City of Apopka v. Orange County, 73--273

• Decision Date: 22 February 1974
• Docket Number: No. 73--273,73--273
• Citation: 299 So.2d 657
• Parties: The CITY OF APOPKA, Florida, et al., Appellants, v. ORANGE COUNTY, a political subdivision of the State of Florida, and Clarcona Improvement Association, Appellees.
• Court: Florida District Court of Appeals

Page 657

299 So.2d 657

The CITY OF APOPKA, Florida, et al., Appellants, v.ORANGE COUNTY, a political subdivision of the State of Florida, and Clarcona Improvement Association, Appellees.

No. 73--273.

District Court of Appeal of Florida, Fourth District.

Feb. 22, 1974.

On Rehearing April 11, 1974.

William G. Mitchell, of Giles, Hedrick & Robinson, Orlando, for appellants.

Steven R. Bechtel, of Mateer & Harbert, Orlando, for appelleeOrange county.

Carter A. Bradford, of Bradford, Oswald, Tharp & Fletcher, Orlando, for appellee Clarcona Improvement Assn.

DOWNEY, Judge.

This is an appeal by the cities of Apopka, Ocoee, and Winter Garden and the Tri-City Airport Authority from a final judgment of the circuit court denying their petition for certiorari which sought review of an order denying appellants' application for a special exception.This is a companion appeal to those consolidated appeals numbered 72--1204 and 72--1209, 299 So.2d 652.

The appellant cities formed the appellant Tri-City Airport Authority pursuant to Chapter 332, F.S.1971, F.S.A., commonly known as The Airport Law of 1945, for the purpose of building an airport to serve the three cities and the surrounding area.Appropriate engineering studies were made and various sites for the proposed airport were considered.Finally, the Authority determined that a parcel of property located in Orange County outside any municipality and zoned A--1 was the most suitable site for the proposed airport.The Authority thereafter obtained options to buy that property.Orange County's zoning legislation permits construction and operation of 'airplane landing fields and helicopter ports with accessory facilities for private or public use' in an A--1 district as a special exception.Thus, the three cities and the Authority filed an application for a special exception with the Orange County Zoning Board of Adjustment to build their proposed airport.Without entering any finding of fact, the Zoning Board of Adjustment denied the application on the ground that granting it 'would be adverse to the general public interest.'On appeal to the Board of County Commissioners a de novo hearing was held with the following result:

'A motion was made by Commissioner Pickett, seconded by Commissioner Poe, and carried, that the decision of the Board of Zoning Adjustment on December 2, 1971 denying application No. 2 for a Special Exception in an A--1 District for the construction of a proposed Tri-City Airport be affirmed and upheld on the grounds that the granting of the proposed Special Exception would adversely affect the general public and would be detrimental to the public health, safety, comfort, order, convenience, prosperity and general welfare and, therefore, not in accordance with the Comprehensive Zoning Plan of Orange County.'

Appellants then filed a petition for a writ of certiorari in the circuit court in accordance with the provisions of the Orange County Zoning Act, Chapter 63--1716, Laws of Florida, as amended, to obtain review of the foregoing decision of the Board of County Commissioners.While the petition for certiorari was pending appellants filed another action in the Circuit Court of Orange County.The new action sought a declaration that implementation of Chapter 332, F.S.1971, F.S.A., by the appellants constituted a governmental function thereby exempting appellants from the operation of Orange County zoning regulations.

In order to determine whether there was substantial competent evidence to support the decision below we must of necessity resort to the evidence introduced at the hearing before the Board of County Commissioners.The appellants adduced evidence from (a) the Tri-City Airport Authority consulting engineer, (b) a representative of the Federal Aviation Agency, (c) and a representative of the Florida Department of Transportation, Mass Transit Division.Their testimony showed that there was a definite public need for the airport; that serious in depth studies had been made to determine the most appropropriate location for the airport; that the location in question was the best available considering such factors as (1) convenience to users, (2) land and area requirements, (3) general topography, (4)'compatability with existing land use, plans and land users', (5) land costs, (6) air space and objections, (7) availability of utilities, (8) noise problems, (9) bird habitats and other ecological problems.The mayors of the three municipalities and the members of the Airport Authority also demonstrated that the selection of the site in question resulted from long study and competent advice on the subject.Approval had been received from every interested government agency including the Federal Aviation Administration, the Florida Department of Transportation, and the Florida Department of Air and Water Pollution Control.

The evidence upon which the Board of County Commissioners relied to deny appellants' application came from one abutting owner, Richard Byrd; several other owners within a two to five mile radius of the proposed airport site; a petition signed by some two hundred members of the Clarcona Improvement Association; and approximately thirty-five people in attendance at the hearing who objected but did not testify.Byrd's testimony was mainly directed to his opinion of what the airport would do to construction costs in the area and his opinion of what would happen to zoning in the area as a...