GARY L. MAYHEW, )
vs. ) Case No. 07-1150
Respondent. )
Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on May 16, 2007, in Gainesville, Florida.
For Petitioner: Gary L. Mayhew, pro se
For Respondent: Lawrence D. Calderon, Chief of Planning
The issue is whether Petitioner's request for nonconforming status on his property at 1607 and 1607 1/2 Northwest 12th Road, Gainesville, Florida, should be approved.
On January 25, 2007, Respondent, Department of Community Development (Department), City of Gainesville (City), issued a letter to Petitioner, Gary L. Mayhew, advising that it was denying his request that certain property on which he owned two rental units continue to enjoy legal nonconforming status.
On February 8, 2007, Petitioner filed an appeal from that decision pursuant to Section 30-354(h)(1), Code of Ordinances. That section provides that if there are disputed issues of material fact involved, the appeal is heard by a hearing officer (administrative law judge), rather than the City's Board of Adjustment (Board). See § 30-354(h)(5)B.i, Code of Ordinances. Because Mr. Mayhew alleged that there were disputed issues of material fact, the matter was referred by the City to the Division of Administrative Hearings (DOAH) on March 12, 2007, with a request that an administrative law judge conduct an evidentiary hearing.
In a telephonic status conference held on April 20, 2007, the parties were encouraged to confer and enter into a stipulation of facts and admissibility of exhibits. On May 8, 2007, the parties filed a Stipulation and Agreement containing a summary of stipulated facts and agreement to the admission of various papers filed by Mr. Mayhew with his appeal. They also agreed that a final hearing should be held on May 16,
2007, in Gainesville, Florida.
At the final hearing, Petitioner testified on his own behalf and presented the testimony of his wife, Deborah Mayhew. Also, he offered Petitioner's Composite Exhibit 1, which was received in evidence. The Department was represented by its Chief of Planning, Lawrence D. Calderon, who testified on its behalf and presented the testimony of Michael Wohl, a City code enforcement officer. Finally, Dr. Richard Kosch, who lives across the street from the subject property, testified as a member of the public.
A Transcript of the hearing was filed on May 21, 2007. Proposed findings of fact and conclusions of law were due no later than May 31, 2007. However, none were filed by either party.
Based upon all of the evidence, including the stipulation of facts filed by the parties, the following findings of fact are determined:
Mr. Mayhew resides in Hawthorne, which is located in the southeastern portion of Alachua County (County). (Some papers filed in this case identify his residence as being in Cross Creek, rather than Hawthorne, but with the same street address.) Since November 1998, he has owned property at 1607 and 1607 1/2 Northwest 12th Road, Gainesville, Florida. More
specifically, the property is in an older, single-family residential neighborhood known as Florida Park which is located several blocks west of U.S. Highway 441, which runs in a north-south direction through the City, and approximately one-quarter mile north of Northwest 8th Avenue. In broader geographical terms, the property is located around one mile north of the University of Florida campus.
There are two structures (or units) on Petitioner's property. One is a three-bedroom, two-bath dwelling constructed by the original owner (Mr. Gainous) in 1949, who occupied that dwelling with his wife. That unit's address is listed on the County Property Appraiser's records as 1607 Northwest 12th Road. The second structure, a two-bedroom,
one-bath dwelling (also referred to as a "cottage"), was built by Mr. Gainous in 1957, and was apparently used primarily as rental property by the owner. The address of the second unit on the Property Appraiser's records is 1607 1/2 Northwest 12th Road. Separate gas meters and a single water line and electric meter serve the two units. (Although the two units are given separate street addresses by the Property Appraiser, only one tax bill is issued by the County Tax Collector.)
When these structures were built, the County did not issue building permits.
The property was in the unincorporated area of the
County until 1961, when the City annexed the property. In 1964, the City adopted its first zoning plan and placed the property in what was then known as the Single-Family Residential (R-1a) zoning district. This category was used since the property was "closely consistent" with that zoning classification. A few years later, the property was rezoned to the Residential Single-Family zoning district (RSF-1), which apparently replaced the R-1a zoning district, and it still remains in that zoning classification.
Under current zoning regulations, unless a property has "legal" nonconforming status, two family dwellings are not permitted in the RSF-1 zoning district. However, if a structure and use of land was in existence before the City annexed the property and adopted its zoning code, and was not otherwise shown to have lost that status, the nonconforming use is grandfathered and allowed "to continue until [it is] removed" or otherwise conflicts with conditions pertaining to nonconforming lots, uses, or structures. See § 30-346, Code of Ordinances. (Nonconforming status allows the owner to rent each unit on the parcel to no more than three unrelated persons. Thus, six unrelated persons could legally occupy Mr. Mayhew's two units. However, Mr. Mayhew has always rented to smaller numbers of tenants, and then only to graduate students or "professionals.")
One way a property can lose its status is for the owner to not use the property in a nonconforming status for nine consecutive months. In the case of a rental property, this means that the owner has not rented the property for at least nine consecutive months. If this occurs, the owner is presumed to have abandoned the nonconforming status. See § 30-346(5)(d), Code of Ordinances. The precise date on which the City began using the nine-month time period is unknown. According to Mr. Calderon, this time period has been in the Code of Ordinances for "awhile," it was in the Code of Ordinances when "Citywide zoning" was first used in 1982, and
he implied that it was in the first zoning code adopted in the 1960s.
The City has no formal process by which it monitors properties to ensure that they continue to meet the requirements for legal nonconforming status. Generally, the issue arises after a complaint is filed by a third party or an inspection is made by City officials, who then require that the owner confirm (or prove) that the property still qualifies for that status.
In this case, in October 2006, the tenant who occupied the cottage filed a complaint with the City concerning the installation of a new gas stove and other possible code violations. Prior to that time, no other
complaints had been lodged against Mr. Mayhew's property.
In response to that complaint, a code enforcement officer, Michael Wohl, inspected the property. During the course of that inspection, Mr. Wohl noticed that there were two rental units on one parcel of land. As a routine part of the inspection process, Mr. Wohl made an inquiry to determine if Mr. Mayhew had a landlord permit for each unit. Under the Code of Ordinances, a landlord permit is required for each rental unit. (The specific provision in the Code of Ordinances which imposes this
requirement was not given.) According to Mr. Calderon, this requirement has been in the Code of Ordinances since 1989.
Mr. Wohl learned that Mr. Mayhew had purchased one landlord permit for the parcel in the year 2000 (and had renewed that permit each year) but did not have a second permit. (When he purchased the property in late 1998, Mr. Mayhew did not know that such permits were even required. He obtained one as soon as this was brought to his attention.) After Mr. Mayhew advised Mr. Wohl that he was unaware that a permit was needed for each unit on his property, Mr. Wohl spoke with Mr. Calderon, who instructed Mr. Wohl to verify if the property was a legal nonconforming use (and therefore could qualify for two landlord permits) since it was located in a single-family zoning classification.
Shortly thereafter, a citation was issued to Petitioner. The specific nature of the citation was not disclosed. In any event, by letter dated September 25, 2006, Mr. Calderon requested that Mr. Mayhew provide documentation to support the nonconforming use of the cottage at 1607 1/2 NW 12th Road as an accessory dwelling unit.
In response to Mr. Calderon's request, on October 2, 2006, Mr. Mayhew submitted a lengthy letter with supporting documentation, including photographs of the units; copies of rental agreements of tenants who had rented the cottage since
he had purchased the property in November 1998; information regarding the date of construction of the two units; and Property Appraiser records showing two units on the parcel.
On December 7, 2006, the Department advised Mr.
Mayhew by letter that "[b]ased on the physical evidence, property appraiser records and documents provided by you, the property is therefore classified as an existing non-conforming two-family development and is subject to regulations governing non-conforming uses." However, because the City apparently has a policy of notifying residents who live within 300 feet of the subject property of this type of decision, the City also issued on the same date a Notice of Decision to Issue
Non-Conforming Status to Petitioner's Property (Notice)." (The record is unclear whether this notice was given pursuant to a policy or a specific Code provision. Other provisions
within the Code of Ordinances provide for such notice when the Board conducts hearings on variances, appeals alleging error by an administrative official, and requests for special zoning exceptions. See § 30-354(h)(6)(i)-(k), Code of Ordinances.)
In response to the Notice, affidavits were filed by a number of residents who lived adjacent to, or near, the subject property. After reviewing those affidavits, on December 20, 2006, the Department advised Petitioner by letter that based on "new information . . . submitted by affected
persons within 300 feet of your property . . . [the] staff [is going to] reconsider the nonconforming status of your property."
On January 25, 2007, Mr. Calderon issued a letter denying Mr. Mayhew's request for the following reasons:
I have reviewed the information you submitted and those submitted by surrounding property owners. Based on the information and affidavits, there appears to be no consensus or conclusive data establishing emphatically that the subject property has been used consistently as a two-family development since annexation into the city. Evidence from the property owner would suggest that since 1998, the subject property has been used as a two- family dwelling and that no nine-month period has elapsed where the property was not used as a two-family dwelling.
However, due to uncertainty for the period around and prior to 1998, staff cannot make a determination about the status of the development around and prior to 1998.
Staff cannot determine whether the subject property was illegal, legal non-conforming or lost its non-conforming status at the time of ownership change in 1998.
Since the current zoning of the subject property is RSF-1 (Single-family residential, 3.5 dwelling units per acre), the current use as a two-family dwelling is not permitted. Staff is therefore denying the request on the basis that available information cannot demonstrate continued use of the property as a two-family development, since annexation into the [C]ity of Gainesville.
On February 8, 2007, Mr. Mayhew filed his appeal of that decision. Because Mr. Mayhew alleged that there were
disputed issues of material fact, the appeal was forwarded to DOAH, rather than the Board. In his appeal, Mr. Mayhew alleged that the City had improperly relied on affidavits from neighbors to reconsider its decision, that there was no new evidence submitted to support a change in the City's initial decision, and that he could not get a fair hearing from the Board because several members of the Board live in the affected neighborhood or are members of a neighborhood association that includes the Florida Park area.
Section 30-346(5)(d), Code of Ordinances, as amended in November 2006, provides the following restrictions on nonconforming uses:
Whenever a nonconforming use of land or a building or other structure or any portion thereof is abandoned or the use is discontinued for a continuous period of nine months or more, such abandonment or discontinuance shall be presumed to constitute an intention to abandon or discontinue such use, and such use shall no longer be permitted. Any subsequent use of such building or structure or land shall be in conformity with the provisions of this chapter.
Although this section was amended in November 2006, the amendment did not affect (or otherwise change) the nine- month time period for losing a nonconforming use. Prior to the amendment, the section provided that if a nonconforming use was lost due to abandonment or discontinuation, the
reestablishment of the use could be authorized by the Board, after hearing, if the Board found the design, construction, and character of the building not suitable for the uses in the district in which the nonconforming use is situated. Under the new amendment, that option no longer exists. The history note to this provision indicates that the original ordinance (No. 3777) was adopted on June 10, 1992, and was later amended on July 25, 1994.1 (However, Mr. Calderon indicated that the nine-month period dates back many years before the adoption of this particular Ordinance. See Finding of Fact 5, supra.)
When an owner is required to demonstrate that his rental property has continuously retained its nonconforming status, he must show that the property has been continuously rented (with no nine-month breaks) not only for the period of time that he has owned the property, but also for the entire time the property has enjoyed nonconforming status, or in this case since the property was annexed by the City. Thus, Mr. Mayhew was obligated to show that the original owners (Mr. and Mrs. Gainous) rented the property continuously from the time the property was annexed in 1961 until it was sold to Mr. Mayhew in late 1998.
The City's practice is to determine nonconforming status on a case by case basis but the burden is on the owner to prove that status through records such as building permits,
landlord permits, zoning compliance permits, and occupational licenses, and "records from reputable sources." The parties agree that both units were continuously rented by Mr. Mayhew since the time he purchased the property in November 1998.
The dispute here is whether the nonconforming use was abandoned for any nine-month period prior to Mr. Mayhew's purchase of the property. The City contends that Mr. Mayhew has presented no
evidence to show that the cottage was rented by the prior owner from 1996 until the property was sold in late 1998.
Although Mr. Mayhew clearly established (and the City agrees) that the property has been continuously rented since he purchased the parcel in late 1998, he conceded that the cottage was vacant when he purchased the property, that he had made no inquiry to the seller as to how long the cottage had been vacant, and that he had no personal knowledge regarding the rental history of the property during the three years preceding the purchase. He contended, however, that there are always periods of time when a unit remains vacant while the owner is actively seeking a new tenant or when necessary renovations must be made. While this is true, there is no evidence that this occurred during the years 1996, 1997, or 1998. (It is unknown where Mrs. Gainous presently resides, or even if she is still alive. When the property was sold in late 1998, Mrs. Gainous was described as being elderly and in poor health.)
Significantly, City records show that Mrs. Gainous
had secured landlord permits to rent the cottage from 1989 (when permits were first required) through 1995, but she had failed to obtain any permits for the years 1996, 1997, or 1998, at which time she sold the property to Mr. Mayhew. This raises a logical inference, not overcome by Mr. Mayhew, that
she did not rent the cottage during those years.
In addition, Dr. Kosch, who has lived across the street from the subject property for the last twenty years, testified that he personally observed several periods of time before the property was sold to Mr. Mayhew when there were no tenants in the cottage. Although Dr. Kosch could not specifically identify the exact time periods when this occurred (due to the passage of time), his testimony adds further support to a finding that there is insufficient evidence that the cottage was rented continuously (without any nine-month breaks) during the years 1996-1998.
Mr. Mayhew purchased the property with the understanding that he could legally rent both units. While it may seem unfair for him to now have to prove that the property has been continuously rented (with no breaks exceeding nine consecutive months) since the 1960s, this interpretation of the Code of Ordinances has always been followed by the City without exception. According to Mr. Wohl, this situation has occurred at least 8 or 9 times in the last few years alone, and in each case, the property owner was required to prove a continued nonconforming use since the property was annexed by the City or placed in a more restrictive zoning classification.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 30-354(h)(5)B., Code of Ordinances.
Section 30-354(h), Code of Ordinances, prescribes the process for appeals from administrative decisions by the Department. Apparently borrowing language from the uniform rules of procedure adopted pursuant to Section 120.54(5)(b)4., Florida Statutes (2006), the Code of Ordinances provides that petitions for appeal must include a statement of how the petitioner's substantial interests are affected; a statement of how and when the petitioner received notice of the administrator's decision; a statement of all disputed issues of material fact; a concise statement of the ultimate facts alleged, including specific facts that the petitioner contends would warrant reversal by the board or would warrant modification of the administrator's decision; and a statement of the relief sought by the petitioner. See § 30- 354(h)(2)(A)-(E), Code of Ordinances. If disputed issues of material fact exist, as they do here, "[t]he city, through the city attorney's office, shall arrange for the services of a hearing officer to conduct a formal quasi-judicial hearing."
§ 30-354(h)(5)B., Code of Ordinances. (The City has
contracted with DOAH to provide administrative law judges to conduct such hearings.) In a quasi-judicial hearing, the parties "shall have the opportunity to respond, to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, and to submit proposed findings of facts and orders." § 30-354(h)(5)B.ii., Code of Ordinances. The Ordinance goes on to provide that after a quasi-judicial hearing has been conducted, "[t]he hearing officer shall prepare a recommended order consisting of findings of fact, conclusions of law and affirmative relief, if applicable." § 30-354(h)(5)B.iii., Code of Ordinances. In this case, the Board issues a final decision.
As the party asserting the affirmative of the issue, Mr. Mayhew has the burden of proving by a preponderance of the evidence that he is entitled to nonconforming status on his property. See, e.g., Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).
Section 30-346(5), Code of Ordinances, governs this dispute and provides that "[w]henever a nonconforming use of land or of a building or other structure or any portion thereof is abandoned or the use is discontinued for a continuous period of nine months or more, such abandonment or discontinuance shall be presumed to constitute an intention to abandon or discontinue such use, and such use shall no longer
be permitted." In the context of rental property, this means that if an owner fails to rent the property for a period of nine consecutive months, it is presumed that he has abandoned or discontinued such use. Under the City's interpretation and application of this provision, the owner must prove that the units have been continuously rented (with breaks not exceeding nine consecutive months in length) since the property was first annexed by the City.
Based upon the facts previously found, it is concluded that Mr. Mayhew has failed to meet his burden of showing entitlement to nonconforming status on his property. This conclusion is based on findings that the cottage was vacant when he purchased the property, he did not have any personal knowledge regarding the rental history of that unit during the preceding three years prior to his purchase, the seller had faithfully purchased landlord permits from 1989 through 1995 but none after that year, and a neighbor had observed periods of time during the years 1996-1998 when the cottage was vacant. Therefore, the application should be denied.
RECOMMENDED that the Board of Adjustment enter a final decision denying Mr. Mayhew's request to retain nonconforming
status for his property at 1607 and 1607 1/2 12th Road, Gainesville, Florida.
DONE AND ENTERED this 4th day of June, 2007, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
this 4th day of June, 2007.
1/ Whether the City began using the nine-month period in 1992, when Ordinance No. 3777 was adopted, or in 1982, or even earlier, as suggested by Mr. Calderon, is not critical to a resolution of this dispute since the issue here is whether the property was continuously rented (without a nine-month break) during the years 1996 through 1998, when the provision was clearly in effect. The precise date may be relevant in future cases, however, if an owner is required to prove nonconforming status for rental property for any period of time which predates 1992.
Gary L. Mayhew
Lawrence D. Calderon, Chief of Planning Department of Community Development Thomas Center Building B
15 days to this Recommended Order. Any exceptions to this Recommended Order should be filed with the City's Board of Adjustment which will render a final decision in this matter.
