Orange County v. Lust

• Court: Florida District Court of Appeals
• Writing for the Court: GRIFFIN; DAUKSCH; HARRIS, J., concurs specially in result only, with opinion, with which COBB; W. SHARP; GOSHORN, C.J., and COWART; HARRIS; COBB; W. SHARP
• Citation: Orange County v. Lust, 602 So.2d 568 (Fla. App. 1992)
• Decision Date: 08 May 1992
• Docket Number: No. 90-696,90-696
• Parties: ORANGE COUNTY, Florida, etc., Petitioner, v. Mark LUST, Respondent. 602 So.2d 568, 17 Fla. L. Week. D1162

Page 568

602 So.2d 568

ORANGE COUNTY, Florida, etc., Petitioner, v. Mark LUST, Respondent.

No. 90-696.

602 So.2d 568, 17 Fla. L. Week. D1162

District Court of Appeal of Florida Fifth District.

May 8, 1992.

Rehearing Denied Aug. 7, 1992.

Harry A. Stewart, County Atty., and Paul Chipok, Asst. County Atty., Orlando, for petitioner.

Kelvin L. Averbuch, Orlando, for respondent.

ON MOTION FOR REHEARING EN BANC

GRIFFIN, Judge.

A majority of this court has voted to grant respondent's motion to consider this case en banc. Having done so, we adhere to our decision to grant the writ and quash the order under review; however, we withdraw our opinion issued November 29, 1990 and substitute the following opinions in its stead.

Petitioner, Orange County, seeks certiorari review of a circuit court order quashing the County's denial of the respondent landowner's rezoning application. The parcel in question is a 2,100 square foot triangular ¹ remnant of a larger parcel, zoned A-2 (agricultural), that was the subject of an eminent domain proceeding in 1957 to provide for the expansion of the right-of-way of U.S. Highway 441. Lust purchased this small parcel through a tax deed in 1986 and sought rezoning to C-3 (heavy commercial) to allow erection of a billboard. Lust's first rezoning application was denied in 1987, and he filed a second application in 1989.

The staff of the Orange County Zoning Department recommended denial of the second rezoning request on several grounds, including: (1) that the current zoning for the land surrounding this parcel is "agricultural" or "single family residential"; ² (2) that proposed rezoning would permit a commercial and/or industrial intrusion into an area designated rural residential according to the County's Growth Management Plan; (3) that it would set a precedent for additional heavy commercial use or strip commercialization along U.S. Highway 441; (4) that there were insufficient services available to accommodate an increase in land use intensity on the site; and (5) that approval of this request would permit land uses that are inconsistent and incompatible with the character or nature of the area in that this parcel would be the only C-3 zoning in the area. The County's Planning and Zoning Commission agreed with the staff recommendation of denial.

At the hearing on appeal before the Orange County Board of Commissioners (the "Board"), the Board voted unanimously to deny Lust's rezoning request, accepting the Planning and Zoning Commission's recommendation. Lust challenged the denial of his rezoning application through a petition for writ of certiorari in the circuit court. The circuit court granted the petition for writ of certiorari and remanded the cause to the Board with instructions to grant the zoning change to permit erection of a billboard on Lust's property. The stated basis for the trial court's decision was that the refusal to rezone this land for a billboard was "arbitrary, unreasonable and confiscatory." We quash the lower court's decision on certiorari because the lower court failed to apply the correct law in reviewing the Board's decision. The trial court incorrectly identified, and failed to apply, the standard of review he was bound to utilize in reviewing the decision of the Board. ³

While it may be correct that a zoning authority's decision to deny rezoning is subject to judicial intervention if the decision is arbitrary, unreasonable or confiscatory, it is certainly clear that the circuit court does not get to decide that issue in the first instance. Broward County v. Capeletti Bros., Inc., 375 So.2d 313, 315 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 755 (Fla.1980). "Arbitrary, unreasonable and confiscatory" is the issue, not the standard of review. "Because zoning or rezoning is the function of the appropriate zoning authority and not the courts, the circuit court [is] not empowered to disapprove the findings of the Board unless the record [is] devoid of substantial competent evidence to support the Board's decision." Skaggs-Albertson's v. ABC Liquors, Inc., 363 So.2d 1082 (Fla.1978).

As this court earlier observed, the standard of review in zoning cases in this state has become somewhat blurred: ⁴

The DeGroot [v. Sheffield, 95 So.2d 912, 916 (Fla.1957) ] "competent substantial evidence" standard of review of quasi-judicial action effectively provides the same standard the "fairly debatable" test provides for review of legislative municipal zoning action: For the action to be sustained, it must be reasonably based in the evidence presented.

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By whatever name it is called, the task of the court reviewing the zoning variance decision is to insure that the authority's decision is based on evidence a reasonable mind would accept to support a conclusion.

Town of Indialantic v. Nance, 400 So.2d 37, 40 (Fla. 5th DCA 1981), approved, 419 So.2d 1041 (Fla.1982). See also City of South Miami v. Meenan, 581 So.2d 228 (Fla. 3d DCA 1991); St. Johns County v. Owings, 554 So.2d 535 (Fla. 5th DCA 1989), rev. denied, 564 So.2d 488 (Fla.1990); Capeletti, 375 So.2d at 315. A standard of review supplies the reviewing court with the guidelines for evaluating the quality and quantity of evidence that will make the zoning authority's decision irreversible by the reviewing court. Indialantic, 400 So.2d at 39-40. Here the trial court reviewed the record and decided it thought the denial of rezoning was arbitrary, unreasonable and confiscatory but did not perform its function, which was to determine whether the record contained evidence a reasonable mind would accept to support the Board's conclusion. The trial court's function was to search the record to see if any competent substantial evidence supported the Board's decision. Educ. Dev. Ctr., Inc. v. City of West Palm Beach Zoning Bd. of Appeals, 541 So.2d 106, 108 (Fla.1989); Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940, 944 (Fla. 5th DCA), appeal dismissed, 537 So.2d 568 (Fla.1988). Here the trial court did the opposite.

In its order, the factual "Background" the trial court recited to support its ruling in favor of Lust was verbatim the description of the surrounding property as contained in the brief Lust filed with the Board, but the trial court ignored entirely the County's evidence, which was also undisputed in the record:

Zoning adjacent to the subject property is A-1 (1956/1957) to the north and east, and R-1A (1979) to the south and west (across U.S. 441).

The agricultural property is vacant. The R-1A across from this site contains a single family residence. There is C-1 to the north and west of this site. Most of the C-1 is vacant, was approved prior to the adoption of the Growth Management Policy (1960/1979), and provides insufficient justification for this rezoning request.

The other commercial uses in the area are south along U.S. 441. On the westerly side is a commercial building housing a truck brokerage and pool business. This is on R-1A zoned property and the zoning records identify it as a nonconforming retail business. Also south of the subject property is a used car lot. Zoning shows this as zoned A-1. However, there is no established nonconforming use identified by the zoning records. Further investigation of the zoning status of this car lot is under way. The general area of this rezoning is vacant. There is limited commercial development. Approval of C-3 would allow the introduction of heavy commercial zoning in a rural area. Approval of C-3 would also establish the precedent for additional commercial zoning stripped along U.S. 441.

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The Growth Management Policy Future Land Use Designation is Rural Residential (1 DU/2 Acres) in the Rural Service Area. This request is inconsistent with that recommendation. Commercial Policy 1.0.3 states, "... commercial development shall be consistent with the Cluster Development Pattern." To establish free-standing heavy commercial in the Rural Service Area does not meet the intent of the Cluster Development Pattern.

Commercial Policy 5.1.2 states, "roadway commercial activities should be encouraged to infill along existing arterials." The requested C-3 is not an infill development. It would set the precedent for additional commercial zoning along U.S. 441, resulting in strip commercialization. This is contrary to the infill concept.

Commercial Policy 4.0.1 requires the availability of appropriate services for heavy commercial uses. The C-3 allows uses such that central sewer and water be required. Sewer and water are not available at this location.

The staff recommendation for denial of rezoning was also part of the record:

1. The request is inconsistent with the Growth Management Policy Future Land Use Designation of Rural Residential (1 DU/2 Acres) in the Rural Service Area.

2. The C-3 District would allow uses that are incompatible with the existing uses and zonings in the area.

3. The request represents spot zoning.

4. Approval of C-3 would establish the precedent for stripping commercial zoning along U.S. 441.

5. Approval of C-3 would be contrary to the Cluster Development Pattern.

6. There are inadequate services available to meet the needs of uses allowed in the C-3 District.

7. The site does not meet the site and building requirements for the C-3 District. ⁵

In the present case, it is plain that the record contains competent, substantial evidence that would support the Board's refusal to rezone this parcel for erection of a billboard. The undisputed fact that the proposed rezoning is inconsistent with the County's Growth Management Plan is strong evidence supporting the Board's decision. Sengra Corp. v. Metropolitan Dade County, 476 So.2d 298 (Fla. 3d DCA 1985). The very fact that the entire County Commission, County Staff, and Zoning Board concluded this zoning change was ill-advised further lends support to the conclusion that the Board's decision was fairly debatable. Capeletti, 375 So.2d at 316; Miles v....