Machado v. Musgrove
| Decision Date | 14 July 1987 |
| Docket Number | No. 87-415,87-415 |
| Citation | 12 Fla. L. Weekly 1728,519 So.2d 629 |
| Parties | 12 Fla. L. Weekly 1728, 13 Fla. L. Weekly 522 Jose L. MACHADO, Maria Ortega, Jose Baeza and Nubro Corporation, Dade County, Petitioners, v. Barbara MUSGROVE, Linda Varner, Ron Weeks, June Still and Bird-Kendall Homeowners' Association, Respondents. |
| Court | Florida District Court of Appeals |
Papy, Weissenborn & Papy; Fine, Jacobson, Schwartz, Nash, Black & England and Stanley B. Price; Robert A. Ginsburg, Co. Atty., and Robert L. Krawcheck, and Eileen B. Mehta, Asst. Co. Attys., Miami, for petitioners.
John G. Fletcher, South Miami, for respondents.
Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
Petitioners sought to have their property rezoned from GU (interim zoning) to RU-5A (professional offices) in an area designated by the comprehensive land use plan as estate residential--up to two units per gross acre. They seek certiorari review of a circuit court decision reversing the County Commission's grant of the requested change. Applying the "fairly debatable" standard the circuit court held the proposed 140,000 square foot office complex incompatible with other uses in the area and violative of the land use plan.
The 8.5 acre site of the proposed commercial use is within the area covered by a neighborhood study called the West Dade Ranch Area Study which limits the area to ranchlands, nurseries and croplands. The neighborhood study, an element of the land use plan, is the subject of an ordinance now codified at section 2-116.7, Dade County Code.
This application came before the County Commission on two occasions. In the first appearance, on November 21, 1985, both the Planning Director and the Zoning Director recommended that the application be denied. The Zoning Director expressed an opinion that the proposed RU-5A zoning would be incompatible with the Area Study and the agricultural and institutional uses on the east side of S.W. 127th Avenue. 1 He was specifically concerned that "approval of semi-professional office uses in this area could prompt similar or commercial uses on other properties in the area which could be detrimental." Administrative action was deferred.
When the matter came before the County Commission a second time on January 23, 1986, the Planning Director was still firmly of the view that office zoning on the site would set a precedent for similar requests on undeveloped sites in the area causing erosion of an already dwindling area set aside for ranches and farmland. However, the Zoning Director had changed his view, recommending approval primarily because "the property to the east across S.W. 125th Avenue has been approved for a temple and property to the northeast has been approved for a private school."
Testimony was heard from long-time area residents--farmers, ranchers, and single-family homeowners--who opposed the proposed zoning for fear that it would bring burdensome traffic and alter the character of the area. The applicant presented exhibits and legal argument. In a session closed to the public, County Commissioners thereafter approved the zoning request on a 3-2 vote.
At the outset we note that the Zoning Director's reason in support of a recommendation for approval of the commercial project--that properties to the east had been approved for a school and temple--was totally irrelevant to the land use plan consistency question. The recommendation was thus entitled to no consideration. Cf. Hall v. Korth, 244 So.2d 766 (Fla. 3d DCA 1971). Schools and churches as defined in section 33-18, Dade County Code, unlike commercial offices, are contemplated in estate residential zones so long as they satisfy the impact requirements of that section and section 33-311(d), for unusual uses. See Metropolitan Dade County v. Fuller, 497 So.2d 1322 (Fla. 3d DCA 1986), and Board of County Comm'rs v. First Free Will Baptist Church, 374 So.2d 1055 (Fla. 3d DCA 1979).
I
PLANNING AND ZONING AS SEPARATE FUNCTIONS
Application of the fairly debatable standard to both the land use and zoning questions, as is often done, tends to obscure the difference between their distinct functions. Land use planning and zoning are different exercises of sovereign power, Baker v. City of Milwaukie, 271 Or. 500, 533 P.2d 772 (1975); Haar, In Accordance With A Comprehensive Plan, 68 Harv.L.Rev. 1154 (1968); therefore, a proper analysis, for review purposes, requires that they be considered separately.
A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. § 163.3167(1), Fla.Stat. (1985); Southwest Ranches Homeowners Ass'n v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987). The plan is likened to a constitution for all future development within the governmental boundary. O'Loane v. O'Rourke, 231 Cal.App.2d 774, 782, 42 Cal.Rptr. 283, 288 (1965).
Zoning, on the other hand, is the means by which the comprehensive plan is implemented, City of Jacksonville Beach v. Grubbs, 461 So.2d 160 (Fla. 1st DCA 1984), and involves the exercise of discretionary powers within limits imposed by the plan. Baker v. Milwaukie, 533 P.2d at 775. It is said that a zoning action not in accordance with a comprehensive plan is ultra vires. Haar, In Accordance With A Comprehensive Plan, at 1156.
II
STANDARD OF REVIEW; BURDEN OF PROOF
It is well settled that a zoning action is an exercise of legislative power to which a reviewing court applies the deferential fairly debatable test. See, e.g., Southwest Ranches, 502 So.2d at 935. If the zoning action is one where reasonable people could differ as to its propriety, i.e., whether the action is arbitrary, capricious, or otherwise an abuse of discretion, the administrative decision will not be disturbed by a reviewing court. Dade Savings & Loan Ass'n v. City of North Miami, 458 So.2d 861 (Fla. 3d DCA 1984).
Part II of chapter 163, Florida Statutes, called the Local Government Comprehensive Planning and Land Development Regulation Act, and the local comprehensive plans which it mandates, are not zoning laws. The statute's requirement that all zoning action conform to an approved land use plan is, in effect, a limitation on a local government's otherwise broad zoning powers. Maryland-National Capital Park & Planning Comm'n v. Mayor & Council of Rockville, 272 Md. 550, 325 A.2d 748 (Ct.App.1974). The purpose of the statute is to accomplish, inter alia, orderly growth, protection of resources and stability of land use throughout the state. § 163.3161(7), Fla.Stat. (1985). 2
The test in reviewing a challenge to a zoning action on grounds that a proposed project is inconsistent with the comprehensive land use plan is whether the zoning authority's determination that a proposed development conforms to each element and the objectives of the land use plan is supported by competent and substantial evidence. The traditional and non-deferential standard of strict judicial scrutiny applies.
Strict scrutiny is not defined in the land use cases which use the phrase but its meaning can be ascertained from the common definition of the separate words. Strict implies rigid exactness, People v. Gardiner, 33 A.D. 204, 53 N.Y.S. 451 (1898), or precision, Black's Law Dictionary 1275 (5th ed. 1979). A thing scrutinized has been subjected to minute investigation. Commonwealth v. White, 271 Pa. 584, 115 A. 870 (1922). Strict scrutiny is thus the process whereby a court makes a detailed examination of a statute, rule or order of a tribunal for exact compliance with, or adherence to, a standard or norm. It is the antithesis of a deferential review.
Analogously where a zoning action is challenged as violative of the comprehensive land use plan the burden of proof is on the one seeking a change to show by competent and substantial evidence that the proposed development conforms strictly to the comprehensive plan and its elements. See Fasano v. Board of County Comm'rs, 264 Or. 574, 507 P.2d 23 (1973) (en banc). See also Comment, Burden of Proof in Land Use Regulations: A Unified Approach and Application to Florida, 8 Fla.St.U.L.Rev. 499 (1980) (). Where the record is silent, or the evidence shows nonconformity with the plan, e.g., that a proposed project constitutes a greater intensity of use, Baker v. Milwaukie; Maryland-National Capital Park & Planning Comm'n v. Mayor & Council of Rockville, a lesser intensity of use, City of Cape Canaveral v. Mosher, 467 So.2d 468 (Fla. 5th DCA 1985), a different and incompatible character of use, Alachua County v. Eagle's Nest Farms, Inc., 473 So.2d 257 (Fla. 1st DCA 1985), or a failure to comply with the plan's mandatory procedures, Hillsborough County v. Putney, 495 So.2d 224 (Fla. 2d DCA 1986), the requested rezoning will be denied as inconsistent with the comprehensive plan.
In Sengra Corp. v. Metropolitan Dade County, 476 So.2d 298 (Fla. 3d DCA 1985), we held that a grant of zoning for a use not consistent with the comprehensive land use plan was invalid, implicitly rejecting the notion that the statutes permitted a reviewing court to further consider the extent and degree of a clear inconsistency. 3 Two recent cases, Alachua County v. Eagle's Nest Farms, Inc. and Hillsborough County v. Putney, appear to follow a strict adherence view although, as in Sengra, there was no in-depth examination of the meaning of consistency.
III
CONSISTENCY WITH LAND USE PLAN
The tests for consistency of a development project with a land use plan have been, until recently, conflicting or imprecise primarily because the word consistency lacked definition. 4 In 1985 the legislature added a definition of consistency at section 163.3194(3)(a), Florida Statutes (1985):
A development order or land development regulation shall be...
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