Everett v. City of Tallahassee

• Court: U.S. District Court — Northern District of Florida
• Writing for the Court: STAFFORD
• Citation: Everett v. City of Tallahassee, 840 F.Supp. 1528 (N.D. Fla. 1993)
• Decision Date: 02 July 1993
• Docket Number: No. TCA 90-40152-WS.,TCA 90-40152-WS.
• Parties: Cary A. EVERETT, Plaintiff, v. The CITY OF TALLAHASSEE, a Municipal Corporation, Defendant.

840 F. Supp. 1528

Cary A. EVERETT, Plaintiff, v. The CITY OF TALLAHASSEE, a Municipal Corporation, Defendant.

No. TCA 90-40152-WS.

United States District Court, N.D. Florida, Tallahassee Division.

December 18, 1992.

Order Amending Findings of Fact July 2, 1993.

COPYRIGHT MATERIAL OMITTED

M. Stephen Turner and David K. Miller, of Broad and Cassel, Tallahassee, FL, for plaintiff.

Edwin R. Hudson, of Henry, Buchanan, Mick, Hudson and Suber, Tallahassee, FL, for defendant.

STAFFORD, Chief Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION

Plaintiff is the owner of approximately 3.52 acres of undeveloped property fronting Thomasville Road immediately north of what is now Dorothy B. Oven Park "Oven Park" in the City of Tallahassee, Leon County, Florida. Plaintiff's four count complaint pursuant to Title 42, United States Code, Section 1983, alleges violations of both his substantive and procedural due process rights, the takings clause, and a pendant state law claim for damages caused by the adjoining landowner's unlawful use of property. The court granted the parties' joint motion to sever issues for trial (document 36), and, accordingly, only counts I and III are before the court at this time.

In Count I, plaintiff alleges that the City of Tallahassee's "City" arbitrary and capricious actions violated both the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution. Plaintiff alleges that the City's application of the uncodified Thomasville Road policy on an ad hoc basis to reject some, but not all rezoning requests for property on Thomasville Road violates his right to substantive due process. Specifically, plaintiff argues that the City has, on several occasions, rezoned neighboring parcels to allow for non-residential use, but has refused to take similar action with respect to plaintiff's property. Furthermore, plaintiff alleges that the City's commercial use of the city-owned Oven Park violates the City's own zoning code and renders the City's failure to rezone plaintiff's property arbitrary and capricious. Plaintiff also alleges that the City's application of the vague and unstandardless Thomasville Road policy itself violates substantive due process.

Plaintiff also argues that because the City was interested in acquiring plaintiff's property, it had a pecuniary interest in plaintiffs rezoning application. According to plaintiff, this conflict of interest resulted in an unfair consideration of plaintiffs rezoning request. Finally, plaintiff argues that changes in the use of the property surrounding plaintiff's property make continuation of the current classification arbitrary. See document 46 at ¶ 53.

In Count III of the complaint, plaintiff alleges that his procedural due process rights under the United States Constitution were violated when the City failed to give him, as an adjacent property owner, notice and an opportunity to be heard before converting the Oven Park property to uses not authorized by the residential zoning classification. Specifically, plaintiff contends that the City violated its own zoning code (1) when it began renting out the Oven Park facilities, thereby converting the park from a permitted use to a commercial use in violation of Sections 4.2 and 6.5 of the City's Zoning Code and (2) when it constructed a fire station on the Oven property in violation of Section 6.5 of the City's Zoning Code. According to plaintiff, before converting the residentially-zoned property to these non-residential uses, the City was "required to engage in a formal rezoning process with notice to public or to affected owners." Document 46 at 21. The City's failure to provide such notice violates both Section 166.041, Florida Statutes and the United States Constitution.

Following the bench trial, the court has carefully considered the exhibits, the trial testimony and the written and oral presentations of the parties, and enters the following findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure.

II. FINDINGS OF FACT¹

1. This is an action pursuant to Title 42, United States Code, Section 1983, brought by a property owner. The complaint seeks declaratory relief, damages, costs and attorney fees.

A. The Area

2. Plaintiff CARY EVERETT, a resident of Chipley, Florida, is the owner of 3.52 acres of undeveloped real property fronting to the west on Thomasville Road in Tallahassee, Leon County, Florida. This property is the subject of the current lawsuit.²

3. Defendant CITY OF TALLAHASSEE is a municipal corporation which has the authority to enact zoning ordinances pursuant to the Municipal Home Rule Powers Act, Section 166.021, Florida Statutes. The Tallahassee-Leon County Planning Commission "Planning Commission" or "Commission" is an administrative agency of the city authorized to act in an advisory capacity to the City Commission. Tallahassee Code, § 18.15.

4. The City has allowed the area north of plaintiff's property to be developed for commercial use, and has allowed non-residential office and commercial use to extend southward along Thomasville Road from the I-10 interchange to the immediate vicinity of the subject property.

5. The property adjacent to plaintiff's property on the south side, which was the Oven family residence in 1977, is now owned by the City itself. It is currently used as a fire station and for City offices and commercial rental facilities known as Dorothy B. Oven Park "Oven Park".

6. Immediately south of Oven Park is a large Baptist Church. In 1984, the City permitted the church to add two office buildings (as accessory uses). Exhibit G to document 29. Post Road is approximately 1.4 miles south of the Baptist Church.

7. Proceeding north from plaintiff's property, in order, are the following parcels:

(a) Lucerne-in-the-Woodlands, zoned Planned Unit Development and developed as multifamily residential units.

(b) Moon property, rezoned in 1985 from agricultural to office-residential limited and redesignated on the land use map as office-transitional. The property is now developed as an office complex.

(c) Cureton Property, rezoned in 1984 from agricultural and residential use to office-transitional. The property is now developed as an office complex.

(d) Sun Bank Property, zoned Planned Unit Development and used for a drive-in banking facility with office space.

(e) Properties on each side of Lonnbladh Road and Metropolitan Boulevard, which join Thomasville Road from the northeast and east respectively, are zoned office-residential and commercial transitional.

(f) The Thomasville Road/Interstate 10 interchange, a major commercial zoned area.

8. Since 1977, when plaintiff purchased the subject property and included it as a residential component of a Planned Unit Development (P.U.D.), Thomasville Road in the subject area has been widened, elevated and improved from a two-laned road to a fourlaned divided highway and the neighborhood has changed from predominantly undeveloped or residential use to mixed office and residential use.

B. City of Tallahassee Zoning Provisions

9. Under Chapter 27, Section 6.5 of the City of Tallahassee Code of 1984, as amended, unrestricted uses permitted in an R-1 district are (1) single-family dwellings, (2) parks and playgrounds, and (3) cluster development. Restricted uses permitted in this zoning district are (1) churches and schools and (2) golf courses and country clubs.

10. Under Chapter 27, 6.13 of the Code, as amended, unrestricted uses permitted in an OR (Office and Residential District) are (1) single family dwellings, (2) two family dwellings, (3) multiple family dwellings, (4) townhomes, (5) apartment hotels, (6) rooming and boarding homes, (7) non-medical offices and services, (8) business offices and services, (9) nursing and rest homes, (10) churches and schools, (11) studios for photography, music, art, dance, drama and voice, and (12) cluster development. Restricted uses include (1) transient lodgings, (2) fraternity and sorority houses, private dormitories, (3) social, fraternal and recreational clubs and lodges (4) universities, colleges, public technical and vocational schools, (5) off street parking facilities, (6) sale, lease, rental of business machines, (7) medical offices and services, (8) convenience commercial uses as accessory to a residential transient lodging or office use (i.e. beauty or barber shops, laundromats, newsstands, drug stores, or restaurants), (9) kindergarten, nurseries and child care facilities, (10) financial institutions with drive through facilities, and (11) broadcasting studio.

C. The Thomasville Road Interchange Area Study and the Thomasville Road/Post Road Demarcation Policies

11. As early as November 1969, the Tallahassee City Commission "City Commission" had stated a policy that Post Road would represent the northern boundary of non-residential zoning along Thomasville Road. On August 20, 1986, the City Commission reaffirmed this policy not to approve any nonresidential rezoning requests on Thomasville Road north of Post Road. Plaintiff's Exhibit 10 at 4.

12. In May, 1978, the Tallahassee-Leon County Planning Commission "Planning Commission" or "Commission", with technical assistance from the Tallahassee-Leon County Planning Department, prepared its "1-10/Thomasville Road Interchange Area Study Summary Report" "Thomasville Road Study" in response to a request by the Leon County Board of County Commissioners "County Commissioners". See Defendant's Exhibit 3. As part of its report, the Planning Commission recommended that the County Commissioners and the City Commission adopt certain policies and goals for the management of development in the I-10/Thomasville Road area. These policy recommendations are synonymously referred to as the "Thomasville Road policy" or the "Post Road demarcation policy." These policy recommendations were never formally adopted by defendant in...