 5th DCA 1982) (same); see also City of Miami v. Powers,313 So.2d 35 (FIa.1975) (dismissing petition based on petitioner's persistent failure

to comply with court

orders setting due dates for filing an appendix). However, those reported decisions are typically denials on the merits, rather than outright dismissals for lack ofjurisdiction, where the losing

party has not taken advantage of the opportunity to file an amended petition to correct the deficiency.

Moreover,

if the requirements of rule 9. 100(g)

Respondents suggest, then

were jurisdictional to a certain degree as

it would immediately raise the question of where the courts should

draw the line for compliance and non-compliance with the rule in order to determine when the court obtains juisdiction in a particular case. Such an exercise would seem rather arbitrary, lead

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to uncertainty as to what is expected ofthe lawyers handling such cases, and create unnecessary

litigation. Admittedly, the situation created by the deficiencies in Beach Diner's original petition is not ideal. On balance, however, it would be far worse to deny Beach Diner the opportunity to present the merits of its case because of a technical deficiency in its original petition that can be

corrected by amendment pursuant to Florida Rule olAppellate Procedure 9.040(d) ("At any time

in the interest ofjustice, the court may permit any part ofthe proceeding to be amended so that it may be disposed of on the merits."), that has been corrected by an amended petition,l and that Respondents conceded at oral argument has not caused them any substantial prejudice in their

ability to respond to Petitioner's arguments. On this threshold .jurisdictional issue, the decision in Johnson v. Citizens State Bank,537

So. 2d 96 (Fla. 1989), is instructive. Johnson was a case that originated in county court. Consistent with the requirements of rule 9.110, the losing party took a direct plenary appeal

of

the county court's final order to the appropriate circuit court and the circuit court, in its appellate capacity, affirmed the decision. Not satisfied, the losing party then sought review of the circuit

court's decision in the district court of appeal. Instead of filing a proper petition for writ of certiorari with the clerk of the district court within thirty days ofthe order, the losing party filed a notice of appeal with the clerk of the circuit court. See Fla. R. App. P. 9.030(b)(2)B (The certiorari jurisdiction of district courts of appeal may be sought to review

... (B) final orders of

circuit courts acting in their review capacity."). As a result, the district court dismissed the appeal on the basis that its jurisdiction had not been timely invoked. Johnson, 537 So. 2d at 97 .

l This court has not overlooked the fact that Beach Diner filed its amended petition without seeking leave of court or at least approaching Respondents to try and obtain their consent to filing it. Once the court has jurisdiction, it can disregard any procedural defect that does not adversely affect the substantial interests of the panies under rule 9.040(d) ("ln the absence of amendment, the court may disregard any procedural error or defect that does not adversely affect the substantial rights of the parties."). The failure to obtain leave of court did not adversely affect Respondent's substantial interests in this case. Page 7

of30

By the time the case reached the Florida Supreme Court, all parties agreed that a petition

lor writ of certiorari filed in the district court of appeal was the only appropriate method to obtain review of the circuit court's decision. 1d. However, the court in Johnson determined that a simple notice

ofappeal filed in the wrong court was still sufficient to invoke the district court's

certiorari jurisdiction

to review the circuit court's decision (and apparently to file a proper

petition with an appendix at a later date well beyond the thirty day time period). 1d. at 98. The Johnson court reasoned that how a party characterized the form oftheir requested appellate relief under the facts of that case was immaterial to the reviewing court's jurisdiction to decide the case.

There is no question that an appellate court has jurisdiction to review a cause even though the form of appellate relief is mischaracterized. Thus, district courts have considered as

certiorari, erroneously titled notices of appeal. See, e.g., Hillsborough County v. Marchese,519 So.2d 728 (Fla.2d DCA 1988), cause dismissed, 5265o.2d 75 (Fla.l988); Nunezv. Gonzalez,456 So.2d 1336, 1339 (Fla.2d DCA 1984); Sunshine Dodge, Inc. v. Ketchem, 445 So.2d 395,396 (Fla. 5th DCA 1984); Wingate v. Deportment of Highway Safety and Motor Vehicles,442 So.2d 1023,1024 (Fla. 5th DCA 1983); Hackenberg v. Artesian Pools of East Florida, |nc.,440 So.2d 475 (Fla. 5th DCA

petitions

for writs of

1983); Radio Communications Corp. v. Oki Electronics of America, Inc., 277 So.2d 289, 290 (Fla. 4th DCA 1973). Indeed, a district court shall not dismiss a timely filed notice of appeal, ifupon consideration, the court concludes that relief would be wananted under a petition. Art. V, $ 2(a), Fla. Const.; Fla.R.App.P. 9.040(c).

Id. at97-8. The court further noted that "[o]nce the district court's jurisdiction has been invoked,

it cannot be divested of jurisdiction by a hindsight determination that the wrong remedy was sought." ld. at98.

Dismissing Beach Diner's petition

for lack of jurisdiction would appear wholly

inconsistent with the outcome in Johnson. The petitioner in Johnson obviously did not comply

with the requirements of rule 9.100(g) in a timely fashion when the petitioner requested the wrong form of relief through a notice of appeal and submitted that request to the wrong court. Yet, the court in Johnson recognized that the petitioner still did enough to vest jurisdiction in the Page 8

of30

district court and that the technical deficiencies could be corrected at a later date. In this

case,

of relief in the appropriate court

and,

Beach Diner at least requested the appropriate form

consistent with the outcome in Johnson, such action is enough to vest jurisdiction with this court

to review its petition. Once invoked, jurisdiction cannot be divested because of an initial failure to comply with the procedural requirements ofrule 9.100(g).

III. Merits For a quasi-judicial decision by a local govemmental agency such as the one under consideration in this case, a circuit court's review is limited to whether the agency accorded the

petitioner due process of law, observed the essential requirements of the law, and suppo(ed its

findings by competent substantial evidence. Haines City Community Development

v.

Heggs,

658 So. 2d 523, 530 (Fla. 1995). Beach Diner contends that for various reasons the City Commission departed from the essential requirements of the law when

it affirmed the CDB's

decision to approve Gate's site plan as a mixed use project consisting of an "automobile service

station" and a "retail sales

affirmation

of the CDB's

outlet."

Beach Diner also argues that the City Commission's

determination that Gate's proposed site plan qualified as an

"automobile service station" was not supported by competent and substantial evidence. Finally,

Beach Diner believes that they were not aflorded due process

of law

because the City

Commission improperly allocated the burden of proof during the appeal hearing. None of the grounds advanced by Beach Diner, however, are sufficient for this court to grant the relief it seeks.

A. Departure from the Essential

Requirements ofthe Law

Beach Diner's argument that the City Commission's decision was a departure from the essential requirements of the law is divided into essentially three main claims: 1) the CDB's

Page 9 of 30

interpretation

ol

the relevant LDC zoning ordinances was

unreasonable;

2) the City

Commission's decision to approve Gate's proj ect interfered with Beach Diner's vested right to

fifty-one parking spaces; and 3) Gate's proposed plan was inconsistent with the City's comprehensive development plan. To establish a departure from the essential requirements of the law necessary for the issuance ofa writ ofcertiorari, a petitioner must demonstrate something more than a simple legal enor. Ivey v. Allstate Insurance Co.,774 So. 2d 679, 682 (Fla. 2000).

"A district court should exercise its discretion to grant certiorari review only when there a violation

has been

ofa clearly established principle of law resulting in a miscarriage of juslice. Allstate

Ins. Co. v. Kaklomanos, S43 So. 2d 885, 889 (Fla. 2003). In the instant case, Petitioner has not met its burden to demonstrate that the City Commission's action in approving Gate's proposed store was a violation of clearly established

law. In fact, the CDB's interpretation of the LDC

was entirely reasonable and consistent with standard principles of statutory construction, Beach

Diner had no vested right

to fifty-one

parking spaces, and consistency issues are not

appropriately addressed by petition for writ ofcertiorari.

1. The CDB interpreted the LDC in a reasonable manner The root of Beach Diner's first claim is its belief that the applicable code provisions in the City's LDC do not permit more than six fueling positions for a project like that proposed by

Gate. Petitioner's claim necessarily requires an exploration of the meaning and operation of sections 24-l

l0

and 24-11I of the City's

LDC.

Section 24-110 covers the permitted uses-by-

right and uses-by-exception for the area zoned Commercial Limited (Zone CL) in Atlantic Beach

while section 24-l

I

I

provides the same for Zone

CG. Section 24-110 includes the following

permitted uses and uses-by-exception for areas in Zone CL that are pertinent to the resolution of this case:

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Sec. 24- l 10.

-

Commercial Limited district (CL).

(b) Permitted uses. The uses permitted within CL zoning districts shall be as follows:

(7) Convenience fbod stores without fuel sales, but not supermarkets

(c) Uses-by-exception. Within the CL zoning district, the following uses may

be

approved as a use-by-exception.

(4)

Convenience food stores with retail sale of gasoline limited to six (6) fueling positions, $24-110, Code ol Ordinances ofthe City of Atlantic Beach, Florida (2016) (emphasis supplied). The permitted uses-by-right for Zone CG, on the other hand, are detailed in section 24-111 and, contain the following relevant items: Sec.

24-l I I

-

Commercial general districts (CG).

(b) Permitted uses.

...The uses permitted in the CG zoning district shall include the following subject to the limitations as set forth within following subsection (d).. . .

(l)

Retail outlets for the sale of food and drugs, wearing apparel, toys, books and stationery, luggage, jewelry, art, florists, photographic supplies, sporting goods, hobby shops and pet shops ..., bakery ..., home fumishings and appliances, office equipment and fumiture, hardware, lumber and building materials, auto, boat and marine related parts, and similar retail uses.

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(9) Automobile service

station with minor automotive repair and with accessory (note: Heavy automotive repair not permitted per Ordinance 90-06car wash. 197 . . ..)

Those uses listed as permitted uses and uses-by-exception in the commercial limited and commercial, professional and office zoning districts.

(15)

(17) Mixed

use projects combining the above uses and those approved as a useby-exception puriuant to subsection (c) below.2

$24-l11, Code olOrdinances ofthe City of Atlantic Beach, Florida (2016) (emphasis supplied).

In

response

to Gate's application, the CDB determined that Gate's site proposal was a

mixed use project consisting of both a "retail outlet" for the sale of items such as food under section 24-111(b)(1) and an "automobile service station" under section 2a-111(b)(9); that such

mixed uses were allowed in Zone CG as a matter of right under section 24-111(b)(17) of the

LDC; and that the LDC placed no restrictions on the number ofpumps or fueling stations for an "automobile service station" in Zone CG. Beach Diner agrees that section 24-111(b)(9) of the

LDC imposes no limit on the number of fuel positions for an "automobile service station" in Zone CG. However, Beach Diner contends that the City Commission departed from the essential requirements of the law when it approved the CDB's interpretation of the LDC because section

24-111(bX15) expressly incorporates the permitted uses and uses-by-exception for Zone CL into Zone CG; the proposed Gate store is more accurately described as a "convenience food store

with the retail sale of gasoline" under the use-by-exception in Zone CL found at section 24I

l0(c)(a) of the LDC; and the designation as a "convenience food store" is limited to six fuel

positions for gasoline sales even if the building in question is located in Zone CG.

2

Section 24- I I l(c) of the LDC details the uses-by-exception for Zone

resolution of this petition.

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CG. They

are not relevant to the

"Generally,

a reviewing court should defer to the interpretation given a

statute or

ordinance by the agency responsible for its administration. Of course, that deference is not

absolute, and when the agency's construction interpretation, or is clearly erroneous,

it

of a

statute amounts

to an

unreasonable

cannot stand." Zas Olas Tower Co. v. City of Ft.

Lauderdale, T42 So.2d 308, 312 (Fla.4th DCA 1999) (citations omitted). The reasonableness

of

an agency's interpretation is measured by applying the same rules that are used For statutory

construction. Shamrock-Shamrock, Inc. v. City of Daytona Beach, 169 So. 3d 1253, 1256 (Fla. 5th DCA 2015) (citations omitted) ("Municipal zoning ordinances are subject to the same rules agencies, therefore, should first and

of constructions as are state statutes.") Administrative

foremost interpret zoning ordinances by the plain and ordinary meaning contained within the ordinance itself; but

if

of the

language

the language is in any way ambiguous, then the

ambiguity should be construed in favor ol the property o*,ner because such provisions are in derogation of private rights of ownership. Id.; Stroemel v. Columbia County,930 So. 2d 742, 745 (Fla.

lst DCA 2006).

The language found in both sections 24-110 and

24-1ll is not ambiguous and, at first

glance, seems to support Beach Diner's position that the Cate project is a "convenience food

store" that carries a limit of six fueling positions regardless of its location in Zone CL or Zone

CG. The term "convenience food store" is not defined, but this court may resort to commonly used dictionary definitions Bolonos v.

oi

an undefined term to assist

in interpreting its meaning'

l orffirce Alliance,23 So. 3d 171,172-73 (Fla. 1st DCA 2009) ("Absent

See

a statutory

definition, it is appropriate to resort to dictionaries to interpret these terms in accordance with

their plain and ordinary meanings."). The term "convenience store" has altematively been defined as

"a small often

franchised market that

Pase 13

is open long hours," Merriam-Webster's

of30

Dictionary, retrieved January 19, webster.com/d ictionary/convenience%20sto: a variety

e;

2017,

https://www.merriam-

"a small store that is open for long hours and sells

ofgoods, especially food and drink, cleaning materials, and newspapers or magazines,"

MacMillan

Dictionary,

retrieved

19,

January

http:,//u.*u'.macmillandictionary .com/us/dictionary/american/convenience-store

2017

; "a retail store

that carries a limited selection ofbasic items, as packaged foods and drugstore items, and is open

Iong hours for the convenience January 19,2017,

of

shoppers," Random House Dictionary (2017), retrieved

http://wrvw.dictionarv.coffi;

and "a small retail store

that is open long hours and that typically sells staple groceries, snacks, and

American Heritage Dictionary,

beverages."

5th Ed., retrieved January 19,

2017,

https://ahdictionary.com/word/search.html?q:Convenience+store. The common thread rumin through each ofthese definitions is that a "convenience store" is a small retail store open for long hours that sells a limited selection of basic food items and other goods. The proposed Gate store appears to satisfy each

Section 24-16

of these defining characteristics.

of the LDC also

appears on the surface

to reinforce Beach Diner's

interpretation of the relevant code provisions. Section 24-16 provides rules of construction for

the entire LDC and subsection (a) of that ordinance expressly states that "[t]he particular or

specific shall control the general." This type

of provision is not

uncommon

in a land

development or zoning code. See Keene v. Zoning Bd. of Adiustment,22 So. 3d 665, 669 (Fla.

5th DCA 2009), and citations contsined therein. standing principle

lt is an express recognition of the long-

of statutory construction that "a specihc statute will control over a general

statute" when there are two statutory provisions in conflict. See Florida Virtual School v. Kl2,

Inc.,l48

So. 3d 97, 102 (Fla. 2014). This maxim of statutory construction is a short-handed way

Paae 14

of30

ofexplaining that "where there is in the same statute a specific provision, and also a general one

that

in its most comprehensive

sense would include matters embraced

in the former,

the

particular provision will nevertheless prevail; the general provision must be taken to alfect only such cases as are not within the terms of the particular

provision." Fletcher v. Fletcher,573 So.

2d 941,942 (Fla. lst DCA 1991). According to Beach Diner, section 24-16(a) of the LDC requires that the proposed Gate store be designated as a "convenience food store" under section

2a-110(c)(a) - the more specific use - even though the store may also qualify as a "retail outlet"

for the sale of food and other goods under the more general use category found in section 24l r r (b)(1).

Undoubtedly, the plain and unambiguous language of a statute or ordinance is the most important consideration when interpreting the legislative intent behind a provision, but it is not the only consideration. Unambiguous ordinances that are related to the same subject matter are regarded as in pari materia and should be construed together and compared with each other in order to harmonize them and give effect to each provision. See Cone v. State Dept. of Health,

886 So.2d 1007, 1010 (Fla. lst DCA 2004); Katherine's Bay, LLC v. Fagan,52 So. 3d 19, 28 (Fla. I st DCA 2010) ("Another rule ol construction relevant to this issue is that all provisions on related subjects be read in pari materia and harmonized so that each is given effect."); and McGhee

v. Volusia County, 679 So.2d 729,730, n.l (Fla. 1996) ("The doctrine of in

pari

materia requires the courts to construe related statutes together so that they illuminate each other and are harmonized

... 'In pari materia' in Latin

means "on the same

matter."). Additionally, "a

literal interpretation need not be given the language used when to do so would lead to

an

unreasonable conclusion or defeat legislative intent or result in a manifest incongruity." Las Olas

Tower Co.,742 So. 2d at 312-13. Both cannons of statutory construction are particularly

Page 15

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relevant to the outcome of this case because the CDB's interpretation section 24-l I

I

ol

section 24-110 and

is entirely reasonable if both provisions are properly constmed in pari materia

and Beach Diner's suggested interpretation of the relevant provisions would actually yield an unreasonable or incongruous result.

To understand why this is the case requires a discussion of how "Euclidean" pyramid or cumulative zoning schemes typicalty operate.l "The central thesis of zoning is that there is a proper place lor every use. Traditional zoning systems operate by establishing a number of general use districts where a variety of like uses may locate. Often called 'Euclidean zoning,'

..., traditional zoning operates with three basic zoning classifications: residential, commercial and

industrial." Rohan, ZONING AND LAND USE CONTROLS (2016),

$

39.01(l).

A theory that places land uses in a hierarchy known alternatively as the Euclidian "pyramid" or "cumulative" zoning, became the basis for most zoning ordinances. At the top of the Euclidian Pyramid were single-family residential land uses. Single-family residential land uses were considered to be the "highest and best use" of the land because they were the least dense residential land use. Development in residential zones was the most restricted. Districts zoned as residential could only be used for residential purposes to the exclusion ol all other land uses. Other residential land uses such as "duplexes, town homes, and mutti-family dwellings," found their place just below single-family residential uses in the pyramid. These were followed first by commercial, and then by industrial uses. In municipalities that adopted cumulative zoning, uses at the top of the pyramid were "permitted as of right in any zone with a lower rank." This use as of right only worked from top to bottom, as uses that were placed lower on the pyramid were not permitted as of right in zones higher up. In the typical cumulatively-zoned municipality, residential uses were permitted in commercial zones, commercial uses were permitted in industrial zones, but commercial uses were not permitted in residential zones, and industrial uses were not permitted in commercial zones.

Cates

&

Merriam, ZONING FOR HOME OCCUPATIONS:

PRACTICAL POETRY", Am. Law lnst.

-

"A

LITTLE PIECE

OF

Am. Bar Assoc. Continuing Legal Educ., SM004

3

"Euclidean" zoning takes its namesake from the Ohio town in Village of Euclid, Ohio v. Ambler Realty l14,'ll L.Ed.303 (1926), that was the first town to successfully defended the practice Co., 2'12 by local governments ofenacting traditional zoning regulations.

tJ.s.365, 47 S.Ct.

Page 16

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ALI-ABA 1497, 1503-04 (2006). ,'Since only the higher use was considered worthy of protection from the lower use under early cumulative zoning schemes, the higher use was always

permitted in a lower use zone." Rohan, ZONING AND LAND USE CONTROLS (2016),

$

39.03( I Xa).

"lt

is common practice for govemmental bodies with responsibility lor creating zoning

districts to incorporate the provisions of one zoning classification within another usually less restrictive zoning classification." City of North Miami v. Outrigger Club, Inc., 269 So.2d 12' 13 (Fla. 3d DCA 1972). Sections 24-110 artd24-111 ofthe LDC are no exception and represent a classic example

of Euclidean pyramid or cumulative zoning

because section 24-ll1(b)(15)

expressly directs that all permitted uses and uses-by-exception for Zone CL (a more restrictive category) are incorporated into Zone CG (a less restrictive category).4 The higher uses reflected

in

zone

cL

are always permitted by right in the lower use commercial general zone. Each

ordinance, therefore, cannot be interpreted in isolation from the other and must be considered ln

pori materia in order to harmonize both and give effect to their legislative intent. Section 24-110(a) expressly states that "[t]he CL zoning district is intended for low intensity business and commercial uses." Most of the permitted CL uses in section 24-l l0(b)

focus on service establishments (beauty shops, dry cleaning, tailors); professional offices (medical, legal, and dental practices); banking services; and restaurants (without drive through

facilities). The Zone CL provisions found in section 24-1 10 clearly limit commercial retail activities to a few nanowly drawn exceptions described in 24-110(b)(l) as "low intensity retail sales" (wearing apparel, toys, "sundries and notions"); "drug stores and pharmacies;" and of course, "convenience food stores." The LDC does not permit the retail sale of gasoline in Zone

Not all zoning classifications in Atlantic Beach's LDC are cumulative. Some do not incorporate all ofthe preceding more restrictive zoning districts like Zone CL and Zone CG. a

Page 17 of 30

CL under any circumstances except as a use-by-exception

if it is sold in connection with the

operation of a "convenience food store" and sales are limited to six fueling positions. In short, gasoline sales at "convenience food stores" are intended to be a narrow exception to the general rule prohibiting such retail activity in Zone CL.

By contrast, Zone CG broadens the permitted uses for landowners and allows

general

commercial retail sales activity with few restrictions. Section 24-111(a) proclaims that "the CG zoning district is intended for uses, which provide general retail sales and services for the City

of

Attantic Beach." Consistent with this stated intent, the retail sale of food, drugs, and other consumer goods under section

24-lll(b)(l)

are not limited to

"low intensity retail sales."

Likewise, gasoline sales are the rule, not the exception, and section 24-l I l(bX9) authorizes more than six fuel positions for the retail sale of gasoline at an "automobile service station" without the need to combine such sales with a "convenience food store." Each of these higher-impact commercial retail activities may be combined in the same parcel of land under the mixed use provision found at section 24- I 1 1(bX l7).

As already discussed, "[t]he cumulative ordinance generally permits all uses of preceding more-restrictive district

in the next least-restrictive district." RELIEF

the

FROM

ZONING ORDINANCE, l6 Am. Jur. Trials 99, sec. 4. This is the sine qua non of a cumulative or pyramid zoning scheme. A cumulative zoning scheme is not, however, designed to achieve a reverse effect where less-intense uses in the more restrictive zoning district operate to negate or

otherwise restrict more-intense uses that are permitted by right in the next least-restrictive zoning

district. Beach Diner's literal interpretation olthe relevant provisions in sections 24-110 and241l l, however, does exactly that and turns the most basic characteristic of pyramid or cumulative zoning on its head by placing limits on a more-intense use

Page

-

l8 of30

the retail sale ofgasoline using more

than six fuel positions

- that is absolutely permitted by right in the less-restrictive Zone

based solely on what is and is not permitted

CG,

in the more-restrictive Zone CL. Looking at both

provisions as a whole, the use-by-exception in Zone CL for a "convenience food store with the retail sale of gasoline" was clearly intended to be an exception to the general prohibition against gasoline sales in that zone instead of a limiting restriction on general gasoline sales in Zone CG as Beach Diner suggests.

Additionally, Beach Diner's literal interpretation of Atlantic Beach's LDC would lead to unreasonable results or conclusions. As the CDB director recognized at the City Commission hearing, nothing in section 24-111 would prevent a landowner in Zone CG from constructing a larger retail sales outlet, with a greater impact on the surrounding neighborhood than the impact

from a "convenience food store," and combining that larger retail sales outlet with "automobile service station" that has more than six fuel positions. Thus,

it

an

would appear

nonsensical to carve out a restriction on the number of fuel positions for a less-intensive retail

outlet, like a convenience store, when there is no such restdction for more-intensive retail outlets in the same zoning district. Moreover, there is nothing in the provisions goveming Zone CG that would prohibit the establishment of a convenience store and an automotive service station with more than six fuel positions on adjacent parcels of land. To prohibit a mixed use project with the same facilities merely because they are located on the same parcel

ol

land, rather than on

adjacent parcels, is a distinction without any meaningful difference'

At the fourteen-hour hearing before the City Commission, the CDB director summarized his interpretation ofthe LDC to explain why the cDB authorized the proposed Gate site plan:

My interpretation, as well as that of Mr. Lindorff [the expe( city planner hired by Atlantic Beach to review Gate's site planl, is that lthe six pump restriction] does not apply. The CG zoning district is a more intensive zoning district. It allows automobile service stations, which allow the retail sale of gasoline with no pump restrictions. And, Page 19

of30

therefore, we believe that the six-pump restriction in the lesser intensive zoning district goes away based on the "automobile service station" definition.

And additionally, I think it's been said - said a few times today, the CG code allows a mix of uses. So we know that you can do retail sales. And as I said in my earlier presentation, the only restriction the City has on maximum size of retail sales is 60,000 square feet. That's to eliminate the big box retailers.

could

could have a 59,000 square foot retail sales operation, it could be a grocery store, it could be any type of retail sales, it could be a convenience store, and we know they can do an automobile service station. They can blend those two uses based on the way that the CG code is written. So hypothetically, somebody

The CDB's interpretation ofhow sections 24-110 and 24-111 interact is entirely reasonable and

the City Commission's decision to accept the CDB's interpretation is not a deparlure from the essential requirements of the

law. Gate's proposed site plan with more than six fuel positions

is

entirely consistent with the broader, more intensive, commercial uses permitted in Zone CG. When both provisions are viewed as a whole, in no way is there an intention on the part of

Atlantic Beach to timit a mixed-use retail project, whether the retail store is more accurately described as a "convenience food store" or some other type

of retail sales outlet, to six fuel

positions if the project is located in Zone CG.

2, The 1997 setback variance did not establish

a vested

right to fifty-one

parking spaces. Beach Diner raises various arguments that hinge on its claim that the City Commission's decision to approve Gate's site plan was a departure from the essential requirements of the law because the decision impermissibly interfered

parking spaces.s

In

with Beach Diner's vested right to fifty-one

1997, Beach Diner applied for a setback variance in order to enlarge the

dining facility and increase the available seating capacity to one hundred and one

persons.

Although the variance had nothing to do with the number ofrequired parking spots, Beach Diner s

Those arguments that are premised on Beach Diner's vested-righls theory include a) that the Cily Commission retroactively applied a subsequent ordinance to a prior variance to destroy this vested right; and b) that the Ciry Commission was equitably estopped fiom rescinding this vested dght by approving Gate's site plan. Page 20

of30

now contends that the mere act of granting the setback variance was essentially a de facto allocation of fifty-one parking spots for its use because a) Beach Diner had to comply with all

LDC requirements in order to receive the variance; b) the City's LDC at the time required that restaurants provide one parking space for every two seats; c) once the addition was complete the

Diner would have one hundred and one seats; and d) the City knew, as a consequence of its approval, that Beach Diner needed a total of fifty-one parking spaces to fully comply with the

LDC and remain profitable. Beach Diner's claim of a vested right to a minimum number of parking spaces based on the 1997 variance is wholly without merit.

A vested right may be established ifa party "has

(l)

in good faith reliance, (2) upon some

act of omission of government, (3) made such a substantial change in position or has incurred such extensive obligations and expenses (4) that it makes it highly inequitable to interfere with the acquired

right)' Monroe County

v. Ambrose,866

So.2d 707,710 (Fta.3d DCA 2004);

see

also Pasco County v. Tampa Dev. Corp.,364 So. 2d 850, 852 (Fla. 2d DCA 1978). To establish a vested right,

it requires proof of

a clear, definite, and positive

the govemment. Harbor Course Club, lnc. v. Dep'l of Cmry

affirmative action on the part of

Affairs,5l0

So. 2d 915, 918 (Fla.

3d DCA 1987) C'tllt is also clear that the documentation of vested rights or govemmental authorization must be clear, complete and specific.") (Emphasis supplied'). Here, the record reflects absolutely no clear or definite affirmative action by the City of Atlantic Beach in 1997 to grant or allocate Beach Diner any specific number of parking spaces, much less fifty-one.6 Once

the City granted the setback variance and increased the restaurant's capacity, the LDC parking requirements were a burden placed upon the restaurant, not a benefit allocated or granted /o 5

it. If

The minutes of the 1997 meeting of the City Commission where Beach Diner received the variance indicate that the City's Community Development Director at that time reminded the board that Beach Diner would receive a variance to construct an addition to a non-conforming structure, but the applicant would still "have to meet Code requirements for seating, parking and landscape." This admonition, in no way, constitutes a clear affirmative act on the part ofthe City to grant fifty-one parking spaces to Beach Diner. Page

2l of30

Beach Diner's theory was viable, then local governments would run the risk of creating a host

of

ancillary "vested rights" any time they merely granted a variance lor a single discreet aspect of any planned construction project.

3. Consistency

issues are not subject to redress by

writ of certiorari

Beach Diner also claims that the City Commission departed from the essential requirements of the law because the proposed Gate site plan is inconsistent with the City's Comprehensive Plan. This claim is distinct from any claim that the City violated portions of the

LDC. A declaratory action under section 163.3215, Florida Statutes, is the exclusive procedure for challenging a development order's consistency with a local comprehensive plan while petition for writ

of certiorari is the appropriate

method

to

a

challenge its compliance with

applicable zoning regulations. See Stanahan House, Inc. v. City of Ft. Lauderdale, 967 So.2d 1121, 1125-26 (Fla. 4th DCA 2007); see also Thomas v. Suwannee Counry,734 So.2d 492, 496

(Fla. lst DCA 1999) ("Because the proceeding before the Zoning Board was quasi-judicial, 'to the extent [the objecting neighbors'] challenge raised issues other than the consistency of the development order with the local comprehensive plan, [they] are entitled to certiorari review.")

Accordingly, Beach Diner's consistency challenge may not be raised in connection with its petition for writ of certiorari. See Seminole Tribe of Fla. v. Hendry County, 106 So. 3d 19, 22 (Fla. 2d DCA 2013) (recognizing that issue involving consistency of uses with a comprehensive plan cannot be raised by petition for writ ofcertiorari).

B. Competent and Substantial Evidence Beach Diner urges this court to grant its requested reliefon the additional ground that the record lacks competent substantial evidence to support the City Commission's determination that the proposed Gate project qualifies as an "automobile service station" under section 24-111(b)(9)

Page 22

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of the LDC. Competent and substantial evidence is evidence that is relevant to the matter at issue and that a reasonable person would accept as adequate to support the conclusion reached.

De Groot v. She.ffield,95 So. 2d 912,916 (Fla. 1957) ("We are of the view. however, that the evidence relied upon to sustain the ultimate finding should be sulficiently relevant and material

that a reasonable mind would accept

it

as adequate to support the conclusion reached.") On

petition for writ of certiorari chatlenging the sufficiency of the evidence, the reviewing circuit court should search the record to see if any competent substantial evidence supports the decision

by the local govemment, not whether the record contains any evidence that contradicts

it.

See

Orange County v. Lust,602 So. 2d 568, 570 (Fla. 5th DCA 1992). The circuit court may not re-

weigh or evaluate the record evidence. De Groot,95 So.2d at916' Skoggs-Albertsons v. ABC Liquors, lnc.,363 So. 2d 1082, 1091 (Fla. 1978). Instead, if the record contains any competent substantial evidence to support the administrative decision by a local govemmental body, then the circuit court is required to uphold the decision.

Apptying these principles, Beach Diner must demonstrate that the record is completely devoid

of any evidence that, in the mind of a

reasonable person, would support the City

Commission's determination that Gate's proposed site plan qualifies, at least in pa(, as an "automobile service station."T Section 24-17 of the LDC states that the term "service station, automotive, shall mean any building, structure, or land used for the dispensing, sale or offering

for sale at retail of any automobile fuel, oils or

accessories, and

in connection with which is

performed minor outomotive service, but not heavy automotive repair." (emphasis supplied) 7ln its Amended Petition, Beach Diner failed to provide this court with

a transcript

ofthe City Commission

hearing and other documents in the record for this court to review in order to determine for itself whether the record lacked any competent substantial evidence to support the findings by the City Commission. Respondents are correct that this court could most likely deny the petition on this ground simply because Beach Diner has the burden to demonstrate a lack of any record evidence and failed to provide the means in which the court could conduct the necessary record review. Respondents supplied the transcript and a number of other documents from the proceedings below and it is clear, on the merits, that the record contains adequate evidence to support the City Commission's decision on Gate's proposed site plan. Page 23

of30

"Automotive service, minor" is also defined in this section and it states that the term "shall mean the limited, minor or routine servicing of motor vehicles or parts, but shall not include heavy automotive repair. Facilities containing more than two (2) work bays, and performing any type

olautomotive service or repair shall be defined

as heavy

automotive repair."

Complicating matters in this case, the parties do not agree on the meaning of the term

"automobile service station" and the requirements to satisff the definition under the LDC. Beach Diner argued at the City Commission hearing, and at oral argument for their petition, that

the definition of "automobile service station" requires a landowner to not only engage in the

retail sale of fuel or oil, but to a/.so provide "minor automotive service." Beach Diner acknowledges the obvious that the proposed Gate station

will conduct the retail

sale

of fuel, but

insists that it does not qualify because Gate will not offer any minor automotive service or repair

work on site. The source of Beach Diner's contention is the language in the definition of "service station, automotive" that states the lerm "shall mean" any building used for the sale, or

offering for sale at retail, any automobile

frcl "and in

connection with which" is performed

minor automotive service. Beach Diner points again to the rules of construction for the LDC, particularly section 24-16(1)(l), which directs that the use of the term "And" throughout the code "indicates that all the connected items, conditions, provisions or events shall

apply."

Thus,

Beach Diner believes that the retail sale of fuel is not by itself enough to be considered a "service

station, automotive" under the LDC.

In a

manner similar

to the meaning of the term "convenience lood store" and

the

purported limit of six fuel positions for such uses in Zone CG, Beach Diner's interpretation of

the term "and" within the definition of "service station, automotive" initially appears to be supported by the language used to define the term. However, adopting Beach Diner's suggested

Pase 24

of30

interpretation would lead

to

illogical and unreasonable results. Beach Diner's literal

interpretation would mandate that any landowner wishing to sell gasoline in Zone CG would also

have

to provide minor

automotive repair services even

if

that landowner had no

desire

whatsoever to offer such repair services and the businesses or residents in the surrounding area were in complete agreement with the landowner that he or she should stick to the less intensive use of merely selling gasoline for retail consumption.8

If Beach Diner's approach was the proper way to read the definition of the term "service station, automotive," and the term "and" was titerally applied in the manner directed in section

24-16(DO) in every instance it was found throughout the LDC as Beach Diner claims that the

City Commission should have done, then it would often lead to situations where landowners would be forced to engage simultaneously in multiple commercial or industrial activities on their land just to

fit within a use category permitted by the LDC. For example, section 24-l1l(b)(1)

sets forth the use-by-right category

in Zone CG for retail outlets that are permitted within that

district. It expressly permits the following activities: "retail outlets for the sale of food and drugs, wearing apparel, toys, books and stationary, luggage, jewelry, art, florists, photographic supplies, sporting goods, hobby shops and pet shops ..., bakery ..., home fumishings and appliances, offrce equipment and fumiture, hardware, lumber and building materials, auto, boat and marine related parts, and similar uses."

(emphasis supplied). Under Beach Diner's position, each proposed retail outlet would have to

sell every one of those items listed in the use category in order to fall within its parameters because the term "and" was used and, literally, under section 24-(I)(1) the term "and" indicates

that "all connected items, conditions, provisions or events shall apply." That is an absurd result

3

This is what essentially happened at the hearing in fiont ofthe City Commission. Beach Diner and others who opposed Gate's proposed site plan were in complete agreement that they did not want Gate to engage in what would qualifo as minor automotive repair work because that, in addition to the retail sale of fuel, would be a more intensive use ofthe property. Page 25

of30

that most would agree is unreasonable, economically disastrous for both the City and any landowner wishing to operate a commercial retail outlet, and wholly without precedent. Closer

to home, section 24-111(b)(9) of the LDC permits an "automobile service station with minor automotive repair and with accessory car wash." (emphasis supplied) Consistent with Beach

Diner's suggested approach, a landowner that wanted to sell gasoline in Zone CG would also have to offer an accessory car wash. Clearly, the City of Atlantic Beach never intended to require mandatory car wash accessories just to conduct the retail sale ofgasoline. The more reasonable interpretation, and the view adopted by the City Commission at the appeal hearing, is that the definition

of "service station, automotive" allows a landowner to

provide minor automotive repair work in keeping with the general commercial purposes of Zone CG, but the landowner does not have to provide such service in order to conduct the retail sale

of

fuel. In other words, minor automotive repair work is permissive, rather than mandatory, for a business to qualify as a "service station, automotive." The landowner can choose to engage in a

less-intensive use of the tand by only offering the retail sale of fuel in the same manner that a

landowner can choose to sell either fumiture, jewelry, or spo(ing goods, and not all three at

once. Or the owner of a gas station can choose to sell gasoline without the necessity of simultaneously offering to wash his or her customer's cars.

Using the more reasonable construction and interpretation adopted

by the City

Commission. Beach Diner has not met its burden to demonstrate that the record is completely

devoid

of any evidence that would, in the mind of a

reasonable person, support the City

Commission's decision that the proposed Gate store qualified as an "automobile service station." The two sides never disputed whether Gate would offer the retail sale of gasoline and the only question raised by Beach Diner was whether or not Gate also had to offer minor automotive

Page 26

of30

repair on site. Section 24-111 of the LDC does not require both activities before a landowner can offer gasoline for retail consumption in Zone CG.

Assuming for the sake of argument that Beach Diner's interpretation was the correct approach to analyze Gate's proposed site plan, and Gate was required to offer minor automotive

repair with the retail sale of fuel, the record still contains sufficient evidence to suppo( the decision by the City Commission.

It is undisputed in the record that Gate

machines for customers to check the tire pressure for their vehicles and add air

intends to offer

il

needed, to sell

small replacement automotive parts such as windshield wiper blades, and to provide a vacuum to clean and maintain customer vehicles. While these services comprise a very small percentage

the commercial activity that

will

of

be conducted on Gate's land, the definition for "automotive

service, minor" merely states that

it is comprised of the "minor or routine servicing of motor

vehicles or parts...." These activities undoubtedly qualify under that definition. Beach Diner also takes issue with the City Commission's efforts to fashion a compromise at the hearing between the two sides and claims that the City Commission focused on this to the

exclusion of its responsibility to ensure that its decision was supported by competent substantial

efforts. Those compromise efforts were ultimately unsuccessful, but factored into the City Commission's decision to condition the approval of Gate's site plan on the dedication of thirty parking spaces for restaurant use. The law does not prohibit a local governmental agency like

the City Commission from trying to find common ground during a quasi-judicial hearing and there is nothing in the record that indicates the City Commission failed to properly discharge the

judicial aspects of its responsibilities when it approved the Gate project. In fact, the entire transcript of the City Commission hearing and the documentation submitted initially to the CDB shows that the City Commission's decision to approve the Gate project as a mixed use project

Page 27 of 30

consisting ofboth a "retail outlet" for the sale of items such as food under section 24-l1l(b)(1) and an "automobile service station" under section 24-111(b)(7) was supported by competent and substantial evidence. That evidence included, among other things, the testimony of the CDB

Director, Mr. Hubsch, the testimony and report of its expert City Planner, Steven Lindorff, and numerous other affidavits and documents.

All of this

evidence was more than enough for a

reasonable person to accept as adequate to prove that the proposed Gate project qualified as a mixed use project that was consistent with the general commercial uses allowed in Zone CG.

C. Due Process Beach Diner claims that

it

was denied Due Process because the City Commission

improperly allocated the burden ofproofto it during the appeal ofthe CDB's decision to approve Gate's site plan. The City Commission, however, applied the proper burden of proof. Where a landowner meets the applicable standards and criteria for site plan approval, the act of approval

by the local government is deemed ministerial in nature and there is no discretion to deny the project. Broward County v. Narco Realty, lnc.,359 So. 2d 509,

51 1 (Fla.

4th DCA 1978) (where

an owner does all the law requires of him, discretion vanishes); City of Gainesville v. GNV Investors, Inc., 413 So. 2d 770, 771 (FIa.

lst DCA 1982) (where site plan meets all technical

requirements, denial is unlawful and arbitrary). Once an applicant satisfies the initial burden

of

showing that the site plan meets applicable criteria, the burden then shifts to the opponents to demonstrate, by substantial competent evidence, that the site plan does not meet the criteria and that the approval ofthe site plan is, in fact, "adverse to the public interest." See Broward County

v.G.B.V. International, Ltd.,787 So.2dat842. Gate provided competent substantial evidence to the CDB that its proposed site plan qualified as a mixed use project under Zone CG and it was incumbent on Beach Diner to demonstrate to the City Commission that the site plan did not meet

Pase 28

ol30

the criteria for such approval or that it was otherwise adverse to the public interest. The City Commission did not improperly shift the burden of proof to Beach Diner.e

IV. Conclusion Beach Diner has raised a myriad

of

issues and sub-issues

in its petition. This order

addresses the main contentions and, as to the remaining issues that may have been raised in the

petition that are not expressly mentioned herein, this court finds without further comment that they have no merit. The City Commission applied a reasonable, and correct. interpretation ofthe

applicable provisions of section

24-ll0

depart from the essential requirements

and section 24-l I I of the LDC and did not otherwise

ol the law. The record contained ample competent

and

substantial evidence to support the approval of the CDB's determination that the proposed Gate site plan qualified as a mixed use project consisting of a "retail outlet for the sale of food and

drugs" and an "automobile service

station." Finally, the City

Commission afforded Beach

Diner, and all others that were in opposition to the proposed development, the appropriate Due Process during the fourteen-hour quasi-judicial hearing where everyone had a chance to speak,

the CDB and others clearly articulated the reasons behind their belief that the project was

t Beach Diner's Due Process argument appears to be based, at least in part, on matters related to a challenge to the project's consistency with the city's comprehensive plan. As previously explained, section 163.3215, Florida Statutes, mandates that any challenge to a project's consistency with a comprehensive plan must be brought by a declaratory action in circuit court. See Seminole Tribe of Fla.,l06 So.3d at22. The burden of proof and other issues involved in a consistency challenge are not properly before this court on petition for writ of certiorari.

In its petition, Beach Diner also incorrectly characterizes Gate's application to the CDB as a rezoning request and argues that the City Commission should have applied the burden of proof for that type of proceeding whereby if the applicant demonstrates compliance with the criteria, then the burden shifts to the opponents to show that "denying the application is reasonably related to the public health, safety, morals, or general welfare." See Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So. 2d 996, 1005-06. (Fla. 2d DCA 1993). The burden ofproofis different for a site plan application. Page 29

of30

consistent with the general commercial uses for Zone CC, and the City Commission analyzed the dispute using the proper burden ofproof. For these reasons, Beach Diner's petition is denied..

_O DONE and ORDERED in Chambers at Jacksonville, Duval County, Florida this I /'-

day of March, 2017.

J Copies furnished to: Attomevs of Record via EPortal

Page 30 of 30

DANIEL,

t Judge