HomeMy WebLinkAboutHandouts_Regular_Tab 12_06/09/2011 ���������'`G'�/�� ��
ATTORNEYS AT LAW
1111 Hypolwco Road, Suite 207
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JpHI3 cpgBE'I°T TELEPHONE (561) 586-711b
TRELA J. WHITE TELECOPIER (561) 586-9611
BItADLEY W. BIGGS*^
KEITH W. DAVIS'�
R. MAX LOI3MAN
ABIGAIL FORRESTER JORANDBY * Board Certified in City, County and Local Government Law
JENNIFER GARDNER ASHTON ^ State Certified County and Circuit Court Mediator
MEMORANDUM
TO: Mayor Paterno, Vice Mayor Arena and Council members Brennan, Humpage &
Turnquest; Village Manager Couzzo
FROM: Keith W. Davis, Esq.
DATE: June 6, 2011
RE: Variance; Process and Legal Issues
Good Shepherd Episcopal Church has applied for a Variance, which application will be
heard by the Village Council on June 9, 20ll. This Memorandum will briefly outline the
variance process as well as the legal issues relevant to that process.
Variances are exemptions granted from certain land development regulations where
literal enforcement of the provisions of the land development regulations would result in an
unnecessary hardship to the land owner. Sec. 7&-65. The Board of Adjustment has jurisdiction
over variances in zoning districts R-lA and R-1 which conta.in single family dwellings. The
Village Council has jurisdiction over variances on all other land within the Village. Sec. 78-61.
The Good Shepherd Episcopal Church is located in the R-1 zoning district; however, it is not a
single family dwelling and therefore the Village Council has jurisdiction over this variance
request.
In order for the Good Shepherd variance to be granted, the Village Council must find that
the requested variance meets the six (6) criteria of Sec. 78-65(a)(2). The Staff Report prepared
by the Community Development Department discusses these criteria and factors in more detail.
In addition, the applicant has addressed each of these criteria in its application.
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Variance applications are heard by the Village Council (or the Board of Adjustment, as
noted above) at a quasi judicial public hearing. It is the burden of the applicant to establish,
through the presentation of competent, substantial evidence, that they have met each of the above
referenced six (6) criteria. Competent, substantial evidence can be in the form of sworn
testimony, the development application, or other documents and materials presented at the public
hearing.
Competent substantial evidence has been defined by the Florida Supreme Court as
evidence that is sufficiently relevant and material that a reasonable mind would accept it as
adequate to support the conclusion reached. DeGroot v. She,f�eld, 95 So.2d 912, 916 (Fla. 1957).
In simple terms, competent, substantial evidence amounts to any valid reason supported by the
record. Orange County v. Butler, 877 So.2d 810, 813 (Fla. Sth DCA 2004).
The burden to establish that the granting of a variance is appropriate rests squarely on the
applicant. Unlike an application for a special exception use, this burden never shifts to the
Village for purposes of establishing that the criteria have not been met, and the Village is not
required to present any evidence that the variance would be adverse to the public interest in order
to deny the variance. Redner v. City Council of City o 827 So.2d 1056 (Fla. 2" DCA
2002).
Florida law is clear that "unnecessary hardship" required to be shown for the granting
of a variance is a characteristic of the subject property which renders the property virtually
unusable for the purpose or in the manner for which it is zoned. Maturo v. City of Coral Gables,
619 So.2d 455, 456 (Fla. 3d DCA 1993). The hardship cannot be one of inere economic
disadvantage, Nance v. Town of Indialantic, 419 So.2d 1041 (F1a.1982�; and it is not relevant
whether variances have been granted to similarly situated applicants in the community, Ci o
Miami v. Herrera, 613 So.2d 2(Fla.1992�.
Based on the competent, substantial evidence presented at the public hearing, the Village
Council may grant the request, deny the request or grant the request with the imposition of
special conditions designed to safeguard the surrounding property and neighborhood or the
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overall public health, safety and welfare of the Village. Sec. 78-65(b). In the event that the
request is denied, the Village Council must state the reasons for the denial by way of explaining
wluch criteria have not been met. A failure to make such findings is considered a departure from
the essential requirements of law. Redner v. City Council of City of Tampa, 827 So.2d 1056 (Fla.
2" DCA 2002). Following a denial, the applicant is foreclosed from re-applying for ninety (90)
days from the date of such action. Sec. 78-66.
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