Ybor Properties, LLC v. City of Tampa, Caldwell

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
YBOR PROPERTIES, LLC,
Petitioner,
v.
CITY OF TAMPA and JOSEPH CALDWELL,
Respondents.
No. 2D2025-1535
March 25, 2026
Petition for Writ of Certiorari to the Circuit Court for Hillsborough
County; Christine A. Marlewski, Judge.
Allison C. Doucette and Ethan J. Loeb of Bartlett Loeb Hinds Thompson
and Angelos, Tampa, for Petitioner.
Andrea Zelman, City Attorney, and David E. Harvey, City Attorney's
Office, Tampa, for Respondent City of Tampa.
Michael J. Labbee and Tyler A. Hayden of Phillips, Hayden & Labbee,
LLP, St. Petersburg, for Respondent Joseph Caldwell.
BLACK, Judge.
Ybor Properties, LLC, seeks second-tier certiorari review of the
circuit court's order denying its petition for writ of certiorari. In the
circuit court, Ybor Properties petitioned for a writ quashing the City of

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Tampa City Council's Final Order Granting Petition and Overturning
Formal Decision of the Zoning Administrator. We grant the second-tier
petition and quash the order of the circuit court.
In 2000 the City of Tampa went through a rezoning process.
Properties now owned by Ybor Properties were set to be rezoned from YC-
6, which allows a parking lot as a nonconforming use, to YC-7, which
does not. On March 8, 2000, 717 Parking Enterprises, on behalf of itself
and the property owner at the time, submitted an opt-out letter to the
City requesting that the subject parcels be opted out of the proposed
rezoning. This letter was consistent with opt-out letters 717 Parking sent
to the City concerning its other properties subject to the rezoning.
On March 16, 2021, more than twenty years after the submission
of the March 8, 2000, opt-out letter, the City issued a code enforcement
violation to Ybor Properties, citing Ybor Properties' use of the subject
parcels as parking lots in violation of YC-7 zoning. The other properties
for which 717 Parking had submitted opt-out letters were not in violation
as they had remained YC-6 zoned. On May 26, 2021, Ybor Properties
submitted an Application for Written Determination—Formal Decision
pursuant to the City of Tampa, Florida, Code of Ordinances Section 27-
54, seeking to formally confirm the status of the parcels as governed by
YC-6 zoning. The necessary documents were not notarized and
submitted until June 16, 2021. The Code of Ordinances open record
period for interested parties to provide documentation began July 9,
2021, and ended July 29, 2021. City of Tampa, Fla., Code of Ordinances
§ 27-54(c) (2020).
On August 17, 2021, the zoning administrator issued a formal
decision determining that the parcels were zoned YC-7 and could not be
used as parking lots. The decision specifically stated that there was

3
"insufficient direct evidence in the record" to support the exclusion of the
parcels from the zoning change. It also included that the decision "is
valid as of the date of the letter and continues to be valid until modified
by official action of the City. If you disagree with any findings stated in
this determination letter, you may file a petition for review."
On August 30, 2021, the zoning administrator issued a second
final determination, finding that "additional documentation was
discovered by the City relevant to the determination regarding the
[parcels'] land use and zoning, and as a result, the Zoning Administrator
rescinds the letter dated August 17, 2021." The August 30
determination included:
On March 8, 2000, 717 Parking provided written
correspondence to the City during an area-wide land use and
zoning change (Plan Amendment 99-3/Rezoning Z00-15),
requesting to retain the future land use classification and
zoning category of HC-24 and YC-6, respectively, and [be]
excluded from proposed changes (see attached letter). The
request to be excluded from the proposed changes was not
placed in the public record and as a result, the land use was
changed from HC-24 to CMU-35 and the zoning was changed
from YC-6 to YC-7.
Upon further review of the available evidence, it is clear
that there was a request by 717 Parking for these [parcels] to
retain the existing land use and zoning categories and had
the request been placed in the public record, City Council
would have excluded said property from both the land use
change and the zoning change and it would have retained the
HC-24 land use and the YC-6 zoning. This is evidenced by
City Council's actions on other properties owned or
represented by 717 Parking, including 1612 through 1616
East 5th Avenue.
In summary, it is my determination, based on the
evidence and actions by Tampa City Council at the March 8,
2000, hearing, that the [parcels] should not have been
included in the area wide comprehensive plan amendment
and rezoning and should have remained HC-24 and YC-6.

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The August 30 decision was within the fourteen-day period in
which Ybor Properties could have sought review of the August 17
decision. See City of Tampa, Fla., Code of Ordinances § 27-61(d) (2020).
The August 30 decision effectively mooted Ybor Properties' need to seek
review of the prior decision.
On September 13, 2021, Joseph Caldwell filed a Petition for Review
of the August 30, 2021, Formal Decision as an aggrieved person as
defined by the Code of Ordinances. See City of Tampa, Fla., Code of
Ordinances § 27-61(c) (2020). In his petition, Mr. Caldwell challenged
the evidence supporting the August 30 decision. He did not challenge
the zoning administrator's ability to rescind the August 17 decision.
A quasi-judicial hearing was held on the petition on May 3, 2022.
The hearing officer recommended denying Mr. Caldwell's petition and
affirming the August 30 formal decision of the zoning administrator.
This recommended order (RO) was filed with the City Council pursuant
to section 27-61(j)(1) of the Code of Ordinances. The City Council held
two public hearings to consider the RO and remanded the matter back to
the hearing officer for further fact-finding. See City of Tampa, Fla., Code
of Ordinances § 27-61(1)(e)(iii) (2020). Specifically, the City Council
asked for chain of custody evidence as to whether the opt-out letter
existed in the City's files in March 2000 and evidence regarding other
opt-outs.
An amended RO was issued in January 2023 and again
recommended denying Mr. Caldwell's petition and affirming the formal
decision of the zoning administrator granting the opt-out. In the
amended RO, the hearing officer found that while Mr. Caldwell's
"skepticism" regarding the validity of the opt-out letter was

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understandable, "the testimony was uncontroverted that the opt-out
letter was personally delivered" to the City two decades ago. The Code of
Ordinances specifies that the zoning administrator consider "all written
documents received as part of the application and through the open
record period and any other relevant information obtained through
research conducted by the zoning administrator or designee" and
"consult with appropriate city staff and the legal department, if so
desired." City of Tampa, Fla., Code of Ordinances § 27-54(b)(7) (2020).
Included in the evidence submitted was the March 8, 2000, opt-out letter
concerning the subject parcels. The amended RO also included that, as
a matter of law, Mr. Caldwell bore the burden of proof as the petitioner
and that he did not meet his burden given the uncontroverted testimony
that the letter was provided to the City in March 2000. The amended RO
included, however, that the City had no record of receiving the letter
before April 2021. Additional testimony included that the zoning
administrator spoke with the legal department regarding the March 2000
opt-out letter at issue. The zoning administrator testified that he
received the opt-out letter via email directly from Ybor Properties in April
2021. Emails to the zoning administrator are subject to public records
requests.
The amended RO was then reviewed by the City Council. After oral
argument was held before the City Council, the Council rejected the
amended RO. It voted to grant Mr. Caldwell's petition and overturn the
zoning administrator's decision, thereby denying Ybor Properties' request
for exemption. The oral findings following the vote included the
purported failure of the hearing officer to do a forensic investigation of
the documents and the lack of testimony from the legal department with
whom the zoning administrator consulted before issuing his final

6
decision. The City Council also found that the testimony that the opt-out
letter had been hand-delivered in March 2000 was "not competent or
substantial evidence to prove that the letter was in the City's hands at
that time."
The City Council's written order rejecting the RO makes findings
and conclusions significantly different than its oral findings and
conclusions. In the written order, the City Council rejected every
conclusion of law in the RO as "unreasonable and clearly erroneous."
The City Council included in its conclusions of law that the zoning
administrator "lacked legal authority" to rescind the August 17 formal
decision and issue a revised formal decision and that the zoning
administrator lacked legal authority to consider the opt-out letter
because it was "uncontroverted" that it was not received as part of the
application or otherwise during the open record period. The City Council
further found that the uncontroverted fact that the opt-out letter had not
been received with the original application or during the open record
period was "omitted as a specific finding of fact in the [RO]" and that "this
relevant and material fact was not considered in the [RO] after remand."
Following the City Council's rejection of the RO and denial of Ybor
Properties' exemption, Ybor Properties filed a petition for writ of certiorari
with the circuit court. In that petition, Ybor Properties argued that the
City Council both departed from the essential requirements of law and
failed to provide due process in issuing its order. Ybor Properties argued
that the City Council departed from the essential requirements of law by
(1) rejecting or substituting the hearing officer's findings of fact in
violation of the Code of Ordinances; (2) ignoring findings of fact that
contradicted the City Council's conclusions of law in violation of the
limited review allowed by the Code of Ordinances; (3) failing to apply

7
relevant provisions of the Code of Ordinances when reaching its
conclusion that the zoning administrator lacked legal authority to
consider the opt-out letter; and (4) failing to apply relevant provisions of
the Code of Ordinances when reaching the conclusion that the zoning
administrator could not rescind his August 17 decision and issue his
August 30 decision. Ybor Properties also argued that the City Council
deprived it of due process by changing the basis of its decision from that
which was pronounced at the oral argument following the vote to that of
the written order and doing so without the benefit of a public hearing.
The circuit court denied Ybor Properties' petition. In its findings of
fact, the circuit court stated that Mr. Caldwell argued in his petition that
the zoning administrator lacked legal authority to overturn his own
decision. This is patently unsupported. The issue of the zoning
administrator's authority to rescind the August 17 decision was not
raised by Mr. Caldwell in his petition for review. The lack of a public
hearing on the proposed order that was adopted by the City Council
compounded the due process error.1
The circuit court order also incorrectly states that the April 2021
email including the opt-out letter had never been produced.
Nonetheless, the court determined, as a matter of law, that even if it had
been produced, there was no conflict between the City Council's findings
and the hearing officer's findings. The court found that Ybor Properties
1 The circuit court addressed Ybor Properties' argument that
because the August 30 decision was issued within the fourteen days for
it to appeal from the August 17 decision there was no opportunity to
seek review as part of the due process claim. That argument, however,
was part of Ybor Properties' departure claims; its due process claim
centered on the changed basis of granting Mr. Caldwell's petition and
doing so without an opportunity for Ybor Properties to argue against it.

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had not cited any authority that would explicitly allow the zoning
administrator to rescind his August 17 decision and issue the August 30
decision. It then found that Ybor Properties had failed to appeal the
August 17 decision and that had it "pursued the appropriate avenue" it
would have borne the burden of proof.
In its conclusion, the circuit court stated:
Considering the facts of the case as a whole, the [parcels]
w[ere] zoned YC-7 . . . in 2021. . . . Ybor Properties insists
now that the [parcels] should be entitled to legal non-
conforming status. This argument is entirely based on an
unwritten policy allegedly created unilaterally by one City
employee who has since retired, with no evidence that this
policy was meant to apply to the [parcels] specifically. . . .
This court cannot and will not issue orders based on
nebulous, unwritten policies established in the record solely
by hearsay testimony describing a decades-old recollection
from a layperson with an interest in the outcome because
such testimony, on its own, does not constitute competent,
substantial evidence, nor is it permitted to form the sole basis
of the hearing officer's findings.
(Underlined emphasis added.) Further, the court stated that "Ybor
Properties' production of a copy of a letter allegedly sent . . . does nothing
to prove, disprove, or explain the City's decision to rezone the property in
2000."
Following the denial of its petition in the circuit court, Ybor
Properties filed the subject petition for writ of certiorari in this court.
Second-tier certiorari review "is limited in scope 'to whether the
circuit court (1) afforded procedural due process and[] (2) applied the
correct law.' " Hillsborough County v. G.L. Acquisitions Corp., 415 So. 3d
1205, 1207 (Fla. 2d DCA 2025) (alteration in original) (quoting Miami-
Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla.
2003)). "In other words, this two-pronged, second-tier review is simply

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another way of deciding whether the lower court 'departed from the
essential requirements of law.' " Id. (quoting Omnipoint Holdings, 863 So.
2d at 199). "[T]he circuit court may not reweigh the evidence nor
substitute its judgment for that of the agency." City of Deerfield Beach v.
Boca Dominium, 795 So. 2d 145, 146 (Fla. 4th DCA 2001) (citing Educ.
Dev. Ctr., Inc. v. City of W. Palm Beach Zoning Bd. of Appeals, 541 So. 2d
106, 108 (Fla. 1989)); see also Town of Longboat Key v. Islandside Prop.
Owners Coal., LLC, 95 So. 3d 1037, 1039-40 (Fla. 2d DCA 2012) ("A
court departs from the essential requirements of the law if it reweighs the
record evidence.").
"The decision to grant or withhold relief by way of second-tier
certiorari largely depends on our 'assessment of the gravity of the error
and the adequacy of other relief.' " Save Calusa, Inc. v. Miami-Dade
County, 355 So. 3d 534, 541 (Fla. 3d DCA 2023) (quoting Custer Med.
Ctr. v. United Auto Ins., 62 So. 3d 1086, 1092 (Fla. 2010)). Where the
petitioner has been deprived "of the full scope of review to which it
was . . . entitled" a miscarriage of justice has occurred, warranting
certiorari relief. See MGM of W. Fla., LLC v. Manatee County, 406 So. 3d
351, 355 (Fla. 2d DCA 2025).
Ybor Properties contends that the circuit court applied the
incorrect law because it reweighed evidence and made new findings of
fact based on its view of the evidence. Given the language in the circuit
court's order, including that the court viewed the sufficiency of the 2000
opt-out letter as part of a "nebulous, unwritten polic[y] established in the
record solely by hearsay testimony describing a decades-old recollection
from a layperson with an interest in the outcome," the circuit court did
more than determine that the City Council's findings were supported by
competent substantial evidence. Further, the burden was on Mr.

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Caldwell, not Ybor Properties, at the City Council hearing; yet the circuit
court shifted the burden to Ybor Properties—not to establish the
certiorari prongs but to establish entitlement to the opt-out. Here "it [is]
apparent that the circuit court 'combed the record and extracted its own
factual finding[s].' " Cf. Town of Longboat Key, 95 So. 3d at 1040
(quoting Broward County v. G.B.V. Int'l, Ltd., 787 So. 2d 838, 845 (Fla.
2001)). The circuit court therefore applied the wrong law because
"instead of applying the [first-tier certiorari] standard of review, the court
applied an independent standard of review." See G.B.V. Int'l, 787 So. 2d
at 845. And applying an incorrect or independent standard of review in a
certiorari proceeding "is tantamount to departing from the essential
requirements of the law." Id.
Ybor Properties also argues in its petition here that the circuit
court departed from the essential requirements of the law by failing to
"apply the correct rubric for due process." Rather, "the circuit court
ignored Ybor Properties' due process argument and in turn accused Ybor
Properties of inappropriate conduct." Ybor Properties is correct. The
circuit court's order wholly failed to address the due process argument
Ybor Properties raised in its petition: that the City Council based its
determination on an issue not raised by Mr. Caldwell and for which no
argument was permitted at oral argument—the legal authority of the
zoning administrator to rescind his August 17 decision and replace it
with his August 30 decision. The circuit court's order addresses only the
issue of the review period and the lack of cited authority explicitly
permitting the zoning administrator to rescind his initial decision.
The due process argument raised in the first-tier petition but not
addressed in the circuit court's order is significant. The City Council's
vote to grant Mr. Caldwell's petition was not based on the zoning

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administrator's lack of authority, and Ybor Properties had no ability to
present evidence or argument on that issue because it was not raised in
Mr. Caldwell's petition and the City Council precluded argument on the
issue.
The circuit court departed from a clearly established principle of
law when it failed to consider Ybor Properties' argument that the City
Council deprived it of due process by entertaining an issue not raised in
the petition before it and otherwise by precluding argument on the issue.
See Progressive Am. Ins. v. SHL Enters., LLC, 264 So. 3d 1013, 1017 (Fla.
2d DCA 2018) ("By improperly restricting the scope of its own certiorari
review, the circuit court did not engage in a meaningful analysis of the
county court's order and thus could not have concluded that there was
no departure from the essential requirements of the law."); State Farm
Fire & Cas. Co. v. Lezcano, 22 So. 3d 632, 634 (Fla. 3d DCA 2009) ("A
denial of the guarantee of due process represents a violation of a clearly
established principle of law such that certiorari relief is warranted."); cf.
Progressive Express Ins. v. Fry Enters., Inc., 264 So. 3d 1008, 1012 (Fla.
2d DCA 2018) ("[A] circuit court's failure to rule on a party's pending
motion directed to the briefing and record before the court prior to the
court ruling on the merits of a petition constitutes a denial of procedural
due process."). The circuit court's failure to consider Ybor Properties'
due process argument is a miscarriage of justice. See Blair Nurseries,
Inc. v. Baker County, 199 So. 3d 534, 537-38 (Fla. 1st DCA 2016) ("[T]he
trial court's denial of judicial review is a miscarriage of justice, akin to a
denial of due process, because it foreclosed any judicial review of the
Commission's rejection of the plat vacation application. . . . It is hard to
imagine anything more manifestly unjust than a complete denial of

12
judicial review when it should otherwise have been provided as a matter
of right." (citing G.B.V. Int'l, 787 So. 2d at 843)).
The circuit court failed to apply the certiorari standard by
reweighing evidence and by failing to address a significant due process
issue. The latter failure results in a miscarriage of justice. Accordingly,
we grant the petition for writ of certiorari and quash the circuit court's
order.
Petition granted; order quashed.
KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.
Opinion subject to revision prior to official publication.