Lee County v. Sunbelt Equities, II, Ltd. Partnership

• Decision Date: 14 May 1993
• Docket Number: No. 92-03948,92-03948
• Citation: 619 So.2d 996
• Court: Florida District Court of Appeals
• Parties: 18 Fla. L. Week. D1260 LEE COUNTY, a political subdivision of the State of Florida, Petitioner, v. SUNBELT EQUITIES, II, LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Respondent.

Page 996

619 So.2d 996

18 Fla. L. Week. D1260

LEE COUNTY, a political subdivision of the State of Florida Petitioner, v. SUNBELT EQUITIES, II, LIMITED PARTNERSHIP, a Pennsylvania limited partnership, Respondent.

No. 92-03948.

District Court of Appeal of Florida Second District.

May 14, 1993.

Rehearing Denied June 16, 1993.

James G. Yaeger, County Atty., and Thomas L. Wright, Asst. County Atty., Fort Myers, for petitioner.

Steven C. Hartsell, Pavese, Garner, Haverfield, Dalton, Harrison & Jensen, Fort Myers, for respondent.

PER CURIAM.

We review Lee County's petition for writ of certiorari pursuant to Education Development Center, Inc. v. City of West Palm Beach Zoning Board of Appeals, 541 So.2d 106 (Fla.1989) and City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). Finding that the circuit court did not apply the correct law to the facts and issues presented in this case, we grant the petition.

I. BACKGROUND

This action stems from a request for rezoning submitted by respondent Sunbelt Equities II (hereafter "Sunbelt"). Sunbelt owns a parcel currently zoned for agricultural use, upon which it wishes to construct a commercial/office development. Apparently the proposal is consistent with future land use projections as embodied in the Lee County comprehensive plan. However, opponents of the proposal have asserted that continuing the present zoning classification is preferable, at least for the time being. ¹ Although county planning staff and a hearing examiner recommended approval of the proposal with changes, the county commission overruled that recommendation and denied the rezoning. In so doing the commission issued a written resolution which made three separate findings of fact: ²

(1) The proposal is inconsistent with the site location standards for Neighborhood Commercial Development as set forth in ... the Lee County Comprehensive Land Use Plan ... which requires Neighborhood Commercial Developments to be located at the intersection of a collector and arterial or an arterial and arterial road so as to allow access to two roads.

(2) The proposal would result in unreasonable development expectations which may not be achievable because of commercial acreage limitations on the "Year 2010 Overlay [map]" for the subdistrict in question in violation of.... the Lee County Comprehensive Land Use Plan.

(3) The proposal would permit a commercial development to locate in such a way as to open new areas to premature, scattered, or strip development....

Sunbelt then sought relief in circuit court via a proceeding the county aptly describes as a "hybrid." ³ The circuit court granted certiorari, "find[ing] that there was no substantial, competent evidence to support the decision of the Lee County Board of County Commissioners in ... denying [Sunbelt]'s application for rezoning." The county now asks us to review that decision.

II. REZONING: LEGISLATIVE OR JUDICIAL PROCEEDING?

The circuit court, in asserting its power to review the matter via certiorari, appears to have relied upon Snyder v. Board of County Commissioners of Brevard County, 595 So.2d 65 (Fla. 5th DCA 1991), jdn. accepted, 605 So.2d 1262 (Fla.1992), which states that owner-initiated, site-specific rezoning proceedings are quasi-judicial in nature. The county had moved to dismiss Sunbelt's petition because, in its view, all zoning decisions are legislative rather than judicial. The difference between these concepts affects both the accepted method of subsequent judicial review and the scope of that review.

(a) Is there conflict between Snyder v. Brevard County and

prior holdings of this court?

The county contends that Snyder conflicts with cases from this court describing rezoning as a legislative activity. See, e.g., Lee County v. Morales, 557 So.2d 652 (Fla. 2d DCA), rev. denied, 564 So.2d 1086 (Fla.1990); Hirt v. Polk County Board of County Commissioners, 578 So.2d 415 (Fla. 2d DCA 1991). ⁴ Sunbelt disputes that conflict exists, and notes that our court has employed certiorari review in settings factually similar to the present case. Manatee County v. Kuehnel, 542 So.2d 1356 (Fla. 2d DCA), rev. denied, 548 So.2d 663 (Fla.1989).

We agree that no material conflict arises between Lee County v. Morales and Snyder. Morales involved a comprehensive downzoning of an environmentally sensitive barrier island initiated by the county, and did not involve an owner-initiated zoning change. Moreover, any conflict between Snyder and Hirt v. Polk County exists only in dicta. Hirt was not a rezoning, but rather a neighboring property owner's challenge to approval of a Planned Unit Development. The case was disposed of on procedural grounds--the circuit court had dismissed Hirt's certiorari petition, and this court, finding the county's construction of applicable rules to have been a "judicial" undertaking, ordered the petition reinstated and decided on its merits.

In Hirt Judge Scheb engaged in a functional analysis of the underlying administrative proceedings quite similar to that in Snyder (and which was cited with approval in Snyder). Hirt states that the legislative versus judicial determination turns on (1) the nature of the challenge; and (2) the manner in which the zoning authority went about making its decision. Snyder, Sunbelt urges, is "the logical culmination of [this] functional analysis." However, Judge Scheb did remark in passing that rezonings were "legislative." 578 So.2d at 417. He did not distinguish between a county-initiated, broad-based rezoning, as in Morales, and a site-specific, owner-initiated rezoning as in Kuehnel.

(b) When, if ever, is rezoning a "judicial" matter?

Florida's appellate courts are neither unanimous nor consistent on the question whether rezonings are legislative or quasi-judicial. ⁵ Neither are they consistent about the method or scope of review. For example, in St. Johns County v. Owings, 554 So.2d 535 (Fla. 5th DCA 1989), rev. denied, 564 So.2d 488 (Fla.1990), and Palm Beach County v. Tinnerman, 517 So.2d 699 (Fla. 4th DCA 1987), rev. denied, 528 So.2d 1183 (Fla.1988), the courts applied the "fairly debatable" standard appropriate for legislative decisions, but reviewed the proceedings by certiorari as if they were judicial in nature.

"A judicial inquiry investigates, declares, and enforces liabilities as they stand on present facts and under laws supposed already to exist ... Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power." Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150, 158 (1908), quoted in Jennings v. Dade County, 589 So.2d 1337, 1343 (Fla. 3d DCA 1991), rev. denied, 598 So.2d 75 (Fla.1992) (Ferguson, J., concurring). A judicial decision involves a controversy over how existing law affects a set of facts--what Judge Scheb called "enforcing" the current ordinance. 578 So.2d at 417. Placed in the zoning/code enforcement context, the court or agency asks: "Has the party done something in violation of the law?" or "Will the law allow the party to do what it wants?" By contrast, legislation changes the existing law. Arguably, it is immaterial whether such change stems from the fiat of the governing body (e.g. a comprehensive rezoning) or from an individual request to "change the law for me" (the Snyder/Sunbelt rezonings).

Snyder, in concluding that owner-initiated rezoning proceedings are nevertheless quasi-judicial in character, borrows heavily from two sources. One, Coral Reef Nurseries, Inc. v. Babcock Co., 410 So.2d 648, 652 (Fla.3d DCA 1982), declares that "it is the character of the administrative hearing leading to the action of the administrative body that determines the label to be attached to the action...." The court in Coral Reef was deciding whether "administrative res judicata" operated to bar a second rezoning application; though they eventually determined that the nature of these rezoning hearings made them "judicial," the court went on to afford considerable deference to the local government in deciding whether circumstances had sufficiently changed to defeat application of the res judicata principle.

Another source is the widely-cited opinion of the Oregon Supreme Court, Fasano v. Board of County Commissioners of Washington County, 264 Or. 574, 507 P.2d 23 (1973). The plaintiffs in Fasano had unsuccessfully opposed a zoning change before their county commission, but prevailed at all levels of the Oregon court system because the rezoning was not shown to be consistent with the local comprehensive plan. The supreme court began its analysis by stating, "Any meaningful decision as to the proper scope of judicial review of a zoning decision must start with a characterization of the nature of that decision." 507 P.2d at 25-26. Most jurisdictions, including Oregon itself, heretofore had "state[d] that a zoning ordinance is a legislative act and is thereby entitled to presumptive validity." 507 P.2d at 26. This approach, however, may have been "ignoring reality." Id.

Ordinances laying down general policies without regard to a specific piece of property are usually an exercise of legislative authority, are subject to limited review and may only be attacked upon constitutional grounds for an arbitrary use of authority. On the other hand, a determination whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority and its propriety is subject to an altogether different test.

Id. ⁶

It is notable that Fasano, like most of the "consistency" cases we will discuss, involved a challenge to a rezoning that (initially) was successfully obtained despite a claim it was not only bad policy but not in compliance with the law. That is, Fasano (like Hirt ) asked the question, unarguably judicial in character, "Does the existing law permit it?"

The fact remains, however,...