Irvine v. Duval County Planning Com'n

• Decision Date: 12 March 1985
• Docket Number: No. AX-455,AX-455
• Citation: 466 So.2d 357,10 Fla. L. Weekly 638
• Parties: 10 Fla. L. Weekly 638 Stephen B. IRVINE, Petitioner, v. DUVAL COUNTY PLANNING COMMISSION and the City Of Jacksonville, Respondents.
• Court: Florida District Court of Appeals

Page 357

466 So.2d 357

10 Fla. L. Weekly 638

Stephen B. IRVINE, Petitioner, v. DUVAL COUNTY PLANNING COMMISSION and the City Of Jacksonville, Respondents.

No. AX-455.

District Court of Appeal of Florida First District.

March 12, 1985.

Rehearing Denied April 30, 1985.

Barry A. Bobek, Jacksonville, for petitioner.

Thomas E. Crowder and Stephen A. Hould, Jacksonville, for respondents.

SMITH, Judge.

By petition for certiorari in this case, Irvine seeks review of a circuit court order denying certiorari, and thereby refusing to order the Planning Commission to grant a zoning exception to Irvine. ¹ The circuit court correctly determined that it had jurisdiction to review the action of the Planning Commission by common law certiorari. Our review convinces us that petitioner has failed to demonstrate that the circuit court's denial of relief constituted a departure from the essential requirements of law. We therefore deny the writ of certiorari and approve the circuit court's ruling.

The petitioner, Irvine, as agent of the owner, joined by the owner of the premises located at 3636-3638 Park Street, in the City of Jacksonville, petitioned for a zoning exception to operate a business including the sale of beer and wine for consumption on the premises. The property in question is zoned, under Section 708.311, Zoning Regulations of the City of Jacksonville, as "Commercial, Neighborhood," or "CN." The ordinance provides, under "Permissible uses by exception," for the operation of an establishment or facility including the retail sale or service of beer or wine for consumption on the premises. The application also requested that the exception be transferable and run with title to the premises.

The Planning Department forwarded to the Planning Commission its favorable recommendation, including the comment that the granting of the proposed use would be compatible with the existing land use pattern in the area, and noting that four applications for the same purpose had been granted in the past, in the years 1977, 1980 and 1981. After a public hearing, the Planning Commission denied the request, stating in its written order its findings that the applicant had "failed to sustain the burden of showing that the granting of the exception would promote the public health, safety, welfare, morals, or, comfort, convenience, appearance, prosperity or general welfare of the neighborhood," and further, that the proposed use "would not be compatible with other uses existing in the District."

So far as we can determine from the showing made here, the circuit court was provided only with the written application; two pages of the zoning ordinance, containing Section 708.311; the Planning Department's recommendation; the Planning Commission's written order of denial; and the copy of the Commission minutes. No other record or transcript of the proceedings has been presented. ² The Commission's minutes state only that petitioner Irvine spoke in favor of the request, stating that there had been a bar and sandwich shop in that location for 40 years; that the chairman stated that he had had telephone calls from neighbors in opposition; and that the seven-member commission voted unanimously to deny the request.

Petitioner urges here that the Commission's decision was unsupported by any competent evidence whatsoever, and further, that it is apparent on the face of the Commission's order itself that the Commission misplaced the burden of proof in the proceedings before it. In connection with his absence of competent evidence argument, petitioner alleges that he demonstrated in the trial court that no evidence in opposition to his application was presented at the hearing, and that he further urged the impropriety of the chairman's remarks concerning telephone calls in opposition, citing City of Apopka v. Orange County, 299 So.2d 657 (Fla. 3d DCA 1974), and Conetta v. City of Sarasota, 400 So.2d 1051 (Fla. 2d DCA 1981).

We hold that petitioner has failed to establish to our satisfaction that the trial court, in denying relief, departed from the essential requirements of law. Petitioner's allegations with respect to the absence of evidence and the improper allocation of the burden of proof by the Planning Commission are unsupported by reference to any provision of the zoning ordinance, or any other rule or regulation concerning the procedure to be followed at the public hearing on requests for a permissible exception. The record is devoid of any reference to provisions governing the allocation of the burden of proof at such proceedings. Instead, petitioner relies totally upon language found in the case of Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478, 480 (Fla. 4th DCA 1975), in which the court, in explaining the distinction between a proceeding seeking "rezoning," and one seeking a "special exception," said the following In rezoning, the burden is upon the applicant to clearly establish such right (as hereinabove indicated). In the case of a special exception, where the applicant has otherwise complied with those conditions set forth in the zoning code, the burden is upon the zoning authority to demonstrate by competent substantial evidence that the special exception is adverse to the public interest. Yokley on Zoning, Vol. 2, p. 124. A special exception is a permitted use to which the applicant is entitled unless the zoning authority determines according to the standards in the zoning ordinance that such use would adversely affect the public interest. Berlant v. Zoning Hearing Bd. of Lower Merion Tp., 1971, 2 Pa.Cmwlth. 583, 279 A.2d 400. See also Turner v. Hammond, 1973, 270 Md. 41, 310 A.2d 543.

As a general statement of the distinction between zoning and a special exception, we take no issue with the foregoing explanation. ³ It is obvious, however, that the language of Rural New Town, supra, above quoted, is not intended as a rule of law of general application. Examination of the zoning law treatise cited in Rural New Town indicates that the courts have adopted divergent views on the matter of the burden of proof in requests for special exceptions, and it is apparent that pertinent provisions of the particular zoning ordinance, or other applicable ordinance or statutory provisions may cast the burden of proof upon either the applicant, or the board or commission. 2 Yokley, Zoning Law and Practice (Third Edition), § 15-1, pages 124, 125. ⁴ As previously noted by this court, the general rule is that the burden of proof, apart from statute, is upon the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981).

Contrary to the position petitioner asks us to assume, there is substantial authority that the burden of proof in special exception proceedings is upon the applicant.

An applicant for an exception must sustain the burden of proving that his proposed use is reasonably necessary for the convenience and welfare of the public. An applicant for an exception from the terms of a zoning ordinance must carry the burden of establishing that the granting of the exception will not conflict with the public interest and must show additionally that he would sustain an unnecessary hardship if the exception were not granted....

2 Yokley, Zoning Law and Practice (Third Edition), § 15-1, pp. 124, 125.

Furthermore, we find Florida cases illustrating the view that the burden of proof may indeed be placed upon the applicant for the exception. Pylant v. Orange County, 328 So.2d 199 (Fla.1976); Board of County Commissioners v. First Free Will Baptist Church, 374 So.2d 1055 (Fla. 3d DCA 1979). Therefore, in the absence of a showing that the Commission acted contrary to the requirements of the zoning ordinance by which the proceedings were governed, it cannot be determined that the Commission, by placing the burden upon the petitioner to demonstrate that the exception would "promote the public health, safety, welfare ..." (etc., see order quoted above), departed from the essential requirements of law.

We also find no basis for relief in petitioner's assertions that his statements before the Commission, which apparently were unopposed, afford a basis upon which it can be determined, as a matter of law, that the Commission unlawfully denied his request. As noted above, the only record of the "evidence" presented by petitioner at the hearing is the recitation found in the Commission's minutes that Mr. Irvine "spoke in favor of the request," and "[H]e stated that there has been a bar and sandwich shop there for 40 years." As also noted above, the application filed by petitioner stated that an exception had been granted for the year 1981, and the Planning Department's recommendation noted that applications for exceptions had been granted in three other prior years. The net effect of this "evidence," is that a similar business had been operated on the premises previously, and that the petitioner desired to operate such a business again.

Petitioner has cited no particular zoning ordinance provisions or general law supporting his thesis that the evidence before the Commission satisfied the test of sufficiency so as to require the granting of his request by the Commission. Again turning to Yokley's treatise on zoning law, we find the following:

In the matter of granting exceptions it must be remembered that there must be a statutory authorization and that the same care should be exercised by the Board as when granting a variance. The Board must find as a fact that the exception will subserve the public welfare and not the needs of some private individual. The scheme of any ordinance authorizing exceptions requires two different kinds of findings by the Board: First, as to the interests of the general public, and second, as to the interest of a particular neighborhood. Where these two elements are lacking, an exception may...