Opinion
No. 2D21-1033
02-11-2022
BALM ROAD INVESTMENT, LLC ; Cassidy Holdings, LLC ; Ballen Investment, LLC ; Highway 301 Investors, LLC ; and McGrady Road Investment, LLC, Petitioners, v. HILLSBOROUGH COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.
Hala Sandridge of Buchanan Ingersoll & Rooney PC, Tampa, for Petitioners. Carly J. Schrader, Gregory T. Stewart, and Elizabeth Desloge Ellis of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Respondent. Jacob T. Cremer and Nicole A. Neugebauer of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Tampa, for Amici Curiae Hillsborough County Farm Bureau, Inc., and Florida Farm Bureau Federation. Clayton T. Osteen, Anthony D. Tilton, Patrick S. Bickford, and Benjamin B. Bush of Ausley & McMullen, P.A., Tallahassee, for Amicus Curiae Florida Home Builders Association.
Hala Sandridge of Buchanan Ingersoll & Rooney PC, Tampa, for Petitioners.
Carly J. Schrader, Gregory T. Stewart, and Elizabeth Desloge Ellis of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Respondent.
Jacob T. Cremer and Nicole A. Neugebauer of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Tampa, for Amici Curiae Hillsborough County Farm Bureau, Inc., and Florida Farm Bureau Federation.
Clayton T. Osteen, Anthony D. Tilton, Patrick S. Bickford, and Benjamin B. Bush of Ausley & McMullen, P.A., Tallahassee, for Amicus Curiae Florida Home Builders Association.
LUCAS, Judge.
Balm Road Investment, LLC; Cassidy Holdings, LLC; Ballen Investment, LLC; Highway 301 Investors, LLC; and McGrady Road Investment, LLC, have filed a second-tier petition for certiorari challenging the Hillsborough County Board of County Commissioners' denial of their development application. Because of the narrow scope of second-tier review, we must deny their petition.
The petitioners in this case, a group of landowners, hoped to develop a "planned village" community in a rural area of southern Hillsborough County. Not one county agency, office, or adjacent governmental entity that reviewed the petitioners' rezoning application—whether it was the county's transportation staff, Development Services Department, Water Resource Services, the Hillsborough County School Board, the Hillsborough Area Regional Transit Authority, the Conservation and Environmental Lands Management Department, or the Environmental Protection Commission—had any objection to the planned development. The Hillsborough County Planning Commission reviewed the application and concluded that it complied with the requirements of the county's comprehensive plan, as well as "the vision of the Balm Community Plan" and that it met all the zoning requirements for this type of designation. The zoning hearing master who considered the application and the evidence recommended the application's approval.
The property is zoned Residential Planned-2 (RP-2), a land use category that would permit a planned village designed development.
When the application came before the Hillsborough County Commission at a public hearing, four local residents spoke out against it. After hearing their objections and the petitioners' presentation, a divided Hillsborough County Commission voted to reject the application outright.
One other resident submitted a written objection. It was appropriate for the Commission to hear and consider their presentations—which pertained to generalized concerns about the development's impact on traffic, the overall rural character of the area, and their ability to see the stars at night—but the statements of the neighbors did not provide competent, substantial evidence that would have supported denial of the application. See Katherine's Bay, LLC v. Fagan , 52 So. 3d 19, 30-31 (Fla. 1st DCA 2010) (concluding that where the "County Staff's report indicates that the traffic issue was studied by an expert and determined that increased traffic would not unduly burden the area," that cannot be overcome by generalized complaints about increased traffic); Pollard v. Palm Beach County , 560 So. 2d 1358, 1360 (Fla. 4th DCA 1990) ("[O]pinions of residents are not factual evidence and not a sound basis for denial of a zoning change application." (citing City of Apopka v. Orange County , 299 So. 2d 657, 660 (Fla. 4th DCA 1974) )).
The petitioners then sought first-tier certiorari relief in the circuit court. The court below rendered an extensive written order denying the petition. The court acknowledged that the petitioners' application "appears to approach stated goals in terms of the clustering ratios, buffers, and land dedicated for commercial and servicer-oriented uses." Nevertheless, according to the court, the landowners failed to meet their initial burden of showing their proposed rezoning was consistent with the county's comprehensive plan. Accord Bd. of Cnty. Comm'rs of Brevard Cnty. v. Snyder , 627 So. 2d 469, 476 (Fla. 1993).
With all due respect to the circuit court, that conclusion simply cannot be justified. These petitioners met their evidentiary burden. Indeed, the evidence below was overwhelming that this proposed development was consistent with the requirements of the planned development zoning classification and the comprehensive plan. The circuit court concluded to the contrary only because it plucked one point of data from the petitioners' traffic study about anticipated car trips on a county road, looked at an aerial picture of the area around the proposed development, and remarked that "the project shows heavy reliance on the automobile for transportation."
The court went on to rule that even if the petitioners had met their initial burden, the commission would have been justified denying the application because "maintaining the existing zoning classification" would have been consistent with "preserving the land for agricultural use, discouraging development outside the Urban Service Area, and protecting the rural character of the community." Accord Sarasota County v. BDR Invs., LLC , 867 So. 2d 605, 607 (Fla. 2d DCA 2004) (noting that once a landowner meets its initial burden to prove consistency with the comprehensive plan and compliance with the applicable zoning ordinances, the burden shifts to the government to show there is "a legitimate public purpose behind maintaining the existing zoning classification" (citing Snyder , 627 So. 2d at 476 )). The same evidentiary shortcomings belie the court's alternative finding. Moreover, based on the zoning classification, the comprehensive plan, and this record, the "public purpose" the circuit court identified is not a legitimate one because what it amounts to is, at bottom, a moratorium on "planned village" developments in this area. Cf. City of Sanibel v. Buntrock , 409 So. 2d 1073, 1075 (Fla. 2d DCA 1981) ("If an ordinance substantially affects land use, it must be enacted under the procedures which govern zoning and rezoning. To entirely prohibit a person from building upon his property even temporarily is a substantial restriction upon land use."); City of Gainesville v. GNV Invs., Inc. , 413 So. 2d 770, 771-72 (Fla. 1st DCA 1982) (holding that city's adoption of a moratorium on skating centers without complying with specific notice requirements for the adoption of new zoning ordinances was invalid). Perhaps not coincidentally, not long after the denial of the petitioners' application, the County Commission adopted an ordinance imposing just such a moratorium.
This last point would be true for any residential development, of any size, in Florida, since the vast majority of commuting in Florida is by automobile. See Fla. Dep't of Transp., 2019 Commuting Trends in Florida: A Special Report from FDOT Forecasting and Trends Office (2020).
We are of the opinion that the court below erred in its assessment of the evidence. But our court cannot give relief to the petitioners despite that error. See Custer Med. Ctr. v. United Auto. Ins. Co. , 62 So. 3d 1086, 1092 (Fla. 2010) ("[W]hen a district court considers a petition for second-tier certiorari review, the 'inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,' or, as otherwise stated, departed from the essential requirements of law." (quoting Haines City Cmty. Dev. v. Heggs , 658 So. 2d 523, 530 (Fla. 1995) )); Biscayne Marine Partners LLC v. City of Miami , 273 So. 3d 97, 101 (Fla. 3d DCA 2019) ("Our review on second-tier certiorari is extremely limited."); Alvey v. City of North Miami Beach , 206 So. 3d 67, 70 (Fla. 3d DCA 2016) (granting second-tier certiorari but noting "we are not reweighing the evidence—which we cannot do"). "[I]t is not the function of this Court on second-tier certiorari to correct error or reweigh the evidence." City of Miami v. Hervis , 65 So. 3d 1110, 1115 (Fla. 3d DCA 2011).
This extreme deference is grounded in part upon the historic nature of certiorari relief, see Custer Med. Ctr. , 62 So. 3d at 1092-93, and in part upon the purported expertise of agency fact-finding in zoning determinations, see Wiggins v. Fla. Dep't of Highway Safety & Motor Vehicles , 209 So. 3d 1165, 1171 (Fla. 2017) ("This Court has deferred to the findings of an agency fact-finder in the context of zoning and policy determinations, as the agency fact-finder in theory has the requisite experience, skill, and perspective to adequately adjudicate specialized proceedings."). We recognize that certiorari review of zoning decisions can sometimes lead to troubling and anomalous results. See generally Evans Rowing Club, LLC v. City of Jacksonville , 300 So. 3d 1249, 1250-56 (Fla. 1st DCA 2020) (B.L. Thomas, J., concurring specially) (Makar, J., concurring). It certainly seems so in the case at bar. The petitioners' private property rights have been curtailed for what appears to be simply a general distaste for development rather than any codified standards. But because these landowners cannot obtain a plenary review of the Commission's decision, we are constrained by the highly deferential standard of second-tier certiorari review to deny this petition.
This case gives the lie to the expertise justification by turning it on its head. The decision before us is contrary to the recommendations of all the professionals who reviewed the application, and yet we are constrained in our consideration to defer to it as if it were otherwise.
Petition denied.
SILBERMAN, J., Concurs.
NORTHCUTT, J., Concurs in result only.