FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
for Certiorari Review of Order from the Circuit Court for
Brevard County, Lisa Davidson, Judge.
P. Beadle, of Spira, Beadle & McGarrell, P.A., Palm Bay,
Clifford Repperger, Jr., and Tiffany M. Walters, of
GrayRobinson, P.A, Melbourne, for Respondents.
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.
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.
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.
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
. . . .
(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 ...