Paragon Group, Inc. v. Hoeksema

• Decision Date: 14 June 1985
• Docket Number: No. 84-1870,84-1870
• Citation: 475 So.2d 244,10 Fla. L. Weekly 1465
• Parties: 10 Fla. L. Weekly 1465, 10 Fla. L. Weekly 2197 PARAGON GROUP, INC., Appellant, v. Patricia HOEKSEMA, et al., Appellees.
• Court: Florida District Court of Appeals

Page 244

475 So.2d 244

10 Fla. L. Weekly 1465, 10 Fla. L. Weekly 2197

PARAGON GROUP, INC., Appellant, v.Patricia HOEKSEMA, et al., Appellees.

No. 84-1870.

District Court of Appeal of Florida Second District.

June 14, 1985.

As Clarified on Denial of Rehearing

Sept. 18, 1985.

Theodore C. Taub of Taub and Williams, Tampa, for appellant.

John R. Lawson, Jr., and Leslie E. Joughin, III, of Lawson, McWhirter, Grandoff & Reeves, Tampa, for appelleePatricia Hoeksema.

SCHEB, Acting Chief Judge.

Appellant, Paragon Group, Inc., contends it was error for the trial judge, who did not hear this case, to make findings and enter a declaratory judgment in favor of appellee, Patricia Hoeksema.We agree.

Hoeksema brought suit against Hillsborough County and its City-County Planning Commission.She contended that ordinance 82-14 did not accurately reflect the county commission's zoning designation of a 77-acre parcel of land.Paragon intervened in the suit.After a nonjury trial the court held that neither the county ordinance nor its zoning map correctly reflected the true action of the county commission.It ordered the county to change its designation on the zoning map to low density residential (LDR) rather than low-medium density residential (LMDR).

To understand the issue presented to the trial court, a discussion of the zoning process is essential.In the course of its activities in 1981, the planning commission proposed certain amendments to the Land Element Text and Map of the Horizon 2000 Plan, a comprehensive land use plan.The planning commission recommended that the 77-acre tract in question and an adjoining 37-acre parcel (collectively referred to as Area # 42) be designated as LDR, a category which allows six dwelling units per gross acre.Paragon, owner of the 37-acre tract, appeared before the county commission and requested medium density residential (MDR) zoning which would allow twenty dwelling units per gross acre.At the conclusion of the hearing, the county commission, by a three-two vote, compromised and agreed to rezone the land as LMDR, allowing twelve dwelling units per gross acre.Several months later, the county commission adopted ordinance 82-14 which incorporated the map showing all 114 acres of Area # 42 as LMDR.

After Paragon developed its 37-acre parcel, it contracted to purchase the adjoining 77-acre tract.It then petitioned the county to rezone the 77-acre tract as a community unit development, allowing twelve units per acre.Since the map showed the 77-acre tract to be zoned LMDR, allowing 12 units per acre, the planning commission found Paragon's request to be consistent with the Horizon2000 Plan.

The critical issue before the trial court was whether the county commission had designated the entire 114-acre tract as LMDR as reflected by ordinance 82-14 or whether it merely approved LMDR zoning for Paragon's original 37-acre parcel.

The Honorable James A. Lenfestey presided at the trial.He received in evidence minutes, tapes, and transcripts of county commission meetings.In addition, several witnesses testified.At the conclusion of the trial, Judge Lenfestey took the matter under advisement pending submission of final arguments of counsel by written memoranda.Approximately six weeks later, the Honorable Walter N. Burnside, Jr., another circuit judge of the Thirteenth Judicial Circuit, entered a final judgment.Judge Burnside found that the record of the commission meetings proved that the 77-acre tract was actually designated as LDR by the county commission.He ordered the county to revise its map and ordered the planning commission to reconsider Paragon's rezoning petition in light of the revised map.From this final judgment Paragon's timely appeal ensued.

Paragon argues that Judge Burnside, who had not heard the evidence, erred in making the findings and entering final judgment.Since Judge Lenfestey, who heard the case, made no findings of fact or conclusions of law on the record, we agree.

A successor judge may complete acts left unfinished by a predecessor, but may not weigh the testimony heard before the predecessor judge.Tompkins Land & Housing, Inc. v. White, 431 So.2d 259(Fla. 2d DCA1983).A successor judge who does not hear all the evidence may only enter a judgment on retrial or, where the parties stipulate, on the basis of the record of the prior proceedings.Id.See alsoKirkham v. Kirkham, 385 So.2d 733(Fla. 2d DCA1980)(a successor judge may not rule on a party's motion for rehearing where the original trial judge has been assigned to a different division in the circuit court).Accordingly, we remand to the Honorable Guy W. Spicola, Chief Judge.Judge Spicola should either request Judge Lenfestey to make the necessary findings and adjudication, or if Judge Lenfestey is unavailable or it is inappropriate for him to act, then the chief judge should appoint Judge Burnside or some other judge to conduct a retrial on the matter.¹Since a retrial may be necessary, we address certain issues of law raised in this appeal.

First, Paragon's argument that Hoeksema did not have standing to maintain...