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

regarded the hearing it planned a development with office buildings officer' s finding that the 35- height restriction " does similar to the Crown Oaks Development which not make sense in parcel 5" as a conclusion of law apparently has a residential feel to it. The office and disagreed with the hearing officer on this matter. buildings proposed by Battaglia were meant to look The Commission noted that Lakepointe is virtually like homes. James Sellen, Battaglia' s expert, surrounded by Maitland, that Maitland' s testified that " residential scale and character" had Comprehensive Development Plan and Zoning Code certain distinguishing characteristics such as pitched set a height limitation for office development east of @ 2006 Thomson/West. No Claim to Orig. U. S. Govt. Works. 629 So.2d 161 Page 8 629 So.2d 161, 18 Fla. L. Weekly D21I7 Cite as: 629 So. 2d 161) 1-4 at 35 feet, that the 35- foot height restrIctIOn In sum, the conditions imposed by Orange County' s preserves the single family residential character of rezoning for the Lakepointe project appear to be the area and that neighboring homeowners opposed a rationally related to maintaining a residential feel and height on the project of 35 feet. atmosphere for the project. Similar limitations have been imposed by the County for commercial ill Battaglia argues that the hearing officer' s finding developments for similar reasons. In this case, the that the 35- foot height restriction does not make primary justification for the conditions was to sense for parcel 5 was indeed a finding of fact which preserve the residential character of the surrounding was supported by the evidence and thus should not areas, and thereby preserve the integrity of both have been overturned by the Commission. Both Orange County' s and the City of Maitland' s parties acknowledge that an agency may not reject or comprehensive zoning plans for the areas modify findings of fact if they are based on immediately adjacent to this large- scale development substantial, competent evidence. & 120. 57(1 )( b)(] 0), project. Fla. Stat. ( 1991 ); Kinnev v. Deoartment of State 501 So. 2d 129 ( Fla. 5th DCA 1987), However, neither Because they were based on competent and the agency nor the court is bound by the labels substantial evidence presented below, we conclude affixed to findings of fact and conclusions of law. If the challenged conditions are not unreasonable and a conclusion is improperly labeled as a finding of arbitrary. Bell v. Otv of Sarasota 371 So. 2d 521 fact, the label is disregarded and the item is treated as Fla. 2d DCA 1979). Nor were the conditions shown though it were properly labeled. Kinney. An to unduly restrict Battaglia' s use of the land, so as to agency, however, may not disregard the hearing constitute an unconstitutional taking of property by officer' s findings of fact by simply characterizing the depriving the owner of a reasonably economically finding as a conclusion oflaw. Kinney. viable use of the land. Prior to the rezoning, Battaglia would have been limited to building single Here the hearing officer' s determination that a 35- foot family dwellings. The options under the new PUD height restriction " did not make sense for parcel 5" is zoning are considerably broader and more a conclusion rather than a finding and was properly economically advantageous, * 169 even with the E1lli set aside by the Commission. James Sellen, challenged conditions. Battaglia' s expert, admitted that professional office zoning regulations in Orange County restricted the height of buildings to 35 feet and that a special FN 11. It has never been the law that a exception would be needed for taller buildings. landowner is entitled to the highest and best Although this is not a straight zoning or rezoning use of his land. See Penn Central Tramo request, the height restrictions for professional office Co. v. Citv of New York. 438 U. S. 104. 98 buildings in Orange County is clearly relevant. S. Ct. 2646. 57 L.Ed. 2d 631 ( 1978); Graham v. Estuarv Prooerties 399 So. 2d 1374 Inc.. County Commissioner Vera Carter testified that Fla.), cert. denied, 454 U. S. 1083. 102 S. Ct. Orange County wanted development on the east side 640. 70 L. Ed.2d 618 ( 1981 ); Glisson v. of 1-4 to be residential and that a 35- foot height Alachua Countv 558 So.2d 1030 ( Fla. 1 st requirement was more compatible with the residential DCA), rev. denied, 570 So. 2d 1304 character of the area. Edward Williams testified that Fla. 1990); Fox v. Treasure Coast Reftional Council 442 So.2d 221 ( Fla. 1st professional office regulations in Orange County Plan in'Z provided for a 35- foot height maximum and that DCA 1983), Orange County had limited buildings in other projects to 35 feet in height. Williams noted that the AFFIRMED. lakes in the development are a separation buffer but do not provide a visual barrier for nearby residents. GOSHORN, J., concurs specially in result, with The City of Maitland does not allow buildings east of opinion. 1-4 to exceed 35 feet in height because it would be COW ART, J. A., Jr., Senior Judge, dissents, with inconsistent with its plan to develop the area east of opinion. 1- 4 as a residential area. The 35- foot height GOSHORN, Judge, concurring specially. requirement appears to be reasonably related to the While I concur in the result reached by Judge Sharp, I stated policies of both Orange County and Maitland, write to express my disagreement with the standard to preserve the residential nature of the area. of review applied. Judge Sharp labels the conditional zoning changes, made to accommodate 1J 2006 Thomson/ West. No Claim to Orig. U. S. Govt. Works. 629 So.2d 161 Page 9 629 So. 2d 161, 18 Fla. L. Weekly D2117 Cite as: 629 So. 2d 161) the appellant's permit request, as " comprehensive" or Fla. App. 5 Dist., 1993. affecting a large portion of the public," " legislative Battaglia Properties, Ltd. v. Florida Land and Water in character," and susceptible of the " fairly Adjudicatory Com' n debatable" standard of review. 629 So.2d 161, 18 Fla. L. Weekly D21 17 In Snvder v. Board of Countv Commissioners 595 END OF DOCUMENT So. 2d 65 ( Fla. 5th DCA 1991 ), juris. acceoted. 605 So. 2d 1262 ( Fla. 1992), this court concluded that there are types of rezoning actions, legislative two and not legislative, i. e., executive, judicial, or quasi- judicial. Legislative are actions policy-setting actions and include initial zoning enactments, comprehensive rezoning, or rezonings affecting a large portion of the public. Where a zoning or rezoning decision constitutes legislative action, the reviewing court must apply a deferential standard of review. Non- legislative actions are those rezoning actions which impact on a limited number of people or property owners. Changes in zoning maps following the application of the legislated zoning law to a specific parcel of land as a consequence of a decision on a particular application by a particular owner is a non- legislative action. Id. at 75. In short, non- legislative actions are policy application decisions, not policy setting decisions, and are to receive close judicial scrutiny. In this case, the appellant sought approval to develop approximately 120 acres of its land. The Orange County Commissioners conditionally amended the comprehensive plan and approved the necessary rezoning to accommodate the permit request. This action seems to me to fall within the second, non- legislative type of rezoning as set forth in Snyder. Accordingly, the conditional rezoning changes in this case should receive close judicial scrutiny. Applying that standard, I concur in the result reached by Judge Sharp. COW ART, J. A., Jr., Senior Judge, dissenting. The specially concurring opinion is certainly correct in that zoning action relating specifically to one parcel of land under one ownership is not legislative action. Legislative action in the zoning field should be similar to the passage of a general statute as distinguished from a special act. Applying the correct standard of review, the " conditions" imposed on the Lakepointe development parcel in this case do not constitute " zoning" in any constitutional sense but are mere governmental restrictions custom- drafted to limit appellant's use of its land and should be disapproved as violating property rights guaranteed by the state and federal constitutions. 2006 Thomson/ West. No Claim to Orig. U. S. Govt. Works.