Davis v. Sails

• Decision Date: 06 August 1975
• Docket Number: No. X--29,X--29
• Citation: 318 So.2d 214
• Parties: G. M. DAVIS et al., Appellants, v. Sam SAILS, Appellee.
• Court: Florida District Court of Appeals

Page 214

318 So.2d 214

G. M. DAVIS et al., Appellants, v. Sam SAILS, Appellee.

No. X--29.

District Court of Appeal of Florida, First District.

Aug. 6, 1975.

Norman J. La Coe, Gainesville, for appellants.

Richard T. Jones, Jones & Ritch, Gainesville, for appellee.

BOYER, Chief Judge.

Appellants, Board of County Commissioners of Alachua County and defendants in the trial court, appeal from a final judgment which ordered rezoning of certain land in that county.

Typically, zoning controversies revolve around a conflict between individual rights of ownership, traditionally deemed to be paramount in democratic societies, versus public interests in the property of an individual, traditionally paramount in totalitarian societies. Florida courts have endeavored to achieve a balance between such conflicting interests, while nevertheless protecting the rights of the individual property owner.

Sub judice, the appellee property owner, plaintiff in the trial court, owns a parcel of land consisting of 37 1/2 acres in an urbanized section of Alachua County, west of the Gainesville city limits. There are several sinkholes on the property. It is bisected by a power line, bordered on the west by Tower Road, a two-lane northsouth country road, on the south by a school site, on the east by lands presently being developed as a mobile home subdivision, and on the north by land owned by the Gainesville-Alachua County Regional Utilities Board, the intended purpose of which is the erection and operation of a sewage treatment plant with a sludge field on the property. Appellee, whose property was zoned agricultural, made application for a change of zoning to R--2, permitting no use except low density multi-family apartments. Defendants, sitting as a zoning authority, denied the application after a public hearing. The property owner thereafter filed suit, alleging that the refusal by the defendants to rezone the property was arbitrary, unreasonable and confiscatory. At the trial four experts in the field of planning testified. Mr. Frank Blandford, a planning consultant retained by plaintiff, stated that the most appropriate use of the property was multi-family, and that medium density of about 15 units per acre would be appropriate. Mr. Harlan Hanson, who at the time of the application for rezoning was a planning consultant for Alachua County, stated that the site should have multi-family, low-denisty zoning. He recommended against the site being zoned as single family. He further stated that the site could be developed as a planned unit development (PUD, a combination of single-family and multi-family units) but that he would not recommend it. Mr. Richard Tarbox stated that R--2 zoning would be proper for the property and that the site should not be developed for single-family use because of the sinkholes, the power line easement and the low lying areas on the property. He stated that the site was not practical for a PUD. According to Mr. Tarbox, the plan submitted by the land owner would call for 7.6 gross units per acre which is within R--2 zoning and that the County Planning staff had approved this plan. Mr. Norman Bowman, Director of the City of Gainesville Department of Community Development, testified by deposition that the original 1970 Land Use Plan designated the general area of the subject property as a combination or optional classification where either a single-family category could be retained or a multi-family category of eight units could be utilized. The fourth expert, Mr. Norwood Hope, opined that he would develop the property as multi-family on the northeast and southeast portions of the property and either have a buffer zone on the road side or a single-family area along Tower Road only. He considered a PUD as appropriate only if the density were 12 units per acre and that the majority of the property could be used for multi-family dwellings. It was stipulated that another witness, Mr. A. T. Douglas, would testify the same as Mr. Hope. Of the three defendant County Commissioners who testified, one, Commissioner Jack Durrance, stated that it was his thinking that the Board wanted to preserve single-family zoning along Tower Road. Mr. Robert Holton, Zoning Administrator of Alachua County, testified that the request contained in the zoning application would be an appropriate use of the site and would conform to the Master Land Use Plan. Mr. Robert Roundtree testified that the proposed sludge farm which was to be located immediately north of the subject property would give off an odor of wet commercial fertilizer when the sludge became wet. Other testimony was adduced which need not be here recited.

After hearing the foregoing testimony, the trial judge withheld his ruling, advising counsel for both parties that it appeared to him that the most appropriate use of the property would be a PUD, with single-family housing fronting on Tower Road and apartments further back on the site away from the road. The Judge further recommended that a new zoning application be submitted requesting a PUD classification. That recommendation was followed, whereupon the County Commissioners voted to rezone the property as a PUD but with an overall density of only five units per acre. The landowner thereupon applied to the Court to set aside the PUD or otherwise increase the density because the five units per acre requirement was unacceptable. The final judgment here appealed was thereupon entered wherein the trial court ruled that agricultural or single-family zoning was inappropriate and the defendants (appellants here) were enjoined from enforcing the PUD which had been approved for the property and were ordered to rezone the property to a zoning classification 'more liberal than single-family residential with a density consistent with Section 3 of the Zoning Regulations of Alachua County, Florida and the Land Use Plan for Alachua County'.

Appellants urged those points which are customarily presented by zoning authorities in zoning cases, among them being that the judgment of the court is contrary to the manifest weight of the evidence and that the trial judge ignored, violated or overlooked the 'fairly debatable rule'.

The rules of law applicable to zoning procedures and cases are not, in and of themselves, complicated. However, the application of those rules are often the source of extended controversies. In this opinion we will attempt to discuss and explain the rules of law most often used and abused, to the end that, hopefully, future litigation and resulting appeals might be obviated.

The law is so well settled as to require no citations of authority that a city or county has the right and power, within the confines of applicable enabling statutes, to adopt zoning ordinances or regulations. Further, such zoning ordinances or regulations are, like other legislative acts, presumed valid. Two other rules or law, which sometimes become confused and intertwined, are the 'substantial relationship rule', and the 'fairly debatable rule'. The substantial relationship rule is substantive law, and may be simply stated as follows: In order for a zoning ordinance or regulation to be valid, it must have come substantial relationship to the promotion of the public health, safety, morals or general welfare. When correctly applied, this rule is not in any manner modified by the fairly debatable rule. The latter rule, being a rule of procedure or application, may be simply stated as follows: If the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if its application if fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts. Of course, it is always a matter for the court to determine whether a zoning authority acted reasonably or fairly or whether capriciously or arbitrarily. The fairly debatable rule applies to the application of the ordinance and does not modify the requirement that the ordinance itself And the application thereof must have a reasonable relationship to the health, safety, morals or general welfare.

The general law, which is also the law of Florida, as to the validity of a zoning ordinance or classification, as applied to a particular parcel of property, is succinctly stated in Volume 101 C.J.S. Zoning as follows:

'The justification for zoning enactments is the greater benefit which accrues therefrom to the public as a whole, or the paramount interest of the public welfare and the realization that private interests must sometimes be subordinated to the public good, or, * * * it must be found in some aspect of the police power asserted for the public welfare. Such enactments, however, are subject to limitations on the police power, and cannot validly be extended beyond the accomplishment of purposes rightly within the scope thereof.

'To be valid, they must be for the superior interest and rights of the public, or they must be predicated on a public interest and founded on a need of the community, and be conducive to, or subserve, the public welfare, or be for the public good. They must have a rational relation to the protection of the basic interest of society, and a public benefit must be derived from them. They are invalid if they disclose no purpose to prevent some public evil or fill some public need.

'In order to be valid as a proper exercise of the police power, especially where their application will cause a destruction of property values, Zoning laws, ordinances, by-laws, regulations, and restrictions Must advance, promote or tend or be designed to promote, the public health, safety, morals, or general welfare, or be reasonably necessary for the protection of the public health, safety, comfort, morals, or welfare, or have or bear a real and substantial relation to public health, safety, morals, or the general welfare; and it has been held that Such enactments must bear the...