Norwood-Norland Homeowners Ass'n v. Dade County

18 Fla. Supp. 2d 196
CourtCircuit Court for the Judicial Circuits of Florida
DecidedAugust 18, 1986
DocketCase No. 85-325-AP
StatusPublished

This text of 18 Fla. Supp. 2d 196 (Norwood-Norland Homeowners Ass'n v. Dade County) is published on Counsel Stack Legal Research, covering Circuit Court for the Judicial Circuits of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norwood-Norland Homeowners Ass'n v. Dade County, 18 Fla. Supp. 2d 196 (Fla. Super. Ct. 1986).

Opinions

OPINION OF THE COURT

KORNBLUM, J.

This is an appeal pursuant to Section 33-316 of the Metropolitan Dade County Code and Rule 9.110 of the Florida Appellate Rules from Resolution number Z-211-85 adopted by the County Commission on September 26, 1985, rezoning certain real property in Northwest Dade County, the site of the proposed Dolphin Stadium.

Appellants, homeowner’s associations and individuals, urge that:

1. In rezoning the property the County Commission improperly departed from its Master Plan, adopted in 1983.

2. The County Commission wrongfully terminated a restrictive covenant, which had restricted the use of the subject property.

Appellees argue that since the first point was not raised in the proceedings before the County Commission, this court is without jurisdiction to hear it; furthermore, if the court has jurisdiction, the zoning resolution is fairly debatable and should not be disturbed.

On the second point appellees urge that all concerned parties were given an opportunity to be heard in regard to the termination of the restrictive covenant; that appellants made no objections nor suggestions regarding the manner in which the covenant should be terminated, and therefore, the County’s method of termination should be conclusive. State ex rel Szabo Food Services, Inc. v. Dickinson, 286 So.2d 529 (Fla. 1983).

Appellees have filed a Motion to Strike appellants’ first point arguing that this court has no jurisdiction. The City of St. Petersburg v. St. Petersburg Yacht Club, 352 So. 2d 119 (Fla. 2d DCA 1977). Appellees further seek to strike portions of the appellants’ appendix claiming that certain exhibits were not before the County Commission, and that the court should not consider them.

Before proceeding on the merits, we must first consider the Motion to Strike. In connection with appellees’ Motion to Strike that part of this appeal involving the alleged changes to the Master Plan, it is not clear on what basis the appellants charge that the County Commission improperly deviated from the Plan.

An examination of the record reveals that although their argument [198]*198was not labeled as such, appellants were complaining about placing the proposed development in an area designated for low to medium density residential development in the Master Plan. (R. 400, 549, 579). The same examination reveals that exhibits labeled A, F, G and H, of appellants’ appendix were not actually part of the record.

For these reasons the Motion to Strike related to the deviation from the Master Plan is denied. The Motion to Strike the exhibits is granted.

In consideration of the merits the points will be addressed as follows:

1. Whether there was a deviation from the Master Plan, and if so, were the changes made according to law.

2. Whether the restrictive covenant was properly terminated.

The Master Plan reflects that some or all of the subject property is designated as a Sub-Metro Activities Center. (R. 457, 458, Appellants’ Appendix I). Some of the uses consistent with this type of area are: shopping centers, general business districts, office parks, government centers, cultural or recreational complexes. (R. 458). The Master Plan and engineering and aerial photos show this property is bounded on the North by the Snake Creek Canal, on the West by Northwest 27th Avenue, also known in Broward County as University Drive, and on the East by Sunshine State Parkway. Subsequent to the construction of the homes which are appellants concern, Northwest 27th Avenue became a major thoroughfare, and a linkage for those commuting between the fast developing areas of West Broward and Dade County. The Calder Racing Complex, including a hotel is a short distance north of the proposed development and the turnpike just north of that. Much of the subject property had been zoned for residential use for many years before the stadium was proposed but remained undeveloped. For these reasons, the court concludes that rezoning the property for the construction of a sports stadium complex is not a deviation from the Master Plan.

Appellees argue that the focus of the court’s attention should be the benefit of the proposed stadium complex to the community and the county, rather than the inconsistency of the zoning with the Master Plan. No doubt the project would create jobs and generate more revenue. Nevertheless, these benefits must be weighed against the obvious burden on appellants’ community. (R. 417, 418, 419).

Appellants appear to be more concerned with the lack of sufficient parking, buffer areas, and the effects of support facilities, hotels, and offices, than with the stadium itself. (R. 559, 560, 561). Not unmindful of these real concerns the court must determine whether the zoning [199]*199changes are a reasonable and appropriate exercise of legislative power, and whether the zoning is fairly debatable.

The police power of a legislative body should have a reasonable relation to the public health, safety, morals, and welfare. Zoning is a legislative matter, and where the legislature determines that zoning is proper for an area, it is presumed to have a substantial relationship to the public welfare. Dade County v. Intersiones Rafamar, S.A., 360 So.2d 1130 (Fla. 3d DCA 1978).

Absent a clear showing of unreasonableness or lack of substantial relationship to the public welfare, the courts should not disturb the resolution of a commission if it is fairly debatable. City of Miami v. Schutte, 262 So.2d 14 (Fla. 3d DCA 1972). The test to determine if a zoning resolution is fairly debatable, is whether reasonable minds could differ as to the outcome of a hearing. If so, the court should sustain the County Commission’s resolution. Dade County v. United Resources, Inc., 374 So.2d 1046 (Fla. 3d DCA 1979); G.M. Davis v. Sails, 318 So. 2d 214 (Fla. 1st DCA 1975). The burden is on the party challenging the resolution to show that the matter is not fairly debatable. Dade County, 374 So.2d at 1050; G.M. Davis, 318 So.2d at 226.

Although some of the plans for the facilities do not adequately address the concerns of the appellants the court should not substitute its judgment for that of the Commission’s, made after a public hearing and with the benefit of professional planning recommendations. We must therefore conclude that the zoning resolution appealed from and the zoning itself is fairly debatable and should be upheld.

The appellants’ second argument, regarding the cancellation of the restrictive covenant, is that the County made no valid determination that the restrictions had been cancelled by the required majority of the property owners and majority of property. Appellants also contend that if such a determination were made, it was erroneous.

The restrictions are contained in a “Covenant Governing Land Development” dated February 16, 1977, between the owners collectively referred to as the “Mortons”, Janis Enterprises, Inc., the lessee developer and Metropolitan Dade County. The covenant was obviously required by the County as a condition for the rezoning of a portion of the property.

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Related

City of Miami v. Schutte
262 So. 2d 14 (District Court of Appeal of Florida, 1972)
Dade County v. United Resources, Inc.
374 So. 2d 1046 (District Court of Appeal of Florida, 1979)
City of Oakland v. Oakland Raiders
646 P.2d 835 (California Supreme Court, 1982)
Lalow v. Codomo
101 So. 2d 390 (Supreme Court of Florida, 1958)
DADE CTY. v. Inversiones Rafamar, SA
360 So. 2d 1130 (District Court of Appeal of Florida, 1978)
Davis v. Sails
318 So. 2d 214 (District Court of Appeal of Florida, 1975)
New Jersey Sports & Exposition Authority v. McCrane
292 A.2d 545 (Supreme Court of New Jersey, 1972)
United States Rubber Products, Inc. v. Clark
200 So. 385 (Supreme Court of Florida, 1941)
Cobb v. McCall
156 So. 705 (Supreme Court of Florida, 1934)
Dunham v. State
192 So. 324 (Supreme Court of Florida, 1939)
Moore v. Stevens
106 So. 901 (Supreme Court of Florida, 1925)
State Ex Rel. Williams v. Whitman
150 So. 136 (Supreme Court of Florida, 1933)
Japanese Gardens Mobile Estates, Inc. v. Hunt
261 So. 2d 193 (District Court of Appeal of Florida, 1972)
State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson
286 So. 2d 529 (Supreme Court of Florida, 1973)
City of St. Petersburg v. St. Petersburg Yacht Club
352 So. 2d 119 (District Court of Appeal of Florida, 1977)

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Bluebook (online)
18 Fla. Supp. 2d 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norwood-norland-homeowners-assn-v-dade-county-flacirct-1986.