Board of County Com'rs, Hillsborough County v. Ralston, 73--42

• Decision Date: 28 September 1973
• Docket Number: No. 73--42,73--42
• Parties: BOARD OF COUNTY COMMISSIONERS, HILLSBOROUGH COUNTY, Florida, Appellants, v. Joseph M. RALSTON et al., Appellees.
• Court: Florida District Court of Appeals

Page 456

284 So.2d 456

BOARD OF COUNTY COMMISSIONERS, HILLSBOROUGH COUNTY, Florida, Appellants, v. Joseph M. RALSTON et al., Appellees.

No. 73--42.

District Court of Appeal of Florida, Second District.

Sept. 28, 1973.

Rehearing Denied Nov. 6, 1973.

A. G. Spicola, Jr., Tampa, for appellants.

J. Michael Shea, Tampa, for appellees.

MANN, Chief Judge.

Ralston Beach lies between the northwest corner of the intersection of Sligh and Habana, in Tampa, and the southeast corner of Lake Egypt. Until recently, all of the shore of Lake Egypt was zoned R--1, for single-family residences. The public beach has long been operated as a non-conforming use. In recent years the appellant commissioners have zoned the western shore of the lake to accommodate a large apartment project. Now the circuit judge has determined that R--1 is unconstitutionally restrictive as applied to the ten acres of appellees' property and ordered rezoning to a classification not less restrictive than R--3, which would permit the apartment project Ralston's prospective buyer plans. We reverse and remand for several reasons.

Judicial authority to order zoning change is limited to those circumstances in which the maintenance of the existing classification is arbitrary, capricious, confiscatory in its effect: in short, unconstitutional. The basic authority to zone lies with these commissioners, and so long as their prescribed limitations on land use are fairly debatable, we are powerless to intervene.

Two principal factors must have influenced the trial judge's decision. First, there is traffic. Sligh Avenue is now a four-lane, heavily traveled road. Habana is narrower, but a feeder street of considerable importance. On the southeast corner of this intersection commercial development has occurred, and the expert witnesses testified that the northwest corner of the intersection, where the beach lies, is very difficult to develop for single-family homes because of its location and the consequent effect on construction financing and buyer resistance. Secondly, the county has allowed apartment development on a third of the lake's shore, on the west side.

The first error is failure of the plaintiffs to show that the R--1 classification, As enlarged by the present authority to maintain a non-conforming public beach, is unreasonable. The testimony relates to R--1 zoning in the abstract. The Ralstons are permitted to retain their commercial enterprise, and to show that the county's retention of R--1 zoning is unconstitutional they must show a deprivation of their particular property rights. This follows as a corollary to the basic principle. There is simply no evidence relating to the continuance of the non-conforming use and its relationship to the process of balancing the public's interest in control of land use and the individual's property rights. County of Brevard v. Woodham, Fla.App.4th 1969, 223 So.2d 344, is in point.

Secondly, this appeal is taken from an order compelling rezoning to a classification not less restrictive than R--3, on a record not excluding intermediate categories. The witnesses devoted their attention to the unreasonableness of R--1. Nothing is said about R--2, and to jump to R--3 requires an exclusion of the intermediate category as a reasonable possiblity. Additionally, a declaration of unreasonableness need not be accompanied by a specific mandate to rezone.

There is another zoning classification which is not technically intermediate, but which is less restrictive than R--1 and ought to be considered here as offering a sound solution to the land use problem. It is described commonly as a planned unit...