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City of Satellite Beach v. Goersch

Florida Court of Appeals, Fifth District

April 28, 2017

CITY OF SATELLITE BEACH, Petitioner,
v.
KLAUS GOERSCH AND BRIGITTE GOERSCH, Respondents.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Petition for Certiorari Review of Order from the Circuit Court for Brevard County, Lisa Davidson, Judge.

          James P. Beadle, of Spira, Beadle & McGarrell, P.A., Palm Bay, for Petitioner.

          Clifford Repperger, Jr., and Tiffany M. Walters, of GrayRobinson, P.A, Melbourne, for Respondents.

          PALMER, J.

         The City of Satellite Beach (the City) seeks 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. Because the circuit court failed to apply the correct law, we grant the petition.

         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 Code). The amendment reads:

A fence shall not have more than 30 percent of any vertical surface per running foot constructed of opaque materials.

         The Goersches applied for a permit to extend their existing fence. The permit was issued, and the fence was installed. However, 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 Code to allow the now-completed, noncompliant fence to remain in place. Section 30-205(b) of the Code authorizes the Board of Adjustment to hear and decide applications for fence variances. This section provides:

         Powers and Duties

. . . .
(3) Criteria. The board shall be governed by the following criteria when deciding whether a variance shall be granted: a. Written application. A written application for a variance must be submitted demonstrating the following criteria, all of which must be met:
1. A special circumstance exists which is peculiar to the land, building, or structure involved (i.e., not applicable to other lands or structures in the same zoning district), and is not the result of the applicant's actions ...

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