Colonial Apts., LP v. City of Deland

577 So. 2d 593, 1991 WL 16313
CourtDistrict Court of Appeal of Florida
DecidedFebruary 14, 1991
Docket90-1377
StatusPublished
Cited by3 cases

This text of 577 So. 2d 593 (Colonial Apts., LP v. City of Deland) 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
Colonial Apts., LP v. City of Deland, 577 So. 2d 593, 1991 WL 16313 (Fla. Ct. App. 1991).

Opinion

577 So.2d 593 (1991)

COLONIAL APARTMENTS, L.P., Etc., Petitioner,
v.
CITY OF DeLAND, Etc., Respondent.

No. 90-1377.

District Court of Appeal of Florida, Fifth District.

February 14, 1991.
Rehearing Denied April 8, 1991.

*594 Jason G. Reynolds of Coble, Barkin, Gordon, Morris & Reynolds, P.A., Daytona Beach, for petitioner.

Astrid de Parry, City Atty., DeLand, for respondent.

PETERSON, Judge.

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) Minimum project site. A two-family or multi-family dwelling project site should be approximately one acre or more in area in order to accommodate at least two (2) or three (3) buildings, 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 multi-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 terms 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 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 commission 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 33-8.1(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 R-4 zoning district was more analogous to a special exception use than a rezoning, and that density was a proper consideration under 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 (nothing 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-density, 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."

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Cite This Page — Counsel Stack

Bluebook (online)
577 So. 2d 593, 1991 WL 16313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colonial-apts-lp-v-city-of-deland-fladistctapp-1991.