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

be Battaglia' s master plan for Lakepointe proposed contained within office buildings; 2) limitation of multifamily, office and commercial development, office square footage to 10, 000 per acre; 3) the that office be of residential including a restaurant and bank. Under the proposed requirement buildings FN3 a " master plan, the property is divided into six parcels. scale and character"; and 4) imposition of a Parcels 1 and 2 are located between Maitland thirty- five foot height requirement on office Boulevard and Sandspur Road. Parcels 3 through 6 structures. Battaglia argues that these conditions are are located in the northern portion of Lakepointe. unduly restrictive or are arbitrary and capricious, thus constituting a taking without payment of full 163 The property zoned low density single was compensation as required by law. family residential. surrounding the The areas property are currently zoned low density residential. The area surrounding Lakepointe contains single FN2. The conditions previously established family homes and vacant land, although there is one for the southern portion' s P. U. D. were incorporated into the master plan for multifamily development, a church, a community center, a school, and a residential- type office Lakepointe. These conditions included residential- type office buildings, office building. space less than 10, 000 square feet per acre, The East Central Florida Regional Planning Council and building heights limited to 35 feet. recommended approval of Battaglia' s development They are not challenged in this case. plan, with some of the challenged conditions. The Battaglia' s D. R. I.application for Lakepointe Board of Orange County Commissioners held public proposed freestanding commercial use and It adopted an ordinance taller buildings ( up to 55 feet in height) only hearings on the matter. amending the Orange County Comprehensive Plan to for the northern portion of the project. Q 2006 Thomson/ West. No Claim to Orig. U. S. Govt. Works. 629 So.2d 161 Page 4 629 So. 2d 161, 18 Fla. L. Weekly D2117 Cite as: 629 So. 2d 161) state or of the United States. FN3. We find without merit Battaglia' s additional argument that the term 3 SO. OS( I). Fla. Stat. (1991). residential scale and character" is undefined and vests unbridled discretion in ill In Snyder v. Board of CounoJ Commissioners. Orange County officials to determine 595 SO. 2d 65 ( Fla. 5th DCA1991),iur. acceoted 605 whether a particular design is acceptable. So.2d 1262 ( Fla. 1 992), this court recognized that the Battaglia itself used this design term in most valuable aspect of the ownership of property is seeking community and county approval for the right to use it and that any intringement on the the rezoning of the southern portion of owner' s full and tree use of his property, whether the Lakepointe. One of Battaglia' s experts result of physical limitations or government testified that " residential scale and restrictions, is a limitation on and a diminution of the character" had certain distinguishing value of the property and accordingly triggers characteristics which would make it similar constitutional protections. All incidents of property to andcompatible with the surrounding ownership are protected trom intringement by the single family neighborhood. state unless the regulations are reasonably necessary to secure the health, safety, and welfare of the public. Because the Lakepointe project would have a substantial effect on the health, safety, or welfare of ill Snyder distinguished the types of then citizens of more than one county, Battaglia was government applicable standards of action and required to obtain a " Development of Regional review. The enactment of general comprehensive Impact" approval order pursuant to chapter 380. zoning and planning ordinances, maps, and Under the procedures outlined in chapter 380, the amendments is legislative action subject to the " fairly developer must first file an application for a debatable" or deferential standard of review by development permit with the appropriate local zoning courts. authorities. & 380 .06( 6), Fla.stat. ( 199 J). This application must request DRI and local zoning B.1 ill However, subsequent governmental action approval. Manatee Countv v. Estech Gen. Chern. which involves the proper application of the general Corvo 402 So.2d 1251 ( Fla. 2d DCAI981), rev. rule of law to a particular piece of property does not denied, 4 I 2 So. 2d 468 ( Fla. I 982). Following review constitute legislative action requiring a deferential and a public hearing, the local government may deny standard of review. Rather, governmental action in or approve the application with conditions, the application of general laws limiting or restricting restrictions or limitations. An aggrieved developer the use of property impacts basic property rights may then appeal to the Florida Land and Water under the constitution and requires close judicial Adjudicatory Commission. & 380. 07. Fla. Stat. scrutiny. The initial burden is upon the landowner to U.221J Following an administrative hearing, the demonstrate that his petition for use of privately- Commission may grant or deny permission to owned lands complies with the reasonable procedural develop and may * 164 attach conditions and requirements of the ordinance and that the proposed restrictions to its decision. use is consistent with the applicable comprehensive zoning plan. Upon such a showing, the landowner is ill Although it is not expressly stated, chapter 380 presumptively entitled to use his property in the manner he seeks unless the opposing governmental requires a balancing of the interests of the state in protecting the health, safety, and welfare of the agency proves by clear and convincing evidence that public against the constitutionally protected interests a specifically stated public necessity requires a of the private property owner. Graham v. Estuarv specific, more restrictive use. After such a showing, Prooerties. 399 So. 2d 1374 ( Fla.), cert. denied, the burden shifts to the landowner to assert and prove Inc.. 454 U. S. 1083. 102 S. Ct. 640. 70 L.Ed. 2d 618 that the more restrictive land use constitutes a taking 2. Fox Ll.. ill; v. Treasure Coast Rerzional Planninrz of his property for which he is entitled to Council.