Florida Circuit Court of Appeals, Fourth Circuit.
PEOPLE OF JUNO BEACH, a Florida municipal corporation, plaintiff, v. T. Bragg McLEOD, defendant.
Resolved: November 20, 2002
Gregory S. Kino and W. Jay Hunston, Jr. of Boose, Casey, Ciklin, Lubitz, Martens, McBane & O'Connell, West Palm Beach, for the petitioner. Thomas J. Baird and Susan A. Kennedy of Thomas J. Baird, P.A., North Palm Beach, for the defendant. Daniel K. Corbett, Juno Beach, for Amicus Curiae Celestial Court Partnership.
The City of Juno Beach is seeking a certiorari review of a district court order that issued certiorari and reverse the city's decision to rededicate certain lots. We grant the motion and overturn the district court's decision.
In March 1999, the Celestial Court Partnership (Celestial) applied to the city for a zoning change on a vacant lot it owns. The package is located on the northeast corner of Olympus Drive and U.S. highway one; measures 125 feet by 200 feet, with 125 feet front in the US. One, the west property line, and 200 feet on Olympus Drive.
For the 120 feet west of the property, Celestial was seeking a rezoning from RS-1, low density single family home, future residential land use, to CO, commercial office with future commercial land use. The motion proposed that the east 80 feet of the property remain single family homes to provide a buffer zone for the adjacent single family area. Celestial wanted to develop a mixed-use, two-storey building with professional offices on the ground floor and apartments on the second floor.
The application indicated that there were residential areas to the north, east, and south of the property, but across the freeway to the west was Seminole Plaza, a 60,000-square-foot mall. In connection with the rezoning application, Celestial attempted to amend the city's overall plan to change the future land use from the existing future land use classification from low-density residential to commercial.
The city staff report recommended that the application be granted. The report noted that the property was approximately 0.57 acres and that the proposed rezoning would cover the western portion of approximately 0.34 acres. The staff wrote that the rezoning is consistent with the proposed commercial classification for future land use. The report noted that the property to the west was designated as General Commercial (GC), a more intensive use than Celestial was seeking. The staff explained that the proposed mixed-use project
it creates a consistent transition from the freeway and more intensive uses to the west towards a mixed use of commercial offices and less intensive residential uses. In addition, the planned mixed use is a much needed element within the city. In this general area of the city, there are two mixed-use sites that work very well and coexist in their neighborhoods․ Mixed uses are transit uses. Interim uses are a necessary element for a sustainable community. Transitional uses allow communities to identify themselves as individual places within a larger general area that is similar to an extension, such as B. Palm Beach County.
The staff described the proposed use as "an ideal transitional use of commercial uses along the highway and single-family residential uses to the east."
The City Council held two public hearings on land use determination and zoning. The Council heard opinions from experts and laypeople on all sides of the proposed changes. The council voted to pass Regulation 509, which changed the comprehensive plan for the future land use map for real estate from residential to commercial use. The council voted to approve Regulation 510 rezoning CO housing.
Defendant T. Bragg McLeod owns a single family home 300 feet east of the affected property. He filed a writ in district court challenging the rededication. At the same time, McLeod and others unsuccessfully challenged changes to the future land-use map in an administrative proceeding.1
A three-judge panel of the district court granted the charter and reversed the city's rezoning decision. The district court wrote that "[whether] the city has departed from the essential requirements of the statute depends to a large extent on what constitutes the 'neighborhood' for rezoning purposes." However, after finding that “there is no definition of 'neighborhood' in the City's Comprehensive Plan or in Chapter 163, Part II, Florida Statutes (2000),” the District Court concluded that “current Florida law the city does not allow "commercial use to expand via US Highway One" in the way it did. The district court also ruled that the "measure taken by the city represented a zoning of the site". Ultimately, after considering conflicting evidence at public hearings, the district court concluded that there was "no material pertinent evidence" to support the reallocation.
This court outlined the two-step framework for reviewing a zoning decision in Town of Manalapan v. Gyongyosi, 828 So.2d 1029, 1032 (Fl. 4. DCA 2002):
In “first level” review, a party may seek a certiorari review in a district court, which is more like an appeal and non-discretionary. The court must examine the records of the commission's decision and determine whether: (1) due process was afforded; (2) whether the essential requirements of the law have been met; and (3) whether relevant evidence supports the Commission's judgment. The “professional substantive evidence” auditing standard applied to this first-level review is “equivalent to legally acceptable evidence”. In the petition for certiorari to the district court, “second level” review, that court confines itself to determining whether due process was afforded and whether the district court applied the correct law. It must not be determined whether the Commission's decision is supported by any relevant evidence.
We agree with the people that the district court failed to apply the correct law and standard of certiorari examination in superseding its people's assessment of competent substantive evidence.
The district court applied the wrong law by failing to evaluate this zoning application in the context of the city's comprehensive plan designating this lot for commercial rather than residential purposes. Coastal Development of N. Fla., Inc. v. City of Jacksonville Beach, 788 So.2d 204 (Fla. 2001) (Zone changes are subject to a certiorari review by the District Court to ensure strict adherence to the Comprehensive Plan).
Instead, the district court relied on cases that are distinguishable. They were enacted well before the passage of local grand plans under Chapter 163 of the Florida Statutes, which governs grand planning. In addition, these cases confirmed local government discretion and therefore do not support the claim that the city acted arbitrarily in this case. City of Miami Beach v. Wiesen, 86 So.2d 442 (Fla. 1956) (confirmation of the town planning decision of the court of appeal); City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941) (overturning the district court and confirming the city's zoning); Harris v. City of Coral Gables, 157 So.2d 146 (Fla. 3d DCA 1963) (confirming the dismissal of a case in which properties in one city were requested to be zoned similarly to adjacent properties in another city); City of Surfside v. Skyline Terrace Corp., 120 So.2d 20 (Fla. 3d DCA 1960) (Overturning the court's overturning of the zoning order on the grounds that the city's decision as to where a zoning ends was a legislative measure) .
Because the plan's broad policies are implemented through zone codes, the district court also had to apply the zone code. See Broward County v. G.B.V. Int'l, Ltd., 787 So.2d 838 (Fla.2001) (the decision to grant or refuse a development contract is governed by local regulations, which must be applied consistently); Davis v. St. Joe Paper Co., 652 So.2d 907, 910-11 (Fla. 1st DCA 1995) (Ervin, J., agrees) ((citing City of Cape Canaveral v. Mosher, 467 So.2d 468 ( Fla. 5. DCA 1985)), for proposing that after the adoption of a comprehensive plan under the Florida statutes governing planning and zoning, where the existing zoning is inconsistent with the plan, zoning changes must be made in order for the Zoning better matches plan) .
The city's zone code identifies only two zone categories for properties with a commercial land use designation: General Trade and Commerce. The commercial license zone mandated by the city on the property is the least intensive use category consistent with the plan. It has been adopted by the community to serve as a buffer between commercial use and residential use, which is the use of this property.
Therefore, when the land use designation for this property was changed to commercial, the existing residential development became inconsistent with the plan. The new development category is in accordance with all relevant laws and regulations. Furthermore, the change did not constitute "point zoning" in legal terms.2SOUTHWEST. Ranches Homeowners Ass'n v. Broward County, 502 So.2d 931, 935 (Fla. 4th DCA 1987) (change of zoning, no zoning on site as consistent with the purposes of the comprehensive plan).
Florida law does not provide a clear definition of the "neighborhood" from which the city made its development decision. Here it was factually and not legally decided what constitutes a “neighborhood”. The city's zoning plan allows it to consider adjacent uses as a factor in the rezoning, including the fact that the property is adjacent to a four-lane divided highway with an average daily traffic volume of 24,000 trips and with a planned expansion to six lanes . .
Furthermore, the district court did not understand its role in the review process. As the Supreme Court in Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So.2d 1270, 1275-76 (Fla. 2001):
We reiterate that the standard of competent substantial evidence cannot be used by a review court as a mechanism to exercise covert scrutiny over decisions and findings of fact by local authorities. Rather, this Standard requires that the review panel draw on the Agency's high level technical expertise and unique viewpoint on such matters. The question in court is not whether the agency's decision is the 'best' decision or the 'right' decision or even a 'smart' decision, as these are technical and policy-based decisions within the agency's remit. The circle is untrained, inexperienced and inherently unfit to function as a roving "super agency" with complete oversight of such matters.
The report also shows that the district court re-examined the evidence. Like the Gyongyosi District Court, the court "re-examined conflicting evidence and ignored evidence that" supported the people's decision. 828 So.2d at 1032. "He appears to have applied the standard of proof of 'competent substantial evidence' as set out in Irvine v. Duval County Planning Commission, 495 So.2d 167 (Fla. 1986), in place of the Audit Standard.” Gyongyosi, 828 So.2d at 1032.
For these reasons, we grant the people's petition and overturn the district court's decision.
1. McLeod et al. filed a request with the Florida Department of Community Affairs for a formal administrative hearing under Section 163.3184(9) of the Florida Statutes (2000). They contended that the zoning change constitutes specific planning because it is a fragmentary change of use affecting a single plot, increasing its density and intensity, and creating disharmony in the area. They asked for an order noting that the amendment was inconsistent with the local government's Comprehensive Planning and Territorial Development Act and recommended that the amendment not be put into effect. After a two-day hearing, the Administrative Justice Judge recommended that the Department issue a final order finding the plan change compliant. Regarding the McLeod exemptions, the Department issued a final order dated May 30, 2001, accepting the Administrative Judge's recommendation and finding that the Comprehensive Plan Amendment is compliant. The order was not further challenged.
2. See Bird-Kendall Homeowners Ass'n v. Meter. Dade County Bd. of County Comm'rs, 695 So.2d 908 (Fla. 3d DCA 1997). Although the district court relied on Bird-Kendall to conclude that it was a point zoning, the 3rd Circuit did not address the zoning's consistency with the comprehensive plan. In addition, it is distinguished by the fact that there was no land with a similar zoning nearby. In this case, there is a commercial area on the opposite side of the street. Allapatah Cmty. Ass'n v. Miami, 379 So.2d 387 (Fla. 3d DCA 1980), notably, the staff disapproved of the amendment, with the result that there was no substantial evidence to support it.
GUNTHER and WARNER, JJ., agree.