Thompson v. Planning Com'n of City of Jacksonville, AT-417

• Decision Date: 11 February 1985
• Docket Number: No. AT-417,AT-417
• Parties: 10 Fla. L. Weekly 379 W. Dean THOMPSON and Molly K. Thompson, Appellants, v. PLANNING COMMISSION OF the CITY OF JACKSONVILLE, the City of Jacksonville and Edward J. and Ann C. Grenadier and Lawrence L. and Barbara G. Jaffe, Appellees.
• Court: Florida District Court of Appeals

Page 1231

464 So.2d 1231

10 Fla. L. Weekly 379

W. Dean THOMPSON and Molly K. Thompson, Appellants, v. PLANNING COMMISSION OF the CITY OF JACKSONVILLE, the City of Jacksonville and Edward J. and Ann C. Grenadier and Lawrence L. and Barbara G. Jaffe, Appellees.

No. AT-417.

District Court of Appeal of Florida First District.

Feb. 11, 1985.

Rehearing Denied April 3, 1985.

Christine Rieger Milton and Judity S. Beaubouef of Mahoney, Hadlow & Adams, Jacksonville, for appellants.

William L. Coalson of Greene & Greene, P.A., Jacksonville, for appellees Grenadier and Jaffe, and Dawson A. McQuaig, Gen. Counsel, William Lee Allen, Asst. Counsel, Thomas E. Crowder, Asst. Counsel, Jacksonville, for City of Jacksonville, appellee.

ERVIN, Chief Judge.

Appellants seek review of a final order of the circuit court, denying a petition for writ of certiorari and motion for a preliminary injunction, both of which sought relief from the grant of a parking variance by appellee Planning Commission of the City of Jacksonville (Planning Commission) to appellees, the Jaffes and the Grenadiers (owners). Three issues are raised for our consideration on review:

I. Whether there was competent substantial evidence to support the variance;

II. Whether the trial court erred in using the "fairly debatable" standard to determine the validity of the zoning ordinance and whether to grant certiorari; and

III. Whether the trial court erred in finding that the requisite elements for preliminary injunctive relief were not met by appellants.

Because of the method by which the issues were tried below, we do not answer the first two questions, but address only the last.

With the intention of constructing an office building, the owners purchased a triangular piece of property situated across the street from both an office building and two and one-half acres of land owned by appellants. Plans for a 13,500 square foot, two-story building were developed by the owners' architect, contemplating that the owners would occupy the second floor only, with an estimated sixteen employees, and that the first floor would be leased out as rental office space. The architect calculated that a building having sixteen employees and 13,500 square feet of office space would be required by the municipal zoning code to have 35 parking spaces. ¹ Inclusion of the potential first floor tenancy into his calculations raised the figure to a total of 46.25 code-required parking spaces. Realizing that if the building were constructed according to his plans, the property would not accommodate the code's required minimum number of spaces, the architect submitted a variance application ² to the Planning Commission, requesting "[r]eduction of the required on-site parking from 40 spaces to 30 spaces." The only reason offered for the variance was that "[t]he shape of this parcel prohibits development of the required on-site parking." The application also included the following additional information for the Planning Commission to consider: "Traffic Engineer has agreed to allow applicant to provide parallel parking lane at Salisbury Road, immediately in front of subject property. Such 'off-site' parking will provide approx. 9 spaces suitable for the anticipated visitor parking." The Planning Department reviewed the application and forwarded to the Planning Commission its recommendation that the requested variance be denied as it does "not appear to be within the intent and if not provisions of a zoning variance." (sic)

At the Planning Commission meeting, appellants urged that the municipal zoning code actually required a total of 54, and not 40, on-site parking spaces for 13,500 square feet of office space and sixteen employees, and that a shortage of parking for owners' building would result in traffic problems and overflow parking onto appellants' property across the street. The Planning Commission granted the variance in an order which explained only "that the granting of such variance will not be contrary to the public interest and owing to special conditions a literal enforcement of the provisions of the Zoning Code will result in unnecessary and undue hardship."

In response to motions filed by appellants for a temporary restraining order and for preliminary injunction, the trial court issued a temporary restraining order directing appellees to halt construction of the proposed building. Meanwhile, appellants filed in the circuit court a petition for writ of certiorari, seeking revocation of the building permit issued by the city to the owners, and requesting the court to vacate the Planning Commission's order granting the variance, along with a complaint for injunctive relief to prohibit the owners from proceeding with construction until they received a building permit not based on the improper parking variance.

Prior to a hearing scheduled for consideration of the motion for preliminary injunction, appellants unsuccessfully attempted by motion in limine to limit the evidence to the record before the Planning Commission, with the exception of allowing extrinsic evidence on the issue of irreparable harm to appellants. Although, in the exercise of its certiorari jurisdiction, the court should have been restricted to a review of the record of the proceeding before the Planning Commission, the court, in its role of trier of the equitable issues, conducted a trial de novo. ³

At the hearing, the testimony of a member of the Planning Commission indicated that at no time prior to granting the variance did the Planning Commission make an independent verification of the number of code-required parking spaces set forth in owners' application. The application itself failed to reflect the figures for square footage and occupancy of the proposed building necessary to calculate the parking in accordance with the zoning code. The witness stated that the only reference made at the Planning Commission meeting to any hardship which might result to owners upon literal enforcement of the zoning code provisions related to the triangular shape and cost of the property.

The chief of the city's Building and Zoning Inspection Division (Division), who was present at the Planning Commission meeting in an advisory capacity for the purpose of offering interpretations of the municipal zoning code, testified that he did not have problems with the requested variance, but admitted that he did not verify whether the owners' representation as to the code-required spaces actually complied with the code. The Division employee who reviewed the owners' application for a building permit made no calculation of the required number of parking spaces, and testified that the availability of off-site parking should not be considered in determining if proposals for parking are in compliance with the code.

The circuit court's order denying the motion for preliminary injunction reflects that the hearing on the application for preliminary injunction was consolidated with the petition for writ of certiorari. The court's order determined the following: that appellants failed to meet the requisite elements for preliminary injunctive relief; that the Planning Commission's order granting the variance includes an implied finding as to all factors necessary to that conclusion so that formal written findings as to each factual determination are not essential; and that "[t]he question of the required number of parking spaces ... is one the Court considers to be fairly debatable, one in which reasonable people might and do differ". Accordingly, the court denied both the petition for certiorari and the application for preliminary injunction.

Pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B), we have certiorari jurisdiction to review final orders of circuit courts acting in their review capacity. In such capacity we are limited to the question of whether the circuit court departed from the essential requirements of the law in denying certiorari, and we may not substitute our judgment for that of the circuit court. See City of Hollywood Employees Retirement Fund v. Allen, 412 So.2d 2 (Fla. 4th DCA 1981). Thus, to review the circuit court's denial of the petition for certiorari, we should have to treat Issues I and II before us on petition for writ of certiorari. Although it would seem that appellants could not properly seek both remedies--injunction and certiorari--and should have been required to make an election, such election is apparently not mandated by the Jacksonville Municipal Code. If Section 163.250, Florida Statutes, were applicable, appellants would have been required to seek review in circuit court either by a trial de novo or by a petition for writ of certiorari. That statute provides, "The election of remedies shall lie with the appellant." The City of Jacksonville, however, is not bound by section 163.250 in that it has not taken "formal suitable action declaring its election to proceed under [sections 163.160-163-3211]," as required by Section 163.315, Florida Statutes, and has not exercised "any or all of the powers granted under [sections 163.160-163-3211] ... [by the] passage of an appropriate ordinance to that effect by the governing body." Section 163.175(1), Florida Statutes. Notwithstanding the absence of any requirement to elect, the posture of the case before us clearly does not limit our review to those questions raised by certiorari, because the lower court's efforts were directed primarily to deciding de novo the appropriateness of the request for injunctive relief. Indeed, nearly the entire...