BD. OF COUNTY COMM'RS v. Monticello Drug Co.

619 So. 2d 361, 1993 WL 169168
CourtDistrict Court of Appeal of Florida
DecidedMay 21, 1993
Docket92-946
StatusPublished
Cited by1 cases

This text of 619 So. 2d 361 (BD. OF COUNTY COMM'RS v. Monticello Drug Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
BD. OF COUNTY COMM'RS v. Monticello Drug Co., 619 So. 2d 361, 1993 WL 169168 (Fla. Ct. App. 1993).

Opinion

619 So.2d 361 (1993)

BOARD OF COUNTY COMMISSIONERS OF LEON COUNTY, Petitioner,
v.
MONTICELLO DRUG COMPANY and O'Connor Development Corporation, Respondents.

No. 92-946.

District Court of Appeal of Florida, First District.

May 21, 1993.
Rehearing Denied June 29, 1993.

David La Croix, Pennington, Wilkinson, and Dunlap, Tallahassee, for petitioner.

M. Steven Turner, Broad and Cassell, Tallahassee, for respondents.

BARFIELD, Judge.

The Board of County Commissioners of Leon County (Board) seeks review of an order which reversed the Board's denial of a rezoning application. We reverse.

Monticello Drug Company and O'Connor Development Corporation (Monticello) owned or controlled approximately 28 acres of property at the northeast junction of Thomasville and Bradfordville roads in Leon County. The property is zoned A-2, which allows agricultural and certain residential uses. The land use plan map designated a portion of the parcel as General Business, with the remainder designated as Urban Undesignated.

In June, 1989, Monticello requested that a majority of the property be rezoned to Commercial Parkway, with a portion of the property rezoned to allow limited specific office and professional uses under the Office and Professional Commercial District designation. The portion of the tract designated *362 Urban Undesignated according to the land use plan map would have to be redesignated to General Business.

The Tallahassee-Leon County Planning Commission (Commission) felt that the request was inconsistent with the comprehensive plan and the land use plan map, which provided for a general commercial area somewhat less in size than the request. The Commission noted that the "request site was found inconsistent with the locational policies for General Business because the site is not located at the intersection of arterial roadways and is not located at the center of several neighborhoods." The Commission agreed that staff had correctly interpreted the element policies dealing with the availability of utilities to the site. These policies encouraged development to occur in areas already served by sanitary sewer systems and existing public utilities. The request was also determined to be in conflict with policies which sought to allow adequate amounts of land for manufactured housing and mobile homes and to encourage the preservation of agricultural land and other rural properties. Additional reasons cited for recommending denial included:

the district intent of CP which provides that area should be viewed as the "entrance to the urban area" and this was felt to be a significant question under the current Comprehensive Plan; the timing of being faced with making a decision on this request in view of on-going activities to assess what is the best alternative for Bradfordville; the application is premature in that to support it you have to assume the continuation of the existing development pattern which is a valid assumption, but not a certainty.

The Commission recommended to the Board that the requested rezoning be denied.

The Board considered the matter on September 26, 1989. Monticello's attorney appeared and presented the Board with a new limited site plan and requested that the Board continue the matter. A representative of Monticello appeared before the Board and explained the new amended limited use site plan to the Board. The area that was previously designated for rezoning limited to specific commercial and professional office uses was now depicted as remaining A-2. Thus, the area requested to be rezoned was approximately 19 acres rather than the initial 28 acres. The amended plan presented indicated, however, that the portion of the property that would remain zoned A-2 would be reserved for stormwater management and natural buffer areas. During the Board meeting, Rick Moore, an engineer, informed the Board that a three-acre on-site holding pond and treatment facility would be located on this site. The Board voted to uphold the Commission's recommendation of denial.

Monticello filed a petition for writ of certiorari and complaint for declaratory judgment in the Leon County Circuit Court, dated October 26, 1989. After filing several amended complaints, Monticello filed a motion to allow further amendment in response to this Court's decision in Leon County v. Parker, 566 So.2d 1315 (Fla. 1st DCA 1990). The motion to amend was granted and Monticello filed a Restated Complaint for Writ of Certiorari and Declaratory Judgment.

Monticello asserted that the Board's denial was legally insufficient, unsupported, or contrary to law because: 1) the amended plan, which significantly reduced the area to be designated for general business use, was not evaluated by the adopted findings of the Commission; and 2) the locational policy for general business designation was complied with because competent evidence established that the subject property was at the center of several large residential neighborhoods. Monticello also argued, with regard to the four plan elements with which the rezoning was found to be inconsistent, that: 1) the area was not suitable for mobile homes or manufactured housing; 2) the amended site plan preserved a large amount of agricultural land; 3) the area is presently served by existing public utilities, to-wit, water and electricity; 4) sanitary sewer can and must be provided to the location for the requested zoning to be effective, and significant commercial development *363 has already been allowed in the area. Monticello asserted that the Board violated its procedural due process rights by failing to properly evaluate the zoning request as amended and that there was no sufficient basis in the record to support the denial of the amended rezoning request.

Monticello requested that the Board's decision be quashed and the matter remanded to the Board with instructions to approve the request as amended or to reconsider the amended request. If certiorari relief was denied, Monticello requested that the circuit court declare that continuance of the agricultural zoning is confiscatory and that Monticello is entitled to a zoning classification that will allow reasonable commercial development.

In response to the decision in Parker, Monticello asserted that section 163.3215, Florida Statutes, was not applicable or that it would have been futile to request further administrative proceedings. Monticello also asserted that it had substantially complied with section 163.3215(4) because: 1) no relief was sought to prevent local government from taking action that materially alters land use; 2) compliance was futile because the Board had already been informed of the objections to the Commission's report and the Board had refused to allow the Commission to consider the amended application; 3) the Board ended the administrative process; 4) Monticello was not accorded procedural due process; and 5) Monticello substantially complied by serving the original complaint on the Board within 30 days of denial of the rezoning application and serving the amended complaint after the period for the Board's response had elapsed.

The Board, in its answer, asserted numerous defenses. The Board argued that a rezoning decision is a legislative decision not reviewable by petition for writ of certiorari. The Board contended that the agricultural zoning was not confiscatory and its reasonableness was at least fairly debatable.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

O'CONNOR DEVELOPMENT CORPORATION v. Leon County
630 So. 2d 578 (Supreme Court of Florida, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
619 So. 2d 361, 1993 WL 169168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bd-of-county-commrs-v-monticello-drug-co-fladistctapp-1993.