Debes v. City of Key West

• Decision Date: 02 April 1997
• Docket Number: No. 96-2451,96-2451
• Parties: 22 Fla. L. Weekly D827 Cheryl L. DEBES, as Trustee, Petitioner, v. The CITY OF KEY WEST, Respondent.
• Court: Florida District Court of Appeals

Page 700

690 So.2d 700

22 Fla. L. Weekly D827

Cheryl L. DEBES, as Trustee, Petitioner, v. The CITY OF KEY WEST, Respondent.

No. 96-2451.

District Court of Appeal of Florida,

Third District.

April 2, 1997.

Mattson & Tobin and Andrew M. Tobin, Key Largo, for petitioner.

Mark Graham Hanson, for respondent.

Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.

SCHWARTZ, Chief Judge.

The petitioner is the owner of undeveloped land on North Roosevelt Boulevard in Key West. The parcel is in the center of what is specifically designated in the city's Comprehensive Plan as a primary commercial area and is, in fact, surrounded in all directions and on both sides of the street by property which is both zoned and used for commercial purposes. Notwithstanding, the Key West City Commission three times denied ¹ an application initiated by its own City Planner, ² and approved by the Planning Board, to amend the designation of the property on the Future Land Use Map (FLUM) from Medium Density Residential (MDR) to Commercial General (CG) ³ so as to permit the construction of a shopping center. On this petition for certiorari review of a circuit court decision which upheld the last denial, we conclude that, as a matter of law, "the refusal to rezone the property [was] arbitrary, discriminatory [and] unreasonable." Board of County Comm'rs v. Snyder, 627 So.2d 469, 476 (Fla.1993).

Almost without more, this brief recitation of the characteristics of the area and of the petitioner's particular situation clearly establishes that singling out her property alone for disparate treatment represents a wholly impermissible instance of discriminatory spot zoning--or, in this context, spot planning--in reverse. Tollius v. City of Miami, 96 So.2d 122 (Fla.1957); City Commission v. Woodlawn Park Cemetery Co., 553 So.2d 1227 (Fla. 3d DCA 1989), review denied, 563 So.2d 631 (Fla.1990); City of Coral Gables v. Wepman, 418 So.2d 339 (Fla. 3d DCA 1982), review denied, 424 So.2d 760 (Fla.1982); Olive v. City of Jacksonville, 328 So.2d 854 (Fla. 1st DCA 1976); City of South Miami v. Hillbauer, 312 So.2d 241 (Fla. 3d DCA 1975); City of Miami v. Schutte, 262 So.2d 14 (Fla. 3d DCA 1972); see Parking Facilities, Inc. v. City of Miami Beach, 88 So.2d 141 (Fla.1956)(spot zoning); County of Brevard v. Woodham, 223 So.2d 344 (Fla. 4th DCA 1969)(same), cert. denied, 229 So.2d 872 (Fla.1969); 7 Fla.Jur.2d Building, Zoning, & Land Controls § 110, at 512 (1978).

The city contends, however, that its action is justified by (a) "substantial, competent evidence," Snyder, 627 So.2d at 475, ⁴ before the Commission that commercial zoning of the petitioner's parcel would result in increased traffic and (b) a desire to encourage the building of "affordable housing" in the city--a result which would in effect be mandated by the MDR designation because it excludes commercial or office use. Neither position has a semblance of merit.

1. Traffic Increase No Justification. Because it is virtually self-evident that, by its very nature, all commercial uses create "more traffic" than non-commercial ones, it is equally obvious that local government cannot justify a denial of a particular commercial use on this ground. To hold otherwise would mean, as it apparently did in the proceedings before the Commission, that the protectable rights of any owner may be arbitrarily destroyed. This is not, and we will not let it be, the law. Tollius, 96 So.2d at 122 (change in neighborhood to commercial use requires restrictions to residential use to be relaxed).

Indeed, the Commission's actions in this case involve almost every one of the several bases upon which courts both here and elsewhere have rejected the contention that a potential traffic increase may support the denial of otherwise required commercial zoning. 5 Rathkopf's The Law of Zoning & Planning § 59.03 (4th ed. 1996), and cases collected at § 59.03 (denial of commercial use unjustified by showing merely of a "generalized increase in traffic due to an increase in intensity of use"); § 59.03("a desire to prevent an undesirable increase in traffic congestion is not sufficient justification for the retention of an unsuitable or unreasonable zoning classification"); § 59.03 ("[z]oning classifications and permit decisions based on a desire to avoid increased traffic congestion may be held invalid where such action involves unreasonable discrimination between neighboring tracts or similar uses"; citing Florida Mining & Materials Corp. v. Port Orange, 518 So.2d 311 (Fla. 5th DCA 1987) (reversing denial of special permit to construct cement plant based on fact that cement trucks would pass through residential area, when trucks from other, similar businesses were permitted to do so), review denied, 528 So.2d 1181 (Fla.1988)); § 59.03 ("[z]oning classification or restrictions based on traffic conditions may be held invalid ... where land is uniquely burdened to extract a public benefit as a substitute for proper traffic management and control").

As the petitioner correctly argues, the traffic problems which may or may not be presented by her proposed commercial development of the property are properly considered in the administrative process which the city has itself established. See 5 Rathkopf's The Law of Zoning & Planning § 59.03, . Generalized fears of an increase in traffic are wholly inappropriate, however, to deny any one landowner the rights to which he is entitled.

2. Promotion of Affordable Housing No Justification. The claim that the city's action may be justified as promoting the creation of adequate housing is, if anything, even more obviously deficient. While this aim may represent a desirable public policy--which might support, for example, the condemnation of property for that use, see State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla.1980)--it emphatically may not be promoted on the back of a private landowner by depriving him of the constitutionally protected use of his property. As the estimable Judge Cowart correctly and succinctly stated:

A property owner is entitled to have his property properly zoned based on proper zoning concepts without regard to the one particular use which the owner might then intend to make of the various uses permitted under a proper zoning classification. A zoning authority's insistence on considering the owner's specific use of a parcel of land constitutes not zoning but direct governmental control of the actual use of each parcel of land which is inconsistent with constitutionally guaranteed private property rights.

Porpoise Point Partnership v. St. Johns County, 470 So.2d 850, 851 (Fla. 5th DCA 1985); accord ABG Real Estate Dev. Co. v. St. Johns County, 608 So.2d 59, 63 (Fla. 5th DCA 1992), cause dismissed, 613 So.2d 8 (Fla.1993).

In sum, the record reflects that the only reason for the denial of the proposed rezoning was that the opposition--of the city's existing...