Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
Case Laws
Appeal of a Zoning Board Decision of a Class II Special Permit Appeal A & S Design District Development, LLC List of Case Law 1) Morningside Development vs. City of Miami 2) Peacock v. City of Miami 3) Renard v. Dade County 4) Metropolitan Dade County v. Fuller 5) Ortega v. Miami -Dade County 6) Canizares v. Metropolitan Dade County 7) Faith Deliverance Center v. Metropolitan Dade County 8) Bal Harbour and Ava Developments v. Bal Harbour Village Council 9) Allapattah Community Association v. City of Miami 10) Mendez vs. Miami -Dade County 11) Debes v. City of Key West SUEMJTTED INTO THE PUBLIC RECORD FOR ITEM f 40. ON aizzic‘. MIA-FS1\SAV AGEP\ 1757535v01 \ 12/ 14/05\99901.261445 MORNINGSIDE DEVELOPMENT, LLC, Petitioner, vs. CITY OF MIAMI, FLORAAILA a FF� o. et ifhe "sae of 3 subrecord in connecttii• 3 ah itte 12 Fla. L. Weekly Supp. 1021a item`L 3 on Priscilla A. Thomppso{n�� Municipal corporations -- Zoning -- Although administrative agency is not required t make findit �'bf7�eE'fo support its decision, where city's zoning ordinance requires that city agencies shall make written findings and determination when charged with decisions regarding special permits, city commission departed from essential requirements of law by reversing zoning board decision to grant special permit with only general finding that application does not meet requirements of zoning ordinance MORNINGSIDE DEVELOPMENT, LLC, Petitioner, vs. CITY OF MIAMI, FLORIDA a Florida municipal corporation, MORNINGSIDE CIVIC ASSOCIATION, INC., a Florida corporation, ROD ALON, ROB STEBBINS, SCOTT CRAWFORD and ELVIS CRUZ, Respondents. Circuit Court, 1 lth Judicial Circuit (Appellate) in and for Miami -Dade County. Case No. 05-186 AP. Resolution No. R-05-0155. August 16, 2005. A Petition For Writ of Certiorari seeking to quash Resolution No. R-05-0155 of the Miami City Commission. Counsel: Douglas M. Halsey, --Evan M. Goldberg, Christopher N. Dawson, White and Case, LLP., for Petitioner. Jorge L. Fernandez, City Attorney, and Rafael E. Suarez -Rivas, Assistant City Attorney, for Respondent City of Miami. Andrew W.J. Dickman, Law Offices of Andrew Dickman, P.A., for Respondents Morningside Civic Association, Inc., Rod Alonso, Ron Stebbins, Scott Crawford, and Elvis Cruz. (Before GORDON, FARINA, and FIERRO, JJ.) (FIERRO, J.) Morningside Development, LLC, has petitioned this court for a writ of certiorari quashing the Miami City Commission's decision set forth in Resolution R-05-0155. Morningside Development is the owner of property located on Biscayne Boulevard between 53rd Street and 55th Street in Miami, Florida (the "property"). The property is subject to the City of Miami's Zoning Ordinance (MZO). It is located in an area zoned "0", or office, with a portion of the partial in the R-1, or residential, zone. Additionally, the property is subject to the SD-9 Biscayne Boulevard North Overlay District Regulations. ,Pursuant to the SD-9 regulations, Morningside Development is required to obtain a Class II Special Permit prior to commencing any new construction. As a consequence, Morningside Development submitted an application to the City of Miami Planning Director for a Class II Special Permit for the construction of two mixed -use buildings on the -property with retail space on the ground floor. The Miami Zoning Department (MZD) reviewed the application. The MZD issued a Class II Special Permit Zoning Referral stating that the application was found to be in compliance with all applicable zoning regulations and required a Class II Special Permit. Shortly thereafter, the first amendment to the SD-9 district was adopted. This amendment (the Height Ordinance) imposed a ninety-five (95) foot height restriction for any new residential development in the portion of the SD-9 .district where the property is located. Although Morningside Development contended that the Height Ordinance was 'napplicable to its completed application, it voluntarily revised its application to comply with the 95' Height Ordinance by submitting a new application for a Class II Special Permit for buildings 92 feet in height. On August 2, 2004, the MZD issued a Class II Special Permit Zoning Referral stating that it was in compliance with all the applicable zoning 'egulations and required a Class II Special Permit. On August 23, 2004, Morningside Development filed the application and zoning referral with the Planning Director. While its application was pending, a second amendment to the SD-9 district regulations was adopted. This second amendment imposed, among other things, a height limitation on any garage structure abutting an R-1 district to a height of 25 feet on the wall abutting an R-1 district. It also permitted a roof angle of 45 degrees upward from the top of the wall. By the Garage Height Ordinance's owns terms, it did not take effect until almost two (2) and a half ('/z) months after Morningside Development had submitted its completed application. !ttp://www.floridalawweekly.com/newsystem/showfile.php?fromsearch=l &file=../supfiles/issues/vol l 2/ 1... 12/9/2005 MORNINGSIDE DEVELOPMENT, LLC, Petitioner, vs. CITY OF MIAMI, FLORIDA a Florida munic... Page 2 of 3 On October 27, 2004, the Planning Director granted Morningside Development a Class II Special Permit with conditions. The Morningside Civic Association appealed the issuance of the permit to the City of Miami's Zoning Board. The Zoning Board heard the appeal on Dec. 13, 2004, voted to deny the appeal, and uphold the Planning Director's issuance of the special permit. Next, the Morningside Civic Association appealed the Zoning Board's decision to the City Commission. At the hearing before the Commission, the Association presented new evidence that was not presented at the hearing before the Zoning Board. The Commission granted the appeal, thereby reversing the Zoning Board's decision to uphold the Planning Director's issuance of the special permit. As a result, Morningside Development has petitioned this court for a writ of certiorari quashing the Commission's decision as set forth in Resolution R-05-0155. The circuit court's certiorari review of an administrative decision is governed by a three-part standard of review: (1) whether procedural due process is accorded; (2) whether the administrative findings and judgment are supported by competent, substantial evidence; and (3) whether the essential requirements of the law have been observed. Haines City Community Dev. v. Heggs, 658 So.2d 523 (Fla. 1995). The circuit court is not permitted to reweigh the evidence nor substitute its own judgment for that of the agency. Id at 530. Although petitioner has raised several issues on appeal, we only address the issue discussed below, and do not reach the petitioner's remaining issues. The question before this court is whether the respondent, the City, departed from the essential requirements of the law by failing to provide written findings offact (emphasis supplied) or determinations to support its reversal of the Zoning Board's decision as required by Section 1305 of the Zoning Ordinance. The respondents correctly argue that case law holds that an administrative agency is not required to make findings of fact to support of its decision. See Board of County Commissioners v. Synder, 627 So. 2d 469 (Fla. 1993). However, if an administrative agency enacts an ordinance that requires written findings of fact, it cannot unilaterally deny a citizen the protection of the ordinance. See Gulf & Eastern Development Corp. v. City of Ft. Lauderdale, 354 So. 2d 57 (Fla. 1978); Reyes v. City of Miami, 2 Fla. L. Weekly Supp. 511a (Fla. llth Cir. Ct. Oct. 21, 1994). A decision to do so is a departure from the essential requirements of the law. See Rosa Hotel Devs. Inc. v. City of Delray Beach, 10 Fla. L. Weekly Supp. 511 a (Fla. 15th Cir. Ct. June 12, 2003). Thus, an administrative agency that fails to follow its own procedures has departed from the essential requirements of the law. Id. In the case at bar, the agency's ordinance specifically requires written findings for wits decision. Section 1305 of the Zoning Ordinance, regarding Class II Special Permits, requires that: City agents, agencies, or boards charged with decisions concerning special permits shall make, or cause to be made written findings and determinations concerning such of the following matters that are applicable in the case.. . When examining the plain wording of the ordinance, it states that a city agency shall make written findings and determinations when charged with decisions regarding special permits. Thus, this ordinance imposes a separate, distinct duty or obligation on the Commission to make written findings and determinations when mUr1 1TIia���IjC special permits. F' record in connecti n with Here, the Commission's decision, as stated in Resolution R-05-0155, finds as follows: item ?Z• on a Z3 o. Priscilla A. Th pson "... the Class II Special Permit does not meet the applicable requirements of the Zoning Ordinance No. City Clerk 11000, as amended, and deems it advisable and in the best interest of the general welfare of the City of Miami and its inhabitants to grant the appeal, reverse the decision of the Zoning Board and Planning Director and deny the Class II Special Permit as hereinafter set forth;" '.zttp://www.floridalawweekly.com/newsystem/showfile.php?fromsearch=l &file=../supfiles/issues/vol12/1... 12/9/2005 MORNINGSIDE DEVELOPMENT, LLC, Petitioner, vs. CITY OF MIAMI, FLORIDA a Florida munic... Page 3 of 3 Although the Resolution makes a general finding that the application does not meet the requirements of the Zoning Ordinance No. 11000 as amended, it fails to identify a single code provision on which the Commission based its decision. As mentioned above, the City was not required to impose on its commission the obligations to make findings of fact to support its decision. However, once it enacted the ordinance and created this safeguard, it cannot now unilaterally deny Morningside Development its protection. Its decision not to provide a detailed explanation of its reason for quashing both the City of Miami Zoning Board's and Planning Director's decision granting the Class II Special Permit was violative of its own ordinance and therefore a departure from the essential requirements of the law. As noted earlier, an administrative agency that fails to follow its own procedures has departed from the essential requirements of the law. See Rosa Hotel Devs. Inc. v. City of Delray Beach, 10 Fla. L. Weekly Supp. 511a (Fla. 15th " Cir. Ct. June 12, 2003). Therefore, we hereby QUASH the Commission's decision as set forth in Resolution No. R-05- 0155, and REMAND this cause for proceedings consistent with this opinion. (GORDON and FARINA, JJ., concur.) Submitted Int.7) [io record in connect; item Z-3?- on b- Priscilla A. Thompson Clerk ittp://www.floridalawweekly.com/newsystem/showfile.php?fromsearch= l &file=../supfiles/issues/vo112/1 ... 12/9/2005 Westlaw. 646 So.2d 291 646 So.2d 291, 19 Fla. L. Weekly D2558 (Cite as: 646 So.2d 291) District Court of Appeal of Florida, Third District. Richard PEACOCK, Appellant, v. CITY OF MIAMI and Coconut Grove Civic Club, Appellees. No. 94-2742. Dec. 5, 1994. Property owner who had been granted waiver of on - site parking requirement petitioned for writ of prohibition to prohibit city zoning board from entertaining appeal by a civic club. Petition was denied by the Circuit Court, Dade County, Maria Karvick, J., and owner appealed. The District Court of Appeal held that club, as representative association, lacked standing to challenge board's decision on any ground other than procedural irregularity. Reversed and remanded with instructions. West Headnotes Zoning and Planning C='571 414k571 Representative association, complaining of waiver of on -site parking requirements for certain property, lacked standing to challenge decision of zoning board on any ground other than procedural irregularity, and absent allegations of procedural irregularity, could not resort to administrative remedies. *291 Eckert, Seamans, Cherin & Mellott and Stanley Price and Anthony J. Carriuolo, Miami, for appellant. W. Tucker Gibbs, Coconut Grove, for appellees. Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ. PER CURIAM. Richard Peacock appeals an order denying his petition for a writ of prohibition. We reverse. Appellant received a waiver of on -site parking requirements for his Coconut Grove property from the City of Miami [City] Acting Zoning Submitted Into the public record in connection w'th item ? 2.3 a- on b tv Priscilla A. Tho pson City Clerk Page 1 Administrator. The Coconut Grove Civic Club [Club] appealed the waiver to the City's Zoning Board [Board]. Peacock filed a petition for writ of prohibition in circuit court against the City seeking to prohibit the City from entertaining the Club's appeal. Peacock argued that the Board lacked jurisdiction to hear the appeal because the Club lacked standing to challenge the Board's waiver. The Club filed a motion to intervene in the action; the court granted the motion. The court denied the petition for writ of prohibition finding that appellant had not exhausted his administrative remedies. "It is clear that a representative association, such as appellee, could not sue in state courts; it would have no standing, unless it, rather than its members, had suffered some special injury." Chabau v. Dade County, 385 So.2d 129, 130 (Fla. 3d DCA 1980). The Club in this case, a representative association, lacks standing to challenge the Board's decision on any ground other than procedural irregularity. Miqmi Beach Homeowners Ass'n, Inc. v, City of Miami Beach, 579 So.2d 920 (Fla. 3d DCA 1991); Save Brickell Ave., Inc. v. City of Miami, 395 So.2d 246 (Fla. 3d DCA 1981); Save Brickell Ave., Inc. v. City of Miami, 393 So.24 1197 (Fla. 3d DCA 1981). Because the Club makes no allegations of any procedural irregularity, the trial court erred in concluding that the Club could resort to administrative remedies. *292 Chabau. See Mandico v. Taos Constr., Inc., 605 So.2d 850 (F1a.1992). The trial court erred in denying the petition for writ of prohibition. For the reasons stated above, we reverse the order on appeal and remand with instructions to grant appellant's petition. Reversed and remanded. 646 So.2d 291, 19 Fla. L. Weekly D2558 END OF DOCUMENT C 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. Westlaw. 261 So.2d 832. 261 So.2d 832 (Cite as: 261 So.2d 832) Supreme Court of Florida. Grace RENARD, Petitioner, v. DADE COUNTY, a political subdivision of the State of Florida, et al., Respondents. No. 41388. April 19, 1972. Rezoning proceeding. The zoning officials rezoned tract from industrial to multiple family residence and abutting property owners sought certiorari. The Circuit Court for Dade County, Grady L. Crawford, J., entered ruling, and abutting property owner appealed. The District Court of Appeal, 249 So.2d 500 affirmed, and writ of certiorari issued. The Supreme Court, Boyd, J., held that owners of property abutting property sought to be rezoned from industrial to multiple family residence, with increased setback restrictions different in kind from community generally, had standing to bring suit attacking rezoning ordinance as not fairly debatable. Affirmed. West Headnotes f ll Zoning and Planning €='571 414k571 The aggrieved or adversely affected person having standing to sue is a person who has a legally recognizable interest which is or will be affected by the action of the zoning authority in question; the interest may be one shared in common with a number of other members of the community as where an entire neighborhood is affected, but not every resident and property owner of municipality can, as a general rule, claim such an interest. F.S.A. § § 176.11, 176.16. Zoning and Planning '571 414k571 An individual having standing to challenge proposed zoning action must have a definite interest exceeding the general interest in the community good shared in common with all citizens; so-called "spite suits" are not tolerated. F.S.A. § § 176.11, 176.16. J Zoning and Planning €='571 Submitted Ir o the public record in conrlectio with item pa. 3;- on a b Priscilla A. Tho pson City Clerk Page 1 414k571 In determining sufficiency of a party's interest to give standing to challenge action of zoning authority, factors such as proximity of his property to property to be zoned or rezoned, character of the neighborhood, including the existence of common restrictive covenants and set -back requirements, and the type of change proposed are considerations; fact that a person is among those entitled to receive notice under the zoning ordinance is a factor to be considered on the action of standing to challenge proposed zoning action but notice requirements of area are not controlled on question of standing. F.S.A. § § 176.11, 176.16. u Zoning and Planning €680.1 414k680.1 (Formerly 414k680) Even though a person has sufficient standing to challenge action of the zoning authority, he must still carry the burden of proving that the challenged action was not fairly debatable. u Zoning and Planning €681 414k681 To have standing to enforce a valid zoning ordinance, party seeking enforcement must show special damages; however, a lenient application of that rule prevails. u Zoning and Planning € 571 414k571 Persons having a legally recognizable interest, which is adversely affected by the proposed zoning action, have standing to attack a validly enacted zoning ordinance as being an unreasonable exercise of legislative powers. u Zoning and Planning €571 414k571 An affected resident, citizen or property owner of the governmental unit in question has standing to challenge a zoning ordinance as void because not properly enacted such as where required notice has not been given. f 8j Zoning and Planning €571 414k571 Owners of property abutting property sought to be rezoned from industrial to multiple family residence, with increased setback restrictions different in © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 261 So.2d 832. 261 So.2d 832 (Cite as: 261 So.2d 832) kind from community generally, had standing to bring suit attacking rezoning ordinance as not fairly debatable. u Zoning and Planning € 652.1 414k652.1 (Formerly 414k652) Record established that rezoning of one parcel of land in unincorporated area from industrial to multiple family residence was "fairly debatable" and therefore was a valid exercise of power by the zoning authority. *833 Eugene P. Spellman, of Law Offices of Eugene P. Spellman, Miami, for petitioner. Stuart Simon, County Atty., and St. Julien P. Rosemond, Asst. County Atty., and Paul Siegel, of Sinclair, Louis, Sand & Siegel, Miami, for respondents. BOYD, Justice. This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Third District, reported at 249 So.2d 500. Jurisdiction is based on the certification of the District Court under *834Article V, s 4(2) of the Florida Constitution, F.S.A., that the decision sought to be reviewed passes upon a question of great public interest, to -wit: 'The standing necessary for a plaintiff to (1) enforce a valid zoning ordinance; (2) attack a validly enacted zoning ordinance as not being fairly debatable and therefore an arbitrary and unreasonable exercise of legislative power; and (3) attack a void ordinance, i.e., one enacted without proper notice required under the enabling statute or authority creating the zoning power.' Petitioner Renard and respondents Richter, owned certain adjoining properties in the unincorporated area of Dade County zoned IU--2, industrial. The Richters applied for a rezoning of their parcel. The Board of County Commissioners ultimately permitted a rezoning from IU--2 to multiple family residence with certain exceptions relative to a nine -hole golf course and a variance for private, in lieu of public, roads. This was in accordance with the recommendations of the planning board as approved by the zoning appeals board of the county. Petitioner was an objector in the zoning proceedings held before the Dade County Zoning Appeals Board and an objector before the Board of County Commissioners. Following adverse rulings by the Submitted Into the public record in connection with item 1,2.3. - on ?1.1-10t,, Priscilla A. Thompson City Clerk appeals board and County Commission, petitioner sought certiorari before the Circuit Court pursuant to applicable county ordinances. f FN1]. Page 2 FN1. Metropolitan Code of Dade County, s 33--316: 'No Person aggrieved by any zoning resolution, order, requirement, decision or determination of an administration official or by any decision of the zoning appeals board may apply to the Court for relief unless he has first exhausted the remedies provided for herein and taken all available steps provided in this article .. . it is intended and suggested that such decision may be reviewed by the filing of a petition for writ of certiorari in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, in accordance with the procedures and within the time provided by the Florida Appellate Rules for the review of the rulings of any commission or board; and such time shall commence to run from the date of the decision sought to be reviewed.' (Emphasis supplied.) The Circuit Court ruled that petitioner, not having alleged a special interest, had no standing to prosecute the matter in the Circuit Court and, even if she had standing, the record adequately demonstrated that the issue was fairly debatable and petitioner would not have been entitled to the relief sought. On appeal, the District Court held that petitioner had sufficient standing to institute suit in the trial court but, that the rezoning in question was fairly debatable and therefore within the legislative discretion of the Board of County Commissioners. The District Court affirmed the judgment of the trial court but certified its decision as one passing on a question of great public interest. The decision of the District Court on the question certified is as follows: f FN21 FN2. Renard v. Dade County, 249 So.2d 500, 502 (F1a.App.3rd 1971). 'First, as indicated above, the appellant as an abutting property owner to the property rezoned would, in fact, suffer a special damage by virtue of the increased setback restriction different in kind from the community generally; and this would meet the test of special damage. But, even without meeting this test, we hold that these cases would not be applicable to a property owner within the © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 261 So.2d 832. 261 So.2d 832 (Cite as: 261 So.2d 832) area wherein actual notice was required to be sent to him prior to any rezoning hearing. Anything to the contrary said in S. A. Lynch Investment Corporation v. City of Miami, supra, is hereby specifically receded from. We further note that there is a distinction in the cases relied on by the County when there is a proceeding in which a plaintiff seeks to enforce an existing zoning ordinance, such as a violation of a setback requirement, special damage is necessary, and no special damage is necessary when a plaintiff seeks to *835 have an act of a zoning authority declared void or is within the immediate area to be affected. Hartnett v. Austin, F1a.1956, 93 So.2d 86; Josephson v. Autrey, F1a.1957, 96 So.2d 784. In other words, we hold special damage must be shown when a taxpayer or property owner seeks to enjoin the violation of an existing ordinance (i.e. Boucher v. Novotny, F1a.1958, 102 So.2d 132; Conrad v. Jackson, F1a.1958, 107 So.2d 369), But need not be shown if the taxpayer or property owner is within the affected range of the property which requires actual notice before the rezoning made may be considered by the legislative body (Hartnett v. Austin, supra; Elwyn v. City of Miami, F1a.App.1959, 113 So.2d 849; Friedland v. City of Hollywood, F1a.App.1961, 130 So.2d 306; Vol. 3, American Law of Zoning, Anderson, s 21.05, p. 558), Or when he seeks to review an alleged void act. Hartnett v. Austin, supra; Josephson v. Autrey, supra; Rhodes v. City of Homestead, F1a.App.1971, 248 So.2d 674 (opinion filed May 25, 1971). Therefore, we find that in the instant case the appellant had the standing to institute the suit in the trial court.' (Emphasis supplied.) In the years following this Court's decision in Boucher v. Novotny, jFN31 a split has developed between the various District Courts on the issue of standing to sue on zoning matters. The Boucher case was a suit to enjoin the violation of the setback requirements of a municipal zoning ordinance. The Bouchers sought to obtain mandatory injunctive relief to compel the Novotnys to remove allegedly illegal encroachments constructed on their motel. The City had approved the building plans for the Novotny's motel which included the complained of encroachment. The properties of the parties located in the City of Clearwater, were separated by a sixty - foot wide street. The Bouchers attempted to allege special damages by reason of proximity and by reason of being within the zoning area subject to the same setback requirements as the Novotny's property. This Court held, however, that the Bouchers did not have sufficient standing to sue and stated the Submitted in. -;te pu` ` ; record in connection item r7 on -? ?.3. .b Page 3 Priscilla A. Thomp. c --- City Clert. following rule:[FN41 FN3. 102 So.2d 132 (F1a.1958). FN4. Id. at 135. 'We, therefore, align ourselves with the authorities which hold that one seeking redress, either preventive or corrective, against an Alleged violation of a municipal zoning ordinance must allege and prove special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.' (Emphasis supplied.) The 'special damage' rule of the Boucher case is an outgrowth of the law of public nuisance. jFN51 Zoning violations have historically been treated as public nuisances not subject to suit by an individual unless that individual has suffered damages different in kind and degree from the rest of the community. The Boucher rule was not intended to be applied to zoning matters other than suits by individuals for zoning violations.[FN61 FNS. Boucher v. Novotny, 102 So.2d 132, 135 (F1a.1958); North Dade Bar Assoc. v. Dade -Commonwealth Title Ins., 143 So.2d 201, 205 (FIa.App.3rd 1962): "* * * A public nuisance is an offense against the State, and as such is subject to abatement or indictment on the motion of the proper governmental agency. * * * "* * * An individual cannot maintain an action for a public nuisance as such. But when an individual suffers special damage from a public nuisance, he may maintain an action.' 'This rule has been applied in Florida to suits to enjoin a zoning violation. Boucher v. Novotny, F1a.1958, 102 So.2d 132.' FN6. Boucher has been subject to criticism even as applied to zoning violations: 12 Univ.Fla.L.Rev., Third Parties in Zoning, 16, 23, 40 (1959). The general rule regarding standing to contest the action of a zoning authority was *836 stated by this Court in Josephson v. Autrey: f FN71 FN7. 96 So.2d 784, 787 (F1a.1957). 'We have on numerous occasions held that persons adversely affected by zoning ordinances or the © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 261 So.2d 832. 261 So.2d 832 (Cite as: 261 So.2d 832) action of zoning agencies have a status as parties sufficient to entitle them to proceed in court to seek relief.' To like effect is this Court's decision in Hartnett v. Austin. fFN81 FN8. 93 So.2d 86, 90 (F1a.1956): 'We encounter no difficulty in concluding that the appellees were entitled to bring the suit. They occupied their homes immediately across the street from the proposed parking area. They relied on the existing zoning conditions when they bought their homes. They had a right to a continuation of those conditions in the absence of a showing that the change requisite to an amendment had taken place. They allege that the contemplated change would damage them and that it was contrary to the general welfare and totally unjustified by existing conditions. This gave them a status as parties entitled to come into court to seek relief. True their rights were subject to the power of the city to amend the ordinance on the basis of a proper showing. Nonetheless, they have a right to insist that the showing be made.' See also, 35 F1a.Jur., Zoning Laws, s 30: 'Persons adversely affected by zoning ordinances or the action of zoning agencies have a status as parties sufficient to entitle them to proceed in court to seek relief.' In Wags Transportation System v. City of Miami Beach,jFN91 this Court held that homeowners in a zoning district would be permitted to intervene in an appeal from a decree breaking zoning restrictions and commercializing the area where their homes were located. FN9. 88 So.2d 751, 752 (F1a.1956): 'The petition for leave to intervene alleges that petitioners are within the same zoning district as the property described in the complaints in the consolidated causes, that the decree destroys the value of their property because petitioners have homes on said property which they use for residential purposes, therefore the decree of the lower court breaking these zoning restrictions and commercializing the district renders their property less suitable for residential purposes. Petitioners' property was purchased on the strength of the zoning ordinance and in reliance upon the fact that itempZ•3�- on y3 Priscilla A. Thompson City Clerk all property within the zoning district would be maintained as residential property. * * * 'We think the petition to intervene showed such an interest in the res that the ends of justice require that it be granted. * * * Nothing is more sacred to one than his home and the petitioners should have been permitted to come in and bring their rights in this to the attention of the court.' Submitted Into the public record in connects with b t, Page 4 The District Court of Appeal, Third District, in Elwyn v. City of Miami, [FN101 held that abutting homeowners were entitled to maintain a suit challenging an ordinance granting a variance for a gasoline service station. On petition for rehearing, the Boucher case was raised by the zoning authority and distinguished by the District Court as follows: FN10. 113 So.2d 849 (F1a.App.3rd); cert. denied 116 So.2d 773, (F1a.1959). 'That case (Boucher) was not applicable here because of material difference in the factual situations presented in the two cases. 'The instant case was not one dealing with the violation of a zoning ordinance, but one which challenged the validity of an amendatory zoning ordinance, which, by granting a variance amounting to spot zoning, permitted appellees to put their property to a liberal business use (gasoline service station), prohibited in the more restricted R--3 classification for which the area involved was zoned. The right of an adjacent or nearby home owner directly affected by an alleged improper intrusion of such liberal business to challenge the validity thereof, is recognized.' A similar case is that of Friedland v. Hollywood,JFN11] wherein the District Court of *837 Appeal, Second District, held void an ordinance which would have allowed the variance for the construction of a service station in the vicinity of property owned by the plaintiffs. FN11. 130 So.2d 306 (F1a.App.2d 1961). Some of the foregoing cases attacking the validity of zoning ordinances came to the Circuit Court as petitions for writ of certiorari to review actions of the zoning board of adjustment under Florida Statutes Chapter 176, F.S.A.; others originated in the Circuit Court. On the question of standing to sue there is no basis for distinguishing between cases reaching the courts after appeal to a zoning board, in areas where such boards exist, and those cases originating in the court system.1FN12l Florida Statutes s 176.11, © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 261 So.2d 832. 261 So.2d 832 (Cite as: 261 So.2d 832) F.S.A., provides for appeals to the zoning board of adjustment by 'any person aggrieved.' Florida Statutes s 176.16, F.S.A., provides that 'any person aggrieved' by the decision of the zoning board of adjustment may petition the Circuit Court for writ of certiorari. FN12. 2 Rathkopf, Zoning and Planning, 36--1 (1971): 'Generally, any person who can show that the existence or enforcement of a zoning restriction adversely affects, or will adversely affect, a property interest vested in him or that the grant of a permit to another or rezoning of another's land will similarly affect him, has the requisite justiciable interest in the controversy, and is a proper party plaintiff. In this aspect, the right of a litigant to sue for declaratory judgment or for an injunction is based upon the same criteria as are determinative of the status of a petitioner as a 'party aggrieved' to bring certiorari to review the determination of a board of appeals or adjustment. The difference, if any, relates only to the forum and form of the remedy.' (Emphasis supplied.) [ 11 [21 An aggrieved or adversely affected person having standing to sue is a person who has a legally recognizable interest which is or will be affected by the action of the zoning authority in question. The interest may be one shared in common with a number of other members of the community as where an entire neighborhood is affected, but not every resident and property owner of a municipality can, as a general rule, claim such an interest. An individual having standing must have a definite interest exceeding the general interest in community good share in common with all citizens. So-called 'spite suits' will not be tolerated in this area of the law any more than in any other. al In determining the sufficiency of the parties' interest to give standing, factors such as the proximity of his property to the property to be zoned or rezoned, the character of the neighborhood, including the existence of common restrictive covenants and set -back requirements, and the type of change proposed are considerations. The fact that a person is among those entitled to receive notice under the zoning ordinance is a factor to be considered on the question of standing to challenge the proposed zoning action. However, since the notice requirements of the many zoning laws throughout the State vary greatly, notice requirements are not Submitted Into the public record in connection ith item r2.3.3- On..a3Ob Priscilla A. Th mpson Clerk controlling on the question of who has standing. Persons having sufficient interest to challenge a zoning ordinance may, or may not, be entitled to receive notice of the proposed action under the zoning ordinances of the community. Page 5 L41 It is to be remembered that even though a person has sufficient standing to challenge the action of the zoning authority, he must still carry the burden of proving that the challenged action of the zoning authority was not fairly debatable. f FN 131 FN13. City of Miami v. Hollis, 77 So.2d 834 (F1a.1959); City of Jacksonville v. Imler, 235 So.2d 526 (F1a.App.lst 1970). jJ The question certified to this Court, set out supra, has three parts. Part (1) deals with standing to enforce a valid zoning ordinance. The Boucher rule requiring special damages still covers this type of suit. However, in the twenty years since the Boucher decision, changed conditions, including increased population growth and *838 density, require a more lenient application of that rule. The facts of the Boucher case, if presented today, would probably be sufficient to show special damage. 10] Part (2) of the question certified to this Court deals with standing to attack a validly enacted zoning ordinance as being an unreasonable exercise of legislative power. As indicated above, persons having a legally recognizable interest, which is adversely affected by the proposed zoning action, have standing to sue. El Part (3) of the question certified deals with standing to attack a zoning ordinance which is void because not properly enacted, as where required notice was not given. Any affected resident, citizen or property owner of the governmental unit in question has standing to challenge such an ordinance. f FN 141 FN14. See e.g., Rhodes v. City of Homestead, 248 So.2d 674 (F1a.App.3rd 1971); Knowles v. Town of Kenneth City, 247 So.2d 748 (F1a.App.2d 1971). f 81 f91 The District Court found that petitioner Renard had sufficient standing to attack the rezoning here in question, but, on review of the record, determined that the rezoning was 'fairly debatable' and so was a valid exercise of power by the zoning authority. We agree. © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 261 So.2d 832. 261 So.2d 832 (Cite as: 261 So.2d 832) Accordingly, and for the foregoing reasons, the decision of the District Court of Appeal is affirmed. It is so ordered. ROBERTS, C.J., and ERVIN, CARLTON and McCAIN, JJ., concur. 261 So.2d 832 END OF DOCUMENT Page 6 Submitted Into the public record in connect'on ith item p Z. 3 a- ona b Prisr..!_L, A. City Clerk © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. Westlaw 515 So.2d 1312 515 So.2d 1312 (Cite as: 515 So.2d 1312) District Court of Appeal of Florida, Third District. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida and Anoviv Realty Company, Inc., Petitioners, v. Michael B. FULLER, Respondent. Nos. 87-1689, 87-1752. Nov. 10, 1987. Rehearing Denied Dec. 23, 1987. After remand for redetermination of whether unusual use zoning exception should be given, 497 So.2d 1322, the Circuit Court, Dade County, Appellate Division, reversed decision of county zoning commission granting the unusual use permit. On appeal, the District Court of Appeal, Schwartz, C.J., held that: (1) opponents to exception had to demonstrate use was not within public interest, and (2) initial determination was for zoning commission. Judgment under review quashed, Circuit Court ordered to affirm challenged resolution, and certiorari granted. West Headnotes al Zoning and Planning €490 414k490 j� Zoning and Planning €=499 414k499 An "unusual use" or special exception to zoning provisions may not be denied unless it is shown by opposition that public interest will not be served, or result will be incompatible with surrounding area if granted; any intimation that applicant for special exception need not show its project is benefit to public interest. W Zoning and Planning €r"'542.1 414k542.1 (Formerly 414k542) al Zoning and Planning G'611 414k611 Initial determination, of whether applicable standard to determine whether special exception or "unusual use" zoning exception has been met, is primarily Submitted Into the public record in connec i n3 lth item °"� Priscilla A. i" ho pson City Clerk Page 1 entrusted, not to courts as in resolution of issue of law, but to responsible zoning authorities for determination as matter of fact; circuit court may not decide whether it believes that proposal for special exception is good idea, but is confined to determining whether commission's conclusion that proposal was not inimical to public welfare was supported by competent substantial evidence. DI Zoning and Planning € '605 414k605 Initial zoning determinations as made by appropriate administrative or political authorities must be sustained by courts if there is legally cognizable basis to support determination in question, and issue is phrased in terms of whether competing arguments as to use of land are fairly debatable, and whether there is substantial evidence which supports conclusion that those standards have or have not been met. *1312 John G. Fletcher, South Miami, Simon Ferro, Coral Gables, Robert A. Ginsburg, Co. Atty. and Craig H. Coller, Asst. Co. Atty., for petitioners. Papy, Weissenborn & Papy and Sheridan Weissenborn, Coral Gables, for respondent. Before SCHWARTZ, C.J., and BARKDULL and DANIEL S. PEARSON, JJ. SCHWARTZ, Chief Judge. In Metropolitan Dade County v. Fuller, 497 So.2d 1322 (Fla. 3d DCA 1986), this court quashed the reversal of an "unusual use" permit granted by the Dade County *1313 Commission for a carnival employee trailer park on the petitioner Anoviv's industrial zoned property. Concluding that the circuit court had erroneously employed a "hardship" test applicable to variances, we remanded the cause for redetermination of the merits under the appropriate standard contained in section 33-311(d) of the Metropolitan Dade County Code and the controlling cases. (FNIl After further consideration, the circuit court then again reversed the commission upon the finding that FN1. City of Hollywood v. South Broward Hosp. Dist., 504 So.2d 1308 (Fla. 4th DCA 1987), review dismissed, 513 So.2d 1063 (F1a.1987); Irvine v. Duval County Planning Comm'n, 495 So.2d 167 (F1a.1986); Alachua © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 515 So.2d 1312 515 So.2d 1312 (Cite as: 515 So.2d 1312) County v. Eagle's Nest Fauns, Inc., 473 So.2d 257 (Fla. 1st DCA 1985), review denied, 486 So.2d 595 (F1a.1986); Grefkowicz v. Metropolitan Dade County, 389 So.2d 1041 (Fla. 3d DCA 1980). our examination of the record clearly indicates that the unusual use does not serve the public interest. We again quash that decision. 111 The dispositive portion of the circuit court's latest opinion is in error in two fundamental respects. First, probably and understandably influenced by the somewhat loose statement in our prior opinion that the pertinent test is "whether the proposal serves the public interest," Fuller, 497 So.2d at 1322, [FN21 the court fails to recognize that, an unusual use (or special exception) may not be denied unless it is shown by the opposition that the public interest will not be served or the result will be incompatible with the surrounding area if it is granted. fFN31 Any intimation that the applicant must show that its project is a benefit to the public interest is simply incorrect. See Irvine v. Duval County Planning Comm'n, 495 So.2d 167 (F1a.1986) (opponent must show the unusual use is adverse to the public interest); Grefkowicz v. Metropolitan Dade County, 389 So.2d 1041 (Fla. 3d DCA 1980); Metropolitan Dade County, F1a.Code § 33-311(d) (1987) (unusual use shall be granted if proposal "would not have an unfavorable effect on ... Dade County"); Metropolitan Dade County, F1a.Code § 33-302(n) (1983) ("The words 'public benefit' shall mean and refer to a development which, after consideration of all of its aspects (including but not limited to environmental, impact on facilities, economic and social) would be consistent with and not detrimental to the welfare of the community." [e.s.] ). FN2. By way of exculpatory explanation, or confession and avoidance by the author of the first Fuller opinion, it may be pointed out that the possibly imprecise "serves the public interest" language was intended merely to focus upon the substantive difference with the hardship -variance standard with which we were there concerned. It was not meant to occupy the entire field of this area of the law of zoning, including the applicable burdens of persuasion. FN3. The reason for this is that since the unusual use (or special exception) is by Submitted Into the public record in connecti n tith item PZ •31- On a2'3lb Page 2 Priscilla A. Thompson City Clerk definition listed as a permissible use within the zone in question --as it is in this case, see Metropolitan Dade County, Fla. Code § 33- 13(e) (1987)--the use is, as it were, presumptively permissible and may be denied only if the presumption of propriety is overcome. 3 A.H. Rathkopf, The Law of Zoning and Planning § 41.05, at 41-19 to 20 (1987) ( "The inclusion of the particular use in the ordinance as one which is permitted under certain conditions, is equivalent to a legislative finding that the prescribed use is one which is in harmony with the other uses permitted in the district, and, while a variance can be granted only with respect to particular property as to which unnecessary hardship is found, the special exception permit must be granted to any and all property which meets the conditions specified.") (footnote omitted); see Boffo v. Boone County Board of Zoning Appeals, 421 N.E.2d 1119 (Ind.App.1981). 121[3]. More important, the lower court did not recognize that the initial determination of whether the applicable standard has been met is primarily entrusted, not to the courts as in the resolution of an issue of law, but to the responsible zoning authority, in this case, the county commission, for determination as a matter of fact. Skaggs- Albertson's V. ABC Liquors, Inc., 363 So.2d 1082 (F1a.1978). In the present instance of an "unusual use," this principle means that the circuit court may not, as it seems to have done in this present case, decide whether it believes that the proposal is a good idea; rather it is confined to *1314 determining whether the commission's conclusion that the proposal is not inimical to the public welfare is supported by competent substantial evidence. [FN41 Encuentros Familares, Inc. v. Musgrove, 511 So.2d 645 (Fla. 3d DCA 1987); Grefkowicz, 389 So.2d at 1041. Applying this standard, a careful examination of the record presented to the commission contains ample evidence --in the form of staff recommendations for approval, see Hillsborough County Bd. of County Comm'rs v. Longo, 505 So.2d 470 (Fla. 2d DCA 1987); Walker v. Indian River County, 319 So.2d 596 (Fla. 4th DCA 1975), and otherwise [FN51 --to support the conclusion that the public interest would not be disserved and the consequent decision to grant the application. City of Hollywood v. South Broward Hosp. Dist., 504 So.2d 1308 (Fla. 4th DCA 1987); Encuentros, 511 So.2d at 645 Grefkowicz, 389 So.2d at 1041. © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 515 So.2d 1312 515 So.2d 1312 (Cite as: 515 So.2d 1312) FN4. While we have in the past contrasted the "competent, substantial evidence" test applicable to special exceptions and unusual uses with the "fairly debatable" test which applies to zoning determinations, see Encuentros Fatnilares, Inc., v. Musgrove, 511 So.2d 645, 646 n. 3 (Fla. 3d DCA 1987), these formulations are really expressions of the same general principle in different contexts. Each signifies that initial zoning determinations as made by the appropriate administrative or political authorities must be sustained by the courts if there is a legally cognizable basis to support the determination in question. In the case of a zoning decision, which is largely political in nature, Izaak Walton League of America v. Monroe County, 448 So.2d 1170 (Fla. 3d DCA 1984), the issue is phrased in terms of whether the competing arguments as to the use of the land are fairly debatable; in the special exception -unusual use case, in which the issue is whether the facts fall within express standards as set out by a specific statutory or code provision, the question is whether there is substantial evidence which supports the conclusion that the standards have or have not been met. See also Elwyn v. City of Miami, 113 So.2d 849 (Fla. 3d DCA 1959) (variance from permitted use requires "hardship"), cert. denied, 116 So.2d 773 (F1a.1959). FNS. Although, because there is evidence to support it, the showing made in opposition to the commission decision is irrelevant, it should be pointed out that the respondent Fuller showed only that the previous use of the area in question by Anoviv was unsatisfactory to the neighborhood. In the light of the fact that the very purpose of conditions attached to the unusual use was to correct these problems, this evidence seems unconvincing at best and perhaps legally insufficient at worst. For this reason, the judgment under review is quashed and the circuit court is ordered to affirm the challenged resolution of the county commission. Certiorari granted. 515 So.2d 1312 END OF DOCUMENT Page 3 Submitted Into the public record in connectsa ith o � item L on ,• Priscilla A. Th, meson City Clerk © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. _.JOSE ANTONIO ORTEGA, As Trustee, Petitioner, v. MIAMI-DADE COUNTY BOARD OF COUNT... Page 1 of 2 Submitted Into the public record in connecti+n w'th 12 Fla. L. Weekly Supp. 209a item pz. 32- on a3 o Priscilla A. Thompson Counties -- Zoning -- Rezoning -- Decisions of zoning appeals board and county commission denyimppl kon --for rezoning of property from agricultural to business were not supported by competent substantia aidence where board and commission improperly relied on non -fact based citizen testimony and ignored determinations by county staff that rezoning will serve community and will be consistent with comprehensive development -master plan and compatible with area JOSE ANTONIO ORTEGA, As Trustee, Petitioner, v. MIAMI-DADE COUNTY BOARD OF COUNTY -•COMMISSIONERS, Respondent. Circuit Court, l lth Judicial Circuit (Appellate) in and for Miami -Dade County. Case No. 04-278 AP. L.T. Case No. Z-13-04. December 7, 2004. A Petition for Writ of Certiorari from the Miami -Dade County Board of County Commissioners, for Miami -Dade County. Counsel: Elliot H. Scherker, of Greenberg Traurig, P.A., for Petitioner. Abigail Price -Williams, Asst. County Attorney, and Robert A. Ginsburg, Miami -Dade County Attorney, for Respondent. -(BEFORE PEDRO P. ECHARTE, JR., MARIA ESPINOSA DENNIS, and DAVID C. MILLER, JJ.) (MILLER, J.) Petitioner Jose Antonio Ortega seeks certiorari review of a final decision of the Miami -Dade County -Board of County Commissioners denying Ortega's application to rezone his property. For the reasons expressed below, we reverse. -Ortega's property is located on the southeast corner of S.W. 200th Street (Quail Roost Drive) and S.W. 177th Avenue ;Krome Avenue) and is currently used as a fruit and vegetable stand. This property was originally designated for agricultural use in the County's master plan, but was redesignated in 1989 for business and office use. The _-redesignation was intended to create business services for the growing residential community in that area. Although master planned for business uses, Ortega's property remained zoned for agricultural use. --Ortega applied to the Community Zoning Appeals Board #14 ("the CZAB") to rezone the property to allow business uses consistent with the CDMP (Comprehensive Development Master Plan) designation. The County's professional staff, including the Department of Environmental Resources Management (DERM) and the County's Department of _Planning and Zoning, recommended approval of the rezoning. The staff considered the potential impact on the area, the neighborhood's characteristics and the property's current use. Planning and Zoning concluded that "this application will serve this community, will be consistent with the CDMP and compatible with the area". Other departments, such as Public Works, Parks, Transit, Fire -Rescue, and Police, reviewed the application and had no objections. Some area residents appeared at the hearing on Ortega's application before the CZAB to say they preferred keeping ....Ortega's property zoned agricultural because they felt there was a sufficient number of businesses in the area, including -estaurants, stores, offices, and gas stations. The CZAB voted to deny Ortega's application for rezoning after listening to the opinions of the area residents, and expressing skepticism about DERM's report. The CZAB's resolution stated that "the requested district boundary change to BU-1A would not be compatible with the neighborhood and area concerned and would be in conflict with the principle and intent of the plan for the development of Miami -Dade County." Ortega timely filed a de novo appeal of the CZAB's decision to the County Commission, which held a public hearing on the appeal on April 15, 2004. The Planning and Zoning Department submitted a revised recommendation for _approval of Ortega's application, setting forth a more detailed analysis than that which had been submitted to the CZAB, and noting that DERM had no objection to the application. The staff recommendation reiterated that the proposed application would serve the community, would be consistent with the CDMP and would be compatible with ..other nearby zoned parcels. Ortega voluntarily executed a `Declaration of Restrictions,' which limited the potential uses Df the property. http://www.floridalawweekly.com/newsystem/showfile.php?fromsearch= l &file=../supfiles/issues/vol 12/2... 12/9/2005 JOSE ANTONIO ORTEGA, As Trustee, Petitioner, v. MIAMI-DADE COUNTY BOARD OF COUNT... Page 2 of 2 Again, some of the neighbors spoke out in opposition. One contended the area already had all the commercial zoning it needed, and that the impact of Omega's application was too speculative. Another claimed there was already unused commercial property in the area. The Commission voted 8 - 1 to deny the application after some further discussion and clarification by staff. The Commission's reasoned that "timing is everything" and "[the] area is currently agricultural and rural and doesn't need a lot of urbanizing at this point". Their resolution concludes that the "grounds and reasons specified in the appeal were insufficient to merit a reversal of the ruling made by the Community Zoning Appeals _Board 14 in Resolution No. CZAB14-38-03." This appeal followed. On certiorari review this Court must determine: (i) whether the administrative tribunal accorded due process of law; (ii) ..whether the administrative tribunal applied the correct or essential requirements of law; and (iii) whether the decision of the administrative tribunal is supported by competent substantial evidence. See also Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So. 2d 1270, 1274 (Fla. 2001); Haines City Community Development v. ._.Heggs, 658 So. 2d 523, 540 (Fla. 1995); City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982) and Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469, 476 (Fla. 1993). _.In the instant case, the decisions of both the CZAB and the County Commission, denying Ortega's application, were not supported by substantial competent evidence. The County's professional staff determined that the requested rezoning from agricultural to business "will serve the community, will be consistent with the CDMP and compatible with the .area ...". The staff recommendation, which the Board and Commission chose to ignore, constitutes competent substantial evidence which did not support the decision of the tribunal. See Metropolitan Dade County v. Fuller, 515 So. 2d 1312, 1313-14 (Fla. 3d DCA 1987); Bal Harbour, Inc. v. Bal Harbour Village Council, 5 Fla. L. Weekly Supp. 802 (Fla. llth Jud. Circ.), cert. denied 736 So. 2d 1194 (Fla. 3d DCA 1998). Concerning the neighbors' testimony, the courts in Florida have long held that citizen testimony in a zoning matter is perfectly permissible and constitutes substantial competent evidence, so long as it is fact -based. See Metropolitan Dade County v. Blumenthal, 675 So. 2d 598, 607 (Fla. 3d DCA 1996) (emphasis added). However, mere generalized statements of opposition, like the ones sub judice, are to be disregarded by governmental boards and the courts. Id. at 607; Bal Harbour, supra. In this case, both the CZAB and the County Commission improperly relied on non -fact based citizen testimony, instead of the recommendations of their professional staff. As such, this Court grants Ortega's petition for writ of certiorari and quashes the decision of the County Commission to deny Ortega's application for re -zoning of his property. This matter is remanded to the County Commission to grant Ortega's petition. (ECHARTE, JR. and ESPINOSA DENNIS, JJ., concur.) * * * Submitted record in c.;c,; item ?2-3- c,1 a_3oc. Priscilla A. Tho p. on City Cl<erV. http://www .floridalawweekly.com/newsystem/showfile. php?fromsearch= l &file=../supfiles/issues/vol 12/2... 12/9/2005 YOLANDA CANIZARES, Appellant, vs. METROPOLITAN DADE COUNTY, Appellee. 1 lth Judicial... Page 1 of 5 4 Fla. L. Weekly Supp. 759a Counties -- Zoning -- Unusual use -- County commission's denial of application for unusual use permit to -establish day nursery in single family residence not supported by competent substantial evidence -- Testimony from neighbors which was, as a whole, expression of generalized fears and opinions rather than fact -based testimony, not basis for denying permit -- Applicant met initial burden of proving compliance with provisions of _county code relating to daycare centers -- Fact that proposed use was commercial, for -profit use does not require different finding that use was incompatible with surrounding neighborhood .YOLANDA CANIZARES, Appellant, vs. METROPOLITAN DADE COUNTY, Appellee. 1 lth Judicial Circuit in and for Dade County, Appellate Division. Case No. 96-197AP. Opinion filed June 6, 1997. An Appeal from Dade County Commission, in and for Dade County. Counsel: Stanley B. Price and Eileen Ball Mehta, for Appellant. Robert A. _Ginsburg, Dade County Attorney and Jay W. Williams, Assistant County Attorney, for Appellee. (Before MURRAY GOLDMAN, MARGARITA ESQUIROZ, MICHAEL CHAVIES, JJ.) (PER CURIAM.) Appellant seeks review of Metropolitan Dade County Resolution No. Z-62-96. The Appellee, Metropolitan Dade County Board of County Commission (hereinafter Commission), denied Appellant's application for —an unusual use permit to establish a day nursery. The proposed site is a single family residence located at the intersection of S.W. 137th Ave. and S.W. 13th St. Appeal to this court is made pursuant to §33-316 of the Dade County Code. We grant certiorari and reverse. Appellant Yolanda Canizares (hereinafter Petitioner) filed a petition for an unusual use permit to establish a day nursery in a residential area at the intersection of S.W. 137th Ave. and S.W. 13th St. The appropriate county agencies —reviewed the petition and recommended approval. Some neighbors in the area objected to the Petition. After a hearing, the Zoning Appeals Board granted Petitioner's request. The neighbors appealed. Again the county agencies recommended approval of the application. The matter came before the County Commission which overturned the Zoning Appeals Board, and denied Petitioner's application. The Commission's Resolution stated: the requested unusual use ... would not be compatible with the area and its development and would not be in harmony with the general purpose and intent of the regulations and would not conform with the requirements and intent of the Zoning Procedure Ordinance, and that the requested unusual use would have an adverse impact upon the public interest, and should be denied without prejudice. _(R. p. 144). Petitioner appeals claiming that the Commission's decision lacked substantial competent evidence. When the Circuit Court, acting in its appellate capacity, reviews a local administrative agency decision, it must determine: Submitted Into the public record in connecti n ith ;a) Whether procedural due process was accorded; item'PZ• 31- Ong z3 6 t, Priscilla A. Th • meson (b) Whether the essential requirements of law have been observed; and City Clerk (c) Whether administrative findings and judgments are supported by substantial competent evidence. Haines City —Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); City of Deerfield Beach v. Vaillant, 419 So. 2d 524, 626 (Fla. 1982). The Circuit Court is not entitled to reweigh the evidence or substitute its judgment for that of the http://www.floridalawweekly.com/newsystem/showfile.php?fromsearch=1 &file=../supfiles/issues/vol4/75... 12/9/2005 YOLANDA CANIZARES, Appellant, vs. METROPOLITAN DADE COUNTY, Appellee. l lth Judicial... Page 2 of 5 agency. Heggs, 658 So. 2d at 530 (citing Educational Development Center v. City of West Palm Beach, 541 So. 2d 106 (Fla. 1989)). - In this proceeding, neither party alleges that it was denied procedural due process, nor does either party challenge that the Commission's resolution departed from the essential requirements of the law. At i u m here is simply whether the Commission's decision is supported by substantial competent evidence. bubmitted Imo the public record in connectloh A. Substantial Competent Evidence item 122.3 - on Priscilla A. Tho pson Petitioner contends that the Commission's decision to deny her application was not supported by substanCi4tcylvirent evidence. Substantial evidence is such evidence as will establish a substantial basis of fact from which one fact at issue can be reasonably inferred, i.e. such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. To be competent the evidence relied on to sustain the ultimate finding should be sufficiently relevant and material so that a reasonable mind would accept it as adequate to support the conclusion reached. —Metropolitan Dade County v. Blumenthal, 675 So. 2d 598, 608 (Fla. 3d DCA 1996) citing City of Ft. Lauderdale v. Multidyne Medical Waste Management, Inc., 567 So. 2d 955, 957 (Fla. 4th DCA 1990). --In this case, Petitioner presented strong evidence in support of her application, which conformed with the Dade County Code requirements for daycare centers. See Article XA, Sec. 33-151.11 et seq. Dade County Code (1996). Professional staff which is trained in reviewing applications for compliance with Local codes and regulations compiled reports of the —petition. Each agency that reviewed the unusual use proposal recommended approval, and stated that the proposal conformed with the county Comprehensive Development Master Plan (CDMP). The recommendations of a professional planning staff constitute substantial competent evidence. Hillsborough County Board of County —Commissioners v. Longo, 505 So. 2d 470, 471 (Fla. 2d DCA 1987); Metropolitan Dade County v. Fuller, 515 So. 2d 1312, 1314 (Fla. 3d DCA 1987). .--The focus of this court's review, however, is whether there is substantial competent evidence to support the decision that was actually made by the Commission. Metropolitan Dade County v. Blumenthal, 675 So. 2d 598, 606 (Fla. 3d DCA 1996). If there is substantial competent evidence to support the Commission's decision, then any evidence in _opposition to that decision is irrelevant. Metropolitan Dade County v. Fuller, 515 So. 2d 1312, 1314 n. 5 (Fla, 3d DCA 1987). "When the facts are such as to give the County Commission a choice between alternatives, it is up to the County Commission to make that choice -- not the circuit court." Blumenthal, 675 So. 2d at 606. Therefore, this court .must examine whether an objective review of the record reveals that there are facts and substantial competent evidence to support the findings of the Commission as stated in the Resolution. Id. at 604. _At the Commission hearing, several neighbors testified against the daycare center. Some neighbors worried that it would drive their property values down. (T. p. 15). Some argued that the "chaos" of children being dropped off and picked up would potentially lead to "tragic accidents." (T. p. 8). Nearly everyone who testified argued that 137th Ave. was too heavily travelled for a daycare center. (T. pp. 8, 13, 16, 17) . And some neighbors worried that the daycare center would turn the area into a commercial area. (T. pp. 18, 20). While arguing that the daycare center would ruin the character of their residential neighborhood, the residents also argued that the street bordering their neighborhood was _too busy and dangerous for a daycare center. The testimony from the neighbors themselves presented a conflicting image of the character of the neighborhood. It is well settled that citizen testimony in a zoning matter is permissible, and qualifies as substantial competent evidence as long as it is fact -based. City of Apopka v. Orange County, 299 So. 2d 657, 659 (Fla. 4th DCA 1974). See also Debes http://www.floridalawweekly.com/newsystem/showfile.php?fromsearch= l &fi le=../supfiles/i ssues/vol4/75... 12/9/2005 YOLANDA CANIZARES, Appellant, vs. METROPOLITAN DADE COUNTY, Appellee. l lth Judicial... Page 3 of 5 -Section 33-311(A)(3) states in relevant part: ..v. City of Key West, 22 Fla. L. Weekly D827 (Fla. 3d DCA April 2, 1997); Metropolitan Dade County v. Blumenthal, 675 So. 2d 598, 609 (Fla. 3d DCA 1996); Grefkowicz v. Metropolitan Dade County, 389 So. 2d 1041, 1042 (Fla. 3d DCA 1980). General statements opposing the zoning matter are to be disregarded, but fact -based testimony should be ..considered. Blumenthal at 607. At the Commission hearing, Petitioner addressed each of the neighbors' concerns and demonstrated that there was fact - .based evidence which contradicted their opinions and fears. The different county departments that evaluated the proposal had made specific findings as to the character of the area and the compatibility of the daycare center with the area. (R. pp. 113, 121-23, 135-137). One of the agencies conducted a study on the potential traffic impact and found _that the location of the center would not increase traffic. (R. p. 123). The daycare center is an unusual use, and county departments had specifically addressed the issue of whether its approval would lead to an increase in commercial activity in the area, and had determined that it would not. (R. p. 115, T. pp. 26-27). This evidence contradicts the __statements of the residents and indicates that they did not present fact -based testimony as a whole, but rather generalized fears and opinions.' --Simply because the neighbors stated that the daycare center would not be compatible with the area does not, without factual support, amount to evidence upon which the County Commission could reasonably rely. See Blumenthal at 607; City of Apopka v. Orange County, 299 So. 2d 657, 659 (Fla. 4th DCA 1974). Because Petitioner applied for an unusual use, she was required to meet the criteria set forth in §33-311(A)(3)2 of the Dade County Code. If she met the criteria, the burden shifted to the county to demonstrate by substantial competent evidence that the requested unusual use would not be compatible with the surrounding ares V•se,raa;_;' ;?a public interest. Metropolitan Dade County v. Fuller, 515 So. 2d 1312 (Fla. 3d DCA 1987)record in conncc,tkr 1.,4ith item PZ• s?. on a V 51 n ti Priscilla A. Thompson rd'Clerk ... unusual uses which by the regulations are only permitted upon approval after public hearing; Proviaee the applied for exception or use ... would not have an unfavorable effect on the economy of Dade County, Florida, would not generate or result in excessive noise or traffic, cause undue or excessive burden on public facilities, including water, sewer, solid waste disposal, recreation, transportation, streets, roads, highways or other such facilities, ... tend to create a fire or other equally or greater dangerous hazards, or provoke excessive overcrowding or concentration of people or population, when considering the necessity for and reasonableness of such applied for exception or use in relation to the present and future development of the area concerned and the compatibility of the applied for exception or use with such area and its development. —The petition is also required to be compatible with the Dade County Comprehensive Development Master Plan (CDMP). Additionally, petitions for daycare centers are regulated by Article XA, Sec. 33-151.11 et seq. Dade County Code (1996). The record shows that the Petitioner met all of the requirements of Article XA. The county argues that since the resolution of the Commission states, that "the requested unusual use ... would not be compatible with the area and its development," the Petitioner did not meet her initial burden of proof in showing compliance with the requirements of the Code. Specifically, the county argues that there is substantial competent evidence that Petitioner did not comply with the CDMP provision which states that in low density residential neighborhoods, daytime uses such as daycare centers "should locate only on sites that are transitional to higher density —or higher intensity land uses, to public uses or to other areas of high activity or accessibility." CDMP at I-13. The county argues that based upon the evidence presented, there is substantial competent evidence to support a conclusion that the subject site is not "transitional to" a higher density or higher intensity land use or to other areas of high activity —or accessibility. http://www.floridalawweekly.com/newsystem/showfile.php?fromsearch=l &file=../supfiles/issues/vo14/75... 12/9/2005 Submitted Fr' c ..he pu°bilc YOLANDA CANIZARES, Appellant, vs. METROPOLITAN DADE COUNTY, bippetieleiri l rine n le 4 of 5 item 12.3 - on t Priscilla A. Tiro pson The county argues that a reasonable mind could easily conclude that 137th Avenue does not constitutOityaGielithigh activity or accessibility, and that if the CDMP had meant to include roads as high activity areas, it would have so stated. Therefore, the county argues, that under the Petitioner's interpretation,; all homes located next to busy roads would be "transitional to" an area of high activity, and would be suitable for such daytime activity as daycare centers. Id. at 11. -The county points to aerial maps of the area which show that there is a median strip down 137th Ave., and the townhouse community across the street from the proposed site is walled in, as indicative that a reasonable mind could conclude that the area was not one of high activity. However, the county offers no support for its argument about the intent of the CDMP, other than a request that this court follow the county's interpretation of the CDMP. There is ample evidence in the record that the many professional county agencies that reviewed Petitioner's application considered 137th Ave. to be an area of high activity and accessibility under the CDMP. (See T. p. 33, R. pp. 42, 47). While there is --evidence in the record which could be construed to indicate that the area was not high intensity, it is scant, and does not rise to the level of competent or substantial in order to sustain a conclusion. -The testimony of the neighbors that the daycare center was an incompatible use for their residential neighborhood is opinion rather than fact. Supra pp. 4-5. The Commission could not reasonably rely on the testimony of the neighbors as substantial competent evidence to support its opinion that the daycare center was incompatible with the area. The county also mentions that the "Commission could also have found incompatibility based upon the testimony of Dade County's Planning Director, who testified that the requested unusual use would be 'more intense than the single -family' uses surrounding the proposed site." (Appellee's Answer Brief p. 12, n. 6). While the Planning Director, Mr. Olmedillo, in response to questioning by one of the Commissioners, did state that the --daycare center was "more intense than the single family" (T. p. 34), he also stated that according to the Master Plan, the daycare center was a potentially compatible use. He stated that "[t]he Master Plan looks for locations which are major roadways, (sic) 137th Avenue, that major roadway." (T. p. 33). He also stated that the roadway was "the primary circumstance" they determined the proposed site was compatible. Id. Additionally, in his written recommendation to the Commission, the Planning Director specifically noted, "the child care facility will provide a transition from the heavily travelled S.W. 137 Avenue to the intensely developed zero -lot line subdivisions to the east." (R. p. 120). When taken in context with his entire statement to the Commission, Mr. Olmedillo's response to one of the commissioner's questions does not rise to the level of substantial competent evidence upon which a reasonable person -would rely to make a determination that the daycare center was incompatible with the community. The record before us adequately establishes that the Petitioner met her initial burden to prove compliance with §33-311 -(A)(3) of the Dade County Code. Therefore, the burden shifted to the county to prove by substantial competent evidence that the application would not serve the public interest or would not be compatible. Irvine v. Duval County Planning Commission, 495 So. 2d 167 (Fla. 1986); Metropolitan Dade County v. Fuller, 515 So. 2d 1312 (Fla. 3d DCA -1987). The county did not meet its burden. The county also argues that since Petitioner's proposed use was a commercial, for -profit use, this court should follow -.the decision in Grefkowicz v. Metropolitan Dade County, 389 So. 2d 1041 (Fla. 3d DCA 1980), and affirm the Commission's decision. The county asserts that since the daycare center is strictly for a commercial purpose, the Commission had substantial competent evidence that such a use would be incompatible with the neighborhood. If this -court were to apply Grefkowicz in this instance, it would set a dangerous precedent that conflicts with the letter and intent of the CDMP. --Nowhere in the Educational and Child Care Facilities chapter of the Dade County Code is a distinction drawn between for -profit and not -for -profit enterprises. The chapter distinguishes between private and public facilities. The Ordinance http://www.floridalawweekly.com/newsystem/showfile.php?fromsearch=l &file=../supfiles/issues/vol4/75... 12/9/2005 YOLANDA CANIZARES, Appellant, vs. METROPOLITAN DADE COUNTY, Appellee. 1 lth Judicial... Page 5 of 5 permits nurseries, and the CDMP specifically allows them to be placed in residential neighborhoods without any distinction between for -profit and not -for -profit. See CDMP at I-13. The Commission cannot then make a narrower distinction than either the Ordinance or the CDMP provides. See Mandelstam v. City Commission of South Miami, 539 So. 2d 1139 (Fla. 3d DCA 1988). As previously stated, the objections by the neighbors as to the daycare center's incompatibility, do not constitute substantial competent evidence in this case because they are not fact -based objections. Additionally, their objections to the center on the grounds that it is a commercial enterprise are irrelevant. The record before us shows, at best, scant evidence to potentially support the County's determination which in no way rises to the level of substantial competent evidence. The unfounded opinions of the neighbors are shown to be refuted by factual studies conducted by the appropriate county agencies. The opinion of the County Planning Director is _consistently in favor of the plan in both his written and oral testimony, despite the county's attempt to indicate otherwise. The Commission's decision lacked substantial competent evidence. We therefore grant certiorari and reverse the same. REVERSED and REMANDED to the Dade County Commission with directions to grant the application in question. --Certiorari Granted. 1The facts which the neighbors did testify to, which the county could base its decision on as substantial evidence, were that 137 Ave. is a heavily travelled road, that there are trucks which frequently travel that road, and that there are four --to five daycare centers in the area. 2In their briefs, the parties refer to this provision as §33-311(d). 3This is also the interpretation of the professional county agencies. *** Submitted Into the public record in connecti , n ith item 2.on 3 or. Priscilla A. Thompson City Clerk http://www.floridalawweekly.com/newsystem/showfile.php?fromsearch= l &file=../supfiles/issues/vol4/75... 12/9/2005 FAITH DELIVERANCE CENTER, Petitioner, vs. METROPOLITAN DADE COUNTY Respondent. 1... Page 1 of 2 Submitted Into the public record in connectipn with 6 Fla. L. Weekly Supp. 19a item Z • 3z on a s3 It Priscilla A. Thdmpon Counties -- Zoning -- Substantial competent evidence did not support county commission's decision t in k Zoning Appeals Board decision to grant application for non-use variances and site plan modification where commission ignored recommendations of its department heads and based its decision on non -fact -based allegations of surrounding property owners -- Opinions of professional planning staff constitute substantial ._ competent evidence -- While citizen testimony is permissible in zoning matter, such testimony qualifies as substantial competent evidence only when it is fact -based -- Concerns expressed by neighbors were subjective and not supported by fact, and as a result did not constitute substantial competent evidence -- Commission was required by law to render a decision supported by substantial competent evidence FAITH DELIVERANCE CENTER, Petitioner, vs. METROPOLITAN DADE COUNTY, Respondent. llth Judicial _Circuit, in and for Dade County, Appellate Division. Case No. 97-143AP. Zoning Resolution Z-21-97. Opinion filed July 31, 1998. On the Petition for Writ of Certiorari from The Board of County Commissioners of Metropolitan Dade County (Miami -Dade County). Counsel: Robert H. Traurig, Elliot H. Scherker, Joseph G. Goldstein, for Petitioner. .Robert A. Ginsburg, John McInnis, for Respondent. (Before PAUL SIEGEL and GERALD D. HUBBART, JJ.1) (SIEGEL, J.) FAITH DELIVERANCE CENTER ('FAITH") seeks this Court's review of a final order of the BOARD OF COUNTY COMMISSIONERS ('BOARD") of Metropolitan Dade (now known as Miami -Dade) County. On --March 6, 1997, the BOARD reversed a ruling by its Zoning Appeals Board, and denied FAITH's requested non-use variances and site plan modification. In compliance with applicable County Code provisions, FAITH applied to the County for approval of modification of a resolution adopted in 1970 allowing construction of a 24-unit retirement --village on FAITH's N.W. 12th Avenue and N.W. 99th Street property, which is also the site of a church. FAITH wished to build two retirement unit buildings on the side and rear of the property, rather than at the front of the property. Placing the buildings where originally approved requires no additional governmental action. However, the ._building relocation necessitates a modification of the previously -approved site plan and non-use variances to permit 10' setbacks from the property line. In addition, the site plan modification would require a non-use variance for parking spaces to be located within 25' of the right-of-way. The plan included installation of substantial landscaping as a buffer _between the proposed residential units and the adjacent property. The County's Department of Environmental Resources Management, Public Works Department, and Department of ®Planning, Development and Regulation analyzed the plans, and recommended approval with conditions, which are not pertinent to this opinion. At a November 6, 1996 meeting, the County Zoning and Appeals Board (ZAB) approved FAITH's application. [neighboring resident Arthur Woodward appealed the ZAB decision to the County Commission, alleging that FAITH's owner stated at the November 6, 1996 ZAB hearing that he intended to violate a restriction in the 1970 resolution ...allowing only retirees in the residential units. Woodward also objected to the 10' building setback, alleging such a variance would permit additional development between the proposed development and the existing church. The County staff recommended that Woodward's appeal be denied, based on a finding that FAITH's plans provided an adequate _buffer from adjacent properties. The County Commission deferred a vote on Woodward's appeal until March 6, 1997, at which time the zoning staff continued to recommend denying the appeal and sustaining the decision by the ZAB. At the March 6, 1997 hearing, Woodward asserted written objections to FAITH's application for modification and non- ase variances, citing unsubstantiated neighborhood concerns about increased density since the 1970 resolution approving the residential retirement units; parking and traffic; the possibility of septic tank leaks; the space created on ..which an additional building might be erected; and individuals who are not retirees occupying the residential units. The commissioners confirmed with their department heads that FAITH already had the right as granted by the 1970 http://www.floridalawweekly.com/newsystem/showfile.php?fromsearch=1 &file=../supfiles/issues/vol6/ 19... 12/9/2005 FAITH DELIVERANCE CENTER, Petitioner, vs. METROPOLITAN DADE COUNTY, Respondent. 1... Page 2 of 2 resolution to build the additional units with no variances, in a location with more exposure to the street and less space for installation of landscaping. Despite that fact, and despite the recommendations of its professional staff, the commission voted to reverse the ZAB ruling. When the Circuit Court, acting in its appellate capacity, reviews a local administrative agency decision, it must determine: Submitted Into the public (1) Whether procedural due process was accorded; record in connect�3 toe item EL_____- (2) Whether essential requirements of the law have been observed; and Priscilla A. Th mpson City Clerk (3) Whether administrative findings and judgments are supported by substantial competent evidence. Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). This Court finds merit in FAITH's argument that the County Commission's decision is not supported by substantial competent evidence; no issue is presented on due process or observation of the essential requirements of law. ---In the case at bar, the County Commission overlooked the recommendations of its professional staff and based its decision on the non -fact -based allegations of neighbors, in contravention of its obligation to make judgments supported by substantial competent evidence. Substantial evidence is that which establishes "a substantial basis of fact" from - which one can reasonably infer a fact at issue. Degroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957); City of Ft. Lauderdale v. Multidyne Medical Waste Management, Inc., 567 So. 2d 955, 957 (Fla. 4th DCA 1990). The opinions of a professional planning staff constitute substantial competent evidence. Hillsborough County Board of County Commissioners v. Longo, 505 So. 2d 470, 471 (Fla. 2d DCA 1987); Metropolitan Dade County v. Fuller, 515 So. 2d 1312, 1314 (Fla. 3d DCA 1987). The County ignored the analyses and conclusions of its Department of Environmental Resources Management, Public Works Department, Department of Planning, Development and Regulation, and Zoning ..Appeals Board in favor of opinion testimony by surrounding property owners. While citizen testimony is permissible in a zoning matter, such testimony qualifies as substantial competent evidence -only when it is fact -based. City of Apopka v. Orange County, 299 So. 2d 657, 659 (Fla. 4th DCA 1974); Metropolitan Dade County v. Blumenthal, 675 So. 2d 598, 607 (Fla. 3d DCA 1996); Grefkowicz v. Metropolitan Dade County, 389 So. 2d 1041, 1042 (Fla. 3d DCA 1980). General statements in opposition to the zoning matter are to be disregarded. _Metropolitan Dade County v. Blumenthal, 675 So. 2d at 607. The concerns expressed by neighbors were subjective and not supported by fact, and as a result did not constitute substantial competent evidence. The Commission was required by law to render a decision grounded in competent evidence, which would mandate that it affirm the Zoning Appeals ._Board decision to grant FAITH's application for modification of plans and setback variances. Accordingly, the Petition for Writ of Certiorari is GRANTED. The Commission's decision to overrule the decision of .the Zoning Appeals Board and deny the Petitioner's application is REVERSED and REMANDED with directions to the Commission to grant the Petitioner's application. (HUBBART, J. concurs.) 1The parties agreed to have this Petition for Writ of Certiorari heard by a panel of two Judges due to the unavailability -of the third Judge assigned to the panel. http://www.floridalawweekly.com/newsystem/showfile.php?fromsearch= l &file=../supfi les/issues/vol6/ 19... 12/9/2005 _BAL HARBOUR, INC. and AVA DEVELOPMENTS, INC., Petitioners, vs. BAL HARBOUR VILLA... Page 1 of 3 5 Fla. L. Weekly Supp. 802a NOT FINAL VERSION OF OPINION Subsequent Changes at 6 Fla. L. Weekly Supp. Submitted Into the public record in connecti- n ith item ?Z.3a. on - s3 bt, Priscilla A. Tho ipson City Clerk Zoning -- Rezoning -- Landowner seeking to have existing private club/single family zoning changed to ocean -front established that proposed change was consistent with comprehensive master plan and compatible with existing development, and that proposed change met necessary concurrency requirements -- Village council failed to carry its burden of showing that refusal to rezone property was not arbitrary, discriminatory or -unreasonable -- Testimony of residents which was based, in part, on original master plan which was more than fifty years old and which had been replaced by comprehensive master plan and subsequent amendment was not fact based -- Residents' testimony that necessary infrastructure would be unavailable not corroborated by .-record and, in fact, was refuted by village planner's own report -- Residents' general expressions of opposition not basis for denial of application -- No merit to village's contention that applicant failed to establish adequate level of service for ''open space" 74a BAL HARBOUR, INC. and AVA DEVELOPMENTS, INC., Petitioners, vs. BAL HARBOUR VILLAGE COUNCIL, Respondent. 1 lth Judicial Circuit, in and for Miami -Dade County, Appellate Division. Case No. 98-026 AP. Bal _..Harbour Resolution No. 570. Opinion filed July 31, 1998. An Appeal from BAL HARBOUR VILLAGE COUNCIL. Counsel: Elliot H. Schercker, for petitioner. Daniel A. Weiss, Jeffrey S. Bass and Dan Paul, for respondent. _,.,(Before LAUREN LEVY MILLER, MAXINE COHEN LANDO, and MAYNARD GROSS, JJ.) (PER CURIAM) Petitioners, Bal Harbour Club, Inc. and Ava Developments, Inc., petitioned the court for a writ of certiorari seeking to quash Resolution No. 570 of the Bal Harbour Village Council ("Council") which denied the Petitioners' request for rezoning. We find that the Council erred in denying the Petitioners' application for rezoning. Therefore, we grant the petition, quash Resolution No. 570 and remand for further proceedings consistent with this -opinion. Pursuant to Art. V, § 5(b), Fla. Const., this court has certiorari jurisdiction to review final orders of local governmental .boards. E.g., Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995). "[T]he rulings of a board acting in its quasi-judicial capacity are subject to review by certiorari and will be upheld only if they are supported by substantial competent evidence." Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469, 474 .,.(Fla. 1993) citing De Groot v. Sheffield, 95 So. 2d 912 (Fla. 1957). Circuit court review under Fla. R. App. P. 9.030(c) ;3), is governed by a three-part standard of review: "(1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are ,,supported by competent substantial evidence." Haines City Community Development v. Heggs, 658 So. 2d 523, 530 ;Fla. 1995). The petition for certiorari did not address the first level of review, rather it addressed the second and third ievels of inquiry. We find that the Council failed to follow the essential requirements of law in denying the Petitioners' application for rezoning. We further find that the Council's findings and judgment were not supported by competent Substantial evidence. .The Bal Harbour Club is located on a 5.5 acre property located at 10201 Collins Avenue. The Club property was Driginally platted in 1944 as a private beach club for a period "of not more than 20 years from January 1, 1945." In the original master plan, which was designed by the firm of Harland Bartholomew Associates, the entire Village was laid out in an "intensity gradient" design. This plan provided for a "green spine" running "east west in the north end of the community from the Club to the Yacht Club Basin. The current zoning of the Club property limits its use to a private club (PC) or "any use permitted in the R-1 single family zoning district." The rezoning application seeks to have the , existing zoning changed from PC or R-1 use to ocean front (OF), which allows high-rise multi -family development up to a maximum of 55 dwelling units per acre and hotel use at a density of 100 units per acre. http://www.floridalawweekl y.com/newsystem/showfile.php?fromsearch=l &file=../supfiles/issues/vol5/80... 12/9/2005 -BAL HARBOUR, INC. and AVA DEVELOPMENTS, INC., Petitioners, vs. BAL HARBOUR VILLA... Page 2 of 3 .."[A] landowner seeking to rezone property has the burden of proving that the proposal is consistent with the comprehensive plan and complies with all procedural requirements of the zoning ordinance." Snyder, 627 So. 2d at 476. We find that the Petitioner met this burden. The evidence presented in favor of rezoning showed that the Village adopted a comprehensive master plan in 1989 and that pursuant to this master plan, all of the ocean front property, except the Club property, was zoned OF. A 1997 Amendment to this master plan recognized that redevelopment of the Club property was imminent. This Amendment stated: The 5.5 acre club facility located between Collins Avenue and the beach -front could be re -developed as high density multifamily or hotel, in accordance with the Village Code and the plat and the zoning regulations. Redevelopment is anticipated in the near future. In addition to being consistent with the comprehensive master plan, we find the evidence also established that rezoning —is compatible with existing development and that it meets the necessary concurrency requirements. This evidence showed that the Club property is bordered on the north and south by high-rise developments. The report of the Village Planner, Michael J. Miller, found that the proposed rezoning and resultant development would be compatible with this .existing development. Miller also stated that although he could not perform a detailed concurrency analysis, the concurrency elements of traffic, potable water, waste water, and solid waste would be satisfied. His report concluded that the requested zoning classification would be consistent with the Comprehensive Plan allowances. Because the Petitioners met their burden of proving that rezoning was warranted, the burden then shifted to the Council to demonstrate that maintaining the existing zoning classification with respect to the property accomplished a .legitimate public purpose. Id. The Council had the burden of showing that the refusal to rezone the property was not arbitrary, discriminatory or unreasonable. Id. We find that the Council failed to meet its burden in denying the Petitioners application for rezoning. "Under the correct legal standard, citizen testimony in a zoning matter is perfectly .permissible and constitutes substantial competent evidence, so long as it is fact -based." Metropolitan Dade County v. Blumenthal, 675 So.2d 598, 607 (Fla. 3d DCA 1995) (en banc) review dismissed, 680 So. 2d 421. In the case of Metropolitan Dade County v. Sportacres Development Group, Inc., 698 So. 2d 281, 282 (Fla. 3d DCA 1997), the court .found that where testimony of neighbors was corroborated by maps, reports and other information this constituted substantial competent evidence which supported the decision of the board. However, the residents' testimony in the case at bar was based, in part, on the original master plan which was more than fifty years old. This master plan was _subsequently replaced by the 1989 comprehensive master plan and its 1997 Amendment which anticipated and recognized redevelopment of the Club property. Consequently, the residents' testimony was not fact based. _Residents also testified that the necessary infrastructure would be unavailable. This testimony was not corroborated by the record. The Village Planner's own report stated that concurrency requirements were met. Other residents expressed their preferences "for keeping Bal Harbour the way it is right now," to "protect the good name of Bal Harbour," to .reject the project because " [p]eoples sun will be taken away," and that the Club's "open space" should be preserved. The court notes that these statements are mere generalized statements of opposition. Mere generalized statements of opposition are to be disregarded. Blumenthal, 675 So. 2d at 607. The Village also argued that the applicant failed to carry its burden of establishing an adequate LOS ("level of service") for "open space" and parks. The Village originally adopted Dade County's methodology for computing "open space" under which beach areas were excluded. However, the Petitioners pointed out that the currently -applicable master plan includes the beach as "open space." Therefore, there is sufficient open area within the Village to allow for rezoning the Club property without falling below the LOS for "open space" under the current master plan. Although we recognize the Village's interest in preserving the intent of the original master plan, given the evidence that has been presented on behalf of the Village to support the Council's action, we find that the Village failed to meet its burden of demonstrating that the maintenance of the existing zoning classification accomplished a legitimate public -purpose. Therefore, the Council erred in denying the application for rezoning. Accordingly, the petition for writ of certiorari is granted, Resolution No. 570 is quashed and the matter is remanded for furths 618 o usetpubwl cth this opinion. record in connect' r n with item P2.3a. ;0.1-1 -�.z3 0/Prisc�http://www.floridalawweekly.com/newsystem/showfile.php?fromsearch=l&file=../supfiles issues 1h� Co City Clerk r,::It 3 .BAL HARBOUR, INC. and AVA DEVELOPMENTS, INC., Petitioners, vs. BAL HARBOUR VILLA... Page 3 of 3 .PETITION GRANTED. *** Submitted Into the public record in connecti n ith item P2.3.1- on a a3 a Priscilla A. Thompson -$-- City Clerk L/showfile.php?fromsearch= l &file=../supfiles/issues/vol5/80... 12/9/2005 BAL HARBOUR CLUB, INC., and AVA DEVELOPMENTS, INC., Petitioners, vs. BAL HARBOUR ... Page 1 of 1 6 Fla. L. Weekly Supp. 74a Zoning -- Rezoning -- Landowner seeking to have existing private club/single family zoning changed to ocean front BAL HARBOUR CLUB, INC., and AVA DEVELOPMENTS, INC., Petitioners, vs. BAL HARBOUR VILLAGE COUNCIL, Respondent. 1 lth Judicial Circuit, Appellate Division. Case No. 98-026 AP. Lower Court Case No. Bal Harbor Resolution No. 570. Opinion filed October 9, 1998. On Respondent's Motion for Rehearing and/or Clarification filed August l7th, 1998. Counsel: Elliot H. Scherker, for Petitioner. Daniel A. Weiss, Jeffrey S. Bass and Dan Paul, for Respondent. ORDER DENYING MOTION FOR REHEARING AND/OR CLARIFICATION (Original Opinion at 5 Fla. L. Weekly Supp. 802a] (Before PANEL: LAUREN LEVY MILLER, MAXINE COHEN LANDO and MAYNARD A. GROSS, JJ.) THIS COURT having examined the Motion for Rehearing and/or Clarification, and being fully advised in the premises, it is ORDERED AND ADJUDGED that, upon ruling by the majority of the above panel, said motion for Rehearing is hereby DENIED. * * * Submitted Into the public record in connection ith item Pc- on a- '3 t . Priscilla A. Tho pson City Clerk ittp://www.floridalawweekly.com/newsystem/showfile.php?fromsearch=1 &file=../supfiles/issues/vol6/74... 12/9/2005 Westlaw 379 So.2d 387 379 So.2d 387 (Cite as: 379 So.2d 387) District Court of Appeal of Florida, Third District. ALLAPATTAH COMMUNITY ASSOCIATION, INC. OF FLORIDA, a Non-profit Corporation, and Martin Spellman and Patricia Spellman, his wife, residents and taxpayers of the City of Miami, Appellants, v. CITY OF MIAMI, Florida, a Municipal Corporation, Appellee. No. 79-1190. Jan. 8, 1980. Review was sought of ordinance changing zoning of portion of community from residential to commercial usage. The Circuit Court, Dade County, Herbert Stettin, J., denied relief and plaintiffs appealed. The District Court of Appeal, Schwartz, J., held that the change was not reasonably related to public welfare and was improper, where there was no proof of claim that rezoning was necessary to safeguard neighborhood from dangers of heavy traffic on street which, before the rezoning had separated the commercial from the residential property, rezoning was not needed to promote commercial development of city, since sufficient land was available to accommodate commercial and industrial expansion in the area, and it was not improper for the street to serve as divider between the residential and commercial areas. Reversed and remanded. West Headnotes u Zoning and Planning z'27 414k27 No zoning regulation may be sustained unless it bears substantial relation to public health, safety, morals, or welfare. W Zoning and Planning €683 414k683 Those who seek to set aside zoning decision must clearly demonstrate that the zoning regulation does not bear a substantial relation to public health, safety, morals, or welfare. u Zoning and Planning € 161 414k161 Submitted Into the pa. l'C record in connect yr tth item on Priscilla A. pson City Clerk Db Page 1 Those who own property and live in residential area have legitimate and protectible interest in preservation and character of their neighborhood and that interest may not be infringed by unreasonable or arbitrary act of government. u Zoning and Planning -168 414k168 Change of zoning from residential to commercial usage was not reasonably related to public welfare and was improper, where there was no proof of claim that rezoning was necessary to safeguard neighborhood from dangers of heavy traffic on street which, before the rezoning, had separated the commercial from the residential property, rezoning was not needed to promote commercial development of city, since sufficient land was available to accommodate commercial and industrial expansion in the area, and it was not improper for street to serve as divider between residential and commercial areas. u Evidence €574 157k574 Opinion of architect that rezoning was necessary to safeguard neighborhood from dangers of heavy traffic on street was a mere nonexpert conclusion which was devoid of any evidentiary value, particularly where only competent evidence in record, expert opinion of planning department, based upon county traffic department survey, was completely to the contrary. u Zoning and Planning 32 414k32 It is entirely appropriate for divider between zoning districts to be a street. u Zoning and Planning157 414k157 Power to amend zoning is not arbitrary and cannot be exercised merely because certain individuals want it done or think it ought to be done and the change must be necessary for the public good. *388 John Lazarus, Miami, Legal Services of Greater Miami, for appellants. George F. Knox, Jr., City Atty., and G. Miriam Maer, Asst. City Atty., for appellee. Before HAVERFIELD, C. J., and SCHWARTZ and NESBITT, JJ. © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 379 So.2d 387 379 So.2d 387 (Cite as: 379 So.2d 387) SCHWARTZ, Judge. Notwithstanding the strong recommendation of its planning department and a 4-1 decision of the Planning Advisory Board to the contrary, and over the vigorous objections of the vast majority of the residents of the affected area, the City of Miami Commission changed the zoning of a portion of the Allapattah community from residential (R-3, R-4) to commercial (C-5) usage. We find that the rezoning was not based upon any factually supported or legally Page 2 cognizable ground which could serve to justify that action and was therefore not "fairly debatable." Since the court below held otherwise, we reverse the judgment under review. The property which was the subject of the rezoning is located on the north side of N.W. 23rd Street between 17th and 25th Avenues, to a depth of 175 feet. It is indicated by the cross -hatching on the map which is reproduced below: Submitted Into the public record in connects ln d ith item PZ.3a on a 33 It Co Priscilla A. Tho pson City Clerk © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 379 So.2d 387 379 So.2d 387 (Cite as: 379 So.2d 387) ANY" CROSS HATCH IND)CATES AREA REZONED C-5 nw 2.1rd St. -"" .• • .-1—Y-717-i.:: ,rJ /.- ,--7 .9-71 17 i i i• f."-',.... 1I-• -ji. -' 1.:'4:1'•."7-.--'-7-2:. •- C;- ".._.7'.7,:'__'-.•12-•,: ::I11..:7-7...,-..i. 1 cr E-1=;-J=3 \\171; p FT. 71,Fr' Tiq ''''•,==';`---' 1 i • ' r) . • ; 4 : L.;._. .11 I .._,..4 •-•-:'Z'ZI,,'`: '. cr 1 \•••••.„-i,. r.---___.- 1-4-: :_.,-.--...,,, • ., j_z__, _.,1 ,_.±...... 1 1 r- .r--, r--4—•-. i _.._. j r- .. - -.... ;L2-h! ;-"-•.-= , . t- . •-] r--;- '-- I ':71-#1![•1 l=7-7--4. -:-1 L4.11. ! -El Iii.•ILliliii ;--,-1(--'--1•:--,•\,:1124 i • •;:.=. [.=.___T i ;.__4=. i 1. '1--..N -J. !---1----. •— 2.\\:::: • ---i. i.7:17.2j - ' -1 r-r: -fr. :: 1::-:' :'7!--..•-i-----a.:-1 ..-rt...--\\;:13---'‘a--1 1-.7.:" • ' j-7:.1--, 1--1, :- -' , i i ---• --I i ' " :7 ..11 t :-••1.--. - -I.-1 ' '----J l--r ;7-1-7 ' . , 7=-1:--, , , _____'_, ,. -.--,,,,:t-. ,„- )•=2.-7; 41 TN r • •,,•• ..-- , • i ; , ,---, . - • -. I •NN'1)1,17.; ' ... i ,: , - 1 ----.-e-_. ..--- t• tr-71-- L•1012.11-11-.1714 ._-!•r—L--: H - , ' • L, A• . -•i• q- --\.s.•0: •1i_:•••=_.,f•,, :i--.7'IL--.-Ln .t. •.-.,, •1 1111 -0• -•• 1MT INC. F77Fikj.1,),:_IL --___- Hi :p.11ii •::.![ J ,•-1!_, ..j-1''=: h! 1 illhii!'i iL ',1--:111..:!! •I"-L '1'111 j •—• .. .. ....._, : . . . ' L_____,..i_ 125-7 -" F71-771; 71 h,.1., II.; s=j; I 11;--_,E1 I 1..., ,_..1---•,.--77-7-• rj.-77 . ,.., 1 t.z) .,.! ,• i, Ill • • • • • • _,Iii.,,i__L7c.--3;'•i•::ii•I „Qii: t . 1-- 1 ,_1.:•:iii,, : OH i,, ri-•-;,'.•-l• 7.1T-...— F.:7z; ! ! ! . : • 1;i!:/).-i ii••1••--z. ,.....! •.. :-•-•, -:•,,!•,1 . I w • L-; I.i ! il. ..,.i '!!!!!1:2:C,\::••1-- ' i 7-7,--:!!'!:P:-= — -• ; •!.. • i:1 i !!! .!!!!,-...---t. I ---t----•'11. -..L--•----. — ' • . =.7 77-71X11711.: I ' 1 111 ''. '-:- I :::;= ! I I ' I-7. !..,.1._ .!_r2,..:;-., :4,;,, 1 2„:_... L.S';'!rr ,,1.1;•, :!;!11.1111-!1' clf.li!I ii• ' ••1.1115 1;'---1 ,1-.1..i • ' ' `'----• ---:-. l• i•-• - j: • ' ------ }- ; (-----4.' 1—I 111—I'1F11.IT.-..0,I: 1 (,..._-.1T--L..;7.,.I,..rw;.irTi.i--- 7 -ij, . :j. :. —I1/4 .F,i .__.--._.' PC"A r1 _. • .. ..C12 I r i_LL 1 —t;•--) g (.--7iiip i; :-;-.---.,,/- h ,L,..,.3!; i'-='-=-• ' ' L) '''t2 7--7 1 st ii jr:-A-p-•4.,--•••-•-..- ..... 0 "17-•---• ; . i-Tii.'411•il,=:•1.---;•- -- 7TITIITT I . . • : :•':.;.liri.1 I !i*: 7....;_ii '.. i:L! i !-4 1 ::_-_ NW 2 32-d St *390 In keeping with the existing R-3 and R-4 2/ St Ave 2rc v e 2 3 A Ve W 24th kva Page 3 Submitted into the public record in connecti n with item F2 ?- on.. Priscilla A. Th mpson City Clerk zoning (low and medium multiple residential use, © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 379 So.2d 387 379 So.2d 387 (Cite as: 379 So.2d 387) respectively), the north side of N.W. 23rd Street is now overwhelmingly residential in character. In addition to many private homes, a HUD public housing development and a high school, among other structures, face directly on the street. On the other hand, the south side of the street, which forms a part of what is known as the Allapattah Industrial area, is zoned C-5 (liberal commercial). Consistent with that classification, it is almost entirely commercial and contains warehouses, automobile repair facilities and the like. To the south of this area, I-1 (light industrial) zoning extends to N.W. 20th Street. One of the commercial establishments on the south side of 23rd Street is a large meat packing plant operated by Northwestern Meat, Inc. In late 1977, that company, desiring to expand its operation, applied to the Miami Zoning Board for the rezoning of four lots on the north side of 23rd, across the street from its plant. The Zoning Board denied the application on the stated ground that such a change would result in undesirable "spot zoning" of the area. Northwestern then appealed to the Commission, which requested the professional staff of the city's planning department to undertake a "broader study of the area" and to make recommendations accordingly. During this period, the time limitation for the presentation of Northwestern's "appeal" from the Zoning Board expired, and the Commission therefore took no formal or final action upon it. Under the city code, Northwestern's request for a rezoning of the four lots in question could not have been renewed for one year. The Commission, however, submitted to the city's Planning Advisory Board IFN1] a proposal to rezone to C-5 the entire strip of the residential property on the north side of N.W. 23rd Street of course including the four lots with which Northwestern was concerned. It was this proposal which was eventually adopted and which is now before us. FN1. Under the scheme established in the code, the Zoning Board considers applications for variances or changes in zoning as to particular parcels, such as that embodied in Northwestern's initial request; while the Planning Advisory Board is concerned with proposals which deal with the planning and zoning of larger areas, like the commission's suggestion that the entire strip on the north side of 23rd street be rezoned. Pursuant to the commission's request, the Planning Submitted Into the public record in connecti n th item pZ • 3 on .9- o c Priscilla A. Thompson Advisory Board held GaityeCidtt1 hearing, the transcript of which has been made a part of the record on appeal. Several residents of the area appeared, including one of the present appellants, Mrs. Patricia Spellman, who owns a home in the strip in question at the corner of 23rd Street and 24th Avenue. Many of them had lived in the area, one of Miami's oldest and most traditional residential neighborhoods, for periods ranging from 10 to 30 years. With perhaps one exception, all expressed both their desire to continue to reside in the area as it was, and their concern that commercial zoning would severely harm, if not destroy its still -viable residential nature.(FN21 No residents of the area north of 23rd Street, either before the Board or, later, before the Commission, ever expressed any dissatisfaction with the neighborhood whether because of the traffic on 23rd Street or for any other reason. They wished only to preserve its character and therefore, virtually unanimously, were in opposition to the proposed rezoning. Page 4 FN2. Many of the residents who were elderly, and on fixed incomes, expressed the now -familiar concern that real estate taxes would rise because of the increased value caused by the commercial zoning and that they would therefore be forced to move from their homes. At both the Planning Board and the Commission hearings, the Planning Department presented the results of the study requested by the Commission. Its professional recommendation was unreservedly against the proposal. Its conclusions were stated as follows: There is no justification for the rezoning of the residential area along the north side of NW 23rd Street between 17th and 27th Avenues. The basis for this recommendation is as follows: *391 Comprehensively, there is no justification for additional commercial zoning, due to the fact that ample properly zoned land (I-1) exists in near proximity to the subject area which is vacant or underutilized (presently occupied with low density residential wood structures in various states of disrepair). As indicated on the attached map titled 'Allapattah Industrial Area,' and as reported by the Miami Comprehensive Neighborhood Plan studies, sufficient land is available, based on recent trends, to accommodate commercial and industrial expansion in this area for the next 12 to 15 years. Any change to commercial zoning would not be consistent with the existing established land use pattern of the area. © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 379 So.2d 387 379 So.2d 387 (Cite as: 379 So.2d 387) The proposed change would not be in accord with the proposed Miami Comprehensive Neighborhood Plan which recommends low -moderate density residential land use for the north side of 23rd Street. If zoning changes occur the impact on the abutting residential development would be greater than the impact upon the existing residential development facing the existing commercial development. Close proximity of commercial development (10' rear setback) could affect the quality of life more than facing commercial uses due to the street's spatial quality, and scheduled landscaping and buffering improvement. The encroachment of additional commercial activity into the residential area could have a negative impact with respect to the stability of the residential area to the north. Efforts such as the 'Comprehensive Neighborhood Rehabilitation Program' which promotes investments and interest in existing housing stock could likewise be adversely impacted. A change as proposed would increase auto and truck traffic on 23rd Street and could introduce additional commercial traffic into the residential area between 23rd and 28th Streets.fFN31 FN3. The department noted, among other things, that a large amount of money had been expended specifically to safeguard the residential nature of the north side of 23rd Street. Its report stated: The third year Community Development Program has allocated $250,000 for street repair, construction of curb, gutter and sidewalks where needed, and landscaping of NW 23rd Street, between 17th and 27th Avenues. This activity is but a small part of the total Community Development effort in the Allapattah area. During the first three years of Community Development funding, allocations were made to improve all the edges of this neighborhood including NW 23rd Street. The two main reasons for the beautification and improvement of NW 23rd Street are to protect and encourage the confinement of the residential neighborhood by creating a buffer zone between the liberal commercial and residential development through landscaping and improved parking facilities. The other objective is to improve the visual character of the street through the channelization of traffic movements, defining of parking and access points and Submitted Into the public record in connectin with item pa. 3-1 on a Priscilla A. Thoo p os n City Clerk landscape screening and beautification in front of existing development. Page 5 After the Planning Board voted 4-1 to recommend that the proposal be rejected, the City Commission proceeded to consider the rezoning at its meeting of September 28, 1978. As they had before the Planning Board, the planning department and representatives of the residents presented their opposition. As at the Advisory Board level, three types of argument were presented on the other side: (a) A non-resident of the area, who happened to be the architect for Northwestern Meat, stated his opinion that the commercial traffic on N.W. 23rd Street was too heavy, too dangerous, and incompatible with the residential character of the north side of the street. (b) Several persons, all non-residents of the area, and three of whom were associated with Northwestern Meat, stated their conclusion that the area should be rezoned so as to attract new business and industry to the city. *392 (c) Statements were made by various persons at the meeting, notably including the attorney for Northwestern Meat and the city commissioner who moved for the adoption of the ordinance, that it was "poor planning" to permit a street to serve as a dividing line and buffer zone between two zoning districts. At the conclusion of its meeting, the commission voted 3-2 to adopt the proposal by enacting ordinance No. 8862, which provided as follows: WHEREAS, the City Commission, notwithstanding the recommendation of denial by the Miami Planning Advisory Board, and after careful consideration and due deliberation of this matter, deems it advisable and in the best interests of the City of Miami and its inhabitants to amend said Ordinance as hereinafter set forth; NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. Ordinance No. 6871, the Comprehensive Zoning Ordinance for the City of Miami be, and the same is hereby amended by changing the zoning classification of the north side of N.W. 23rd Street generally to a depth of 175', from 364.5' west of N.W. 17th Avenue to N.W. 25th Avenue, from R-3 (Low Density Multiple) and R-4 (Medium Density Multiple) to C-5 (Liberal Commercial); .. The Allapattah Community Association, Inc., and Martin and Patricia Spellman sought review of the © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 379 So.2d 387 379 So.2d 387 (Cite as: 379 So.2d 387) ordinance in the Dade County Circuit Court.JFN41 The appellate division of the lower court affirmed on the simple statement that it found the measure to be "fairly debatable." The Spellmans and the Association then took certiorari, which we have treated as an appeal,JFN51 to review the Circuit Court decision. FN4. The city did not raise the issue of standing either in the Circuit Court or in this one. It might be observed, however, that, although the status of the Community Association is at least doubtful, there can be no question of the standing of the Spellmans, who own property within the very area which was rezoned over their objection, to challenge that action. See Hemisphere Equity Realty Co., Inc. v. Key Biscayne Property Taxpayers Assn, 369 So.2d 996, 1001 (Fla. 3d DCA 1979). There is thus no obstacle to our consideration of the case on its merits. ENS. See United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979). J111-21 It is axiomatic that no zoning regulation may be sustained unless it bears a substantial relation to the public health, safety, morals, or welfare. E. g., City of Miami Beach v. Lachman, 71 So.2d 148 (F1a.1953); Town of Belleair v. Moran, 244 So.2d 532 (Fla. 2d DCA 1971) and cases cited. It is required that those who, like the appellants in this case, seek to set aside a particular zoning decision clearly demonstrate that it is not even "fairly debatable" that no such relationship exists. City of St. Petersburg v. Aikin, 217 So.2d 315 (F1a.1968). That heavy burden has been successfully carried here. J31f41 We start by stating the rule that those who own property and live in a residential area have a legitimate and protectable interest in the preservation of the character of their neighborhood which may not be infringed by an unreasonable or arbitrary act of their government. See City of Miami v. Zorovich, 195 So.2d 31, 37 (Fla. 3d DCA 1967), cert. denied, 201 So.2d 554 (F1a.1967), and cases cited.JFN61 As the court stated in Watson v. Mayflower Property, Inc., 223 So.2d 368, 373 (Fla. 4th DCA 1969), cert. discharged, 233 So.2d 390 (F1a.1970): FN6. While almost all of the cases which speak of this interest deal with the "usual" Submitted Into the public record in connect r'n ‘,A 'th Page 6 item ? Z. on -2 Dto Priscilla A. ThompsonI situation iinn'ltwhiicccn ak governmental unit resists, in the name of neighborhood integrity, an attempt to liberalize the zoning of residential property, the principle is equally applicable when, in the converse situation presented here, a city seeks to justify an encroachment of its own upon the existing nature of the area in question. It is self-evident that the general welfare of a community demands that in some part or parts of its land area citizens may develop their homes without fear of losing a substantial segment of their economic investment or the comfort and enjoyment *393 of their homes by the encroachment of commercial developments. The record, read in the light of the applicable law, provides not even an arguable basis for the severe compromise of the residential character of the area north of 23rd Street effected by the ordinance under review. None of the grounds asserted by the city for the contrary contention that the ordinance is related to the public health, safety and welfare has merit, or, as this court put it in Dade County v. Beauchamp, 348 So.2d 53, 55 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 512 (Fla.1978), "makes sense:" 151 (1) There is nothing whatever to the claim that the rezoning is necessary to safeguard the neighborhood from the dangers of heavy traffic on 23rd Street. Compare, e. g. Watson v. Mayflower Property, Inc., supra. The only portion of the record which might support this conclusion, is the suspiciously altruistic statement of Northwestern's architect concerning a condition of which those supposedly affected did not themselves complain. His opinion, however, was a mere non -expert conclusion which is therefore devoid of any evidentiary value whatever. See Katz v. Dade County, 367 So.2d 277, 279 (Fla. 3d DCA 1979), cf. South Central Association of Neighbors, Inc. v. Lindsey, 21 Or.App. 578, 535 P.2d 1381 (1975). This is particularly the case when the only competent evidence in the record the expert opinion of the planning department based upon a Dade County Traffic Department survey is completely to the contrary. The planning department's representative before the Commission, Mr. Whipple, characterized the traffic on 23rd St. as "minimal;" its report states both that N.W. 23rd is considered to be "a local service street with Light traffic," and that traffic problems would come into existence only if the proposed rezoning is accomplished. It is thus to stand reality on its head to attempt to justify the © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 379 So.2d 387 379 So.2d 387 (Cite as: 379 So.2d 387) action taken by the commission by asserting that it will serve to alleviate an existing traffic hazard. (2) The statements in the record that the rezoning is needed to promote the commercial development of the city are similarly subjective and conclusory, and thus similarly valueless. See Katz v. Dade County, supra; South Central Association of Neighbors, Inc. v. Lindsey, supra. Once again, the planning department found, on the basis of its objective survey, that "ample properly zoned land exists in near proximity to the subject area which is vacant or underutilized ... (S)ufficient land is available, based on recent trends, to accommodate commercial and industrial expansion in this area for the next 12 to 15 years." Thus, it clearly appears that any paucity of commercial or industrial enterprises in the area has nothing at all to do with an insufficiency of appropriate zoning. The following statement in Kennedy v. City of Evanston, 348 III. 426, 181 N.E. 312, 314 (1932), which invalidated a zoning amendment permitting apartments in a formerly single-family neighborhood, is entirely apropos: No showing has been made why the vacant and poorly improved land in the B use district cannot be used for apartment houses before it is necessary to encroach on the A territory. At the rate at which apartment buildings have been erected in the B territory south of Keeney street since 1921, there are enough vacant lots to take care of the growth for many years. Appellants, at the time they bought their homes, had a right to rely upon the classification of the property in question which then existed and upon the rule of law that the classification would not be changed unless the change was required for the public good. JFN71 FN7. The term "required for the public good" appears to be equivalent to the Florida test of relationship to the public health, safety and welfare. J61 (3) Lastly, both the law and common sense entirely disproved the suggestion that it is somehow improper for N.W. 23rd Street to serve as the divider between the residential zone on the north and the commercial area to the south. Because, as the courts have repeatedly said, boundary lines between zoning districts necessarily have to be placed somewhere, it is not only not *394 "poor planning," it is entirely appropriate for the divider to be a street. See City of Miami Beach v. Wiesen, 86 So.2d 442 (F1a.1956); Dade County v. Miller, 325 So.2d 418 (Fla. 3d DCA 1976); Town of Surfside v. Skyline Terrace Corp., 120 So.2d 20 (Fla. 3d DCA 1960), cert. denied, 123 Submitted II eo th record in coffinc'.:;:;. Page 7 item P2. 3a- on.P- 1 tar Priscilla A. Thom -i1..1 ..„ City Clerk So.2d 675 (F1a.1960). The fallacy underlying the city's contention on this issue is best illustrated by the effect of the very ordinance in question, which is a classic case of the prescribed cure being far worse than the supposed disease. Instead of the entire width of N.W. 23rd Street acting as a buffer for the zone, commercial usage has been permitted to intrude directly into the residential area itself, with only a 10' set back requirement intervening between the commercial development and the still -existing R-3, R-4 zoning to the north of the dezoned strip. Since, under the city's reasoning, this is all -the -more - obviously insufficient, there would be no basis for resisting future inroads into the block north of 23rd Street until 24th Street became the dividing line and then crossing That street on the same theory asserted to support the present action. Thus, the entire Allapattah residential community and, for that matter, every residential area in the city would be defenseless against the advance of commercial or industrial development imposed merely by the fiat of the commission. As our supreme court wisely observed may years ago in City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364, 366 (1941); At the juncture of these streets property which may be devoted to business abruptly ends and that which may be used for hotels and apartments as suddenly begins but there must be a line of demarcation between them somewhere. See State ex rel. Townsend v. Farrey, 133 Fla. 15, 182 So. 448- Zahn v. Board of Public Works, 195 Cal. 497, 234 P. 388. The fact that his land is situated across the street from that on which commercial enterprises may be operated was not alone enough to support plaintiffs position that he should be given the same latitude in the use of his property. Were this the case it would be but a matter of time before alterations of the whole scheme by successively liberalizing the use of abutting property would result in disintegration and disappearance of the whole plan of zoning. (e. s.) e'+f fP^t1;" We reject, therefore, the idea that an appropriate way to correct supposedly improper planning is to make it worse. 171 Thus, there is nothing of a competent, substantial nature to contradict or impeach the conclusive showing made by the planning department, by the contents of the proposed Comprehensive Development Plan, and by the present appellants and those they represent, that Ordinance No. 8862 is not reasonably related to the public welfare. Dugan v. City of Jacksonville, 343 So.2d 103 (Fla. 1st DCA 1977); Rural New Town, Inc. v. Palm Beach County, © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 379 So.2d 387 379 So.2d 387 (Cite as: 379 So.2d 387) 315 So.2d 478, 479 (Fla. 4th DCA 1975); South Central Association of Neighbors, Inc. v. Lindsey, supra; compare Miles v. Dade County, 260 So.2d 553 (Fla. 3d DCA 1972). Rather, an analysis of the record reveals that, the window dressing aside, the only and real reason for the rezoning was that Northwestern Meat wanted to use the north side of 23rd Street for commercial purposes,f FN81 and a majority of the Commission wished to grant it that right. The law, however, will not and cannot approve a zoning regulation or any governmental action adversely affecting the rights of others which is based on no more than the fact that those who support it have the power to work their will. As the Supreme Court of Illinois stated in Kennedy v. City of Evanston, supra, at 181 N.E. 314-315: FN8. Northwestern Meat actually owns property, presently zoned I-1 and C-5, south of its existing facility. Its president stated, however, that, because it was easier to cross 23rd St. to the north than the railroad tracks to the south, it was more convenient to expand his business into the residential area. Thus, the rezoning was not even required, but was merely preferred, by the private entity to which it was granted. But see South Central Association of Neighbors, Inc. v. Lindsey, supra. *395 Appellee insists that the fact that a majority of the property owners in and adjoining the district in question want the change is proof of the changing condition of the territory. The power to amend is not arbitrary. It cannot be exercised merely because certain individuals want it done or think it ought to be done. The change must be necessary for the public good. Appellee contends that the zoning commission was in error in the classifications of 1921 and 1927, and that the purpose of the statute is to enable the amendment of zoning classifications not only to take care of readjustments called for by the changing character of neighborhoods, but also to remedy particular errors or hardships. The evidence does not show that the zoning commission and the city council were in error in the original classification. The action of the zoning commission in recommending the amendment in the fall of 1928 after having denied a similar petition earlier in the same year might be attributed to the fact that certain property owners agreed to the widening and paving of the streets provided the reclassification was made. These agreements not only fail to show that the amendments to the Page 8 ordinance were passed for the public good, but They tend to show that they were passed in deference to the wishes of certain individuals. The ordinance of 1929 cannot be sustained under the law and the evidence, ... (e. s.) See also South Central Association of Neighbors, Inc. v. Lindsey, supra; Davis v. Nolte, 231 S.W.2d 471 (Tex.Civ.App.1950). Finding, for these reasons, that the zoning enactment challenged in this proceeding bears no reasonable relation to the health, safety, morals or welfare of the public, and that it is therefore arbitrary and unreasonable, fFN91 we reverse the judgment under review and remand the cause with directions that City of Miami Ordinance No. 8862 be quashed. FN9. There is a future reason why the ordinance should not be upheld. It seems clear that the Zoning Board was correct in rejecting Northwestern's original application for the commercial use of four lots on the north side of 23rd Street as impermissible "spot zoning" in the residential area. E. g., Parking Facilities, Inc. v. City of Miami Beach, 88 So.2d 141 (F1a.1956); County of Brevard v. Woodham, 223 So.2d 344 (Fla. 4th DCA 1969), cert. denied, 229 So.2d 872 (F1a.1969); 7 F1a.Jur.2d Building, Zoning, and Land Controls s 110 (1978). Plainly an action which purports to obviate this problem by changing the zoning of the entire area cannot be upheld. If it is improper to create a spot in a neighborhood, it is even more plainly unacceptable entirely to obliterate it. Reversed and remanded. 379 So.2d 387 END OF DOCUMENT © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. Submitted Into the public record in connecti n ith itemfZ•3�- on s s3 6(0 Priscilla A. Th mpson City Clerk GEORGE F. MENDEZ and JEAN U. MENDEZ, Appellants, vs. DADE COUNTY, FLORIDA, BOAR... Page 1 of 3 3 Fla. L. Weekly Supp. 39c Zoning -- Decision of Board of County Commissioners requiring removal of existing chain link fence located on -owners' property and encroaching on mapped but not yet existent street -- Decision of Zoning Appeal Board denying variance reversed where Public Works Department had determined that fence was not contrary to public interest and where criteria for granting of variance were satisfied -- Objections of neighbors do not -generally constitute competent substantial evidence sufficient to deny an application for a zoning variance GEORGE F. MENDEZ and JEAN U. MENDEZ, Appellants, vs. DADE COUNTY, FLORIDA, BOARD OF -COUNTY COMMISSIONERS, Appellee. 1 lth Judicial Circuit in and for Dade County, Appellate Division. Case No. 94-155-AP. Opinion filed March 10, 1995. On appeal from the Board of County Commissioners of Dade County, in and for Dade County. Counsel: Julian R. Benjamin, Hellman and Maas, for Appellant. Robert A. Ginsburg, County -Attorney, and Daniel A. Weiss, for Appellee. Submitted into the public record in connecti wi h (Before CARDONNE, MUIR, and KREEGER, JJ.) item F2.on 9-3 0 (s Priscilla A. Thompson (PER CURIAM.) This is an appeal from a decision of the Board of County Commissioners of Dade CouetttyvOielt required the Appellants to remove an existing chain link fence located on their property and encroaching upon a -mapped but not yet existent street. The fence was originally erected pursuant to a building permit issued by Dade County. The application and plans --submitted for the permit did not reveal an encroachment into the zoned right of way. On April 4, 1991, the County issued a Notice of Revocation of Building Permit to the Appellants, based upon Section 304.30 of the South Florida Building Code which states, in part, "[t]he building official may revoke a permit or approval issued under the provisions of this Code in case of any false statement or misrepresentation of fact in the application or on the plans on which the permit or approval is based." Numerous attempts by the County to enforce the revocation and have the fence removed were fruitless. Hurricane -Andrew damaged the fence, but the Appellants repaired and re -erected it. The County issued twelve additional citations, which were pending when the Appellants applied for a non-use variance to allow their fence to remain in the right-of-way. Staff recommendations, including Building and Zoning and Public Works, supported the variance. However, the Zoning Appeal Board denied the variance, based upon the vociferous objections of neighbors, who expressed concern --about the possible precedential effect of granting the variance, and about their perception that the fence limited ingress Ind egress to their properties. Staff professional inspections found the latter concern to be unfounded. The Dade County Commission denied Appellants' appeal. Ile decision of the Zoning Appeal Board was quasi-judicial and must be upheld on appeal if it is supported by competent substantial evidence. Board of County Commissioners v. Snyder, 627 So. 2d 469 (Fla. 1993). Objections of -neighbors (except, perhaps in a "close case") do not constitute competent substantial evidence sufficient to deny an application for a zoning variance. Town of Ponce Inlet v. Rancourt, 627 So. 2d 586, 588 (Fla. 5th DCA 1993); Pollard v. Palm Beach County, 560 So. 2d 1358 (Fla. 4th DCA 1990). The rationale for this rule was expressed by the Rhode Island Supreme Court, quoted by Professor Anderson in his work, American Law of Zoning, and quoted in Pollard: "Public notice of the hearing of an application for exception ... is not given for the purpose of polling the neighborhood on the question involved, but to give interested persons an opportunity to present facts from which the board may determine whether the particular provision of the ordinance, as applied to the http://www.floridalawweekly.com/newsystem/showfile.php?fromsearch=1 &file=../supfiles/issues/vol3/39... 12/9/2005 GEORGE F. MENDEZ and JEAN U. MENDEZ, Appellants, vs. DADE COUNTY, FLORIDA, BOAR... Page 2 of 3 applicant's property, is reasonably necessary for the protection of ... public [safety] ... The board should base their determination upon facts which they find to have been established, instead of upon the wishes of persons who appear for or against the granting of an application.' The objections of a large number of residents of the affected neighborhood are not a sound basis for the denial of a permit. The quasi-judicial function of a board of adjustment must be exercised on the basis of the facts adduced; numerous objections by adjoining landowners may not properly be given even a cumulative effect." Volume 3, Section 15.27, pp. 155-56. —See also City of Apopka v. Orange County, 299 So. 2d 657, 660 (Fla. 4th DCA 1974). Applications regarding placement or removal of fences in rights -of -way are governed by Dade County ordinance which —provides that the Public Works Director shall consider the following criteria in determining whether a requested fence will be contrary to the public interest: 1. the location of the existing pavement, if anyl; 2. safe sight distances for motorists2; 3. effect on adjacent land uses3; 4. access to land in the area4; and 5. safe recovery zones for vehicles.° Submitted Ir:. the public record in cony cL; 1 item?Z . sa-. on 3- bb Priscilla A. Thompson . _ City Clerk The Public Works Department determined that the appellants fence was not contrary to the public interest, after -considering all of the above criteria, and therefore recommended against its removal. There being no competent substantial evidence to support the decision of the Zoning Appeal Board, and the criteria for the variance having been met, the decision of the Zoning Appeal Board is therefore reversed. This cause is remanded to the Zoning Appeal --Board for further proceedings consistent with this opinion. Reversed and Remanded. There was no existing pavement near the fence. 2Safe sight of motorists is no more impaired by the fence than by the existing dense hedge just inside the fence along the west portion of the property. .W3Removal of the hedge is not possible. 4There is adequate access to adjoining properties. 5Other fences which are not the subject of this proceeding block traffic from proceeding along this segment of the right-of-way (theoretical 153rd Avenue) http://www.floridalawweekly.com/newsystern/showfile.php?fromsearch=l&file=. Isupfiles/issues/vol3/39... 12/9/2005 GEORGE F. MENDEZ and JEAN U. MENDEZ, Appellants, vs. DADE COUNTY, FLORIDA, BOAR... Page 3 of 3 -6Ordinance No. 94-29, which amends Section 28-18, Code of Metropolitan Dade County. * * * Submitted Into the public record in connect n wi h item pion a vcc, Priscilla A. iTha ps n City Clerk http://ww w.floridalawweekly.com/newsystem/showfile. php?fromsearch=l &file=../supfiles/issues/vol3/39... 12/9/2005 Westlaw. 690 So.2d 700 690 So.2d 700, 22 Fla. L. Weekly D827 (Cite as: 690 So.2d 700) District Court of Appeal of Florida, Third District. Cheryl L. DEBES, as Trustee, Petitioner, v. The CITY OF KEY WEST, Respondent. No. 96-2451. Apri12, 1997. Submittal: 11.... record in connection with item ?Z•3?- on.21y3 ti Priscilla A. Thompson City Clerk Landowner filed petition for certiorari review of decision by the Circuit Court, Monroe County, Sandra Taylor, J., which upheld city commission's denial of application to rezone parcel of owner's property from medium density residential to commercial general. The District Court of Appeal, Schwartz, C.J., held that refusal to rezone property was arbitrary, discriminatory, and unreasonable. Certiorari granted. West Headnotes jlj Zoning and Planning C=168 414k168 City commission's refusal to rezone owner's property from medium density residential to commercial general so as to permit construction of shopping center was arbitrary, discriminatory, and unreasonable, where parcel was surrounded in all directions and on both sides of street by property which was both zoned and used for commercial purposes. u Zoning and Planning €=7168 414k168 City commission could not justify denial of application to rezone owner's property from medium density residential to commercial general on ground that commercial zoning of parcel would create more traffic than noncommercial use. j31 Zoning and Planning C=7168 414k168 City commission could not justify denial of application to rezone owner's property from residential to commercial general on ground that denial promoted creation of adequate housing; promotion of affordable housing, while it may represent desirable public policy, may not be promoted on back of private landowner by depriving Page 1 him of constitutionally protected use of his property. *700 Mattson & Tobin and Andrew M. Tobin, Key Largo, for petitioner. *701 Mark Graham Hanson, for respondent. Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ. SCHWARTZ, Chief Judge. f 11 The petitioner is the owner of undeveloped land on North Roosevelt Boulevard in Key West. The parcel is in the center of what is specifically designated in the city's Comprehensive Plan as a primary commercial area and is, in fact, surrounded in all directions and on both sides of the street by property which is both zoned and used for commercial purposes. Notwithstanding, the Key West City Commission three times denied [FNI 1 an application initiated by its own City Planner, [FN21 and approved by the Planning Board, to amend the designation of the property on the Future Land Use Map (FLUM) from Medium Density Residential (MDR) to Commercial General (CG) [FN31 so as to permit the construction of a shopping center. On this petition for certiorari review of a circuit court decision which upheld the last denial, we conclude that, as a matter of law, "the refusal to rezone the property [was] arbitrary, discriminatory [and] unreasonable." Board of County Comm'rs v. Snyder, 627 So.2d 469, 476 (F1a.1993). FN1. The two previous denials were both quashed on review by the circuit court. Our disposition of the present case makes it unnecessary directly to consider the petitioner's very substantial contention that at least the first of these rulings entitles her to relief under the doctrine of res judicata. FN2. The application stemmed from the professionals' desire to correct what they characterized as their own "mistake" in their designating the parcel as MDR because, at that time, a plan had been submitted to build a residential development on the parcel. In the event, the proposal proved financially unworkable and failed entirely. FN3. CG permits commercial, office and © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 690 So.2d 700 690 So.2d 700, 22 Fla. L. Weekly D827 (Cite as: 690 So.2d 700) residential use. MDR permits residential use. Almost without more, this brief recitation of the characteristics of the area and of the petitioner's particular situation clearly establishes that singling out her property alone for disparate treatment represents a wholly impermissible instance of discriminatory spot zoning --or, in this context, spot planning --in reverse. Tollius v. City of Miami, 96 So.2d 122 (F1a.1957); City Commission v. Woodlawn Park Cemetery Co., 553 So.2d 1227 (Fla. 3d DCA 1989), review denied, 563 So.2d 631 (F1a.1990); City of Coral Gables v. Wepman, 418 So.2d 339 (Fla. 3d DCA 1982), review denied, 424 So.2d 760 (F1a.1982); Olive v. City of Jacksonville, 328 So.2d 854 (Fla. 1st DCA 1976); City of South Miami v. Hillbauer, 312 So.2d 241 (Fla. 3d DCA 1975); City of Miami v. Schutte, 262 So.2d 14 (Fla. 3d DCA 1972); see Parking Facilities, Inc. v. City of Miami Beach, 88 So.2d 141 (F1a.1956)(spot zoning); County of Brevard v. Woodham, 223 So.2d 344 (Fla. 4th DCA 1969)(same), cert. denied, 229 So.2d 872 (F1a.1969); 7 F1a.Jur.2d Building, Zoning, & Land Controls § 110, at 512 (1978). The city contends, however, that its action is justified by (a) "substantial, competent evidence," Snyder, 627 So.2d at 475, [FN4] before the Commission that commercial zoning of the petitioner's parcel would result in increased traffic and (b) a desire to encourage the building of "affordable housing" in the city --a result which would in effect be mandated by the MDR designation because it excludes commercial or office use. Neither position has a semblance of merit. FN4. While we agree that Snyder provides the appropriate standard of review, see Snyder 627 So.2d at 469; City of Ft. Lauderdale v. Multidyne Medical Waste Management, Inc., 567 So.2d 955 (Fla. 4th DCA 1990), review denied, 581 So.2d 165 (F1a.1991), the issue is not determinative or even important in our consideration of the case. As we suspect is very often the case, the application of any possible formulation of the showing necessary either to support or to overturn a local government's decision of the present kind, including the "fairly debatable" standard deemed appropriate in Martin County v. Yusem, 690 So.2d 1288 (Fla. Case No. 87,078, opinion filed, March 27, 1997)[22 FLW S156]; e.g., Allapattah Community Assn v. City of Miami, 379 V Urb1rn i tte'°,S ..ii'..� record in ck.iif r ieot `.ki i item 'PZ • 3a- on A Priscilla A. Th s it City Clerk So.2d 387 (Fla. 3d DCA 1980), cert. denied, 386 So.2d 635 (F1a.1980), would yield the same result. See Metropolitan Dade County v. Fuller, 515 So.2d 1312, 1314 n. 4 (Fla. 3d DCA 1987). Page 2 2l 1. Traffic Increase No Justification. Because it is virtually self-evident that, by its very nature, all commercial uses create "more traffic" than non- commercial ones, it is equally obvious that local government cannot *702 justify a denial of a particular commercial use on this ground. To hold otherwise would mean, as it apparently did in the proceedings before the Commission, that the protectable rights of any owner may be arbitrarily destroyed. This is not, and we will not let it be, the law. Tollius, 96 So.2d at 122 (change in neighborhood to commercial use requires restrictions to residential use to be relaxed). Indeed, the Commission's actions in this case involve almost every one of the several bases upon which courts both here and elsewhere have rejected the contention that a potential traffic increase may support the denial of otherwise required commercial zoning. 5 Rathkopfs The Law of Zoning & Planning § 59.03 (4th ed. 1996), and cases collected at § 59.03[3] (denial of commercial use unjustified by showing merely of a "generalized increase in traffic due to an increase in intensity of use"); § 59.03[4]("a desire to prevent an undesirable increase in traffic congestion is not sufficient justification for the retention of an unsuitable or unreasonable zoning classification"); § 59.03[5] ("[z]oning classifications and permit decisions based on a desire to avoid increased traffic congestion may be held invalid where such action involves unreasonable discrimination between neighboring tracts or similar uses"; citing Florida Mining & Materials Corp. v. Port Orange, 518 So.2d 311 (Fla. 5th DCA 1987) (reversing denial of special permit to construct cement plant based on fact that cement trucks would pass through residential area, when trucks from other, similar businesses were permitted to do so), review denied, 528 So.2d 1181 (F1a.1988)); § 59.03[6] ("[z]oning classification or restrictions based on traffic conditions may be held invalid ... where land is uniquely burdened to extract a public benefit as a substitute for proper traffic management and control"). As the petitioner correctly argues, the traffic problems which may or may not be presented by her proposed commercial development of the property are properly considered in the administrative process © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 690 So.2d 700 690 So.2d 700, 22 Fla. L. Weekly D827 (Cite as: 690 So.2d 700) which the city has itself established. See 5 Rathkopfs The Law of Zoning & Planning § 59.03[1], [3]. Generalized fears of an increase in traffic are wholly inappropriate, however, to deny any one landowner the rights to which he is entitled. 3I J 2. Promotion of Affordable Housing No Justification. The claim that the city's action may be justified as promoting the creation of adequate housing is, if anything, even more obviously deficient. While this aim may represent a desirable public policy --which might support, for example, the condemnation of property for that use, see State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (F1a.1980)--it emphatically may not be promoted on the back of a private landowner by depriving him of the constitutionally protected use of his property. As the estimable Judge Cowart correctly and succinctly stated: A property owner is entitled to have his property properly zoned based on proper zoning concepts without regard to the one particular use which the owner might then intend to make of the various uses permitted under a proper zoning classification. A zoning authority's insistence on considering the owner's specific use of a parcel of land constitutes not zoning but direct governmental control of the actual use of each parcel of land which is inconsistent with constitutionally guaranteed private property rights. Porpoise Point Partnership v. St. Johns County, 470 So.2d 850, 851 (Fia. 5th DCA 1985); accord ABG Real Estate Dev. Co. v. St. Johns County, 608 So.2d 59, 63 (Fla. 5th DCA 1992), cause dismissed, 613 So.2d 8 (F1a.1993). In sum, the record reflects that the only reason for the denial of the proposed rezoning was that the opposition --of the city's existing merchants to the competition represented by the prospective commercial use of the property and of those who wanted more housing --had the votes. We reiterate, however, what was said in the reverse situation presented by a city's approval of an unjustified zoning change in Allapattah Community Ass'n v. City of Miami, 379 So.2d 387, 394 (Fla. 3d DCA 19801, cert. denied, 386 So.2d 635 (F1a.1980): The [courts] ... will not and cannot approve a zoning regulation --or any governmental action adversely affecting the *703 rights of others -- which is based on no more than the fact that those who support it have the power to work their will. Accord, e.g., Town of Ponce Inlet v. Rancourt, 627 So.2d 586, 588 n. 1 (Fla. 5th DCA 1993); City of Apopka v. Orange County, 299 So.2d 657 (Fla. 4th Page 3 DCA 1974). For these reasons, we conclude that the circuit court decision so fundamentally and seriously departs from the controlling law that a miscarriage of justice has resulted and that review on certiorari is therefore both justified and required. Haines Ciry Community Dev. v. Heggs, 658 So.2d 523 (F1a.1995); Snyder, 627 So.2d at 469; Metropolitan Dade County v. Blumenthal, 675 So.2d 598 (Fla. 3d DCA 1995), review dismissed, 680 So.2d 421 (F1a.1996); ABG, 608 So.2d at 59. Upon that review, the decision is quashed and the cause remanded with directions to require the City Commission to grant the application in question. Certiorari granted. 690 So.2d 700, 22 Fia. L. Weekly D827 END OF DOCUMENT Submitted Into the public record in connecti ri with item 1 Z-3a:- on a a3 Priscilla A. Tho apson City Clerk © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 10 Page 2 of 4 719 So.2d 1204 719 So.2d 1204, 23 Fla. L. Weekly D1866 (Cite as: 719 So.2d 1204) H District Court of Appeal of Florida,Third District. METROPOLITAN DADE COUNTY a/k/a Miami -Dade County, Petitioner, v. SECTION 11 PROPERTY CORPORATION and Waycar Commercial Properties, Inc., Respondents. No. 98-761. Aug. 12, 1998. Rehearing Denied Nov. 18, 1998. Submitted into the public record in connection with item P2.32. on.2-}3-oc, Priscilla A. Thompson --. ` City Clerk County commission denied requested special exception to permit land to be developed as mini self -storage facility. Property owners appealed. The Circuit Court, Dade County, Appellate Division, Michael B. Chavies, Marc Schumacker, and Jeri B. Cohen, JJ., reversed denial of special exception. County petitioned for writ of certiorari. The District Court of Appeal, Goderich, J., held that evidence supported commission's denial of special exception, as commission could consider aesthetics as well as use in examining issue of compatibility. Petition granted, order quashed, and county commission's resolution reinstated. West Headnotes Zoning and Planning 414 €517 414 Zoning and Planning 4141X Variances or Exceptions 414IX(A) In General 414k502 Particular Structures or Uses 414k517 k. Warehousing and Storage. Most Cited Cases Evidence supported county commission's denial of requested special exception that would permit land to be developed as mini self -storage facility, as commission could consider aesthetics as well as use in examining issue of compatibility; along with site plan, elevation drawings, and aerial photograph, Page 1 commission received testimony of several neighbors who characterized project as industrial and who stated that project would be aesthetically incompatible with surrounding residential neighborhood. *1204 Robert A. Ginsburg, County Attorney, and Jay W. Williams, Assistant County Attorney, for petitioner. Bilzin Sumberg Dunn Price & Axelrod, Stanley Price, Eileen Ball Mehta and Michael W. Larkin, Miami, for respondents. Before COPE, GODERICH and SORONDO, JJ. GODERICH, Judge. The petitioner, Metropolitan Dade County, seeks a writ of certiorari to the circuit court, appellate division, quashing the circuit court's opinion. We grant the petition. In the underlying case, Section 11 Property Corporation and Waycar Commercial Properties, Inc., the owners of a three -acre parcel of property currently zoned BU-1A (limited business district), petitioned the Metropolitan Dade County Commission for a special exception that would permit the land to be developed as a mini self -storage facility. FN 1 FNI. A self -storage facility is a permitted use in the BU-1A zone if approved as a special exception by a public hearing. At the hearing, the applicants presented a site plan, elevation drawings, and an aerial photograph. The proposed development, located in a mostly residential area, included six single -story storage buildings and a large two-story storage building connected to a small two-story office building. Four of the seven long, rectangular buildings, including the two-story storage building, were each © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=B005580000... 12/14/2005 75- 0/0 56 719 So.2d 1204 719 So.2d 1204, 23 Fla. L. Weekly D1866 (Cite as: 719 So.2d 1204) longer than a football field. Except for the small office building, each of the buildings was windowless with access to the storage bays through garage -style overhead metal doors. At the hearing, the County's Planning and Zoning Divisions recommended approval of the application for the special exception stating that the self -storage facility, with a landscape buffer, would be compatible with the surrounding areas and would be consistent with the County's Comprehensive Development Master Plan. The County's Zoning Division opined that the proposed use would generate substantially less traffic volume than other permitted uses. On the other *1205 hand, neighbors vehemently opposed the proposed use. Neighbors stated that there was no need for such a facility, and that such a facility would increase traffic and noise, decrease property values, and be industrial -looking and not aesthetically pleasing. After considering all the evidence, the County Commission passed a resolution denying the application for a special exception finding that "the requested special exception would not be compatible with the area and its development and would not conform with the requirement and intent of the Zoning Procedure Ordinance, and that the requested exception would have an adverse impact upon the public interest...." The applicants appealed this denial to the circuit court sitting in its appellate capacity. In its opinion, the circuit court properly explained that a special exception is a permitted use to which the applicant is entitled unless the zoning authorities determine that the use would adversely affect the public interest and that once the applicant demonstrates compliance with the applicable legislative criteria, there is a presumption that the use applied for is permitted and the burden shifts to those who oppose the exception to demonstrate by substantial competent evidence that the proposed use is adverse to the public interest. The circuit court then noted that in this case the County had conceded that the applicants had met the legislative criteria and that the sole issue before it was to determine whether the County Commission's finding of incompatibility was supported by substantial competent evidence. The circuit court Submitted Into the public record in connection with item ?Z.3.1- on a-a.3-oc• Priscilla A. Thompson City Clerk Page 3 of 4 Page 2 then reviewed the evidence presented at the hearing and determined that the only opposition testimony heard was that of the neighbors who stated that there was no need for such a facility, and that such a facility would increase traffic and noise, decrease property values, and be industrial -looking and not aesthetically pleasing. The circuit court then noted that although fact -based citizen testimony can constitute substantial competent evidence, in this case, the citizen testimony was merely opinion. On this basis, the circuit court found that the County Commission's finding of incompatibility was not supported by substantial competent evidence and reversed the County Commission's denial of the special exception. The County now petitions this Court for a writ of certiorari to the circuit court quashing the circuit court's order. The County contends that the circuit court departed from the essential requirements of law by reversing the County Commission's denial of the requested special exception where the Commission's denial was supported by substantial competent evidence. We agree. In the instant case, when the Commission examined the issue of compatibility, it properly considered aesthetics, as well as use. Encuentros Familares, Inc. v. Musgrove, 511 So.2d 645, 648 (Fla. 3d DCA 1987); City of St. Petersburg v. Cardinal Indus. Dev. Corp., 493 So.2d 535, 537-38 (Fla. 2d DCA 1986). The Commission received the testimony of several neighbors who characterized the project as " industrial" and who stated that the project would be incompatible with the surrounding residential neighborhood. Specifically, one neighbor stated that the self -storage facility would be "an eyesore." He commented that any proposed landscaping to try to enhance the appearance of the self -storage facility would not be effective and stated, "it's almost like trying to put an elephant in a Volkswagon, you still know the elephant is there." This fact -based testimony regarding the aesthetic incompatibility of the project with the surrounding neighborhood, coupled with the site plan, elevation drawings, and the aerial photograph constituted substantial competent evidence supporting the denial of the exception. Metropolitan Dade County v. Sportacres Dev. Group, Inc., 698 So.2d 281, 282 © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://print.westlaw. com/delivery.html?dest=atp&format=HTMLE&dataid=B005580000... 12/14/2005 Page 4 of 4 719 So.2d 1204 Page 3 719 So.2d 1204, 23 Fla. L. Weekly D1866 (Cite as: 719 So.2d 1204) (Fla. 3d DCA 1997); Metropolitan Dade County v. Blumenthal, 675 So.2d 598, 607 (Fla. 3d DCA), review dismissed, 680 So.2d 421 (F1a.1996). Where, as here, the County Commission's denial of the special exception was supported by substantial competent evidence, we find that the circuit court departed from the essential requirements of the law. We grant the petition for writ of certiorari, quash the order of the circuit court, and reinstate the County Commission's resolution *1206 denying the application for the special exception. F1a.App. 3 Dist.,1998. Metropolitan Dade County v. Section 11 Property Corp. 719 So.2d 1204, 23 Fla. L. Weekly D1866 END OF DOCUMENT Submitted Into the public record in connection with item = n oP Priscilla A. Thompson City Clerk © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://print.westlaw.comldelivery.html?dest=atp&format=HTMLE&dataid=B005580000... 12/14/2005