HomeMy WebLinkAbout05-21-2024 Supporting DocumentsSenior
Meeting
Attendance
Volunteer
Items of Note
Scholarship Award
Attendance
Ratio
Hours
$500
Kennedy Whitley
9/12
75%
49
Any absences were for testing or school activities; currently
Years of membership:
serves as Chair
Years of membership:
Robert Davidson
11/12
92%
35.5
2024
2023-2024
'Missed meetings were for medical reasons; volunteered to
$250
Bayleigh Castle
10/12
83%
32.5
author the essay for the volunteer project competition
Years of membership:
2023-2024
All students mentioned above have met the current requirements provided inthe scholarship guidelines,
OYC Coordinato/""14 A ),6*-
CITY OF OCEE
} 1 N. Bluford Avenue
Ocoee, Florida 34761
ocoee
f,o,;da 407-905-3100
SPEAKING RESERVATION FORM
NOTE: All submitted speaking reservation forms are public records under Chapter 119, Florida Statutes, and are
open to inspec#ion by all persons.
DATE r� -'
NAME PHONE #
OCOEE RESIDENT YES ENO ❑ '
f'4 � /( f t/�
(OPTIONAL) ADDRESS ZIP CODE
E-MAIL ` WO V �d ��
I want to address the Board about (Please provide Item # and/or topic):
Do you have a prepared statement, or other document(s) from which you will address the Board?
04
Yes if yes, please attach copy of same to this Reservation Form.
All proceedings before the Commission -shall be governedthe Civility
The following time limits to speak are in effect:
Public Hearings: petitioner presentation - 15 minutes; citizen comments - 5 minutes per speaker; petitioner rebuttal - 5 minutes.
Open to Public — Citizens Comments - 3 minutes per speaker, per meeting.
CITY OF OCOEE
V 1 N. Bluford Avenue
ocoe(? Ocoee, Florida 34761
flodda 407-905-3100
SPEAKING RESERVATION FORM
NOTE: All submitted speaking reservation forms are public records under Chapter 119, Florida Statutes,
and are open to inspection by all persons.
DATE �—k g�a�
NAME JCL(, PHONE PHONE#
OCOEE RESIDENT YES NO El
(OPTIONAL) ADDRESS CITY ZIP CODE
E-MAIL
I want to address the Board about (Please provide Item # and/or topic):
C(X-�("cy4s -gxves�ign C
-r- soshti pared state �entr o lherLdoN"eCnt'—(s)Yr9 w%ch(WI'T address
Do you have a prepa
No V Yes if yes, please attach copy of same to this Reservation Form
!'e' cymk)n
(�6x�
The following time limits to speak are in effect:
:public _UpArings: petitioner presentation - 15 minutes; citizen comments - 5 minutes per speaker; petitioner rebuttal - 5
minutes.
Open to Public — Citizens Comments - 3 minutes per speaker, per meeting.
CITY OF OCOEE CIVILITY CODE - adopted July 1, 2003.
7,ursuant to Resolution No. 2003-16 adopted on July 1, 2003, the following Civility Code shall govern all
-.troceedings before the City of Ocoee City Commission and Boards -
I . All electronic devices, including cell phones and pagers, shall be either turned off or otherwise silenced.
2. Prolonged conversations shall be conducted outside Commission Chambers.
3. Clapping, whistling, heckling, gesturing, loud conversations, or other disruptive behavior is prohibited.
4. Only those individuals who have submitted speaker forms and who have been recognized by the Mayor
(or Chair) may address comments to the Commission (or Board).
5. Comments at public hearings shall be limited to the subject being considered by the Commission.
6. Comments at Citizens Comments shall be directed to City issues.
7. All public comments shall avoid personal attacks, abusive language, and redundancy.
8. No person attending a Commission or Board meeting is to harass, annoy or otherwise disturb any other
person in the room.
Vv- CITY OF OCOEE
1 N. Bluford Avenue
ocoee Ocoee, Florida 34761
407-905-3100
SPEAKING RESE 'i'R'VATION FORM
NOTE: All submitted speaking reservation forms are public records under Chapter 119, Florida Statutes, and are
open to inspe t" by all persons.
DATE, 77- V.
NAME PHONE#
OCOEE RESIDENT YES 1!5NO 7
(OPTIONAL) ADDRESS CITY ZIP CODE
E-MAIL
I want to address the Board about (Please provide Item # and/or topic):
-e -���DL C" 6-''
Do you have a prepared statement, or other document(s) from which you will address the Board?
No Yes if yes, please attach copy of same to this Reservation Form.
All proceedings before the Commission shall be governed by the Civility Code — see back
The following time limits to speak are in effect:
Public Hearings: petitioner presentation - 15 minutes; citizen comments - 5 minutes per speaker; petitioner rebuttal - 5 minutes.
Open to Public — Citizens Comments - 3 minutes per speaker, per meeting.
'40 a_�e CITY OF OCOEE
X, C
rV\ 44 _'ggr 1 N. Bluford Avenue
0;t, C1 .
C> Ocoee, Florida 34761
ocoe. ri�'(C'Jr
f I ori'la 1 3 4105-3)
SPEAKING RESERVATION FORM ,
NOTE: All submitted speaking reservation forms are public records under Chapter 119, Florida Statutes, and are
open to inspection by all persons.
DATE J
NAME PHONE#
OCOEE RESIDENT YES NO El
(OPTIONAL) ADDRESS —CITY.
enree_
I want to address the Board about (Pease proyide Item # and/or topic):
ZIP CODE3L(
Do you have a prepared statement, or other document(s) from which you will address the Board?
No X Yes if yes, please attach copy of same to this Reservation Form.
lg� gjgppqyi��1�11 ji 0 11; 1 V! 9! V MTV" 10 TV � W'', "KIFFU11112
The following time limits to speak are in effect:
Public Hearings: petitioner presentation - 15 minutes; citizen comments - 5 minutes per speaker; petitioner rebuttal - 5
minutes.
Open to Public — Citizens Comments - 3 minutes per speaker, per meeting.
CITY OF OCOEE
law 1 N. Bluford Avenue
ocoee Ocoee, Florida 34761
llorida 407-905-3100
Rall SPEAKING RESERVATION FORM
NOTE: All submitted speaking reservation forms are public records under Chapter 119, Florida Statutes, and are
open to inspection by all persons.
DATE
NAME PHONE#
OCOEE RESIDENT YES ZK"NO ■
(OPTIONAL) ADDRESS Eq0Cu�2n LtaA s2o�—uTy ZIP COD
E-MAIL
I want to address the Board about (Please provide Item # and/or topic):
2)A e x! L,) Dekla-&LL,!t ctyd 71
Do you have a prepared statement, or other document(s) from which you will address the Board?
No Yes if yes, please attach copy of same to this Reservation Form.
The following time limits to speak are in effect:
Public Hearings: petitioner presentation - 15 minutes; citizen comments - 5 minutes per speaker; petitioner rebuttal - 5
minutes,
Open to Public — Citizens Comments - 3 minutes per speaker, per meeting.
CITY OF OCOEE
1 N.,Bluford Avenue
l Ocoee, Florida 34761
o CCU ee 407-905-3100
flortdc
SPEAKING RESERVATION FORM
NOTE: All submitted speaking reservation forms are public records under Chapter 119, Florida Statutes, and are
open to inspections by all persons.
DATE J
NAME 4
OCOEE RESIDENT YES NO ❑
(OPTIONAL) ADDRESS 0 7 1 a 7t r CS k�CITY z(P CODE l r�
E—MAIL
I want to address the Board about (Please provide Item # and/or topic):
oc'Dee 4/1
Do you have a prepared statement, or other document(s) from which you will address the Board?
No Yes rX` if yes, please attach copy of same to this Reservation Form.
All proceedings before the Commission shalt be governed by the Civility Code — see Lack
The following time limits to speak are in effect:
Public Hearings: petitioner presentation - 15 minutes; citizen comments- 5 minutes per speaker; petitioner rebuttal - 5
minutes.
Open to Public — Citizens Comments - 3 minutes per speaker, per meeting.
CITY OF OCOEE
6) 440 1 N. Bluford Avenue
Ocoee, Florida 34761
ocoee 407-905-3100
I I 0'I'd.
SPEAKIMr. RESERVATION FORM
NOTE: All submitted speaking reservation forms are public records under Chapter 119, Florida Statutes, and are
open to inspection by all persons.
DATE
NAME /* PHONE
OCOEE RESIDENT YES NO D
CITY ZIP CODE_
(OPTIONAL) ADDRESS
E-MAIL
I want to address the Board aoyt (Please ,provide Item # andfor topic):
Do you have a prepared statement, or other document(s) from which you will address the Board?
No Yes if yes, please attach copy of same to this Reservation Form.
All proceedings before the Commission shall be governed by the Civility Code — see back
The following time limits to speak are in effect:
Public Hearings. petitioner presentation - 15 minutes; citizen comments - 5 minutes per speaker; petitioner rebuttal - 5
minutes.
Open to Public — Citizens Comments - 3 minutes per speaker, per meeting.
CI
TY OF OCOEE
1 N. Bluford Avenue
Ocoee, Florida 34761
O CCU e e 407-905-3100
florida
SPEAKING RESERVATION FORM
eakin reservation forms are public records under Chapter 119, Florida Statutes, and are
NOTE: All submitted sp g
open to inspection by all persons.
DATE PHONE #
NAME r1
OCOEE RESIDENT YES NO p
CITY __ ZIP CODE
(OPTIONAL) ADDRESS _W
I want to address the Board about (Please provide Item # and/or topic):
1i
ich you will address the Board?
Do you have a prepared statement, or other document(s) from wh
No
Lsz� Yes if yes, please attach copy of same to this Reservation Form.
ed by the Civility e
11 proceedings before the Commission shall be govern
The following time limits to speak are in effect:
�u blic Hearin s: petitioner presentation 15 minutes; citizen c mer ents - 5gminutes per speaker; petitioner rebuttal - 5 minutes.
Onen to Publ►c — Citizens Comments - 3 minutes per speaker,
CITY OF OCOEE
I N. Bluford Avenue
Ocoee, Florida 34761
ocoee 407-905-3100
florlde
qD=At<1Wr. RESERVATION FORM
NOTE: All submitted speaking reservation forms are public records under Chapter 119, Florida Statutes, and are
open to inspection by all persons.
DATE a,4
PHONE #
NAME
OCOEE RESIDENT YES NO FD j
Zip CODE
(OPTIONAL) ADDRESS CITY--V
E-MAIL
I want to address the Board about (Please provide Item # and/or topic):
041
t C�� V 1A-1t1G61Tc%11V16`--
Do you have a prepared statement, or other document(s) from which you will address the Board?
No Yes_ if yes, please attach copy of same to this Reservation Form.
A . 11 proceedings before the Commission shall be governed by the Civility Code — see back
The following time limits to speak are in effect:
Public Hearings: petitioner presentation - 15 minutes; citizen comments - 5 minutes per speaker; petitioner rebuttal - 5
minutes.
Open to Public — Citizens Comments- 3 minutes per speaker, per meeting.
CITY OF OCOEE
1 N. Bluford Avenue
Ocoee, Florida 34761
o CCU e e 407-905-3100
f[ot[do
mr`S (7 rC.SEIZ Tl
NOTE: All submitted speaking reservation forms are public records under Chapter 119, Florida Statutes, and are
open to inspection by all persons.
DATE fir: .. .
Z . 0
J � � PHONE #
NAME
OCOEE RESIDENT YES NO ❑
CITY ZIP CODE
(OPTIONAL) ADDRESS
E-MAI L
1 want to a dress the Board about (Please p
vide It m # and/or topic):
Do You have a prepared s afiemenfi, or other document(s) from which you will address the Board?
No
Yes if yes; please attach copy of same to this Reservation Form.
kafnrp the Commission shall be governed by the Civility Code — see hack
The following time limits to speak are in effect:
etitioner rebuttal - 5
Public Hearings: petitioner presentation -15 minutes; citizen comments - 5 minutes per speaker; p
minutes. per speaker, p meeting.
O en to Public — Citizens Comments - 3 minutes p, per g.
NOTE: All submitted speaking reservation forms are public records under Chapter 119` Florida Statutes, and are
open bzinspection byall persons.
con
OCOEE RESIDENT YES VI/ )NO F� L
(OPTIONAL) ADDRESS xA2,2 OmiePCODE": 3?/ all
`
I want toaddress the Board obouA(Pleaqe provide Item ppand/or :
Do e a prepared statement, orother dnournantka from which you will address the Board?
No Yes_____ ifyes, please attach copy ofsame tnthis Reservation Form.
All proceedings before the Commission shall be governed by the Civility Code — see back
The following time limits to speak are in effect:
Public Hearings: petitioner presentation - 15 minutes; citizen comments - 5 minutes per speaker; petitioner rebuttal - 5 minutes.
Open to Public — Citizens Comments - 3 minutes per speaker, per meeting.
Sibbitt, Melanie
From: noreply@civicpIus.com
Sent: Tuesday, May 21, 2024 11:42 AM
To: Citizens; City Clerk DL
Subject: Online Form Submittal: Speaking Reservation Form
If you are having problems viewing this HTML email, click to view a Text version.
NOTE: All submitted speaking reservation forms are public records under Chapter 119, Florida Statutes, and are open to
inspection by all persons. We also have a printable PQF Form.
Date:* OCOEE RESIDENT:
05/2112024 (X) Yes O No
NAME:* PHONE#
Andrea Jones 407 579 1315
(OPTIONAL) Address: (Please, Not a P.O. Box) City:
Switch Grass Circle Ocoee
State: Zip:
FIL 34761
Email Address:
andreagjones13@gmaii.com
I want to address the Board about (Please provide Item # and/or topic):
A4 A Rarnnel Pandinn of Ordinnnea ftir (ItArrianin Pninf a Pa7nninn
Any member of the public whose behavior is disruptive and violates the City of Ocoee Civility Code is subject to
removal from the Commission (or Board) meeting by an officer and such other action as may be appropriate,
CITY OF OCOEE
1 N. Bluford Avenue
ocoee Ocoee, Florida 34761
407-905-3100
SPEAKING RESERVATION FORM
NOTE: All submitted speaking reservation forms are public records under Chapter 119, Florida Statutes, and are
open to inspection by all persons.
DATE
NAME
PHONE'
#
OCOEE RESIDENT YES Xt NO El
(OPTIONAL) ADDRESS CITYJ ZIP CODE,
E-MAIL
I want to address the Board about (Please provide Item # ad/or topic):
Do you have a prepared statement, or other document(s) from which you will address the Board?
No Yes if yes, please attach copy of same to this Reservation Form.
All proceedings before the Commission shall be governed by the Civility Code — see back
The following time limits to speak are in effect:
Public Hearings: petitioner presentation - 15 minutes; citizen comments - 5 minutes per speaker; petitioner rebuttal - 5 minutes.
Open to Public — Citizens Comments - 3 minutes per speaker, per meeting.
From: noreply@civicplus.com
Sent: Tuesday, K4ey21, 2024 5:47 PM
To: Citizens; City Clerk DL
if you are having problems viewing this HTML email, click toview aText version.
Speaking Reservation Form �/��
H��� ��
NOTE: All submitted speaking reservation forms are public records under Chapter 119, Florida Statutes, and are open to
inspection byall persons, VVCalso have o printable PDF Form.
Date:* OCCJEERES|DENT:
6/21/24 () Yea () No
PHONE#
Christopher Webster
(OPTIONAL) Address: (Please, Not aP]]. Box) City:
Ocoee
Stab*: Zip:
FL 34761
Email Address:
I want to address the Board about (Please provide Item # and/or topic):
Traffic by Prairie, Lake
You may send questions and comments to citizans@ocoee.org.
Do you have a prepared statement, or other document(s) from File Upload
which you will address the Board? I I
(if yes, please attach copy of same to this Reservation Form.)* Convert to PDF?[
Seaver, Sherry
From: Kennedy, Scott
Sent Tuesday May 21,2U245:S2PK4
To; Seaver, Sherry
Subject: FVV: Gardenia Pointe - Request for Meeting
From: Laurie M.Perez <Lauhe.Perez@graymbimsonzVmP
Sent: Monday, May 13,202 10:42AM
To: Kennedy, Scott <SKennedy@wcoeaorg>
Cc: Jason VV.Sea[|/Jason.Sear|@gray-robinson.00nn>
Subject: Gardenia Pointe ' Request for Meeting
Good morning, Commissioner Kennedy —
Can you please let me know if you would be available for a meeting to discuss Gardenia Pointe with Mr. Seadprior to
the next City Council Meeting scheduled for the Z1s"7 Heisalready going fobeover there for ameeting with the Mayor
nnThursday, May 16matI2:OO. If you are not available that afternoon, please let me know what other day and time
would work for you and I can confirm Mr. Searl's availability.
Laurie M. Perez
Legal Assistant
T 407.843,8880
F 407.244.5690
� � '�—`
GmyRobinson,P.A.~301 East Pine Street, Suite 1400,Orlando, Florida32801
PAY �����~���K ��
v���� ���_�����a~aSON
ATTORNEYS xADVISORS »CONSULTANTS
This e-mail is intended only for theindividua|(s) orenUty($ named within the meesage. This e-mail might contain legally privileged
L911mus
1. Which Standard of Review to Use for a Rezoning?
0 There are 2 types, depending on whether the request is a comprehensive plan amendment or a rezoning.
Here ... since no comprehensive plan amendment - because project's proposed density is less than max city
allows and, as such, already complies with city's adopted comprehensive plan - this is only a site specific
rezoning, the standard is, "quasi judicial" in nature, and is subject to a "competent substantial evidence" standard
aUnder Florida law, an applicant has initial burden of demonstrating through competent substantial evidence
the rezoning request complies with the local government's adopted code criteria. Once an applicant satisfies its
initial burden of demonstrating compliance with applicable code requirements the application must be granted,
unless the opposition carries its burden, which is to demonstrate [by competent substantial evidence] that the
applicant's requests do not meet the standards." See Jesus Fellowship (752 So.2d 708, Fla. 3rd DCA 2000)
2, What is Competent Substantial Evidence?
0 Now, the staff report of a local government's professional planning staff constitutes competent substantial
evidence where they "contain relevant valid evidence which supports the Commission's decision." See Jesus
Fellowship (cite above), As you've already heard from city's own professional planning staff in the comprehensive
presentation to you, our requested rezoning complies with city's adopted code criteria and is supported by
competent substantial evidence (which includes the staff report together with staff's presentation, and the
applicant's and its expert witness testimony), so the applicant has met its burden here
3. What is Not Competent Substantial Evidence?
Going back to our April 16 th commission meeting continued discussion, there was a focus regarding
perceived traffic impacts. Florida courts, in the case of traffic impacts, since it is an area where technical
expertise is required, have generally held that lay opinion testimony does NOT constitute valid evidence upon
which a local government decision may be based in whole or in part, See Jesus Fellowship (cite above). Further,
in a local case involving the City of Deland, the court found that generalized statements in opposition to a project
do NOT constitute competent substantial evidence upon which local government can base a quasi-judicial zoning
decision. See City of Deland (577 So.2d 593, Fla. 5th DCA 1991). "Lay witnesses" speculation about "potential
traffic problems, light and noise pollution" and general unfavorable impacts of a proposed land use are NOT
considered competent substantial evidence, See Katherine's Bay (52 So.3d 19, Fla. Dist. Ct. App. 2010).
Generalized fears of an increase in traffic are insufficient to justify the denial of a rezoning application.
See Debes (690 So.2d 700, Fla. Dist. Ct. App. 1997)
0 the local government must evaluate a development application based solely upon the "definite,
objective" criteria adopted .in its enacted regulations (i.e. comprehensive plan and city code). Adding to such
published criteria during the hearing process or basing its decision on anything but such criteria is not permitted.
See Omni Point Holdings (811 So.2d 767, Fla. 3d DCA 2002)
Nequested Action to Approve Ordinance Rezoning Gardenia Pointe to PUD
/22605/9960521698 vI
Jesus Fellowship, Inc. v. Miami -Dade County, 752 So-2d 708 (2000)
25 Fla. L. Weekly D481, 25 Fla. L. Weekly D1179
KeyCite Yellow Flag - Negative Treatment
Distinguished by Miami -Dade County v. Publix Supermarkets, Inc.. Fla.App.
3 Dist., May 6, 2020
752 So.2d 708
District Court of Appeal of Florida,
Third District.
JESUS FELLOWSHIP, INC., Petitioner,
V.
MIAMI-DADE COUNTY,
Florida, Respondent.
No. 3D99-1073.
I
Feb. 23,2000,
Synopsis
After the county commission denied a portion of church's
zoning application to allow private school, church petitioned
for writ of certiorari and the Circuit Court, Appellate
Division, Dade County, Frechicka Smith, Arthur Rothenburg,
and Thomas Wilson Jr., JJ., affirmed commission's denial.
Church petitioned for writ of certiorari. The District Court of
Appeal, Fletcher, J,, held that church was entitled to approval
of zoning application for special exceptions and unusual use
to permit private school with grades K-12 and 524 students.
Circuit Court order quashed . and case remanded with
instructions.
West Headnotes (4)
III Zoning and Planning Scope and Extent of
Review
District Court of Appeal's review of the Circuit
Court's decision on appeal of decision by Zoning
Appeals Board is limited to determining whether
the Circuit Court afforded due process and
correctly applied the correct law.
Zoning and Planning Public interest or
6
welfare
Applicant seeking special exceptions and
unusual uses need only demonstrate to decision -
making body that its proposal is consistent
with county's land use plan, that uses are
specifically authorized as special exceptions and
unusual uses in applicable zoning district, and
that requests meet with applicable zoning code
standards of review; if this is accomplished, then
application must be granted unless opposition
carries its burden, which is to demonstrate that
applicant's requests do not meet standards and
are in fact adverse to the public interest.
4 Cases that cite this headnote
[3] Zoning and Planning t Schools and
education
Church was entitled to approval of zoning
application for special exceptions and unusual
use to permit private school with grades
K-12 and 524 students, and should not
have been limited to grades K-6 and 150
students, as evidence before county commission,
including county zoning maps, professional
staff recommendations, aerial photographs, and
testimony in objection, were either irrelevant or
supported church's position.
3 Cases that cite this headnote
141 Zoning and Planning t-= Grounds for -I-ant or
denial in general
Past violations are not a basis to deny a
present pending application that meets the code
standards.
2 Cases that cite this headnote
Attorneys and Law Firms
5 Cases that cite this hcadnOtc *708 Mathew D. Staver and Erick W. Stanley, Liberty
Counsel (Orlando); DiBartolomeo & DiBartolomeo and Dean
nberg Dunn Price &
[2] Zoning and Planning o- Grounds for grant or D. DiBartolomeo, Miami; Bilzin Sui i;
denial in gencral Axelrod and Michael W. Larkin and Jerry B. Proctor, Miami;
for petitioner.
'J �,i
Jesus Fellowship, Inc. v. Miami -Dade County, 752 So.2d 708 (2000)
25 Fla,'L Weekly D481, 25 Fla. L. Weekly D1 179
Robert A. Ginsberg, County Attorney, Augusto Maxwell,
Assistant County Attorney; Kathryn Knicricin Estevez,
Miami; Adorno & Zeder, Fort Lauderdale, and George I-,.
Knox, Miami, for respondent.
Before JORGENSON, COPE, and FLETCHER, JJ.
Opinion
FLETCHER, Judge.
Jesus Fellowship, Inc. [Church] petitions this court for a writ
of certiorari asking that we vacate an order entered by the
circuit court, acting in its appellate capacity, which order
affirmed the decision of the Miami -Dade County Commission
[Commission] denying a portion of the Church's zoning
application. We grant the petition and quash the circuit court's
decision.
The Church owns 12.2 acres in a residential area zoned
for one -acre estate *709 homes.' In 1997, the Church
filed a zoning application for special exceptions and an
unusual use to permit the expansion of the Church's religious
facilities and to permit a private school and a day care center.
After reviewing the application the county's professional staff
recommended denial of the requests. At the public hearing
before the Zoning Appeals Board 2 [ZAB] the Church agreed
to several changes which satisfied the professional staff,
bringing about its recommendation of approval. Among the
Church's concessions was a limitation to an enrollment of 524
students. The ZAB approved the application with the changes.
The ZAB decision was appealed to the Commission by
a number of objectors'. The county's professional staff
continued to recommend approval with the ZAB-authorized
524 students, The Commission approved the Church's
application generally but denied it in part, limiting the school
to grades K-6 and 150 students. The Church petitioned the
circuit court for a writ of certiorari alleging, inter alia, that the
Commission's decision reducing the number of students and
grades was not supported by substantial competent evidence.
The circuit court upheld the Commission's partial denial.
[11 This court's review of the circuit court's decision is
limited to determining whether the circuit court afforded due
process and correctly applied the correct law. 1111alitro v. City
qfCoral Gables. 619 So.2d 455 (Fla. 3d DCA 1993); see
also Herrera v. (.`itv ql'Aliami, 600 So.2(1561 (Fla, 3d DCA),
review denied, 613 So.2d 2 (Fla. 1992). Our review of the
record indicates that the circuit court missed its mark. It failed
to correctly apply the correct law as its decision allows the
use of incompetent evidence to support the Commission's
decision and fails to apply the principles applicable to special
exceptions and unusual uses.
[21 An applicant seeking special exceptions and unusual
uses need only demonstrate to the decision -making body that
its proposal is consistent with the county's land use plan;
that the uses are specifically authorized as special exceptions
and unusual uses in the applicable zoning district; and that
the requests meet with the applicable zoning code standards
of review. If this is accomplished, then the application must
be granted unless the opposition carries its burden, which
is to demonstrate that the applicant's requests do not meet
the standards and are in fact adverse to the public interest.3
See lri,ine i,. Duval Couqy Planning Comm., 495 So.2d 167
(Fla.1986); illelropolitan Dade County i�. Faller; 497 So.2d
1322 (Fla. 3d DCA 1986).
[31 The basis for the circuit court's errors here was
its conclusion that the simple fact that the Commission
had before it the county zoning maps, the professional
staff recommendations, aerial photographs, and testimony
in objection was a sufficient basis for the Commission's
denial. The mere presence in the record of these items is not,
however, sufficient. They must be or contain relevant valid
evidence which supports the Commission's decision.
In reaching its conclusion the circuit court relied on
Meiropolitan Dade CounfY v, Blumenthal, 675 So.2d 598 (Fla.
3d DCA 1995), review dismissed, 680 So.2d 421 (Fla. 1996).
Therein the zoning maps and testimony contained evidence
of the surrounding densities in the area, in a case involving a
rezoning, i.e., a change of residential density, and not, as here,
special exceptions or unusual uses, which do not involve a
district boundary change (rezoning). In Blumenthal the maps
were *710 relevant evidence necessary for the Commission
to view in order to compare the existing surrounding districts'
densities to assure consistency therewith (either a like density
or a consistent step up -or down -in density). In the Church's
case the maps of the surrounding zoning districts are not
evidence which support the Commission's decision, The only
zoning district inquiry here was whether the subject property
is in a zoning district which permits the requested uses. This
was not an issue as the land use plan and the zoning district
permit the Church's request for the special exceptions and
unusual.use.
Jesus Fellowship, Inc. v. Miami -Dade County, 752 So.2d 708 (2000)
25 Fla'. L. -Weekly D481, 25 Fla. L Weekly D 1179
Further, the circuit court concluded that the professional
staffs report was evidence supporting the Commission's
denial. This clearly is not the case as the staffs report to the
Commission was for approval, the staff unequivocally stating
that all of the applicable standards were met by the requests.
This is not evidence supporting the denial,
Additionally, the testimony offered by the objectors does
not qu alify as supportive evidence (or evidence at all in
most cases) as a thorough review of the objectors' case
demonstrates:
The first witness, an engineer, complained that there would
be more traffic on the neighborhood streets, 4 but quickly
announced that he was not testifying as an expert. Where
technical expertise is required lay opinion testimony is not
valid evidence upon which a special exception determination
can be based in whole or in part. See Pollard i� Palm Beach
Comav, 560 So.2d 1358 (Fla. 4th DCA 1.990); City of .4popka
v Orallae colmm,, 299 So.2d 657 (Fla. 4th DCA 1974).
el
The objectors' second witness testified that he wished to
preserve the residential -character of his neighborhood and
was concerned about the loss of what he described as
"green space," However, churches and schools are part of
the residential neighborhood character per the land use plan
and the applicable zoning. As to his concerns regarding
green space, the Church did not seek a variance thereof. The
amount of green space to be provided meets the county's code
standard. The testimony of this witness does not support the
denial. Irihie, 495 So.2d 167; Fidlei; 497 So.2d 1322.
141 The third- objecting witness submitted numerous letters
of protest and complained of past violations on the property.
The letters are not evidence. City ol'Apopko, 299 So.2d 657.
Past violations are not a basis to deny a present pending
application that meets the code standards.')
The next witness called by the objectors was the Church's
reverend. The transcript 6 reveals an examination that
meandered through the operation of the Church; how the
expansion is to be financed; and the make-up of the
congregation. This line of questioning prompted Commission
members to inquire as to its relevancy to land use issues. The
answer to their inquiry, of course, is that it does not bear on the
special exception/unusual use standards, thus is not relevant.
Irvine, 495 So.2d 167; Fuller, 497 So.2d 1322,
The objectors' final witness was Guillermo Olmedillo, the
director of planning. Olmedillo's testimony reveals only that
it fortified his written opinion that the Church's application
met all code standards.?
Nowhere in the hearing record does there appear any
evidence relating to the restriction to grades K-6 and to 150
students. After the evidentiary hearing closed, the restriction
appeared, without a *711 warning of its impending arrival,
as a "suggestion" by the objectors' attorney, T.150. It was
promptly pounced upon by the Coininission, put into the forrn
of the denial motion, and passed.
In summary, the Church presented sufficient evidence to
carry its burden; the objectors presented only testimony and
documents that support the Church's application or which
the courts have held not to be evidence. When the circuit
court decided there was evidence (substantial, competent)
to support the Commission's denial of the application, it
failed to apply the correct law as to the granting or denial
of special exceptions and unusual uses, and failed to apply
the correct law as to what constitutes competent evidence
in such cases. As a result we quash the circuit court's order
and remand the case with instructions to the circuit court to
direct the Commission to remove the limitation to K-6 and
150 students and to grant the application with grades K-12
and 524 students. 8
All Citations
752 So.2d 708, 25 Fla, L. Weekly D481, 25 Fla, L. Weekly
D1179
Footnotes
Churches and schools are permitted uses in residential areas under the county's land use plan. See Machado v
Musgrove, 519 So.2d 629 (Fla. 3d DCA 1987), cert. denied, 529 So.2d 693 (Fla. 1988).
2 As it was then constituted.
. , Jesus Fellowship, Inc, xMiami-Dade County, 752So.2d7Vg(2oVu)
' 3 Of course, if the opposition demonstrates that a request is inconsistent with the zoning authority's land use plan, then
denial ininorder. Such iunot the case here aaweobserved infootnote 1.
4 However, the only ingress and egress proposed for the site is8TthAvenue, not "neighborhood" street; rather Uis a
state minor arterial road.
5 8does, however, show lax enforcement hythe county inthe past.
6 Twenty-six (20pages of transcript.
7 For example:
^Q. So therefore is it not fair to say that the application pursuant to mouvdy|nable standards is compatible and
completely consistent with the standards delineated inthe Dade County Zoning Code?
A. It is consistent with the Dade County Zoning Code, yes,"
8 Wedonot reach the other issues and express no opinion one way or another unthem.
End of 6ocument 0 2024 Thomson Reuters. No claim to original US,
Government Works.
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Colonial Apartments, L.P. v. City of Deland, 577 So.2d 593 (1991)
16 Fla. L Weekly 505
577 So.2d 593
District Court of Appeal of Florida,
Fifth District.
COLONIAL APARTMENTS,
L.P., etc., Petitioner,
I - V.
CITY OF eLAND, etc., Respondent.
No. 90-1377.
Feb. 14,1991,
I
Rehearing Denied April 8, 1991.
Synopsis
Limited partnership sought to construct apartment project
and sought approval of site plan. City denied approval.
Partnership petitioned for writ of certiorari, The Circuit
Court denied the petition. Partnership petitioned for writ of
certiorari to review Circuit Court's denial, The District Court
of Appeal, Peterson, 1, held that city could not approve site
plan for construction of apartment complex which would have
density of 13 units per acre on condition that density not
exceed 6 units per acre, in that ordinance specifically allowed
for density of 16 units per acre in district in which complex
was sought to be built.
Writ granted, order quashed, remanded with directions.
West Headnotes (5)
111 Zoning and Planning - Grounds for grant or
denial in general
Opinions of neighbors, by themselves, are
insufficient to support denial of proposed
development,
I Case that cites this headnote
121 Zoning and Planning Other particular
conditions or agreements
City could not approve site plan for construction
of apartment project which would have density
of 13 units per acre on condition that density not
exceed 6 units per acre; 16 units per acre was
within term "low density" used in statement of
intent portion of zoning ordinance, and nothing
in ordinance would leave one who examined
it to suspect that term "compatibility" as used
in statement of intent was meant to allow
adjustment of cap of 16 units per acre.
2 Cases that cite this headnote
[31 Zoning and Planning ..- One -family, two-
family, or multiple dwellings
While project density is legitimate concern and
is most important concern, it is concern that
must be addressed and expressed in appropriate
ordinances.
[4] Zoning and Planning �,= One -family, two-
family, or multiple dwellings
When law establishes specific allowable density,
its clear terms cannot be varied by forced
interpretation of intent.
[51 Zoning and Planning Permits, certificates,
and approvals in general
Review by District Court of Appeal of circuit
court's decision denying petitioner's challenge
to city's denial of approval of site plan was
limited to determination of whether circuit court
afforded procedural due process and applied
correct law. US.C.A. Const.Amends. 5, 14.
Attorneys and Law Firms
*594 Jason G. Reynolds of Coble, Barkin, Gordon, Morris
& Reynolds, RA., Daytona Beach, for petitioner.
Astrid de Parry, City Atty., Deland, for respondent.
Opinion
PETERSON, Judge.
Colonial Apartments, L.P. v. City of Deland, 577 S0.2d 593 (1991)
16 Fla: L. Weekly 505
Colonial Apartments, L.P., petitions for a writ of certiorari
to review the circuit court's denial of a petition for a writ of
certiorari filed in that court. The petition in the circuit court
asked for relief from an administrative action by the City
of Deland in denying approval of a site plan submitted by
petitioner. We grant the writ.
Petitioner sought to construct an apartment project on an
approximately twenty -acre site in the City of Deland: The
site had been rezoned R-4 under section 33-8.1 of the Deland
Code of Ordinances at the time of its annexation into the city
in 1972. The ordinance has remained substantially unchanged
since the annexation,
Pertinent portions of the ordinance provide:
(A) Statement of intent. The intent of the R-4 dwelling
district is to:
(1) Permit the construction of totally planned single-
family cluster developments or duplexes, triplexes
and low -density low-rise garden type apartments on
relatively large tracts of land in single or common
ownership;
(2) Require the preparation and approval of detailed
site, landscape, traffic, parking and other plans deemed
necessary as part of an overall development concept;
(3) Require a greater amount of open space and
recreation area to building area; and
(4) Achieve an esthetic and compatible relationship
between buildings, yards, patios, parking areas, common
open space, recreation areas, and adjacent properties.
(E) Dimensional requirements. The following
requirements shall apply in the R-4 District:
(1) Minfinuiri project site. A two-family or multi -family
dwelling project site should be approximately one acre
or more in area in order to accoirimodate at least two (2)
or three (3) buildin gs, and in any case be sufficient in
size to meet the requirements set out herein.
(2) Project density, The maximum allowable number of
dwelling units shall not exceed sixteen (16) units per
acre.
(F) Building height. In order to encourage variety in the
appearance of building roof lines and more usable or
landscaped area, developers are permitted to design a
portion of the iriulti-family dwelling project to a maximum
height of three (3) stories or forty-five (45) feet provided
the following conditions are met:
(3) No three-story structures shall be located adjacent to
a single-family residential area as shown on the zoning
map or land use plan.
(H) Screening. A minimum five-foot high screen shall be
provided along side and rear lot lines that abut upon a
single-family residential area as shown on the zoning map
or land use plan but shall not be required in any front yard
or along side lot lines abutting a street, park, stream, lake
or golf course...
(N) Architecture and environmental quality guidelines. In
order to promote architectural and environmental quality
within the project, the developer is encouraged to utilize
the following guidelines in designing the project:
(2) The architectural design of buildings should be
developed with consideration *595 given to the
relationship of existing adjacent development in terms
of building height, mass, texture, line, and pattern.
Additionally, the ordinance provided in rather specific
tern -is for setback requirements, spacing between buildings,
number of stories and height requirements, minimum livable
floor area in square feet, screening, parking requirements
and design, vehicle access lanes, sidewalks, open space
requirements, landscaping, signs, and architectural and
environmental quality guidelines.
Petitioner attempted to comply with the requirements of the
ordinance and submitted for approval a site plan that provided
for a density of thirteen units per acre. The city's planning
authorities recommended to the city commission that the plan
be approved with certain changes not involving density; the
Colonial Apartments, L.P. v. City of DeLand, 577 So.2d 593 (1991)
16 Fla. L.-W-66-k-ly 5-0-5,
petitioner agreed in writing to make the suggested changes.
The city commission tabled action on the plan at the first
consideration when adjoining landowners voiced opposition.
Then, at a contiriission meeting on December 18, 1989, final
action was taken that approved the plan with the single
condition that the density not exceed six units per acre. The
city directed a letter to petitioner on December 21, 1989,
stating the reason for its action:
1. Based upon Section 33-8,1(A)(1), the proposed
development did not meet the criteria of being "low -density
low-rise garden type apartments on relatively large tracts
of land"; and
2. Based upon Section 33-81(A)(4), the proposed
development did not achieve an aesthetic and compatible
relationship with the adjacent properties.
Petitioner then requested that the circuit court grant review of
the action of the city commission and argued that the action
had the practical effect of illegally down -zoning the site from
sixteen to six units per acre. The city responded by arguing
that the site had never been properly zoned R-4 when annexed
because of non-compliance by the applicant and the city
with notice and hearing requirements and/or a required sketch
development plan. The city further argued that a planned
development in the RA zoning district was more analogous to
a special exception use than a rezoning, and that density was
a proper consideration tinder the "statement of intent" portion
of the ordinance that required an "aesthetic and compatible
relationship" with adjacent properties.
The circuit court denied the petition in a sixteen -page opinion
and order in which it discussed: (1) the illegality of the initial
rezoning (noting that it was not necessary to rule upon this
issue since "all parties agreed that the R-4 zoning designation
should be presumed valid"); (2) the inadequate level of city
services and increase in traffic; (3) the fact that the site
is surrounded on three sides by low density, single-family,
residential and agricultural use and the fact that the closest
existing multi -family development has a density of 4.25 to
4.5 units per acre; and (4) the generally accepted planning
standard for low-dcnsity, multi -family developments of five
to eight units per acre. The order concluded by holding that the
city had discretion to condition site plan approval for a multi-
family development in the R-4 zoning district on a reduction
of project density, and that the city's determination was
supported by substantial, competent evidence that six dwelling
units per acre would be more compatible with surrounding
properties. The circuit court also commented that "[p]roject
density is of legitimate concern to the City Commission
in determining whether or not to approve a site plan for a
multifamily development in the R-4 zoning district."
The appendices provided by the parties included copies of
the legislative history of the annexation, including 1972
minutes and ordinances. That history reflected that the
primary purpose of the city in annexing the site in 1972
was to promote the joint efforts of 'developers of lands
in the general location of the site to construct a master
sewer lift station and discourage installation of four to six
individual small package treatment plants. Nothing in the
1972 records provides the slightest hint that density was
a consideration except the statement *596 in ordinance
number 72-34 that "the building of R-4 multiple family
dwellings on the subject property would be consistent with
the City's Comprehensive Use Plan, which plan has been
approved by the Planning Board of the City of DeLand as
well as the technical assistance of the Volusia Council of
Goverrintents...." The appendices contain neither copies of
pertinent portions of the comprehensive plans nor minutes
of the 1989 city commission meetings that would allow any
insight into the substantial down -zoning of the site.
We view the issue that was presented to the circuit court as one
of construction of the R-4 ordinance. While there may have
been an additional issue initially on the validity of ordinance
72-34 that zoned the site R-4 and annexed it into the city
limits of DeLand, that issue was removed from consideration
by the circuit court through the stipulation of the parties.
[1] The elected and appointed officials charged with the
administration of city and county government are subjected to
increasing pressures. On one hand, they are pressed to allow
growth only if it is commensurate with available roads and
services. On the other hand is the pressure from landowners
who wish to develop their vacant properties in a manner
that results in the largest return of capital or pleasure. Still
another pressure is the desire of neighbors who do not
wish their present enjoyment of their lands disrupted in the
slightest by the use of adjoining vacant property. Opposition
of surrounding property owners must be considered by the
city in the instant case since the statement of intent of the
RA ordinance includes the desire to achieve aesthetic and
compatible relationships between adjacent properties. But
the opinions of neighbors by themselves are insufficient to
support a denial of a proposed development, BML In ivsunews
v. Qji qfCasselberi-Y', 476 So.2-d 713 (Fla. 5th DCA 1985),
V",
Colonial Apartiflents, L.R v. City of DeLand, 577 So.2d 593 (1991)
UW66kly'5O5
rev. denied, 486 So.2d 595 (F1a.1986); Conefla is City of
Sarasolu, 400 So.2d 1051 (Fla. 2d DCA 1981).
General rules of statutory construction in zoning matters have
evolved in past judicial attempts at interpretation and are
appropriate in our review of the DeLand ordinance. Some of
the basic rules were set forth in Rinker lVetterials Coq)orotion
v. City a ,f'Morth illfianti, 286 So.2d 552 (Fla.] 973):
(a) In statutory construction, statutes must be given their
plain and obvious meaning and it must be assumed that the
legislative body knew the plain and ordinary meanings of
the words.
(c) Since zoning regulations are in derogation of private
rights of ownership, words used in a zoning ordinance
should be given their broadest meaning when there is no
definition or clear intent to the contrary and the ordinance
should be interpreted in favor of the property owner.
Id. at 553 (footnotes omitted). In Rinker, the supreme court
also cited Rose v. Torun of ffillsboro Beach, 216 So.2d 258
(Fla, 4th DCA 1968), for the rule that courts generally may
not insert words or phrases in municipal ordinances in order to
express intentions which do not appear, unless it is clear that
the omission was inadvertent, and must give to an ordinance
the plain and ordinary meaning of the words employed by the
legislative body. -1d. at 553.
[21 This court followed another basic rule in ON ol"Ormond
Beach i,, State ex rel. Del Marco, 426 So.2d 1029 (Fla.
5th DCA 1983), when we stated that the primary guide
to statutory interpretation is the determination of legislative
intent. it is only the interpretation of the statement of intent of
the DeLand ordinance that causes the problem in the instant
case, since the other portions of. the ordinance are rather
precise in directing the manner in which a parcel of land
designated R-4 may be used. This statement of intent was used
by the city to vary the rather straightforward pronouncement
of the ordinance that limited the project density to sixteen
units per acre. The record shows there was no evidence of
intent before the trial court other than the language of the
ordinance and the history of the annexation. The history
seems to indicate that the city *597 induced the then -
landowner to seek annexation in return for the R-4 zoning and
availability of sewer facilities.
As to the language of the ordinance, we note the following:
1. The ordinance does not define the terms "low density"
and "large tracts of land" as stated in section 33-8.1(A)
(1), Some assistance in interpreting the term "low -density"
can be gleaned, however, from several sections of the
ordinance:
(a) Subsection (E)(1) provides that a imilti-family
dwelling project site ("multiple -family dwelling"),
which includes a "garden apartment" pursuant to
subsection (13)(3), should be approximately one acre
or more in size to accommodate at least two or
three buildings, Subsection (13)(2) describes a garden
apartment as a group of two to eight owner- or renter -
occupied dwelling units, but this number may be
increased to twelve if approved by the planning board.
This implies that each building can have eight units
without the approval of the planning board. If eight
units are allowed and at least two buildings are to be
accommodated on approximately one acre, a simple
calculation allows us to arrive at the maximum project
density of sixteen units per acre. Whether sixteen units
per acre are considered low, medium, or high density in
other legislation is not clear or even material to this case,
but in this ordinance, this number of units appears to fit
the definition of a low -density, garden -type apartment,
(b) The ordinance contemplates that the R-4 zoning
use would be placed adjacent to a single-family
residential area indicating compatibility, Subsection
(17)(3) prohibits three-story structures adjacent to a
single-family residential area, and subsection (H)
requires screening through the use of hedges and
wood or masomy construction along side and rear
lot lines abutting a single-family residential area. This
recognition in the ordinance that R-4 and single-family
districts can abut in the city's scheme of zoning
undercuts the city's argument that the instant petitioner's
attempt to gain approval of a site -plan showing
thirteen units per acre is absurd when considering the
surrounding properties. The city's own professional
planning board did not seem to consider the site -plan
absurd when it endorsed it with suggested changes not
involving a density change.
The operative portions of the ordinance reviewed indicate
that, for purposes of this ordinance, sixteen units per acre
is within the term "low density" used in the statement of
intent portion of the ordinance. Furthermore, nothing in the
ordinance would lead one who examines the ordinance to
Colonial Apartments, L.P. v. City of Deland, 577 So.2d 593 (1991)
suspect that the term "compatibility" as used in the statement today in determining land value. When a law establishes a
of intent was meant to allow adjustment of the cap of sixteen specific allowable density, its clear terms cannot be varied by
units per acre prescribed in subsection (E). a forced interpretation of intent. Such an ordinance should be
interpreted in accordance with its plain meaning.
The city relies in part on Life Concepts, Inc. v. flarelen,
562 So.2d 726 (Fla, 5th DCA 1990), for its contention
that the allowable density can be adjusted because the
statement of intent requires that a project have a "compatible
relationship" with adjacent properties. The City of Apopka
ordinance under review in Lift Concepts required that a use be
"compatible with the surrounding residential uses." However,
that ordinance is unlike the one in the instant case in that
the phrase used in Apopka constituted a density restriction.
The operative portion of the Apopka ordinance specifically
provided that "[t]he maxiinum number of occupants to reside
in the facility shall be compatible with the surrounding
residential uses ...... Id. at 727. Moreover, unlike DeLand's
ordinance, Apopka's ordinance never specified density at a
certain number. We find most significant the comment in Life
Concepts: "Had the ordinance provided a specific numerical
cap on the occupancy of the home, the zoning board would
have been prohibited from considering the actual impact of
the proposed use." Life Concepts, at 728.
[31 141 We agree with the city that project density is
a legitimate concern and go further in stating that it t is
a most important concern. But it is a concern that must
be addressed and expressed in appropriate ordinances. A
community should be developed in accordance with planned
action. Development decisions should not be *598 made
in reaction to an application that relies on an ordinance
establishing a density no longer acceptable to the majority
of the current members of a governing body. Owners are
entitled to fair play; the lands which may represent their life
fortunes should notbe subjected to ad hoc legislation. Density
is one of the most important elements in the marketplace
End of DOGLIMPtIt
[5] Our review of the circuit court's decision is limited to
a determination of whether that court afforded procedural
due process and applied the correct law. City ofDeerfield
Beach v. Naillant, 419 So.2d 624 (Fla.] 9821). The correct law
applicable in this case is that the ordinance should be given
its plain meaning and that any doubts should be construed
in favor of a property owner. The circuit court's reliance
upon the undefined and uncertain standards contained in the
statement of intent when clear and specific numbers of units
are expressed in that same ordinance is not an interpretation
that recognizes the plain meaning of the ordinance. It is
not fair to the governed that the simple issue of how many
dwelling units are allowed under this city ordinance requires
a sixteen -page trial court opinion interpreting the ordinance
against a clearly expressed number.
We grant the writ of certiorari, quash the order of the circuit
court, and remand to the circuit court with directions to quash
the administrative decision by the City of Deland to impose
a condition that the density of petitioner's development not
exceed six dwelling units per acre.
Writ GRANTED; order QUASHED; REMANDED with
directions.
W. SHARP and GOSIIORN, JJ., concur.
All Citations
577 So.2d 593, 16 Fla. L. Weekly 505
Oc 2024 Thomson heaters, No claim to original U.S.
Government Works,
.... . . ......
.,.it. "Ah
Katherine's Bay, LLC v. Fagan, 52 So,3d 19 (2010)
3 Fia-'.'LWeekly b275b'
52 So.3d 19
District Court of Appeal of Florida, First District,
KATHERINE'S BAY,
LLC, Intervenor, Appellant,
V.
Ronald J. FAGAN and
Citrus County, Appellees.
No. 1DI0-939
I
Dec. 14, 2010,
Synopsis
Background: Developer sought review of Department
of Administration decision approving ALJ's ruling that
rezoning of its property from low intensity coastal lakes
(CL) to Recreational Vehicle Park/Carripground (RVP) was
invalid because it rendered the county's comprehensive plan
internally inconsistent. Neighboring landowner intervened,
Holdings: The District Court of Appeal, Lewis, J., held that:
[ I ] assertion that recommendation of the county staff was not
given sufficient weight was unreviewable;
West Headnotes (12)
M
In
[2] ALYs finding that property had severe environmental [3]
limitations was thoroughly supported by the county staffs
report;
[3] ALYs finding of severe environmental limitations was
insufficient to justify overriding county's determination that
amendment to plan was proper;
[4] ALJ erred by relying on neighboring landowner's
testimony concerning impact of rezoning; and
[5] reliance by ALJ on definitions provided in Administrative
Code was proper.
Reversed and remanded.
U
Zoning and Planning .— Preservation before
board or officer of _grounds of review
Argument that the ALJ applied the wrong
standard was not properly before District Court
of Appeal, where appellant stood silent when
appellee argued that the fairly debatable standard
did not apply and when the ALJ invited appellant
to provide contrary authority.
Zoning and Planning ,- Modification or
amendment; rezoning
Assertion that recommendation of the county
staff was not given sufficient weight by
Department of Administration was unreviewable
on appeal from decision approving ALYs ruling
that rezoning of developer's property from low
intensity coastal lakes (CL) to Recreational
Vehicle Park/Campground (RVP) was invalid
because it rendered the county's comprehensive
plan internally inconsistent; it was not the role of
the District Court of Appeal to reweigh evidence
anew.
Zoning and -Planning .:— Particular Uses or
Restrictions
ALYs finding that property, which was rezoned
from low intensity coastal lakes (CL) to
Recreational Vehicle Park/Campground (RVP),
had severe environmental limitations was
thoroughly supported by the county staffs report,
although ALJ did not agree with staff s ultimate
conclusion; ALJ recited report heavily and
relied on its concrete findings which showed
the environmental limitations of the subject
property.
Zoning and Planning --- Particular Uses or
Restrictions
Zoning and Planning Cl- Do novo review in
general
Katherine's Bay, LLC v. Fagan, 52 So.3d 19 (2010)
35 Fla. L. Weekly D2759
Whether ALJ erred in relying on a general When all the pertinent provisions of county's
policy in county's comprehensive plan when comprehensive plan were considered in
more specific policies existed was an pari materia, mere fact that area had
issue of law to be reviewed de novo environmental limitations was not basis to
in review of Department of Administration prohibit development, as long as it was
decision that rezoning of developer's property carried out in accordance with limitations
from low intensity coastal lakes (CL) to provided by plan and county's land development
Recreational Vehicle Park/Carripground (RVP) code, and, thus, ALYs finding of severe
was invalid because it rendered the county's environmental limitations was insufficient to
comprehensive plan internally inconsistent; but, justify overriding county's determination that
Department of Administration was correct amendment to comprehensive plan changing
that ALJ was required to presume that zoning from low intensity coastal lakes (CL) to
county's determination that the amendment Recreational Vehicle Park/Campground (RVP)
to comprehensive plan complied with Local was proper, where, under plan, entire coastal area
Government Comprehensive Planning and Land was considered environmentally sensitive, with
Development Regulation Act and, thus, was future development expected, West's F.S.A.
consistent with the plan. West's F.S.A, § 163,3187(3)(a).
1 b3.31 g7(3)(a).
191 Zoning and Planning F Particular Uses or
151
Zoning and Planning - Coin pi-chen sive or
Restrictions
general plan
ALJ erred by relying on neighboring landowner's
Rules of statutory construction are applicable to
testimony concerning impact of rezoning of
the interpretation of comprehensive plans.
developer's land from low intensity coastal lakes
(CL) to Recreational Vehicle Park/Campground
I Case that cites this headnote
(RVP) on potential light pollution, increased
traffic, and negative impacts on value of homes
16]
Statutes General and specific terms and
in the area; there were no facts to support his
provisions; ejusdern gencris
concerns, county staffs report indicated that
traffic issue was studied by an expert who
Specific provisions of statutes control over
determined that increased traffic would not
general -icral ones,
unduly burden the area, and ALJ gave undue
emphasis to landowner's preference not to have
an RV park as a neighbor, but preference in itself
[7]
Statutes Construing together; harmony
I--
was insufficient to override developer's desire to
Statutes =LL Superfluousness
build an RV park on its land.
Statutes In pari materia
I Case that cites this headnote
One provision of statute should not be read in
such a way that it renders another provision
meaningless; all statutory provisions on related
[10] Zoning and Planning Particular Uses or
subjects are read in pari materia and harmonized
Res(rictions,
so that each is given effect.
Reliance by ALJ, who was considering
whether rezoning of developer's property
I Case that cites this headnote
from low intensity coastal lakes (CL) to
Recreational Vehicle Park/Campground (RVP)
181
Zoning and Planning Particular Uses or
was invalid because it rendered the county's
Restrictions
comprehensive plan internally inconsistent, on
definitions provided in Administrative Code
P
Katherine's Bay, LI-C v. Fagan, 52 So.3d 19 (2010)
35'Fla. L VVe'ekl'y'D2759
was proper where county's comprehensive
plan did not define term "compatible,"
and because statute governing process for
adoption of comprehensive plan defined in
"compliance" as consistent with requirements of
state comprehensive plan, appropriate strategic
regional policy plan, and with chapter of
Administrative Code governing criteria for
review of local government comprehensive
plans and plan amendments. 'West's F,S,A. §§
163.3171, 163,3178, 163.3180, 163.3184(1)(b),
163,3191, 163.3245; Fla.Admin.Code Ann. r.
9J-5.003(23).
I Case that cites this headnote
III] Zoning and Planning (;= Change to plan
itself, in general
To show that amendment to county's
comprehensive plan provided for an
incompatible land use, landowner was required
to prove that, because of new future land use
category assigned to neighboring developer's
property, the land uses or conditions in the
area could not coexist in a stable fashion over
time such that no use or condition was unduly
negatively impacted directly or indirectly by
another use or condition.
1121 Zoning and Planning ,=- Evidence
Lay witnesses may offer their views in land
use cases about matters not requiring expert
testimony; lay witnesses may testify about the
natural beauty of an area because this is not an
issue requiring expertise, but their speculation
about potential traffic problems, light and noise
pollution, and general unfavorable impacts of a
proposed land use are not considered competent,
substantial evidence.
Attorneys and Law Firms
*21 Clark A. Stillwell, Inverness, for Appellant.
Shaw P. Stiller, General Counsel, Department of Community
Affairs, Tallahassee, and Denise A. Lyn, Inverness, for
Appellees.
Opinion
LEWIS, J.
Katherine's Bay, LLC, Appellant, seeks review of a
final order issued by the Administration Commission ("the
Commission"), which adopted an administrative law judge's
("ALF') holding that a small-scale development amendment
("the Amendment") to Citrus County's Comprehensive
Plan ("the Plan") was invalid because it rendered the
Plan internally inconsistent. The ALJ and the Commission
recognized two grounds for finding the Amendment
inconsistent with the Plan: first, that it violated a policy
in the Plan's Future Land Use Element ("FLUE") requiring
compatibility of land uses; and second, that it violated a
policy in the Plan's FLUE requiring the County to guide
future development to areas with minimal environmental
limitations. Appellant challenges both grounds. As to the first
ground, Appellant argues that there was a lack of competent,
substantial evidence to support the ALYs finding that the
Amendment approved a future land use designation that was
incompatible with the surrounding uses. We agree. As to the
second ground, Appellant argues both that there was a lack of
competent, substantial evidence to support the ALJ's factual
findings and that the ALYs ultimate conclusion resulted from
an erroneous construction of the Plan. While we do find
competent, substantial evidence of the findings the ALI made
in relation to the second ground, we hold that the findings
did not support the conclusion that the Amendment rendered
the Plan internally inconsistent. Because the ALYs conclusion
that the Amendment rendered the Plan internally inconsistent
is not supported by either of the FLUE policies at issue, we
reverse and remand to the Commission for reinstatement of
the ordinance,
*22 I. Facts and Procedural History
On May 26, 2009, the Citrus County Board of County
Commissioners adopted an ordinance that amended the Plan's
Generalized Future Land Use Map ("GFLUM"), which is
a part of the FLUE. The Amendment changed the future
land use designation of a 9.9—acre parcel of land owned by
Appellant, based on Appellant's application for such a change.
wj,!
Katherine's Bay, LLC v. Fagan, 52 So.3d 19 (2010)
25 Fla. L,Weekly D-27-5-9,
The subject property is located in a geographic region defined
by Citrus County as the "Coastal Area." According to the
Plan, "[t]he Coastal Area parallels the Gulf of Mexico, and the
boundary may be described as following the west side of US-
19 north from the Hernando County line to the Withlacoochee
River." The Plan notes that "[t]his boundary is the basis for
an environmentally sensitive overlay zone to be used for land
use regulatory purposes."
Before the Amendment, the subject property was designated
Low Intensity Coastal and Lakes ("CL"), which the Plan
defines in pertinent part as follows:
Low Intensity Coastal and Lakes (CL)
This land use category designates those areas having
environmental characteristics that are sensitive to
development and therefore should be protected.
Residential development in this district is limited to a
maximum of one dwelling -unit per 20 acres...
In addition to single family residential development,
the following land uses may be allowed provided the
permitted use is compatible with the surrounding area,
and standards for development are met as specified in
the Citrus County Land Development Code (LDC)[:]
• Multifamily residences (in existing platted areas only or
in lieu of clustering single family units at a density of one
unit per lot of record and requiring the recombination of
said lots. For example, a duplex requires two lots to be
recombined into a single parcel, a quadruplex four lots,
etc.)
• Recreational uses
• Agricultural and Silviculture uses
• Public/Semi—Public, Institutional facilities
• Home occupations
• Now railroad right-of-way, storage facilities, or related
Structures
• Cornirmnication towers
• Utilities
• Commercial fishing and marina related uses
• Commercial uses that are water related, water dependent,
or necessary for the support of the immediate
population[.]
The Amendment changed the subject property's future
land use category from CL to Recreational Vehicle Park/
Campground ("RVP"), which the Plan defines in pertinent
part as follows:
Recreational Vehicle Park/Campground (RVP)
This category is intended to recognize existing
Recreational Vehicle (RV) Parks and Campgrounds, as
well as to provide for the location and development
of new parks for recreational vehicles. Such parks
are intended specifically to allow temporary living
accommodation for recreation, camping, or travel use.
New RV parks shall be required to preserve thirty percent
(30%) of the gross site area as permanent open space,
consistent with Policy 17.15,11 of this Plan.
*23 In addition to RV/campsite development, the
following land uses as detailed in the Land Development
Code, shall be allowed provided the permitted use is
compatible with the surrounding area, and standards for
development are met as specified in the County Land
Development Code:
• Recreational Uses
• Agricultural and Silvicultural Uses
• Public/Seirii—Public, Institutional Facilities
• Convenience retail and personal services to serve park
visitors and guests up to one percent of the gross site
area, not to exceed 5,000 square feet, located within
the development and not accessible from any external
road[.]
After the Amendment changing the subject property's future
land use category from CL to RVP was adopted, Appellee, the
owner of neighboring property, challenged the Amendment
under the procedure set forth in section 163.3187(3)(a),
Florida Statutes (2008). Appellee argued that the Amendment
was not "in compliance" with the Local Government
Comprehensive Planning and Land Development Regulation
Act ("the Act") because it rendered the Plan internally
inconsistent. Appellee identified two policies in the FLUE,
Katherine's Bay, LLC v. Fagan, 52 So.3d 19 (2010)
among others, that he claimed were inconsistent with the
Amendment. Those policies are 17.2.7 and 17.2.8, and they
provide as follows:
Policy 17.2.7 The County shall guide future development
to the most appropriate areas, as depicted on the
GFLUM, specifically those with minimal environinental
limitations and the availability of necessary services.
Policy 17.2.8 The County shall utilize land use techniques
and development standards to achieve a functional
and compatible land use framework which reduces
incompatible land uses.
Appellant intervened in the proceedings, and the matter
proceeded to a section 120.57 hearing.
The parties stipulated that the subject property is located
across the road from Appellee's property, which is on the
Homosassa River, and that the subject property is bordered
in all directions by property designated as either CL or
Coastal and Lakes Residential ("CLR"). They also stipulated
that there exists on Appellant's property a parcel designated
Coastal/Lakes—Commercial ("CLC") I and that this property
is being used as an RV park because this use of the property is
vested. Further, they stipulated that Appellee's property was
in the Coastal High Hazard Area ("CHHA").
At the hearing, Appellee supported his argument that the
Amendment rendered the subject property incompatible
with the surrounding uses primarily by presenting his own
testimony and that of his neighbor. Appellee described the
beauty and peacefulness of the area and opined that the
introduction of another RV park into the area would lead to
increased traffic, litter, noise, and light pollution. He testified
that the vested RV park currently existing on Appellant's
property is an "eyesore" that "looks like a bunch of junk
stored on the front lawn." Appellee also testified that, in 1993,
there was a major flood in the area around his home, which
was so severe that he had to tie boats to his mailbox to keep
them from floating down *24 the road. He was concerned
that the RV park Appellant planned to develop on the subject
property would require him to manage even more debris
in the event of a natural disaster. Appellee also expressed
concern that the RV park would decrease his property value.
A neighbor expressed the same concerns about the potential
for increased traffic and decreased property values in the area.
The evidence concerning the subject property's
environmental limitations came in the form of the County
Staffs report and the testimony of Dr. Timothy Pitts and Sue
Farnsworth, both of whom were employed by the County
as planners. The report was prepared by Dr. Pitts, who was
the County's Senior Planner of Community Development at
the time. According to the County Staffs report, the subject
property was studied by officials in the fire prevention,
engineering, -Litilities,,and environmental divisions. The fire
prevention. and engineering representatives recommended
approval of the application with conditions, and the utilities
representative recommended approval. The environmental
planner did not recommend approval or denial but noted that
the subject property was within a "Karst Sensitive Arca."2
Additionally, the report indicated that a "traffic analysis" had
revealed that "adequate capacity exists on Halls River Road
for anticipated traffic at the maximum development potential
of the site." The report also noted that the subject property
was within the CHHA and that it contained "significant
wetland areas." According to the report, if the application was
granted, Appellant would still need to "design a Master Plan
of Development that minimizes wetland alterations."
One of the policies of the Plan that the report indicated may
be cause for concern was Policy 3.18.11, which provides as
follows:
The County shall protect springs by prohibiting increases
in allowed land use intensity at the Generalized Future
Land Use level within a Karst Sensitive Area without
a hydrogeological analysis that addresses impacts to
groundwater resources. The analysis shall be performed by
a professional geologist or professional engineer licensed
in Florida. Karst Sensitive Area shall be defined as an area
in which limestone lies within five (5) feet of depth from
natural grade.
In relation to this policy, the report stated that Appellant
had "provided a letter from a professional engineer that
adequately meets the intent of this policy" and that Appellant
intended "to develop the site using methods that will meet the
intent of the Comprehensive Plan," The report also contained
the following observations:
This site has some severe environmental restrictions —
extensive wetlands, proximity to an Outstanding Florida
Waterbody, Karst sensitive landscape —and it will be
difficult to design a site that meets the standards of the
Comprehensive Plan and the Land Development Code, The
following policy would potentially restrict development if
this application were to be approved:
Policy 3,16.3 Development shall not be allowed at the
maximum densities and intensities of the underlying
Katherine's Bay, LLC v. Fagan, 52 So.3d 19 (2010)
35 Fla'aL. Weekly D2759
land use district if those densities would be harmful to
natural resources.
So, the applicant should be cautioned that given the
environmental sensitivity of the property, development
may be limited on this site to less than the allowable
maximum intensity. If this *25 application is approved, an
appropriately designed master plan of development will be
required which meets all standards of theComprehensive
Plan and the Land Developnient Code and is approved by
the Board of County Commissioners.
Ultimately, despite the environmental limitations, the County
Staff concluded that the site was "appropriate for some
type of RV Park development subject to an appropriately
designed master plan," In making this recommendation, the
County Staff emphasized that, "based on the enviromuental
limitations of the area, the applicant is cautioned that the site
may not be able to be designed at the maximum intensity for
this land use district."
Dr. Pitts testified consistently with the County Staffs report.
He noted that neither the Plan nor the Land Development
Code ("LDC") prohibits RV parks in either karst sensitive
areas or the CHHA. He explained, however, that the County
has regulations limiting the density or intensity of RV parks
in such areas and indicated that the professional studies
he had received on the subject property represented that
the site could be developed to meet those standards. Dr.
Pitts testified that, in his opinion, "just about anything
west of [U.S. Highway 19] is — karst sensitive." Dr. Pitts
acknowledged that the subject property had 1.64 acres of
wetlands and that there were wetlands in the surrounding
areas. He explained that the Plan requires "setbacks" to
mitigate wetland impacts and ' that the LDC required one -
hundred percent protection of the wetlands. Additionally, he
explained that the regulations required fifty percent open
space in the Coastal Area. Based on, these regulations, Dr.
Pitts testified that it was highly unlikely that Appellant would
be permitted to develop the space at the maximum build -
out potential theoretically allowed under the new designation,
which would be five units per acre. He emphasized that,
no matter what the number of approved units proved to
be, complete protection of the wetlands would be required.
Finally, Dr. Pitts testified that there were several vested uses
in the surrounding area, including a 300—to 400—unit RV park,
that did not conform to the land use designations identified
for those properties in the Plan.
Farnsworth, an environmental planner for the County,
testified that the wetlands were located around the perimeter
of the property and that they extended into the part of the
property beyond the perimeter. She explained, however, that
permitting standards for an RV park prohibited the filling of
wetlands and that the subject property could be developed as
an RV park without the need to fill in the wetlands.
After the hearing, the ALJ issued a Recommended Order
concluding that the Amendment was inconsistent with FLUE
Policy 17.2.7's requirement that future development be
directed to "the most appropriate areas, as depicted on
the GFLUM, specifically those with minimal environmental
limitations." in support of this conclusion, the ALJ noted
the County Staffs finding that the land had "severe
environmental limitations." In particular, the ALJ noted
that the area in which the subject property was located
had extensive wetlands, a karst sensitive landscape, and a
CHHA designation. The ALJ acknowledged that the Plan
did not expressly prohibit RV parks in CHHA areas and
that there were regulations in the Plan and the LDC that
would limit the intensity of development on this land even
under the RVP designation, The ALJ concluded, however,
that "[n]otwithstanding the other provisions within the Plan
and LDRs that place limitations on RV park development
*26 in an effort to satisfy environmental constraints, — the
subject property is clearly not 'the most appropriate area, as
depicted on the GFLUM' for new development, nor is it an
area with 'minimal environmental limitations,' "
The ALJ also concluded that the Amendment was
inconsistent with FLUE Policy 17.2.8's requirement that
development be accomplished in a "functional and
compatible land use framework which reduces incompatible
land uses." Because "compatible" is not defined in the Plan,
the ALJ relied on the definition of "compatibility" in Florida
Adjuinistrativc Code Rule 9J-5.003(23). That definition is as
follows:
"Compatibility" means a condition in which land uses or
conditions can coexist in relative proximity to each other
in a stable fashion over time such that no use or condition
is unduly negatively impacted directly or indirectly by
another use or condition.
In support of the conclusion that the new designation
approved a land use incompatible with the surrounding
uses, the ALJ noted Appellee's testimony concerning the
characteristics of the area. He also noted Appellee's concerns
about noise, lighting, litter, traffic, and property value, The
ALJ further noted that there were only six nonconforming
land -uses and that each was permitted to exist due to vested
rights, The ALJ then stated, "It is fair to infer that the insertion
Katherine's Bay, LLG v. Fagan, 52 So.3d 19 (2010)
35 Fla. L. Weekly D2759
of an RV park in the middle of a large tract of vacant CL
land would logically lead to further requests for reclassifying
CL land to expand the new RV park or to allow other non-
residential uses." The ALJ further found the following:
The commercial RV park, with a yet -to -be determined
number of spaces for temporary RVs, tenants,
and associated commercial development, will be in
close proximity to a predominately [sic] residential
neighborhood. A reasonable inference from the evidence
is that these commercial uses will have a direct or indirect
negative impact on the nearby residential properties and
should not coexist in close proximity to one another.
Based on these findings and the determination that the
Amendment was inconsistent with FLUE Policy 17.2.7, the
ALJ recommended that the Commission conclude that the
Amendment was not in compliance with the Act.
The Commission adopted the ALYs findings and conclusions,
except that it modified the finding that the Amendment would
"logically lead to further requests for reclassifying CL land
to expand the new RV park or to allow other non-residential
uses." The Commission concluded that this finding was mere
conjecture, unsupported by competent, substantial evidence.
It modified the finding to read, "Unlike the presence of ...
pre-existing, non -conforming -uses, permitting the addition of
an RV park in the middle of a large tract of vacant CL land
now would set a precedent that an RV park, a Commercial
Land Use, I is compatible with the Low Intensity Coastal and
Lakes Land Use designation in this vicinity." Based on the
adoption of the ALYs findings and conclusions, as modified,
the Commission held that the Amendment had no legal effect.
11. Analysis
A. Standard of Review
The amendment at issue in this case was adopted under the
authority of section 1633 187( 1 )(c). Florida Statutes (2008).
Section 161,3187(3)(a) provides for review of amendments
adopted under section 163.3187(l)(0) under the following
terms:
The state land planning agency shall not review or issue a
notice of intent for small scale development amendments
which satisfy the requirements of paragraph *27 (1)(c).
Any affected person may file a petition with the Division
of Administrative Hearings pursuant to ss. 120,569 and
120.57 to request a bearing to challenge the compliance
of a small scale development amendment with this act
within 30 days following the local government's adoption
of the amendment, shall serve a copy of the petition on
the local government, and shall furnish a copy to the
state land planning agency. An administrative law judge
shall hold a hearing in the affected jurisdiction not less
than 30 days nor more than 60 days following the filing
of a petition and the assignment of an administrative
law judge. The parties to a hearing held pursuant to this
subsection shall be the petitioner, the local government, and
any intervenor. In the proceeding, the local government's
determination that the small scale development amendment
is in compliance is presumed to be correct. The local
government's determination shall be sustained unless it
is shown by a preponderance of the evidence that the
amendment is not in compliance with the requirements
of this act. In any proceeding initiated pursuant to this
subsection, the state land planning agency may intervene.
§ 163.3187(3)(a),
Because Appellant is challenging the Administration
Commission's final agency action in this appeal, see id., this
Court's standard of review is governed by section 120.68(7),
Florida Statutes (2010). That section provides inpertinentpart
as follows:
The court shall remand a case to the agency for further
proceedings consistent with the court's decision or set aside
agency action, as appropriate, when it finds that:
(b) The agency's action depends on any finding of fact that
is not supported by competent, substantial evidence in the
record of a hearing conducted pursuant to ss. 120.569 and
120.57,- however, the court shall not substitute its judgment
for that of the agency as to the weight of the evidence on
any disputed finding of fact; [or]
(d) The agency has erroneously interpreted a provision
of law and a correct interpretation compels a particular
action....
§ 120.68(7).
[11 In this Court, Appellant challenges the sufficiency
of the evidence supporting the findings of inconsistency
with both policies.3 In addition, Appellant challenges the
Katherine's Bay, LLC v, Fagan, 52 So.3d 19 (2010)
35 FIa. L. Weekly 'ff7tb
ALJ's interpretation of the policy requiring that future
development be directed toward areas of the County with
minimal environmental limitations. The separate arguments
concerning each policy will be addressed in turn,
B. FLUE Policy 17.2.7
With regard to FLUE Policy 17.2,7, Appellant raises two
arguments: first, that *28 the ALJ erred in relying on the
County Staffs finding of "severe environmental limitations"
because the County Staff recommended approval of the
application; and second, that the ALJ erred in failing to apply
the FLUE policies that are more specific to RV parks in
the Coastal Area in lieu of FLUE Policy 17.2.7, which is a
general planning policy applicable to all land use decisions
countywide. We agree with the second point.
i, The County Staff's Report
121 [3] Appellant insists that the ALJ was required to
give the County Staffs recommendation great weight. Even
assuming that the County Staffs report was entitled to great
weight in this case, there is no basis in the record for believing
that the ALJ did not give it due consideration, To the contrary,
the ALJ recited it heavily and relied on the concrete findings
within it that showed the environmental limitations of the
subject property, even though the ALJ disagreed with the
ultimate conclusion. If an ALJ were not entitled to disagree,
then the ALYs review would serve no purpose. To the extent
Appellant argues that the recommendation of the County Staff
was not given sufficient weight, this assertion is unreviewable
because "[i]t is not the role of the appellate court to reweigh
evidence anew," )`bwig,i� D(,])t of Editc- Dii, o0locational
Rehab., 943 So.2d 901,902 (Fla. I st DCA 2006). The ALJ's
finding that the subject property had severe environmental
limitations was thoroughly supported by the County Staffs
report. Whether those limitations required a finding that the
Amendment was inconsistent with FLUE Policy 17.2.7 is,
however, a separate matter.
this issue de novo, however, we bear in mind that the ALJ
was required tinder section 163,3187(3)(a) to presume that the
County's determination that the Amendment complied with
the Act (and, thus, was consistent with the Plan) was correct.
151 161 [71 Rules of statutory construction are applicable
to the interpretation of comprehensive plans. See Greut
Outdoors Trading, Inc. v. City oJ'High Springs, 550 So.2d
483, 485 (Fla. Ist DCA 1989) (noting that the rules of
statutory construction apply to municipal ordinances and city
charters); ff'ilfls, 41 So3d at279 (noting that a comprehensive
plan is like a "constitution for all future development within
the governmental boundary") (citation omitted). Appellant
argues that this case implicates the rules of construction
that specific provisions control over general ones and that
one provision should not be read in such a way that it
renders another provision meaningless. Both rules are well -
established, See Murra ' i,� i� Mariner Health, 994 So.2d 1051,
1061 (Fla.2008). Another rule of construction relevant to this
issue is that all provisions on related subjects be read in pari
materia and harmonized so that each is given effect. Cone v.
Stale, Dol)'l ofHeallh. 886 So.2d 1007. 1010 (Fla. 1st DCA
2004).
[81 Here, the ALJ concluded that the Amendment conflicted
with FLUE Policy 17.2.7, which provides, "The County
shall guide future development to the most appropriate
areas, as depicted on the GFLUM, specifically those with
minimal environmental limitations and the availability of
necessary services." (CP 10-155). Appellant contends that
FLUE Policies 17.6.5 and 17.6.12, which are more specific
to RV parks in the Coastal Area, indicate *29 that the
Amendment was consistent with the Plan. Those policies
provide as follows:
Policy 17.6.5 Specialized commercial needs, such as
water -dependent and water -related uses, temporary
accommodations for tourists and campers, as well as
neighborhood commercial uses and services serving
residential communities within the general Coastal,
Lakes, and Rivers Areas shall be provided for within the
Future Land Use Plan and standards for development
provided within the County LDC.
ii. Interpretation of the Plan Policy 17.6.12 Recreational vehicle (RV) parks and
141 Appellant's argument that the ALJ erred in relying on a campgrounds shall be designed according to a detailed
general policy in the Plan where more specific policies existed master plan, shall preserve a minimum of 30 percent of
is an issue of law to be reviewed de novo. See Nassau County the property in open space, shall provide a minimum of
TfVlis, 41 So.3(1270, 278 (Fla. 1 st DCA 2010). In reviewing an additional 10 percent of the property as recreation
Katherine's Bay, LLC v. Fagan, 52 So.3d 19 (2010)
35 Fla. L'.' W,,e--e"k-lyD, 2,7 5-9,
areas, and generally shall conform to the commercial
development standards in the Land Development
Code.... In order to minimize the adverse impact of
development on the resources and natural features of the
Coastal, Lakes, and Rivers Region, the LDC shall be
amended to include additional review criteria for all new
RVP projects located in this region. Such criteria may
include:
• Restrictions on density
• Enhanced open space requirements
• Weiland protection
• Upland preservation
• Clustering
• Connection to regional central water and sewer service
Appellant is correct in noting that the development of new
RV parks in Coastal Areas was specifically anticipated by
FLUE Policy 17.6,12, This observation does not, however,
mandate approval of an RVP designation for the particular
parcel at issue. Thus, it was appropriate for the ALJ to resort
to other portions of the Plan to determine whether approval of
the RVP designation for the subject property was proper. The
policy that-1-nost directly relates to this inquiry is FLUE Policy
17.2.7, which articulates the County's general preference for
guiding future development to the "most appropriate areas,"
which are areas "with minimal environmental limitations."
Two additional provisions of the Plan provide more context
for the policies at issue. First, the Plan describes the "Coastal
Area" as follows:
The Coastal. Area parallels the Gulf of Mexico, and the
boundary may be described as following the west side
of US-19 north from the Hernando County line to the
Withlacoochee River. This boundary is the basis for an
environmentally sensitive overlay zone to be used for
land use regulatory purposes....
Second, under the heading "Development in Weiland and
Coastal Areas," the Plan notes the following:
Future development in the Coastal, Lake, and River
Areas will require careful management in order to reduce
potential problems and impacts on the environment.
Development within these areas will be limited to low, [sic]
intensity uses. In addition, all development will be required
to nicet standards for development and obtain necessary
permits from appropriate regulatory agencies.
These two provisions show that, under the Plan, the entire
Coastal Area is considered environmentally sensitive, and yet
"[fluture development" of this envirourrientally sensitive area
is expected. Thus, when all the pertinent provisions of the
Plan are considered in pari materia, the mere fact *30 that
an area has environmental limitations is not a basis to prohibit
development as long as the development is carried out in
accordance with the limitations provided by the Plan and the
LDC. Therefore, the ALYs finding of "severe environmental
limitations" was insufficient to justify overriding the County's
determination that the Amendment was proper, particularly in
light of the presumption required by section 163.31 87(3)(a),
The ALJ properly found the existence of wetlands and karst
sensitivity in the area, but there was no competent, substantial
evidence that these limitations were so severe as to require
a prohibition on the development of an RV park under the
restrictions that would be imposed by the LDC, In sum, when
FLUE Policy 17.2.7 and the evidence related to that policy are
viewed in the context of all relevant provisions of the Plan,
the conclusion that the Amendment is inconsistent with that
policy is unsupported.
C. FLUE Policy 17.2.8
t91 With regard to FLUE Policy 17.2.8, Appellant argues
that the ALJ erred in relying on the testimony of Appellee
and his neighbor as a basis for finding incompatibility of the
subject property's new future land use designation with the
surrounding uses. In particular, he argues that this testimony
was "unacceptable lay testimony" and that no competent,
substantial evidence showed a lack of compatibility, as that
term is defined by Florida Administrative Code Rule 9J-
5,003(23). We agree,
[101 1111 Initially, we note that the reliance on the
definitions provided in Florida Adi-ninistrative Code Rule 9J-
5,003 was proper because the Plan does not define the term
"compatible," and because section 163.3184(1)(b) defines
"in compliance" in pertinent part as "consistent with the
requirements of ss. 163,3177, 163.3178, 1633 180, 163319 1,
and 163,3245, with the state comprehensive plan, with the
appropriate strategic regional policy plan, and with chapter
9J-5, Florida Administrative Code." Therefore, to show that
the Amendment provided for an incompatible land use,
Appellee was required to prove that, because of the new future
land use category assigned to Appellant's property, the land
Katherine's Bay, LLC v. Fagan, 52 5o.3d 19 (2010)
3'6Fla. _L. Weekly D2759
uses or conditions in the area could not "coexist ... in a stable
fashion over time such that no use or condition is unduly
negatively impacted directly or indirectly by another use or
condition." See Fla. R. Admin. Code 9J-5.003(23).
1121 Lay witnesses may offer their views in land use cases
about matters not requiring expert testimony. jIllefro. Dade
Ce)11171), v. Blumenthal. 675 So.2d 598., 601 (Fla. 3d DCA
1995). For example, lay witnesses may testify about the
natural beauty of an area because this is not an issue requiring
expertise. Blumenthal, 675 So.2d at 601. Lay witnesses'
speculation about potential "traffic problems, light and noise
pollution," and general unfavorable impacts of a proposed
land use are not however, considered competent, substantial
evidence. Pollard v. Pahn Beach Connty, 560 So.2d 1358,
1359-60 (Fla. 4th DCA 1990). Similarly, lay witnesses'
opinions that a proposed land use will devalue homes in the
area are insufficient to support a finding that such devaluation
will. occur. See 01,11 of.4po].)ka v, Orange Cowa.V, 299 So.2d
657, 659-60 (Fla. 4th DCA 1974) (citation emitted). There
must be evidence other than the lay witnesses' opinions to
support such claims, See MIL hivs. r,. City ot"Casselben)�,
476 So.2d 713, 715 (Fla.. 5th DCA 1985); City(fApoj)ka, 299
So.2d at 660.
Based on these standards, it was error for the ALJ to rely
on Appellee's testimony concerning potential light pollution,
increased traffic, and negative impacts on *31 the value of
the homes in the area. There were no facts to support his
concerns, and in fact, the County Staffs report indicates that
the traffic issue was studied by an expert and determined that
increased traffic would not unduly burden the area.
Although it was proper for the ALJ to consider Appellee's
observations that, with the exception of the vested non-
conforming uses, the area is predominantly residential
and that it is peaceful, Appellee presented no competent,
substantial evidence to support his claim that the new RV
park would unduly interfere with those characteristics of the
area. The mere fact that Appellee's property has a different
future land use designation than Appellant's re-classified
property is insufficient. See I-fillsboroit.-h Counl), v. Mesishore
Realtv, Inc., 444 So.2d 25, 27 (Fla, 2d DCA 1983) (holding
that the mere fact that property is in close proximity to
another property with a less restrictive classification does
not require reclassification). Additionally, while it may have
been noteworthy that Appellant presently fails to maintain its
vested one -acre RV park in an attractive manner, the concern
that the yet -to -be -developed RV park would be maintained
in the same way is speculative and does not establish long-
term negative impacts stemming from the reclassification of
the subject property.
In sum, based on the applicable definition of "compatibility,"
Appellant's argument that there was insufficient evidence
to support a finding that the RV park was incompatible
is well -taken. It appears that, in finding the proposed use
incompatible with the surrounding uses, the ALJ gave undue
emphasis to Appellee's preference not to have an RV park as
a neighbor. However, this preference in itself is insufficient
to override Appellant's desire to build an RV park on its land.
See Cone fla v:
Citf'
' 1, oSarasota, 400 So.2d 1051, 1053 (Fla.
2d DCA 1981) (suggesting that a land -use decision should
not be "based primarily on the sentiments of other residents").
As a result, we bold that the ALJ erred in concluding that the
Amendment was inconsistent with FLUE Policy 17.2.8.
111. Conclusion
For the reasons explained above, both of the ALYs ultimate
conclusions as to inconsistency of the Amendment with the
remaining portions of the Plan were erroneous. As a result,
we reverse and remand to the Commission for reinstatement
of the ordinance approving the Amendment.
REVERSED and REMANDED.
WEBSTER and MARSTILLER, JJ., Concur.
All Citations
52 So3d 19, 35 Fla, L. Weekly D2759
Footnotes
As provided in the Plan, the CLC category allows commercial uses that are "water related, water dependent, or necessary
for the support of the immediate population," i.e. "neighborhood commercial uses, personal services, or professional
services." This category is intended "for a single business entity on a single parcel of property."
' Katherine's Bay, LLCxFagan, 52So.34i8(2V1V)
35 Fla
2 According to Dr. P0a, hanst is "limestone underground sort ofrock structure that is very porous" and through which
"pollutants can very easily travel."
3 In challenging the sufficiency of the evidence, Appellant argues that the AU did not view the evidence with aneye
toward the proper standard. He contends the AU should have considered whether the County's determination that the
Amendment was proper was ^ha|dy debatable," based on the standard recognized in Coastal Development of North
Florida,Inc.v� City of Beach. 788 8o2d 204 (F\a,2001). The argument that the AU applied the wrong
'
standard is not properly before us Appellant stood silent when Appellee argued to the ALthat the "fairly
.
dnbatob|e''standard did not apply and when the ALJinvited 8ppe||ar�tnprovide cnr�neryauthohty.See DepYn/Bus,
&FYo[l Regulation, Cunxtr Indus, LicanxkV7Bd. x Ka/ -den. iO Go.3d 047. 648 (Fla. 1st DCA2O0A) (recognizing the
preservation rule inadministrative pmceedinAa).
End ofDocument
OG2024Thomson Reuters, Noclaim hooriginal U.S.
Government Works.
-----'----------�------'---�--------- tVVudo 11
Debes v. City of Key West, 690 So.2d 700 (1997)
22 Fla. 'L.'Weekly b827'
general on ground that commercial zoning
690 So.2d 700 of parcel would create more traffic than
District Court of Appeal of Florida, noncommercial Use.
Third District. 2 Cases that cite this headnote
Cheryl L. DEBES, as Trustee, Petitioner,
V.
The CITY OF KEY WEST, Respondent.
No. 96-245 1.
I
April 2,1997.
Synopsis
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 Beadnotes (3)
[11 Zoning and Planning .gym Change fi,om
residential Use to business, commercial, or
industrial Use
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,
4 Cases that cite this headnote
121 Zoning and Planning Change from
residential Use to business, commercial, or
industrial Use
City commission could not justify denial of
application to rezone owner's property from
medium density residential to commercial
[31 Zoning and Planning Change from
residential use to business, commercial., or
industrial use
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 him of constitutionally protected use
of his property.
2 Cases that cite this headnote
Attorneys and Law Firms
*700 Mattson & Tobin and Andrew M. 'robin, Key Largo,
for petitioner.
*701 Mark Graham Hanson, for respondent.
Before SCHIAIAIZTZ, C.J., and COPE and FLETC1-1ER, JJ.
Opinion
SCHWARTZ, Chief Judge.
[1] 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 I an application initiated by
its own City Planner,` 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) I 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
Debes v. City of Key West, 690 So.2d 700 (1997)
conclude that, as a matter of law, "the refusal to rezone the
property [was] arbitrary, discriminatory [and] unreasonable."
Board of Counl.i,, Connnrs it Snyder, 627 So.2d 469., 476
(Fla, 1993).
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 a CilY of'!Viond,
96 So.2d 122 (Fla. 1957); City* Connnission v ffoodlaioi Park
Cemetery Co., 553 So.2d 1227 (Fla. 3d DCA 1989), review
denied, 563 So.2d 631 (F1aJ990); City ol'Coral Gables i�
111"lepinan, 418 So.2d 339 (Fla. 3d DCA 1982), review denied,
424 So.2d 760 (Fla.] 982); 014v i� OtY of Jacksonville,
328 So.2d 854 (Fla. Ist DCA 1976); Q), oj'South Miand
i,. Hillbaiter, 312 So.2d 241 (Fla. 3d DCA 1975); City of.
1flunii i,. Sehittle, 262 So.2d 14 (Fla. 3d DCA 1972); see
Parkin- Facilities, Inc. 1,. City qfiVftand Beach, 88 So,2d
141 (Fla. I 956)(spot zoning); County ql'Brewird 1,. ffbot'llialn,
223 So.2d 344 (Fla, 4th DCA 1969)(same), cert. denied, 229
So.2d 872 (Fla. 1969); 7 Fla.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
475,4 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.
[2] I. Trqflic 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 bold
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 Rathkopf s The Law of Zoning
& Planning § 59.03 (4tb 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
& jlfalerials Coq). r. 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 pern-iitted 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 which the city has itself established.
See 5 Rathkopf s The Law of Zoning & Planning § 59.03[l ],
[3]. Generalized fears of an increase in traffic are wholly
inappropriate, however., to deny any one landowner the rights
to which he is entitled.
[3] 2. Promotion of t4ffordable I-Jollsiiig 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 Redei,,elopinent Agen(l' y, 392 So.2d 875 (Fla.] 980)-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
J
Debes v. City of Key West, 690 So.2d 700 (1997)
22 Fla, L.'Weekly b827
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.
p017)oi.Fe Point Partnership v. St. Johns CounlY, 470 So.2d
850, 851 (Fla. 5th DCA 1985); accord ABG Real Eslate Dei:
Co. v. St, Johns Courify, 608 So.2d 59, 63 (Fla. 5th DCA
1992), cause dismissed; 613 So.2d 8 (Fla. 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 Allopaliah
Coinniunil),Ass'n r. 01 v q1'.)APami, 379 So.2d 387, 394 (Fla.
3d DCA 1990), cert. denied, 386 So.2d 635 (Fla. 1980):
The [courts] ... will not and cannot approve a zoning
regulation -or any governmental action adversely affecting
the *703 rights of others-NArhicb is based on no more than
the fact that those who support it have the power to work
their will.
Accord, e.g., T)wn of Ponce Inlet v. Rancourt, 627 So.2d 586,
588 n, I (Fla. 5th DCA 1993); 01Y ol'Apopka 1, Orange
Counly, 299 So.2d 657 (Fla. 4th 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
City Coninninio, Dev v. fleggg, 658 So.2d 523 (F1a,1995);
Snyder, 627 So.2d at 469; Alletropolitan Dade County v.
Blumenthal, 675 So.2d 598 (Fla. 3d DCA 1995), review
dismissed, 680 So.2d 421 (F1a,1996); ABQ 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.
All Citations
690 So.2d 700, 22 Fla. L. Weekly D827
Footnotes
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,
2 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.
3 CG permits commercial, office and residential use. MDR permits residential use.
4 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, h7c., 567 So.2d 955 (Fla. 4th DCA 1990), review denied, 581 So.2d
165 (Fla. 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 S 1561; e.g., Allapattah
Community Assn v. City of Miami, 379 So.2d 387 (Fla. 3d DCA 1980), cert. denied, 386 So.2d 635 (Fla.1 980), would
yield the same result, See Metropolitan Dade County v. Fuller, 515 So.2d 1312, 1314 n. 4 (Fla. 3d DCA 1987).
Etid of Document
Oc 2024 Thomson Reuters, No claim to original US.
Government Works.
Miami -Dade County v. Omnipoint Floldings, Inc., 811 So.2d 767 (2002)
27 Fla. L. Weekly D516
P0 KeyCite Red Flag - Severe Negative Treatment
Decision Quashed by Miami -Dade County v. Onimpoint Holdings, Inc., Fla.,
September 25, 2003
811 So.2d 767
District Court of Appeal of Florida,
Third District,
MIAMI—DADE COUNTY, Petitioner,
V.
OMNIPOINT HOLDINGS, INC., Respondent.
No. 3D0I-2347.
I
March 6, 2002.
Synopsis
County sought petition for writ of certiorari to quash
decision of the Circuit Court, Dade County, Amy Steele
Donner, Gisela Cardonne, Manuel A. Crespo, JJ., directing
county's community zoning appeals board to grant applicant
permission to erect telecommunications monopole. The
District Court of Appeal, Fletcher, I, held that: (1) county
code section setting forth criteria which must be met for
approval of application of unusual uses was unconstitutional,
and (2) petition for writ of certiorari was denied.
Petition denied.
West Headnotes (3)
[1] Zoning and
0
Planning "y- Telecommunications towers and
facilities
Zonin,g, and Planning Variances and
exceptions
County zoning code section setting forth criteria
for grant or denial of application of unusual
uses, non-use variances, and modifications
of conditions, including telecommunications
monopole, was unconstitutional; section which
contained list of uses which conditioned on
approval after public hearing did not provide
definite, objective criteria to guide county's
zoning boards in making decisions to grant
or deny applications, and thus, board could
arbitrarily deny provision of wireless services.
2 Cases that cite this headnote
t2l Zoning and Planning k Permits,
Certificates, and Approvals
Zoning and Planning (4,"= Variances and
exceptions
Ordinarily when zoning code standards for
special exceptions, unusual uses, new vises,
and conditional uses are declared invalid, the
opportunity to obtain exception or other use is
lost.
[3] Zoning and
Planning I,- Tel ecomirtuni cations uses
Zoning and
Planning Telecommunications towers and
facilities
County's petition for writ of certiorari
to quash decision of trial court directing
county's community zoning appeals board
to grant applicant permission to erect
telecommunications monopole was denied;
board's denial of applicant's request for unusual
use was in zoning district in which use was
permitted after public hearing, and county's
unconstitutional hearing criteria had effect of
prohibiting provision of personal wire services
in violation of the Telecommunications Act.
Communications Act of 1934, § 332(c)(7)(13)(i)
(11), as amended, 47 U.S.C.A. § 332(c)(7)(13)(i)
(11).
I Case that cites this headnote
Attorneys and Law Firms
*767 Robert A. Ginsburg, County Attorney, Jay W.
Williams, Assistant County Attorney, for petitioner.
Hayes & Martolvive and Deborah L. Martolvive (St.Petersburg),
for respondent.
Before JORGENSON, GODERICH, and FLETCH-ER, JJ.
J\Wi
Miami -Dade County v. Omnipoint Holdings, Inc., 811 So.2d 767 (2002)
27 Fla'. C'Weekly D516
Opinion
FLETCHER, Judge.
Miami —Dade County seeks a writ of certiorari quashing a
circuit court decision which directs the County's Community
Zoning Appeals Board 12 [Board] to grant the application of
Omnipoint Holdings, Inc. [Omnipoint] for an unusual use, a
non-use variance, and a modification of a condition attached
to an earlier resolution. This grant would result in permission
for Omnipoint to erect a telecommunications monopole with
a height of 148 feet.
The circuit court's decision ordering the Board to approve
Omnipoint's application has two separate bases: (1) that
the record before the Board reflects a lack of substantial
competent evidence supporting the Board's denial of
the application, and (2) that the Board's decision is in
violation of *768 section 332(c)(7)(13)(i)(1) of the Federal
Telecommunications Act, 47 U.S.C. § 332 (1996) [Fed, Act].
Our decision turns only on section 332(c)(7)(B)(i)(11) rather
than (1). 1
11] The Fed. Act states in pertinent part:
"(i) The regulation of the placement, construction, and
modification of personal wireless service facilities by any
state or local government or instrumentality thereof.
(1) shall not unreasonably discriminate among providers
of functionally equivalent services; and
(11) shall not prohibit or have the effect of prohibiting the
provision of personal wireless services."
Our first concern is what we conclude to be the ability of the
Board to deny arbitrarily the provision of wireless services, 2
which ability stems from the County's zoning code sections
which contain the criteria for the grant or denial of unusual
uses, non-use variances, and modifications of conditions.
Our discussion starts with unusual uses, which are established
by section 33-13(e), Miami —Dade County Code. This section
contains a lengthy list of uses which are conditioned on
approval after public hearing. Among those uses is the
requested monopole. The code section which purports to
create the criteria which must be met for approval of unusual
uses is section 33-311(A)(3), which provides in pertinent
part:
"Special exceptions, unusual and new uses, [The county
zoning boards have authority to] [h]ear application for and
grant or deny special exceptions; that is, those exceptions
permitted by the regulations only upon approval after
public hearing, new uses and unusual uses which by
the regulations are only permitted -upon approval after
public hearing, provided the applied for exception or use,
including exception for site or plot plan approval, in
the opinion of the Community Zoning Appeals Board,
would not have an unfavorable effect on the economy
of Miami 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 which
have been constructed or which are planned and budgeted
for construction, are accessible by private or public
roads, streets or highways, 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."
This language is legally deficient because it lacks objective
criteria for the County's zoning boards to use in their decision
making process. As stated in Universitly Books & Videos,
Inc, iz Miami —Dade Counrv, Fla., 13 )2 F.Supp.2d 1008, 1017
(S.D.Fla,2001), in relation to this exact code section:
"First, the public hearing requirement grants too much
discretion to the CZAB. The procedure for public
hearings ... allows the CZAB to accept or reject an *769
application based on vague and subjective criteria._ The
standards for granting or denying an application are not
precise or objective. Indeed, they are almost entirely
subjective. This is improper. See Lady J Lingerie, 176 F.3d
I
at 1362.-"'
The court also noted that:
"Considerations of the public interest or incompatibility
with surrounding land area are precisely the subjective and
vague criteria that were rejected in Lady J. Lingerie."
The referenced Lady J, Lingerie court dealt with provisions of
the Jacksonville Zoning Code, 4 which provisions are similar
Miarni-Dade County v. Omnipoint Holdings, Inc., 811 So.2d 767 (2002)
27 Fla. L.'We6ldy D516
to those of section 33-311 (A)(3), Miami —Dade County Code.
As to the similar Jacksonville code language the Lad), J.
Lingerie court stated (at 1361):
"None of the nine criteria is precise and objective. All of
them —individually and collectively —empower the zoning
board to covertly discriminate against adult entertainment
establishments tinder the guise of general 'compatibility'
or 'environmental' considerations."
We recognize, of course, that Lad), J. Lingerie and
UniversityBooks & Videos dealt with First Amendment issues
surrounding adult bookstores and entertainment centers. The
Lady J. Lingerie court,- concentrating on such rights, stated
en possant that Jacksonville was free to use its vague zoning
criteria for other types of applications. As the federal court did
not have that issue before it, the comment was gratuitous. It is
also out of sync with Florida law. Consistently Florida courts
have declared unconstitutional ordinances that lack objective
standards to guide zoning and other quasi-judicial boards in
making their decisions.' See North Buy Village it Blackwell,
88 So.2d 524 (Fla. 1956); Drexel a Cilia qfjViand Beach, 64
So.2d 317 (Fla. 1953); City of Miami i,. Save Brickell At,enite,
426 So.2d 1100 (Fla. 3d DCA 1983); Pinellas County i,,.
Jasmille Pla--a, Inc., 334 Sold 639 (Fla, 2d DCA 1976). Thus
as section 33-311 (A)(3) of the county code does not provide
definite, objective criteria to guide the County's zoning boards
in making their decisions, it is unconstitutional,('
In relation to Omnipoint's request for modification of
a condition contained in an earlier zoning resolution, it
is section 33-311(A)(7), Miaini—Dade County Code that
governs.? It reads:
"[The county zoning boards have authority to] [h]car
applications to modify or eliminate any condition or part
thereof which has been imposed by any final decision
adopted by resolution, and to modify or eliminate any
provisions of restrictive covenants, or parts thereof,
accepted at public hearing, except as otherwise provided
in Section 33— *770 314(C)(3); provided, that the
appropriate board finds after public bearing that the
modification or elimination, in the opinion of the
Community Zoning Appeals Board, would not generate
excessive noise or traffic, tend to create a fire or
other equally or greater dangerous hazard, or provoke
excessive overcrowding of people, or would not tend
to provoke a nuisance, or would not be incompatible
with the area concerned, when considering the necessity
and reasonableness of the modification or elimination in
relation to the present and future development of the area
concerned."
As can readily be observed this section also lacks
constitutionally required objective criteria and is therefore
invalid.8
[21 [3] We are thus left with the question of what effect
the invalidity of the criteria has on Omnipoint's application
in light of the Fed. Act, which precludes local governments
from prohibiting the provision of wireless services. Ordinarily
when the code standards for special exceptions, unusual
uses, new uses, and conditional uses are declared invalid,
the opportunity to obtain the exception or other use is lost.
See Citl,, of St. Petersburg v. Schiveitzei; 297 So.2d 74 (Fla,
2d DCA 1974), cert. denied, 308 So.2d 114 (F1a.1975).
Here, however, unlike Schweitzer; we are dealing with the
intent behind the Fed, Act, Keeping in mind that the Board
denied Onimpoint an unusual use in a zoning district in
which that use is permitted after public hearing the County's
unconstitutional hearing criteria have the effect of prohibiting
the provision of personal wire services in violation of the
Federal Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)
(i)(11).
As the circuit court reached the right result (although on a
different basis) we deny the County's petition for writ of
certiorari and leave intact the circuit court's remand to the
Board for the purpose of the Board's granting approval of
Omnipoint's application for the monopole,
All Citations
811 So.2d 767, 27 Fla. L. Weekly D516
Footnotes
I We do not reach the various questions as to substantial competent evidence.
There is no doubt that wireless services —at least under present technology —require a series of poles of substantial
height in order to function.
'
. Miami -Dade County x0mnipoirdHoldings, hnc,O11Sn.2d7O7(20V2)
�f��.T. 3 LadyJ, LucyJ,Liny*rioxCity o/Jacksonville, 176F,3d1358(11VxCic1099.
4 The Jacksonville code language may befound at pp. 1369-70.Lady 1Lingerie.
� Sufficient guidelines are required aothat:
1.persons are able todetermine their rights and duties;
2. the decisions recognizing such rights will not be left to arbitrary administrative determination;
3. all applicants will betreated equally; and
4, meaningful judicial review is available.
6 Arguably Omnipoint did not preserve the constitutional question. However, sections 33-311 (A)(3)and 83-311(A)(7)are
We proceed See Po0orkxDopo�non<ofHea0�Q
h/ndumentaUyu��|randu�uot� therefore pm �
7 The earlier condition required development of OmnipnnCo property in accordance with a specific site plan, The
modification would amend the site plan so asNallow the monopole,
8 AatoOmni[oint'arequest for anon-use variance, the language of section 33-311(A)(4)(b) ofthe code (governing non-
use variances) is also unconstitutional. See the discussion thereof in the concurring opinion in Miami —Dade County u
G/mxaq 802So.2d 1154(F|a. 5d DCA20O1).
End of DoCurnOnt
Ku2024ThommmReuters. Noclaim tooriginal U.S.
Government Works.
-----------------'-------- i |UC GmvmnmmniYVurks 4
VV�ST|�V ���02�Thur�yonR�u�/a No�*omioor�ma �
Experience
29 Years
Experience with Current Firm
5 Years
Education
B.S.C.E.
University of Central Florida,
1995
M.S.C.E.
University of Central Florida,
1997
Certifications
Registered Professional
Engineer, Florida PE #56849
02115/2001 — 0212812025
Advanced Maintenance of
Traffic, AMOT #59060
Key Expertise
Project Management
Design, Traffic for PD&E
Studies
Transportation Analyses
Developments of Regional
Impact
Transportation Corridor Studies
Training
Active Traffic Management &
Managed Lanes Certification
Course, 2010
PTV America — VISSIM &
VISUM Training, 2009
ITS Evaluation Using CUBE
CUBE Comprehensive
Modeling Training, 2008
Advanced Transit and Freight
Modeling Training, 2006
AYMAN H. AS-SAIDII, PE
Mr, As-Saidi is a well -qualified Civil Engineer with a master's degree in Transportation Engineering
from the University of Central Florida. He has over 29 years of experience in the field of traffic
engineering, transportation planning and infrastructure in a career that has embraced studies on traffic
impact forecasting and demand modeling, traffic and parking operations, rail and transit schemes plus
Intelligent Transportation and Geographic Information Systems. Mr. As-Saidi has worked with major
clients on high profile projects in the public and private sectors in Abu Dhabi, Qatar and Oman as well
as having extensive experience in the United States on sophisticated urban development and
transportation plans. Mr. As-Saidi is an acknowledged expert in managing transportation and
infrastructure projects of all magnitudes and complexities for both public agencies and private sector
clients and has presented papers at international venues in the areas of traffic safety and GIS. He is
an efficient, organized team I eader and motivatorwith a successful record in the effective coordination
of both external and internal teams in meeting engineering objectives and doing so within agreed
budgetary and time constraints. He demonstrates significant skills in the identification and resolution
of technical and management difficulties. Mr. As-Saidi has developed a particular expertise which
harmonizes sophisticated technical knowledge in operating to the highest engineering standards with
the ability to manage individual projects to commercially successful conclusions.
Relevant Project Experience
Orange County Transportation Planning Continuing Services 2021 — Present
Orange County, Florida
Engineer of Record / Project Manager
As a prime consultant for a 3-year contract, TMGs role is to provide all aspects of transportation
planning services for Orange County including, but not limited to, Comprehensive Plan and
Development Review, Transportation Systems Management and Operations Studies
(TSM&O)/Modeling, Mulfirnodal Planning, Public Involvement and Administration Services.
City of Apopka Continuing Services 2020 — Present
City of Apopka, Florida
Engineer of Record I Project Manager
As subconsultant to Newkirk Engineering Inc., responsible for the transportation and traffic design
elements relating to this continuing set -vices contract (CSC). TIVIC's role is to provide all aspects of
traffic engineering and planning, design, and safety projects for the City, and to perform QA/QG
reviews for signalization design plans and traffic studies. Recent projects include signal warrant
analysis for the Han -non Road extension, conducted in accordance with the requirements of City of
Apopka, Orange County, and FDOT standards, utilizing the methods and requirements of the Manual
on Uniform Traffic Control Devices (MUTCD). Preparation of the subsequent signalization design
plans for the intersection of Harmon Road and Ocoee Apopka Road are in progress.
City of Sanford Continuing Services
City of Sanford, Florida
Engineer of Record I Project Manager
Managed the transportation and traffic engineering tasks under this CSC. Prepared analyses in
accordance with City of Sanford, Seminole County and FDOT requirements. The scope of work
included data collection, including held reviews and various traffic Counts, crash analysis, turn lane
warrants, signal warrants, traffic projections, and safety studies. Recent projects include golf cart
crossing wan -ant studies, conducted in accordance with the criteria of the FDOT Traffic Engineering
Manual (TEM), which include existing conditions analyses, TEM criterion analysis, recommendations,
and required signage. These analyses were prepared in support of the City's initiative for multi -modal
transportation between neighborhoods and within Historic Downtown Sanford,
AYMAN H. AS.-SAIDI, PE
. . . . . . . . . . . . . .
OCPS Continuing Services
Orange County, Florida
Engineer of Record / Project Manager
As a subconsultant to Hanlex Civil LLC, co -managed team of engineers in the preparation of traffic, access, and pedestrian studies for
various existing and new schools throughout Orange County. Evaluations involved considering the multi -modal transportation network,
including roadway, bicycle routes, pedestrian routes, multi -use paths within the walk shed. Additionally, traffic operations at the
connection points and at the vehicular and bus access points were considered. A qualitative review of pedestrian routes and facilities
was completed to document_
observed or projected network continuity deficiencies, safety hazards to the pedestrian, and significant ADA
compliance deficiencies. Recommendations
ecommendations were developed for continuous pedestrian and bicycle connectivitywithin the walk shed, as
well as improvements to address mobility deficiencies in the area- Internal circulation and access points were evaluated to ensure that
adequate flow patterns were established, sufficient on -site queue storage was provided, and adequate operations were supported with
appropriate traffic control, auxiliary lanes, and sufficient throughput capacity at the intersections.
Vineland Avenue Widening Design Traffic for PDS
orange County, Florida
Engineer of Record / Project Manager
As a subconsultant to Harris Ciivil Engineers, LLC, managed the transportation elements relating to the Preliminary Design Study (PDS)
for Vineland Avenue, from SR 535 to International Drive, in Orange County. The scope of work included the development of future traffic
projections, future traffic cha'racteristics, operational level of service analyses and the recommended roadway geometry to accommodate
the design year conditions., The technical memorandum documenting design traffic for this project adhered to specifications and
procedures outlined in the FDOT Project Traffic Forecasting Handbook.
CR 455 Design Traffic for PUE Study
Lake County, Florida
Engineer of Record / Project Manager
As a subconsultant to METRO Consulting Group, LLC, managed the transportation elements relating to the preliminary engineering and
environmental analysis services forthe extension of CR 455 new alignment from Hartwood Marsh Road toWellnessWay in Lake County.
The scope of work included preparing transportation dernand models for opening, interim and design years, determining growth rates,
turning movement projections, daily and peak hour traffic projections, and future conditions analysis. The study tested multiple roadway
alignments and the effect of each alignment on the surrounding roadway network. Mr- As-Saidi was responsible for the preparation of
the Design Traffic Technical Memorandum (DTTM), and presenting all traffic related results to government agencies and in community
meetings.
Ministry of Transportation (Oman) Technical Support Services
Sultanate of Oman
Engineer of Record Project Manager
Managed a 3-Year Continuing Service Contract with the Ministry to provide technical support for all transportation engineering projects.
The scope included services Linder transportation planning, traffic engineering, highway design and supervision, traffic data collection,
bicycle and pedestrian plans, traffic safety and preparation of tender packages for government projects,
Traffic & Mobility Consultants LI-C w 3101 Maguire Boulevard, Suite 265, Orlando, Florida 32803
Phone: (407) 531-5332 x209 u Email: alla@trafficmol)ility.com
EVENT ANALYSIS
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Fablities ivvithin 30 Days) 0 0 0 0 0 Wed
Incapacitating In.uries 0 0 0 0 0 Thu
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Possible Injuries 0 0 0 0 0 Fri
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Crash Calendar
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