City of St. Petersburg v. Schweitzer

• Decision Date: 24 April 1974
• Docket Number: No. 73--136,73--136
• Citation: 297 So.2d 74
• Parties: The CITY OF ST. PETERSBURG, Florida, a municipal corporation, et al., Appellants, v. Richard H. SCHWEITZER, III, et al., Appellees.
• Court: Florida District Court of Appeals

Page 74

297 So.2d 74

The CITY OF ST. PETERSBURG, Florida, a municipal corporation, et al., Appellants, v. Richard H. SCHWEITZER, III, et al., Appellees.

No. 73--136.

District Court of Appeal of Florida, Second District.

April 24, 1974.

Rehearing Denied June 17, 1974.

Carl R. Linn, Chief Asst. City Atty., St. Petersburg, for appellants.

John T. Allen, Jr., and Harrison, Greene, Mann, Davenport, Rowe & Stanton, St. Petersburg, for appellees.

PER CURIAM.

This is an appeal from a peremptory writ of mandamus directing the City of St. Petersburg and its Environmental Planning and Development Commission to approve the appellees' site plan and to issue them a building permit authorizing construction pursuant to the site plan.

Appellees were the owners of property within a residential area zoned as R--4 in the City of St. Petersburg. Among the principal uses and structures which were permitted within that zone were family dwellings and multiple family dwellings having up to and including ten dwelling units. The zoning code also provided for several special use exceptions in the R--4 zone which could be permitted by the Planning Commission. Specifically, the ordinance read as follows:

'SPECIAL EXCEPTIONS PERMISSIBLE BY THE PLANNING COMMISSION

After public notice and hearing, and subject to appropriate conditions and safeguards, the Planning Commission May permit:

2. Multiple family dwellings with more than 10 dwelling units, and Planned Groups of residential structures on a single parcel, with minimum interior side yards of twenty (20) feet, for review of the Site plan in terms of requirements of this Chapter and such features as the manner of distribution of open space, landscaping effectiveness and utility of the parking arrangements, and percent of required parking area that might temporarily be devoted to landscaping; the siting and length of buildings to control row-type developments; and, general amenities to relate development to compliment surrounding area character.

(emphasis supplied)

Appellees applied to the Environmental Planning and Development Commission (successor to the Planning Commission and referred to herein by that name) for a special exception to permit the erection of several multi-story apartments containing a total of seventy-two units. The professional staff of the Planning Commission filed a report recommending approval of the site plan subject to compliance with eight items involving such matters as landscaping and the location of an entrance drive. Appellees agreed to these eight suggestions. Following a public hearing, the Planning Commission denied the application. An appeal was taken to the City Council which, in turn, referred the matter back to the Planning Commission for reconsideration. ¹ Planning Commission again rejected the application. On appeal, the City Council upheld the action of the Planning Commission.

Apparently, the site plan was within those requirements of the zoning code applicable to the construction of a seventy-two unit apartment project. It is obvious that the objections of the Planning Commission were not founded upon the site plan, itself, but rather upon a concern over the effect the project might have upon the surrounding areas. Thus, the minutes of one of the meetings of the Planning Commission reflect that the application was rejected in reliance upon a 'procedure' previously adopted by the Commission which read:

'Specifically, the Commission may consider its impact on ground cover, land, air, water, noise; the demand for services such as those associated with sewage, water, drainage, garbage, trash, transportation, public parking, electric power, communications security; the need for parks, recreational facilities, waterfront access, schools, medical services; and in effect on social and economic health and viability created by the density of population. The Commission may be influenced by any or all of these factors to approve, reject, or defer for modification of the item.'

The appellees filed a complaint premised upon theories of certiorari, mandamus, declaratory judgment and injunction. Citing Drexel v. City of Miami Beach, Fla.1953, 64 So.2d 317, and North Bay Village v. Blackwell, Fla.1956, 88 So.2d 524, the trial court concluded that the zoning ordinance contained insufficient standards to guide the Planning Commission in determining whether or grant or deny the special exception. Having concluded that the Planning Commission had no discretion in this matter and since the site plan was acceptable, the court issued a writ of mandamus directing the appellants to permit the construction of the apartment project.

Appellants first contend that mandamus was an improper remedy. Primarily, their argument is premised upon the well-established principle that mandamus will only lie to compel a non-discretionary act. E.g., Hunter v. Solomon, Fla.1954, 75 So.2d 803. Appellees' position might have been better asserted under its count for declaratory relief. Nevertheless, since in construing the ordinance the lower court concluded that the Planning Commission had no discretion, we will consider the matter as having been properly presented. See City of West Palm Beach v. State, 1947, 158 Fla. 863, 30 So.2d 491.

Turning now to the merits, the Supreme Court in North Bay Village v. Blackwell, Supra, said:

'. . . (T)here now seems to be little doubt that a zoning ordinance must prescribe definite standards for the guidance and control of the building inspector, the zoning officials and indeed the municipal council, when by the ordinance it reserves to itself various administrative zoning powers. An ordinance whereby the city council delegates to itself the arbitrary and unfettered authority to decide where and how a particular structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, cannot be permitted to stand as a valid municipal enactment.'

The ordinance in question provides that the Planning Commission 'may' grant special exceptions, but there are simply no standards set forth by which the Commission must be guided in determining whether or not to grant a particular exception. Appellants contend that the 'procedure' or policy statement adopted by the Commission represented sufficient...