Broward County v. Capeletti Bros., Inc., 78-317

• Court: Florida District Court of Appeals
• Writing for the Court: ANSTEAD
• Citation: Broward County v. Capeletti Bros., Inc., 375 So.2d 313 (Fla. App. 1979)
• Decision Date: 27 June 1979
• Docket Number: No. 78-317,78-317
• Parties: BROWARD COUNTY, Appellant, v. CAPELETTI BROTHERS, INC., a Florida Corporation, and Helmut and Alma Gonde, Appellees.

Page 313

375 So.2d 313

BROWARD COUNTY, Appellant, v. CAPELETTI BROTHERS, INC., a Florida Corporation, and Helmut and Alma Gonde, Appellees.

No. 78-317.

District Court of Appeal of Florida, Fourth District.

June 27, 1979.

Rehearing Denied Oct. 22, 1979.

Alexander Cocalis, Acting Gen. Counsel for Broward County, Dennis E. Lyles and Barry Lessinger, Asst. Gen. Counsel, Fort Lauderdale, for appellant.

James H. Walden of Walden & Walden, P. A., Dania, and Donald R. Hall of Gustafson, Stephens, Ferris, Forman & Hall, P. A., Fort Lauderdale, for appellees.

ANSTEAD, Judge.

This is an appeal from a final judgment compelling the Broward County Commission to grant appellees' petition for rezoning.

Capeletti Brothers, Inc., obtained an option from Helmut and Alma Gonde to purchase a forty (40) acre parcel of land zoned A-1, limited agriculture. Capeletti intended to use the land as an excavation site to provide fill for a road construction project on U.S. 27, the contract to which had already been awarded Capeletti. The A-1 zoning did not permit use of the land as an excavation site, so appellees filed a rezoning petition with the Broward County Commission, requesting that the 40 acre parcel be rezoned from A-1 to A-5, agricultural excavation district.

The current land use plan for the area specified park and recreational uses, while a proposed land use plan indicated agricultural uses which would permit mining upon approval of the county commission. This property, as well as other land in the immediate vicinity, was vacant. All surrounding parcels were also zoned A-1. An environmental impact statement presented by appellees indicated no negative long term effects if the land were to be used for excavation and the zoning board and division of planning both recommended that the A-5 zoning be granted, albeit for a limited period of time. The rezoning petition was considered by the county commission at a public hearing held on April 15, 1977, and denied.

The trial court reversed the county commission's action and concluded:

1. There was no competent, substantial evidence presented to the BROWARD COUNTY COMMISSION which substantiated the denial of Rezoning Petition 15-Z-77.

2. The decision of the BROWARD COUNTY COMMISSION which denied Rezoning Petition 15-Z-77 was not "fairly debatable" and did not have a substantial relationship to the promotion of the public health, safety, morals or general welfare.

3. The decision of the BROWARD COUNTY COMMISSION which denied Rezoning Petition 15-Z-77 was arbitrary and deprived Plaintiffs of a reasonable use and enjoyment of the subject property.

4. The A-1 zoning classification (limited agricultural) is not appropriate to the subject property in that it does not allow excavation and transportation of excavated material off site.

5. The A-5 zoning classification (agricultural-excavation district) is appropriate to the subject property and to the use to which Plaintiffs desire to put the subject property in that it is the only zoning classification in Broward County which permits excavation and transportation of excavated material off site.

We believe the trial judge misconceived the standard of judicial review of the county commission's decision.

A summary of the standard of judicial review of zoning decisions is set out in the recent case of Alachua County v. Reddick, 368 So.2d 653 (Fla. 1st DCA 1979):

We previously have affirmed the judiciary's responsibility to ascertain the rationality of zoning classifications. We here reaffirm that the judicial task is not to determine proper zoning as a forum of first recourse, but is rather to determine, on the evidence before the court, whether the local authority's zoning decision is fairly debatable. As Judge Boyer wrote in Davis (Davis v. Sails, 318 So.2d 214, Fla. 1st DCA 1975),

If the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if its application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts. (318 So.2d at 217.)

The trial court's order for rezoning of the Reddick property displaces a thoughtful decision, on substantially debatable matters of local policy, by duly constituted local government. To sustain the judgment would be an unfortunate retrogression at a time when local governments are called on to act responsibly in restraining random development of land and other natural resources, or else give way to superseding power from the central executive or legislative branch of government. See Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977), Affirmed, 372 So.2d 913 (Fla.1978). All presumably would agree that the sensitivity of decisions affecting land use requires that those decisions be made, if possible, by local officials who are directly responsible to the local electorate. Absent arbitrariness, invidious discrimination, or confiscation in a constitutional sense, the judiciary should let those decisions stand. As our Supreme Court stated as recently as 1978, "zoning or rezoning is the function of the appropriate zoning authority and not the courts . . . ." Skaggs-Albertson's (V. ABC Liquors, Inc.), Supra, 363 So.2d (1082) at 1091 (Fla.1978).

In essence, on judicial review, a landowner seeking rezoning has the burden of demonstrating that the existing zoning classification is arbitrary, unreasonable, or confiscatory. Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975). To sustain his burden the landowner must show that the issue as to the reasonableness of the existing classification is not even "fairly debatable." Rural New Town, Inc., supra.

The thrust of appellees' position here, as it was in the trial court, is that it presented substantial competent evidence to the commission that its desired use of the property was reasonable and therefore rezoning should be granted. However, the burden of the appellees was not to prove that its requested use was reasonable but rather to prove that the continuation of the existing zoning was unreasonable, arbitrary or confiscatory. And the proof must demonstrate that the issue is not even "fairly debatable."

A zoning ordinance will not be deemed confiscatory unless it effectively deprives a...