Snyder v. Board of County Com'rs of Brevard County

• Decision Date: 12 December 1991
• Docket Number: No. 90-1214,90-1214
• Citation: 595 So.2d 65
• Parties: 16 Fla. L. Weekly D3057 Jack R. SNYDER, et al., Petitioners, v. BOARD OF COUNTY COMMISSIONERS OF BREVARD COUNTY, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 65

595 So.2d 65

16 Fla. L. Weekly D3057

Jack R. SNYDER, et al., Petitioners, v. BOARD OF COUNTY COMMISSIONERS OF BREVARD COUNTY, Florida, Respondent.

No. 90-1214.

District Court of Appeal of Florida,

Fifth District.

Dec. 12, 1991.

Rehearing Denied March 20, 1992.

Frank J. Griffith, Jr. of Cianfrogna, Telfer & Reda, P.A., Titusville, for petitioners.

Robert D. Guthrie, County Atty. and Eden Bentley, Asst. County Atty., Merritt Island, for respondent.

PER CURIAM.

I. This Case

Petitioners, owners of a one-half acre parcel of land zoned GU (General Use) under the Brevard County Comprehensive Zoning Plan ordinance, desire to erect a multi-unit dwelling on their property and petitioned the governmental zoning authority, the Board of County Commissioners of Brevard County, to rezone their land to a RU-2-15 medium density multiple-family dwelling zoning classification.

The Brevard County Comprehensive Plan ¹ provides for future land use designations and service sector (maximum allowable residential density) ² designations as shown on a Future Land Use Map Series (FLU Map Series) ³ within the Future Land Use Element (FLUE).

Upon receiving the rezoning application from the landowners, the staff of the Brevard County Comprehensive Planning and Zoning Department (P & ZD) reviewed it and made certain findings in a standard Rezoning Review Worksheet, including (1) that the rezoning request was consistent with the Brevard County Comprehensive Plan; (2) that the proposed zoning was consistent with the Future Land Use designation for this land (residential); (3) that the service sector designation representing the maximum allowable densities was urbanizing; (4) that while the maximum allowable density in the "urbanizing" service sector designation generally permitted only 12 units per acre, the planning policy ⁴ permitted the service sector boundaries to be extended 660 feet, and since the subject property was within 660 feet of an urban district permitting a density of 30 units per acre, the district boundaries could be extended to include the subject property permitting a density of greater than 12 units; therefore the rezoning request for 15 units per acre was consistent with the service sector designation; (5) the proposed use met all requirements relating to potable water, sanitary sewer, solid waste facilities, parks and recreation; and (6) the proposed rezoning was compatible with surrounding lands zoned GU and RU-2-15. However, the staff noted in the Rezoning Review Worksheet that this parcel of land appeared to be located within a 100 year flood plain and because, for environmental reasons, the maximum residential density in a 100 year flood plain was two units per acre, that for this reason alone, the rezoning request should not be approved.

An advertised public hearing was held before the Planning and Zoning Board. The findings of the P & ZD staff were presented. Nearby residents expressed their opposition to the rezoning. One member of the P & ZD Board asked about the flood plain problem. In response, the minutes of the hearing show that a Mr. Edwards, representing the P & ZD staff, stated that the landowners had submitted a topographical map showing the elevation of the subject property was such that it was "within the purview of taking it out of the 100 year Flood Plain at the time of development." The Planning and Zoning Board recommended approval of the zoning change.

At a subsequent public hearing before the Brevard County Board of Commissioners where the Planning and Zoning Board's recommendation was considered, a number of residents living in single-family homes north of the property sought to be rezoned appeared and spoke against the rezoning request. The objecting citizens expressed the usual concerns about traffic and parking problems, that they considered the neighborhood to be mainly single-family, that there was already multifamily zoning in the area that was not selling and that the residents did not want multifamily use in the area.

The landowners pointed out that their land was 530 feet north of SR 520, where an automobile agency and other businesses were located, that the single-family residences of the objecting residents were further to the north of the petitioners' land, that access to the petitioners' property did not require passage by the single-family homes further to the north, that construction on petitioners' land would not cause traffic congestion for those homes and that petitioners' use of their land would constitute transitional zoning between the auto agency (business) to the south and the single-family residences to the north. The P & ZD staff review worksheet before the county commissioners had been amended by a notation by Mr. Edwards to show that the original statement that the land was within the 100 year flood plain (and for that reason restricted to two units per acre) had been refuted.

The Board of County Commissioners overruled the Planning and Zoning Board's recommendation and denied the rezoning request without giving any reason.

The landowners filed in the circuit court a Petition for Writ of Certiorari alleging that the zoning classification sought by the landowners was consistent with the county Comprehensive Zoning Plan as required by section 163.3194(1)(a), Florida Statutes, and that its denial was arbitrary and unreasonable and had no substantial relation to the public health, safety, morals or general welfare and was not according to the essential requirements of law. The County's response to the landowners' certiorari petition referred only to the citizens' various objections to the rezoning and to the fact that the P & ZD staff had initially recommended a maximum of two units per acre. ⁵

A three judge panel of the circuit court, sitting in its appellate capacity, denied the landowners' petition for certiorari review, thus affirming the denial of the landowners' request to rezone their land.

The landowners filed this petition for certiorari in this court to review the circuit court's denial of relief and claim that the circuit court departed from the essential requirements of law in failing to require the County Commission to make findings of fact and give reasons for its action in disregarding the recommendations of its Planning and Zoning Board and in denying the landowners' request for rezoning to a land use and a density or intensity of use that was consistent with the future land use plan of the applicable comprehensive plan adopted by the local planning agency in accordance with state law.

The County Commission argues that the instant case involves rezoning and that because all actions of county commissioners in enacting or amending or declining to adopt or amend county ordinances constitute legislative action, ⁶ the County Commission is not required to make findings of fact or state reasons for their actions and that the constitutional separation of powers doctrine requires the judiciary to give deference to such legislative acts and to uphold them if their reasonableness is even "fairly debatable."

The scope of our review is limited to a determination as to whether the circuit court afforded the landowners procedural due process and applied the correct law. ⁷

When acting in a truly legislative function, a legislative body has the discretion to determine what the law should be and is not required to make findings of fact and statement of reasons supporting its decision as is necessary in order for the courts to effectively review governmental action for compliance with constitutional and statutory rights and limitations. The essential issue in this case is whether the decision by the County Commissioners to deny the landowners' rezoning request in this instance was a legislative act ⁸ to which, under the constitutional separation of powers doctrine, the judiciary must give a deferential standard of review and uphold if "fairly debatable." ⁹ Proper resolution of this issue necessarily implicates constitutional considerations relating to private property rights, separation of powers and the powers and duties of the respective branches of government.

II. Government Land Use Regulations as a Restriction on Private Property Rights

The founders of the government of the United States accepted the English concept of private ownership of property, recognized that right in the federal constitution, ¹⁰ reserving certain lands for use by the federal government and the general public, ceded lands to the States and granted other lands to private ownership. Under English law adopted as the common law of Florida and other states, ownership of private property included the right to freely use it as the owner desired with but two limitations, viz: (1) a citizen could not lawfully do anything that constituted a danger to the health, safety, morals or welfare of the general public and that concept included the use of privately owned land, and (2) privately owned land could not be used as to interfere with the same rights of others to use their property. These limitations on the use of private property were exemplified by, and co-extensive with, the common law remedies for the abatement of public and private nuisances. The power of government to protect the general public from the dangerous conduct of individuals, including the misuse of private property, is sometimes known as the "police power." Under common law the presumption is in favor of the owner's right to use his property and the burden is on the government to allege and prove that the owner's actual or threatened use constituted a public nuisance necessitating a restriction in order to protect the public.

The value of real property is a product of existing and potential intrinsic value and use value. The intrinsic value of land relates to the value of its existing metal, mineral, oil and gas deposits, water, soil, sod, trees, fish, game, etc. Except for some land containing phosphate,...