Fort Walton Beach Council agenda — 04-11-06 Workshop — reading text

Planning (::=: 414k 159 Most Cited Cases master plan and even though one- acre lots were A comprehensive plan only establishes a long- range allowed to the west across a road; five- acre lots were maximum limit on the possible intensity of land use required to the north and south, and neighbors and does not simultaneously establish an immediate opposed rezoning. minimum limit; thus, the present use of land may, by zoning ordinance, continue to be more limited than ill Administrative Law and Procedure ~ 60 the future use contemplated by the comprehensive 15Ak760 Most Cited Cases plan. ill Administrative Law and Procedure ~ 91 359 III Zoning and Planning ~ 15Ak791 Most Cited Cases 414k359 Most Cited Cases Citizen testimony in a zoning matter is perfectly ill Administrative Law and Procedure ~ 93 pennissible and constitutes substantial competent 15Ak793 Most Cited Cases evidence, so long as it is fact- based; mere The standard of review for an appeal from an generalized statements of opposition are to be administrative agency is that the court must ascertain disregarded, but fact-based testimony is not. whether the agency supported its findings with 115 Robert A. Miami- Dade County Ginsbur!!, substantial competent evidence; the court is not Attorney, and August Maxwell, Assistant County entitled to reweigh the evidence or substitute its Attorney, for petitioner. judgment for that of the agency. 2006 Thomson/ West. No Claim to Orig. U. S. Govt. Works. 739 So.2d I 15 Page 2 739 So. 2d 115, 24 Fla. L. Weekly 01539 Cite as: 739 So. 2d 115) National Park Service initially approved the Greenberg Traurig, P. A.,and Alan T. Dimond and application but subsequently withdrew support when Elliot H. Scherker, Miami, for respondents. it realized that current zoning in the immediate area was EU- 2. The agency' s position changed to a was 116 Before NESBITT, JORGENSON, and LEVY, statement of " no objection approval," but that it to JJ. was [ sic] " not actively advocating the further development of the property." Exhibit B- 2, letter JORGENSON, Judge. dated December 13, 1996. The County seeks certiorari review of a zoning At the Commission hearing, the applicants' position decision fTom the Circuit Court of Miami- Dade was that the rezoning request was consistent with County, Appellate Division. The decision was split, zoning already approved in the area ( on the west side with Judge Siegel dissenting. For the reasons that of Old Cutler Road) and was further consistent with follow, grant the we petition and quash the order the Master Plan. The Commission heard testimony under review. fTom the neighbors to the Walberg property who objected to the rezoning. The objectors also This court' s scope of review is very narrow: "[ T] he presented petitions and a site map designating the district court, upon review of the circuit court' s current zoning within the area. An expert who was a judgment ... detennines whether the circuit court registered professional engineer, general contractor afforded procedural due process and applied the and environmental consultant in Miami- Dade County correct law." MetrolJolitan Dade Countv v. testified on behalf of the adjacent neighbors Blumenthal 675 So. 2d 598. 601 ( Fla. 3d DCA 1995), regarding new elevation requirements which would quoting Otv of Deed/eld Beach v. Vail/ant 419 make houses built on the property visible from So. 2d 624. 626 ( Fla. 1982). See also, Haines Citv Biscayne Bay and would make the residences much Communitv Dev. v. Heggs. 658 So. 2d 523. 529 n. 10 higher than those surrounding this eight acre parcel. Fla. 1995) (" the extraordinary writ [ certiorari review] The Commission denied the application for rezoning is reserved for those situations where ' there has been and found that such a change was incompatible with a violation of a clearly established principle of law the neighborhood and area concerned and would be resulting in a miscarriage of justice.'We "). adopt in conflict with the principles and intent of the plan the dissent of Judge Siegel and publish it as the for the development of Miami- Dade County. The opinion of this court. Walbergs challenge this denial arguing that the petition confonns to the Master Plan and therefore the Commission exceeded its quasi- judicial powers in Siegel, J., dissenting. its denial. ill Appellants Bernice and Nathan Walberg ill The applicable standard of review for an appeal property owners") challenge a resolution of the fTom an administrative agency is that the court must Board of County Commissioners which denied a ascertain whether the agency supported its findings with substantial * 117 competent evidence. The change in zoning of the Walbergs' eight acre lot. The Walbergs' request was to rezone their property court is not entitled to reweigh the evidence or fTom EU- 2 ( Single Family Five Acre Estate District) substitute its judgment for that of the agency. Haines to EU- l ( Single Family One Acre Estate District). Otv Communitv Dev. v. He<z<zs. 658 So. 2d 523 The property directly adjacent to the north and south Fla. 1995). of the Walberg property is zoned EU- 2. Further south of the property is the Burger King Headquarters f3H4H51 The Florida Supreme Court, in the Snyder which is zoned as GU. To the east of the property is decision,succinctly stated the burden that must be Biscayne National Park. To the west of the property met by a property owner and the agency when a is Old Cutler Road, a main thoroughfare. On the request is made to rezone property. The Court held west side of Old Cutler Road is property zoned as as follows: EU- I. A] landowner seeking to rezone property has the burden of proving that the proposal is consistent The Zoning and Planning Departments approved the with the comprehensive plan and complies with all rezoning application because it complied with the procedural requirements of the zoning ordinance. At this point, the burden shifts to the governmental Comprehensive Development and Master Plan which board to demonstrate that maintaining the existing pennits a density of up to 2 1/ 2 units per acre. The 2006 Thomson/ West. No Claim to Orig. U. S. Govt. Works. 739 So.2d 115 Page 3 739 So.2d 115, 24 Fla. L.Weekly DI539 Cite as: 739 So. 2d 115) zoning classification with respect to the property the surrounding area showing EU- 2 zoning both accomplishes a legitimate public purpose. In north and south of the Walberg parcel. A change of effect, the landowners' traditional remedies will be the Walberg land to higher density EU- I zoning subsumed within this rule, and the board will now would make its zoning facially incompatible with its have the burden of showing that the refusal to surroundings. The Blumenthal court found that a rezone the property is not arbitrary, discriminatory, site map alone may be considered substantial or unreasonable. If the board carries its burden, competent evidence. Additionally, in a later case the application should be denied. which followed Blumenthal, the Third District found Board of Countv Comm' rs of Brevard Countv v. that when the Commission had access to a record Snvder 627 So.2d 469. 476 ( Fla. 1993)' Although a which contained maps, reports, and other information zoning change may be consistent with