Leon County v. Parker, s. 90-1265
| Decision Date | 02 August 1990 |
| Docket Number | 90-1274,Nos. 90-1265,s. 90-1265 |
| Citation | 566 So.2d 1315 |
| Parties | 15 Fla. L. Weekly D1999, 15 Fla. L. Weekly D2385 LEON COUNTY, Petitioner, v. J. Gwynn PARKER and Clarice P. Cale, as Personal Representatives of the Estate of Eunice P. Anderson, deceased, and Century Development of Tallahassee, Inc., Respondents. LEON COUNTY, Board of County Commissioners of Leon County, and Tallahassee-Leon County Planning Commission, Petitioners, v. EMERALD ACRES INVESTMENTS, INC., Respondent. |
| Court | Florida District Court of Appeals |
David LaCroix of Pennington, Wilkinson, Dunlap & Camp, Tallahassee, for petitioners.
M. Stephen Turner of Broad & Cassell, Tallahassee, for respondents in No. 90-1265.
Frank P. Rainer of McFarlain, Sternstein, Wiley & Cassedy, P.A., Tallahassee, for respondent in No. 90-1274.
In the above two consolidated cases, the petitioners have petitioned this court for review, by certiorari, of a final judgment entered in each of the two cases. 1 The cases involve very similar applications by developers for approval of preliminary subdivision plats. 2 The principal issue in the lower court was whether the proposed subdivisions were consistent with Leon County's comprehensive plan adopted in 1981 pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act of 1975 (Sections 163.3161, et seq., Florida Statutes).
In each of the cases, the Tallahassee-Leon County Planning Commission denied In both cases, the respondents appealed the Planning Commission's decisions to the Leon County Board of County Commissioners, which upheld the Planning Commission action and denied the applications. As part of its action in upholding the Planning Commission in both cases, the County Commission remanded the matters to the Planning Commission for the Planning Commission to advise the respondents as to how the plats could be corrected to make the proposed subdivisions consistent with the county's comprehensive plan.
the respondents' application, stating that the proposed subdivision was too dense when compared with other subdivisions in the area, thus violating provisions in the comprehensive plan relating to compatibility. The Planning Commission also determined that each of the proposed plats was inconsistent with comprehensive plan policies promoting compact urban growth and discouraging urban sprawl. 3
In each case, the respondents initiated action in the Leon County circuit court seeking certiorari review of the actions of the County Commission in denying the respective applications. After final hearing of the two consolidated cases, the trial court determined that the denial of the two applications was a departure from the essential requirements of law. The court's rationale was largely predicated upon the fact that Sections 17.1-25(b) and (d) of the ordinance adopting the county's comprehensive plan provided that zoning classifications existing on the date of plan adoption would continue to determine allowable land uses until the zoning was changed. 4 Inasmuch as the A-2 zoning classification for the subject properties had never been changed, and since the proposed subdivision plats were consistent with such zoning classification, the court determined that the subdivisions were consistent with the comprehensive plan. The court, therefore, held that the denials of the proposed plats, based upon inconsistency with the comprehensive plan, were erroneous.
We do not reach the merits of this determination because we find that the trial court should have granted the petitioners' motion to dismiss filed in each case for failure of the respondents to comply with the provisions of Section 163.3215, Florida Statutes (1989). That section provides in pertinent part:
(1) Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part.
(2) "Aggrieved or adversely affected party" means any person or local government which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons.
(3)(a) No suit may be maintained under this section challenging the approval or denial of a zoning, rezoning, planned unit development, variance, special exception, conditional use, or other development order granted prior to October 1, 1985, or applied for prior to July 1, 1985.
(b) Suit under this section shall be the sole action available to challenge the consistency of a development order with a comprehensive plan adopted under this part.
(4) As a condition precedent to the institution of an action pursuant to this section, the complaining party shall first file a verified complaint with the local government whose actions are complained of setting forth the facts upon which the complaint is based and the relief sought by the complaining party. The verified complaint shall be filed no later than 30 days after the alleged inconsistent action has been taken. The local government receiving the complaint shall respond within 30 days after receipt of the complaint. Thereafter, the complaining party may institute the action authorized in this section. However, the action shall be instituted no later than 30 days after the expiration of the 30-day period which the local government has to take appropriate action. Failure to comply with this subsection shall not bar an action for a temporary restraining order to prevent immediate and irreparable harm from the actions complained of.
The trial court and respondents construe the above section in such a way as to limit its application to actions instituted by someone other than the applicant where the application has been granted and the granting thereof is claimed to be in contravention of the comprehensive plan. The trial court stated, in the final judgment, (e.s.) Such construction is not in conformity with the plain language of the statute.
The term "development order," as used in subsection 1,...
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...163.3164(6) & (7), Fla.Stat. (1987).3 Sec. 163.3215(1), Fla.Stat. (1987).4 Sec. 163.3215(3)(b), Fla.Stat. (1987); Leon County v. Parker, 566 So.2d 1315 (Fla. 1st DCA 1990). See B.B. McCormick & Sons v. Jacksonville, 559 So.2d 252 (Fla. 1st DCA 1990).5 See White v. Metropolitan Dade County, ......
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