WINGROVE EST. ASS'N v. PAUL CURTIS REALTY

• Citation: 744 So.2d 1242
• Decision Date: 19 November 1999
• Docket Number: No. 99-1791.,99-1791.
• Parties: WINGROVE ESTATES HOMEOWNERS ASSOCIATION, et al., Petitioners, v. PAUL CURTIS REALTY, INC. and Orange County, Florida, Respondents.
• Court: Court of Appeal of Florida (US)

744 So.2d 1242

WINGROVE ESTATES HOMEOWNERS ASSOCIATION, et al., Petitioners, v. PAUL CURTIS REALTY, INC. and Orange County, Florida, Respondents.

No. 99-1791.

District Court of Appeal of Florida, Fifth District.

November 19, 1999.

Kevin Knight and Daniel F. Mantzaris of Drage, deBeaubien, Knight, Simmons, Mantzaris & Neal, Orlando, for Petitioners.

Darryl M. Bloodworth of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A., Orlando and Janet M. Courtney and Hal H. Kantor of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Respondent Paul Curtis Realty, Inc. Joseph L. Passiatore, Senior Assistant County Attorney and Vivien J. Monaco, Assistant County Attorney, Orange County Attorney's Office, Orlando, for Respondent Orange County.

COBB, J.

Two homeowner associations, Wingrove Estates and Winderlakes, seek certiorari review by this court in respect to a denial by an appellate division of the Orange County Circuit Court of the Associations' attempt to intervene in regard to a matter pending before the circuit court. That matter is an alternative petition for either mandamus or certiorari review filed by a developer, Paul Curtis Realty, seeking to quash a county commission decision to deny a commercial development plan for some 16 acres of property in Orange County. The development plan, known as the Grand Oaks Village P-D, includes the proposed construction of a gas station and other commercial enterprises.

The Orange County Development Review Committee recommended that the County Commission deny the Grand Oaks Village P-D. At the time the proposal was considered by the County Commission, representatives for both the developer and the two neighboring homeowner associations addressed the commission, which ultimately voted to deny the plan. The developer then filed petitions for mandamus and certiorari review of the county's action in the circuit court. The two neighborhood associations filed a motion to intervene in those proceedings, and the summary denial of that motion resulted in their petition to this court.¹

The Associations argue that their residents, who border or are in close proximity to the proposed development, would definitely be affected and point to the fact that Orange County, the respondent herein, has no objection to their intervention. The Associations also argue that numerous cases hold that neighboring property owners affected by zoning changes have standing to challenge those changes. See e.g., City of St. Petersburg Board of Adjustment v. Marelli, 728 So.2d 1197 (Fla. 2d DCA 1999); National Wildlife Federation, Inc. v. Glisson, 531 So.2d 996 (Fla. 1st DCA 1988); Rinker Materials Corp. v. Metropolitan Dade County, 528 So.2d 904 (Fla. 3d DCA 1987). Curtis, on the other hand, contends that the interests of the Associations can be protected by Orange County, that the Associations may inject new issues into the litigation, and that, in any event, intervention is discretionary with the lower court.

We cannot agree that the discretion of the lower court in this matter is absolute. In the leading case on this issue, Union Cent. Life Insurance Company v. Carlisle, 593 So.2d 505 (Fla.1992), the supreme court, while acknowledging that intervention is discretionary, held that the trial court in that case abused its discretion in not allowing an insured to intervene. This appears to be because there are circumstances in which equitable considerations require the court to allow intervention. See Blue Cross of Florida, Inc. v. O'Donnell, 230 So.2d 706 (Fla. 3d DCA 1970); O'Connell v. Rabin, 596 So.2d 1299 (Fla. 3d DCA 1992); Florida Wildlife Federation, Inc. v. Board of Trustees of Internal Imp., 707 So.2d 841 (Fla. 5th DCA 1998).

The Associations also rely upon Marelli, which involved a zoning variance matter. After the variance was granted, the city board of adjustment petitioned for a writ of certiorari from the circuit court. The property owner, for whom the variance was granted, filed a motion to intervene as an indispensable party. The Second District held that: (1) the property owner was not an indispensable party; but (2) the neighboring property owners had standing to challenge the zoning variance. The opinion states:

The Board questions the standing of the neighboring property owners to bring this action. A multitude of cases recognize that neighboring property owners affected by zoning changes have standing to challenge the changes. See Rinker Materials Corp. v. Metropolitan Dade County, 528 So.2d 904 (Fla. 3d DCA 1987), and cases cited therein.

728 So.2d at 1198.

Rinker Materials analyzes the matter further:

In considering whether a property owner has standing because its interests have been adversely affected, a court is to consider "the proximity of [its] property to the area to be zoned or rezoned, the character of the neighborhood, ... and the type of change proposed." Renard, 261 So.2d at 837; see Paragon Group, Inc. v. Hoeksema, 475 So.2d 244, 246 (Fla. 2d DCA 1985), review denied, 486 So.2d 597 (Fla.1986). If Rinker could have demonstrated that the commission's action had adversely affected the

...