Starkey v. Okaloosa County

512 So. 2d 1040, 12 Fla. L. Weekly 2218, 1987 Fla. App. LEXIS 10146
CourtDistrict Court of Appeal of Florida
DecidedSeptember 8, 1987
DocketNo. BN-293
StatusPublished
Cited by2 cases

This text of 512 So. 2d 1040 (Starkey v. Okaloosa County) 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
Starkey v. Okaloosa County, 512 So. 2d 1040, 12 Fla. L. Weekly 2218, 1987 Fla. App. LEXIS 10146 (Fla. Ct. App. 1987).

Opinions

SMITH, Chief Judge.

Appellants, James and Alice Starkey and Bobbie Scheffer, seek review of a final judgment upholding the adoption of Ordinance Nos. 85-08 and 85-09 by the Okaloo-sa County Board of Commissioners (Oka-loosa County). We affirm.

This case involves the zoning classification of two parcels of property located in Bayview Subdivision adjacent to Fort Walton Beach, Okaloosa County, Florida. James and Alice Starkey own the first parcel consisting of Lots 1-5, the easterly ten feet of Lots 6-7, Lots 8-11, and that portion of the vacated alley touching on the above lots, all being located and situated in Block 12, according to a plat recorded in the public records of Okaloosa County in Plat Book 1, Page 26. Bobbie Scheffer owns the second parcel consisting of Lots 11-14 of Block 11.

In its original zoning ordinance enacted on March 7, 1974, Okaloosa County zoned the Starkey property as residential urban apartment (RUA) and the Scheffer property as business general (BG).

On August 1, 1974, Okaloosa County rezoned the Starkey property from RUA to residential urban single (RUS). Subsequently, Starkey filed a lawsuit which resulted in a final judgment entered in 1975 setting aside the RUS classification on the ground that Okaloosa County had acted in an arbitrary manner when it rezoned the property. According to John R. Dowd, attorney for Okaloosa County, the court’s conclusion was predicated on the fact that there had been no change in conditions during the intervening four-month period between enactment of the original ordinance, presumed to be valid, and the amendment thereto. He also stated that the judgment was predicated on a procedural error relating to initiation of the amendatory process. Although Okaloosa County appealed the judgment, the court dismissed the appeal for reasons unrelated to the merits of the case.

A new zoning map, adopted about nine years later, reflected that the parcels owned by Starkey and Scheffer were zoned RUS, not RUA and BG respectively. The landowners requested that the map be corrected, to no avail. Starkey and Scheffer then filed a lawsuit which resulted in a final judgment directing Okaloosa County to correct its zoning map on the ground that there had been no rezoning ordinance enacted with respect to these two parcels. Okaloosa County appealed the judgment which was per curiam affirmed on November 18, 1985.

On January 22, 1985, while the second lawsuit was pending before the appellate court, Okaloosa County enacted Ordinance Nos. 85-08 and 85-09, which contained in relevant part the following language with respect to the Starkey and Scheffer parcels:

The Official Zoning Map of Okaloosa County is hereby amended or affirmed to zone that certain parcel of property in Okaloosa County RUS ...

Starkey and Scheffer then filed a lawsuit in circuit court requesting that the rezoning be set aside. The complaint alleged that the zoning ordinances were invalid because there was no showing that the prior zoning classifications (RUA and BG respectively) were adverse to the public health, [1042]*1042safety, or morals and that there was no showing of a substantial change affecting the two parcels or the surrounding real property since enactment of the original zoning ordinance in 1974. The complaint also alleged that the rezoning ordinances were enacted in an arbitrary and capricious manner and because certain commissioners always felt that the property should be zoned RUS.

A trial de novo was held pursuant to section 163.250, Florida Statutes (1983), at which the entire record of the legislative proceedings regarding this matter was admitted into evidence. At the hearing before the trial court, three witnesses testified: James Starkey, Arthur Cruickshank, property owner in Bayview Subdivision, and Larry Anchors, Okaloosa County Commissioner.

James Starkey testified that he had no specific plans to develop the property as RUA, but that in his opinion this zoning classification would have no adverse impact on the health, safety, or morals of the community.

Arthur Cruickshank, representative of property owners in Bayview Subdivision opposing the RUA zoning classification, stated that the subdivision had always consisted of single family dwellings except for two duplexes which were currently owned by Scheffer and that an adjacent subdivision was likewise zoned for single family residences. He also stated that since 1974, nineteen single family dwellings had been built near these two parcels. It was his opinion that to permit the construction of multifamily dwellings and business establishments in the subdivision would destroy the integrity of the single family residential neighborhood and diminish the economic value of the property.

Larry Anchors testified that he voted for the zoning changes to maintain the integrity of the neighborhood and to make the land use consistent.

In addition to considering the evidence admitted at the hearing, the trial judge personally viewed the two parcels.

In its final judgment, the trial court, in upholding the two rezoning ordinances, found that the area in question, consisting almost exclusively of low density single family residences, had substantially changed since 1974, in that all subsequent construction in the area consisted of single family dwellings. The trial court also found that the ordinances were properly enacted and that they promoted the integrity of the neighborhood, preserved its residential character, protected economic value of existing uses, and avoided the problems associated with increased traffic.

Appellants raise four issues on appeal. First, they contend that Okaloosa County was barred by the doctrine of election of remedies from simultaneously seeking judicial and legislative relief, citing Klondike v. Blair, 211 So.2d 41 (Fla. 4th DCA 1968), and Rhyne v. City of Wilton Manors, 392 So.2d 992 (Fla. 4th DCA 1981). We disagree, for this doctrine applies only to remedies available in a judicial proceeding and does not bar simultaneous legislative action.

Second, appellants argue that there is no evidence to support the trial court’s finding that the ordinances were not adopted capriciously in order to defeat or gain an advantage in pending litigation, citing Dade County v. Williams, 278 So.2d 634 (Fla. 3rd DCA 1973). We disagree, for regardless of the outcome of the judicial proceeding, it was Okaloosa County’s legislative prerogative to rezone the parcels, provided it met the test for enacting a zoning amendment. Williams is distinguishable. After denying the landowner’s request to subdivide her property on the ground that the proposed lot sizes were incompatible with other lots in the neighborhood, the county therein, during pend-ency of the subsequent lawsuit, changed the zoning classification of the property from single family residential to three-quarter acre estates. These facts revealed that the zoning change was effected capriciously in order to defeat pending litigation. However, in the present case, the record reveals that since 1974, Okaloosa County has attempted to make the zoning in the Bayview Subdivision consistent [1043]*1043throughout, and for reasons not entirely clear from the record, its goal has been thwarted at various times.

Third, appellants contend that Oka-loosa County failed to follow the proper procedure for enacting the two ordinances. Again, we disagree.

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Bluebook (online)
512 So. 2d 1040, 12 Fla. L. Weekly 2218, 1987 Fla. App. LEXIS 10146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/starkey-v-okaloosa-county-fladistctapp-1987.