09-04-01 Sutton vs COABALAN JENSEN ATTY 979 P01
ALAN C. JENSEN
Attorney at Law
935 North Third Street
Post Office Dox 50457
Jacksonville Beach, Florida 32240-0457
Telephone (904) 246-2500
DATE:
TO:
COMPANY:
FAX NLTNIBER:
NUM ER OF PAGES:
FROM:
CLW-NT/MA,TTER NO.:
September 4, 2001
Julie Brandt, Secretary
Code Enforcement Board
City of Atlantic Beach
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(904) 247- JO j
A(including cover sheet)
ALAN C. JENSEN, ESQ.
SEP 04101 13:43
Facsimile (904) 246-9960
F,Xbil: ATensenLew®aol.com
Time: %� �•j
Sutton vs Atlantic Beach
,Appeal of CDB denial of a variance to allow parking
of boat in front yard
MESSAGE
In the event that I am unable to make the meeting tonight for the reasons explained to you, please
provide the Code Enforcement Board with this update regarding the above appeal:
1. The CAB denied the variance at its meeting on May 15, 2001.
2. The Orden Denying Variance was signed by the chairman of the CDB on June 19,
2001.
3. Previously, on June 11, 2001, the City Commission had unanimously upheld the
action of the CDB to deny the variance requested by Mr. Sutton. An appeal to the City
Commission based on an illegal action taken by the CDB was denied.
4. On or about July 19, 2001, Mr. Sutton piled an appeal to the circuit court by a
Petition For Writ of Certiorari, which is the appropriate method of appealing a decision by a city
board. The appeal basically states that Mr. Sutton had never been previously cited with a violation
of the ordinance, even though he had been keeping his boat there for approximately 11 years. He
also claims, because of the unique shape of his property, that he cannot get a ten foot wide boat
trailer down his side yard, In my opinion, neither of these arguments is a sufficient basis to reverse
Me decision of the CDB.
ALAN JENSEN ATTY 879 P02 SEP 04'01 13:44
Julie Brandt, Secretary
Code Enforcement Board
Fax Memorandum of September 4, 2001
Page 2
5. 1 filed a Motion to Dismiss the Petition For Writ of Certiorari on behalf of the City,
stating that the grounds set forth in Mr. Sutton's petition were insufficient to reverse the decision of
the CDB. I further alleged that Mr. Sutton failed to allege any basis regarding the standard of
review which a circuit court must use in reviewing a quasi judicial decision of the CDB, said
standard of review being as follows:
(a) Whether the petitioner was afforded due process;
(b) Whether the CBD observed the essential requirements of law; and
(c) Whether the findings and decision of the CDB are supported by
competem substantial evidence.
6. 1 also argued that the court cannot substitute its judgment for the CDB, but only
determine whether the board complied with the standards of review. I cited cases to the court in
support of all my arguments.
7. On August 22, 2001, the circuit court entered an Order, which dismissed the
Petition For Writ of Certiorari, stating that the petitioner failed to exhaust his administrative
remedies. However, since an appeal was to w l to the City Commission, I believe the court
incorrectly ruled, and I did not even make that point in the Motion to Dismiss I filed. If necessary,
the other attorney and I will get with the court to correct what I believe is an error in the court's
decision.
8. In my discussions with Mr. Sutton's attorney, there is a possibility that this entire
matter may become moot, thereby eliminating the necessity of any further court action. I will
notify the City if that becomes the case.
9. A hearing was previously scheduled for October 19, 2001, on the Motion to
Dismiss I filed.
Please advise the members of the Code Enforcement Board that they are free to contact me if they
have any questions at all regarding the above matter.
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