Webb v. Town Council of Town of Hilliard, 1D99-2968.
Decision Date | 25 September 2000 |
Docket Number | No. 1D99-2968.,1D99-2968. |
Citation | 766 So.2d 1241 |
Parties | Wiley WEBB, Appellant, v. TOWN COUNCIL OF TOWN OF HILLIARD, Florida, and George I. McKinnon, Individually, Appellees. |
Court | Florida District Court of Appeals |
William T. Basford, Orange Park; Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellant.
H. Price Poole, Jr. of Poole & Poole, P.A., Fernandina Beach, for Appellees.
Appellant, Wiley Webb, seeks review of an order dismissing with prejudice his complaint for declaratory action and writ of mandamus. The complaint attacked the validity of the action of the Town Council of the Town of Hilliard, Florida, in granting a zoning exception to appellee, George T. McKinnon (McKinnon). We reverse.
In his complaint, appellant alleged that on December 3, 1998, the Town Council of the Town of Hilliard purported to approve McKinnon's verbal application for a special zoning exception to allow replacement of seven rental mobile homes in an area zoned single family district R-2, which does not permit mobile homes. Appellant further alleged complete noncompliance with the notice provisions of the Town's Zoning and Land Development Regulations. Part III of the Complaint states in part:
Webb seeks to have the action quashed, declared void, issuance of a Writ of Mandamus directing the Town of Hilliard, through its Council to rescind its action granting this zoning exception and enjoining the Council and McKinnon from permitting McKinnon to place the mobile homes on the described property. Any trailers placed on the property pursuant to the December 3rd meeting should be removed.
On April 9, 1999, McKinnon filed a motion to dismiss the complaint. As grounds therefor, McKinnon alleged appellant lacked standing to challenge the Council action, and the zoning exception was a quasi-judicial action, subject to challenge only by petition for writ of certiorari. McKinnon further alleged appellant's complaint was untimely, because it was not filed within the thirty-day time period for filing a petition for writ of certiorari of the Town Council's grant of the special zoning exception.
The trial court granted McKinnon's motion to dismiss, seemingly accepting McKinnon's argument that the zoning action could be challenged only by petition for writ of certiorari. The trial court reasoned appellant's complaint was time-barred, and dismissed the complaint with prejudice. Appellant filed a timely motion for rehearing, in which he asked the trial court to set aside the order of dismissal with prejudice, with leave to amend the complaint. In support of the motion for rehearing, appellant recognized the pleading deficiency in the original complaint, i.e., the complaint failed to establish that appellant has standing to challenge the Council's zoning action. Appellant alleged he does, in fact, live in the zoning district which prohibits mobile homes, but residents of the area had not been provided notice of the zoning application as required by the Town Code, and the mandated public hearing before the Planning and Zoning Board had not been held. Appellant urged that due to the lack of notice of the proposed zoning change, his only avenue was declaratory relief, injunction, and mandatory relief through a trial de novo. The trial court issued an order summarily denying the motion for rehearing.
An order of dismissal with prejudice is an appealable final order. See generally Obenschain v. Williams, et al., 750 So.2d 771, 772 (Fla. 1st DCA 2000)
. An abuse of discretion standard of review is applicable to a dismissal with prejudice of a complaint for declaratory judgment. See Obenschain, 750 So.2d at 773; Florida Public Employees Council v. Department of Children and Families, 745 So.2d 487, 490 (Fla. 1st DCA 1999); Abruzzo v. Haller, 603 So.2d 1338, 1339 (Fla. 1st DCA 1992).
review denied, 732 So.2d 326 (Fla.1999). "Dismissal with prejudice is an abuse of discretion where a pleader may be able to allege additional facts to support its cause of action or support another cause of action under a different legal theory." See Obenschain, 750 So.2d at 773. See also Gladstone, 729 So.2d at 1003.
Under Florida law, ordinances which substantially affect the use of land must comply strictly with the notice requirements of § 166.041(3)(c)1., Fla.Stat. This provision states in pertinent part:
292 So.2d 24 (Fla.1974)(City's attempt to change classification of property was a nullity, because the proposed change was not effected in accordance with the procedural requirements of the zoning ordinance, i.e., the city failed to hold a public hearing after due notice); City of Coral Gables v. Deschamps, 242 So.2d 210, 212 (Fla. 3d DCA 1970)(ordinance deemed invalid and void, because the notice as to the proposed zoning change was inadequate to inform regarding the proposed changes).
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