Posted by: Patricia Salkin | April 27, 2017

FL Appeals Court Reverses Order Quashing Board of Adjustment’s Denial of the Respondents’ Request for a Fence Variance

The Goersches purchased a home in Satellite Beach in 2012. At that time, the property contained an opaque fence which was installed in 2006. The fence became non-conforming in August 2007 as a result of an amendment to the Satellite Beach Code of Ordinances.  The Goersches applied for a permit to extend their existing fence, which was installed after the permit was issued. The building inspector refused to issue a certificate of completion for the fence because it violated the opaqueness amendment. The Goersches sought a variance from the ordinance to allow the now-completed, noncompliant fence to remain in place. In this case, the City of Satellite Beach sought second-tier certiorari review of the circuit court’s order quashing the Board of Adjustment’s denial of the Respondents’, Klaus and Brigitte Goersches’, request for a fence variance.
On appeal, the City argued that the circuit court erred by improperly shifting the burden of proof. The court noted that for a variance request, the applicant carried the initial burden to establish that the criteria necessary to grant the request was met. Here, the Board concluded that the Goersches did not meet that burden, and the court found that the record supported this conclusion. Because the Goersches failed to meet their burden, the burden did not shift to the City to show that there was substantial competent evidence to support the Board’s denial of the variance request. As such, the circuit court failed to apply the correct law in shifting the burden to the City to show that the Board’s denial was supported by substantial competent evidence. Accordingly, the court granted the petition, quashed the circuit’s order, and remanded the case for further proceedings.
City of Satellite Beach v Goersch, 2017 WL 1533633 (Fl App. 4/28/2017)


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