Case No. GCG00-3012

LLOYD GREEN and HILARY GREEN,

Petitioners,

vs.

POLK COUNTY BOARD OF COUNTY COMMISSIONERS,

Respondent.

_______________________________________

This matter is before the court on a petition for writ of certiorari. This court convened oral arguments in this cause on April 7, 2000. The Green’s seek review of the ruling of the Polk Count Board of County Commissioners, the Board, denying their application for grandfather rights under county ordinance 98-69. This court has jurisdiction. Fla. R. App. P. 9.030(c). This cause is remanded.

I.

The Green’s purchased a home in the Ridgewood Lakes subdivision with the expectation that they would use the home as a short-term rental part of the year to off-set the cost of the mortgage. Before purchasing the home, and before any amendments to the ordinance governing short-term rentals, the Green’s inquired and received a letter from a county officer advising them that they could use their lot for short-term rentals. The Green’s further state that they financed the construction and purchase of the home in reliance on the letter. The home was completed and in early 1998.

On March 17, 1998, the county amended the short-term rental ordinance in an effort to manage the growth of short-term rentals in certain subdivisions. Pertinent to this discussion, ordinance 98-23, section 3.22F was amended in ordinance 98-32. Under the amended ordinance, grandfather rights would be extended to units which "were being utilized as short-term rentals on March 17, 1998, or which were so utilized within the year preceding March 17, 1998." This provision required applicants to present certain documents on or before September 17, 1998. The specified documents include rental receipts, licenses, and proof of payment of all taxes.

The short-term rental ordinance was again amended, in ordinance 98-69, to further limiting grandfather exceptions. At all times section 3.22A, the definition section, remained unchanged. It reads in pertinent part:

SHORT-TERM RENTAL: A dwelling unit which is made available more than three (3) times a year for periods of fewer than thirty (30) days or one (1) month at a time, whichever is less, for use, occupancy or possession by the public, regardless of the form of ownership of the unit.

In their petition, the Green’s state that their home had been "either used as a short-term rental and/or was purchased with the intention and understanding that the home could be used for short-term rentals" before any changes in the ordinance restricting short-term rentals. The court finds this statement to be misleading and inconsistent with other evidence presented in support of their petition. Based upon the June 16, 1998 letter from the Green’s attorney to the county, the Green’s offered, but never actually rented out their home. The letter further states that they had all the required licenses and had paid all taxes to become eligible for grandfather rights under the amended ordinance.

II.

When reviewing an administrative proceeding in a petition for writ of certiorari, this court must determine whether the lower tribunal followed the essential requirements of the law, whether the petitioner was afforded due process, and whether the decision below is supported by competent substantial evidence. Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).

III.

DUE PROCESS

The Board correctly points out that the Green’s raise equitable arguments which are beyond the scope of jurisdiction on this petition. See Nostimo v. City of Clearwater, 594 So. 2d 779, 781 (Fla. 2d DCA 1992)(holding that substantive due process claims were not reviewable in certiorari petition). However, the Green’s also allege that they were denied due process when the Board failed to consider all the evidence they presented in support of their appeal. At oral arguments, they presented a letter dated June 16, 1998 which established that they had secured the required licenses, paid all taxes due and made their home available for rental prior to March 17, 1998. The Green’s assert that because they were unable to rent their home within the preceding year, the Board refused to consider the other evidence showing that the home was available for rental.

The Board countered that each applicant was at liberty to include anything in their application packets, but the Board could consider only that evidence which tended to establish or refute entitlement to grandfather rights under section 3.22F. It further alleged that the Green’s presented evidence at oral arguments which had not been presented in their appeal. The Board cited Nostimo, in support of their position that the Green’s due process argument should be raised in a declaratory action. Moreover, the Board asserts there is no basis in fact for a due process violation because the Green’s were given adequate notice and the opportunity to be heard, cross examine witnesses, and present evidence.

THE ORDINANCE

Section 3.22F sets out the requirements for grandfather rights, yet it describes short-term rentals in a manner which appears inconsistent with the definition in section 3.22A. The amended ordinance continues to define a short-term rental as a "dwelling unit which is made available more than three (3) times a year for periods of fewer than thirty (30) days or one (1) month at a time, whichever is less, for use, occupancy or possession by the public, regardless of the form of ownership of the unit." Section 3.22F states in pertinent part:

3.22F GRANDFATHERING.

1. Dwelling units which were being utilized as short-term rentals on March 17, 1998, or which were so utilized within the year preceding March 17, 1998, may continue to be utilized as short-term rentals until March 17, 2008 without the zoning approval otherwise required under this Ordinance, provided that, on or before September 17, 1998, appropriate documentation demonstrating such use is submitted to the Polk County Development Services Division and the unit is registered with the Department Services Division as required under 3.22D. Thereafter, such dwelling units may no longer be utilized as short-term rentals unless the zoning approval required in 3.22B is obtained. For purposes of this paragraph, the following shall constitute appropriate documentation:

Copies of sales receipts reflecting use of the unit for short-term rental purposes during the applicable time period;

Copies of all licenses required for legal operation of the unit during the applicable time period; and

Proof that all taxes have been paid for the applicable time period.

A landowner seeking to re-zone property has the burden of proving that the proposal is consistent with the comprehensive plan and complies with all procedural requirements of the zoning ordinance. Board of County Com'rs of Brevard County v. Snyder, 627 So.2d 469, 476 (Fla. 1993). In this instance, the Green’s have raised a reasonable question whether the evidence they presented established compliance with the grandfather rights provision. Ordinarily, this court would defer to the Board’s reading of the ordinance because the Board’s interpretation of the ordinance is presumptively correct, unless the construction is unreasonable. Las Olas Tower Co., v. City of Ft. Lauderdale, 742 So. 2d 308, 312 (Fla. 1999). However, the Board did not provide any findings of fact which reflect the reasoning of their determination on appeal. Snyder, 627 So.2d at 476, (noting that factual findings are not required in such rulings). Exhibit B of the Board’s response includes a letter from the county, Development Services Division. According to the letter, the count denied the application because of , "[i]nsufficient evidence of actual use of the property as a short-term rental prior to March 17, 1998" and "[i]nsufficient evidence that the required taxes for the property were paid for the time period prior to March 17, 1998." Exhibit C is an internal memorandum which advises the Board to affirm the decision of the county. The memorandum states that the reason for denial was failure to establish"one or more of" the requirements set forth in section 3.22F. Because this court has no basis for determining whether the Board ever considered the Green’s evidence in light of this issue, this court finds that the Green’s present a colorable question of whether they received adequate due process. Bell v. Burson, 402 U.S. 535, 540 (1971) (noting that a procedural rule which satisfies due process in one context may not satisfy due process in another context).

Substituting the definition of short-term rental from 3.22A for the term in section 3.22F, means the ordinance would include those owners who made their homes available for rental prior to the deadline although the homes were not actually rented. However, if section 3.22F is intended to elicit additional qualifying criteria, it would apply to those homes which were available for rental because the owner had satisfied the license and tax requirements, but which also had been rented during the year prior or was rented on the deadline date. Both interpretations are consistent with the stated intent of the revised ordinance. However, without factual findings, this court cannot determine how narrowly the Board intended to draw the grandfather exception. Moreover, because the Board’s reading of the ordinance is presumed correct, this court will not direct the outcome of this analysis.

Accordingly, it is hereby ORDERED that this cause is REMANDED for reconsideration, or in the alternative, clarification.

ORDERED 2 June 2000.

Charles B. Curry
Chief Judge