City of St. Petersburg v. Cardinal Industries Development Corp., 85-2943

• Decision Date: 05 September 1986
• Docket Number: No. 85-2943,85-2943
• Citation: 493 So.2d 535,11 Fla. L. Weekly 1925
• Parties: 11 Fla. L. Weekly 1925 The CITY OF ST. PETERSBURG, a Florida Municipal Corporation, Corrinne Freeman, Mayor and Commissioner; J.W. Cate, Commissioner; Sally Wallace, Commissioner; Bill Bond, Jr., Commissioner; James W. Martin, Commissioner; Peter A. England, Commissioner; and David T. Welch, Commissioner, Appellants, v. CARDINAL INDUSTRIES DEVELOPMENT CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 535

493 So.2d 535

11 Fla. L. Weekly 1925

The CITY OF ST. PETERSBURG, a Florida Municipal Corporation, Corrinne Freeman, Mayor and Commissioner; J.W. Cate, Commissioner; Sally Wallace, Commissioner; Bill Bond, Jr., Commissioner; James W. Martin, Commissioner; Peter A. England, Commissioner; and David T. Welch, Commissioner, Appellants, v. CARDINAL INDUSTRIES DEVELOPMENT CORPORATION, Appellee.

No. 85-2943.

District Court of Appeal of Florida Second District.

Sept. 5, 1986.

Michael S. Davis, City Atty., and William N. Drake, Jr., and Diane Barrs, Asst. City Attys., St. Petersburg, for appellants.

Jack T. Bridges of Cleveland & Bridges, Sanford, for appellee.

GRIMES, Acting Chief Judge.

This case involves the denial of an application for a special exception under the zoning ordinances of the City of St. Petersburg.

Pursuant to the city code, appellee (Cardinal) applied to the Environmental Development Commission (EDC) for special exception approval of a multifamily development of fifty-two modular units in a RM-12/15 zoning district. The code permits the EDC after public notice and hearing, but subject to appropriate conditions and safeguards, to approve a special exception for a multifamily development greater than twenty dwelling units in the RM-12/15 zone. The EDC staff recommended that the special exception be approved. However, following a public hearing, the EDC voted to deny Cardinal's application. Cardinal then appealed to the city council. The city council also conducted a public hearing and upheld the EDC's denial of the special exception.

Thereafter, Cardinal attacked the denial of the special exception by filing a complaint for declaratory judgment combined with petitions for mandamus and certiorari. The court dismissed the petition for mandamus, and Cardinal later dismissed the petition for certiorari. At trial, the court reviewed the minutes of the EDC public meeting (no transcript was available), the transcript of the public hearing before the city commission and other exhibits. No testimony was taken.

The court entered a final judgment which held in pertinent part:

9. The Plaintiff has failed to show that either Section 64.23 or 64.113(2) of the St. Petersburg City code violates the Equal Protection Clauses of the Federal or State Constitutions.

10. Section 64.23 of the St. Petersburg City code setting forth the criteria to be utilized by the City in granting or denying applications for special exceptions is constitutional. Section 64.23 of the St. Petersburg City Code sets forth adequate standards to be considered in granting or denying special exception requests.

11. With respect to the Plaintiff's claim that both the Environmental Development Commission and the St. Petersburg City Council acted capriciously and arbitrarily, failed to conduct the hearings in accordance with the law, and failed to consider relevant evidence and make proper findings of fact, the court finds that this action is governed by City of Apopka vs Orange County 299 So.2d 657 (Fla. 4th DCA 1974) and further finds as follows:

a) In neither the hearing held before the Environmental Development Commission or the St. Petersburg City Council were the witnesses placed under oath nor council for Plaintiff afforded the opportunity to cross examine the witnesses.

b) Further, the testimony of the witnesses in opposition to the Plaintiff application for an exception were not matters of fact but were based on opinions, suppositions and desires.

c) Both the Environmental Development Commission and St. Petersburg City Council, in denying the Plaintiff application for an exception, failed to make adequate findings of fact based on competent substantial evidence.

THEREFORE, IT IS ORDERED AND ADJUDGED that the City of St. Petersburg denial of the Plaintiff "special exception" is set aside.

AND FURTHER IT IS ORDERED AND ADJUDGED that this cause is remanded to the St. Petersburg City Council for another De Novo hearing in accordance with this order and the case of City of Apopka vs Orange County 299 So.2d 657 (Fla. 4th DCA 1974).

At the outset, we find it necessary to address the procedural posture of the case. It appears that the proper method for Cardinal to attack the sufficiency of the evidence for the denial of its application was by way of a petition for certiorari to the circuit court. Cherokee Crushed Stone, Inc. v. City of Miramar, 421 So.2d 684 (Fla. 4th DCA 1982). On the other hand, a suit for declaratory judgment was the proper way to test the constitutionality of the city code, Keay v. City of Coral Gables, 236 So.2d 133 (Fla. 3d DCA 1970), and the adequacy of the criteria for granting special exceptions. City of St. Petersburg v. Schweitzer, 297 So.2d 74 (Fla. 2d DCA 1974), cert. denied, 308 So.2d 114 (Fla.1975). While Cardinal initially employed both remedies, it voluntarily dismissed its petition for certiorari prior to the final hearing. All of the relief requested by Cardinal in its complaint for declaratory judgment was rejected when the court declared the city code to be constitutional and upheld the enumerated factors to be considered in passing on applications for special exceptions. Thus, the bases for the judgment in favor of Cardinal were not within the scope of the issues before the court at the final hearing. However, we are loath to reverse on this point because the city has never complained about it, and both parties continue to focus their arguments on whether there was competent and substantial evidence to support the administrative determination denying the...