Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING - Procedural Due Process – Substantial Competent Evidence-- the BOCC completely ignored its own Comprehensive Plan and unilaterally changed its Zoning Map without notice, without hearing, without evidence, and without following the essential requirements of law-. There is no legally valid record evidence whatsoever to support the Board’s decision in denying the rezoning . Petition granted. Metro Development Group, LLC v. Pasco County, No. 512006AP000007WS (Fla. 6th Cir. App. Ct. June 6, 2007).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY

 

 

 

 

METRO DEVELOPMENT GROUP, LLC,

 

                        Petitioner,

vs.                                                                                Case No: 512006AP000007WS

                                                                         

PASCO COUNTY, FLORIDA,

a Political Subdivision of the State of Florida,

 

                        Respondent. 

____________________________________/

 

James A. Martin, Esq.

For Petitioner

 

W. Elizabeth Blair, Esq.

For Respondent.

 

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

 

THIS MATTER comes before the Court upon Petitioner's Petition for Writ of Certiorari, Response to Petition for Writ of Certiorari, and Petitioner’s Reply.  Upon consideration of the same and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

Petitioner is a Florida limited liability company which owns the subject land in Pasco County, Florida. In early 2005, Petitioner initially filed its Planned Unit Development (“PUD”) application.  At that time, the subject parcel was zoned for agriculture but had a Future Land Use Classification of RES 3 (3 residential units per acre.)  

At a hearing on July 12, 2005, the Acting Zoning Administrator explained that Petitioner filed for change in zoning from an agricultural district to a Planned Unit Development district (PUD). Petitioner was proposing a 108 units and Staff’s recommendation was denial based on compatibility among other things. Mr. Tew, counsel for Petitioner, requested a remand back to the DRC because there had been filed, since his original filing, an adjacent RES 4 (4 residential units per acre) zoning property; a preliminary site plan that is adjacent to the subject property which materially changes the compatibility issues. It was then remanded back to the DRC.

Revised plans were submitted on February 17, 2006. Another hearing was held on May 23, 2006 to review the plans. At that time, the plan had been reviewed by the Growth Management Department and it had been determined that the proposed development was consistent with the allowed density within the Residential 3 future land use classification.  Staff recommendation to the DRC was approval with conditions. DRC acted on April 13, 2006, approval with amended conditions.   

At that hearing, one of the commissioners, Mariano, expressed concern that the proposed change was inconsistent and incompatible with the existing and established extremely rural residential and agricultural land use pattern in the area. He then stated that  he would be content if they were one acre lots.  Eleven residents testified as to why the development should be denied; but most were in agreement with one acre lots. Mariano then made a motion to deny Staff recommendation and gave an alternative of one acre lots.

Counsel for Petitioner explained how the plan was compatible with the area. He spoke about the fact that the utilities were clearly planned for suburban development; there was a Right Of Way Preservation Ordinance; the utilities were oversized for that area; and there was a Residential 6 land use designation next to the subject property.  He explained that he had a discussion with Commissioner Mariano and at that time, Mariano never mentioned one acre lots. Counsel for Petitioner then requested the case be remanded back to DRC so they could work with Staff or that it be continued for two weeks to work with Staff and see if his client could come up with an acceptable site plan. The hearing was then continued to June 27. Mariano then amended his motion to continue for four weeks.        

            At a hearing on July 25, 2006, Counsel for Petitioner explained that Petitioner had  revised the site plan and now were requesting 78 lots instead of 108 originally requested. He explained that the plan was recommended approval by staff, DRC, and the planning committee. However, the hearing was continued to September 26, 2006, because Growth Management and Zoning were uncomfortable with the documentation available.

On September 26, 2006, Millard, Assistant Zoning Administrator, advised the Board of County Commissioners that Staff recommended approval with conditions and changes.  Millard explained that he spoke with the applicants representative and they were in agreement with the changes. At that time, Counsel for Petitioner made a statement explaining all of the concessions the applicant was willing to make, including the fact that they have agreed to put two units on one acre tracts, which is substantially less than the residential three category allowed under the Future Land Use Classification.   

Five residents of the area asserted that the development is incompatible with the surrounding agricultural area. Counsel explained that this property was in the center of a sea of residential six and I-L industrial land use areas. He went on to state that it is simply not accurate to say they are not compatible with the Comprehensive Plan. He also said the area is suburban residential; not rural agricultural. He went on to state that the plan is far below suburban residential (res-3) and should be approved.

Commissioner Mariano again stated that the proposed change was inconsistent and incompatible with existing and established “extremely …rural residential in agricultural land use pattern in the area.” Mariano then pointed out that everything in the surrounding area is ten acre parcels or more. He then proceeded to make a motion to approve AR-1 zoning, to be site built homes, one acre lots. The following then took place;

SIMON: Got a motion on the floor which is not for the, . . .Staff recommendation; it’s for the approval of AR-one site built homes. Do I hear a second?

 

HILDEBRAND: Which would be what? . . .It’s thirty nine acres so it [would] probably  be about thirty-nine homes?

 

MARIANO:  Right.

 

MULIERI: Second. 

 

SIMON:  We have a second.  Further discussion going first to the motion maker.

 

MARIANO: Just to make one more thing.  As far as some of the rezonings we talked about in the area…there’s one of ‘em in a RES-three that we had just done that also was, . . . .zoned at AR-one.  Now, that one we even made it a cap of three lots on a ten-acre site and that is in the same RES-three that we’re looking at right here.  So, I think to . .  .maintain consistency to what we’ve done in the past, we need to stick to it.”

 

SUMNER;  Well, actually the motion should be then to deny the P-U-D…

 

MARIANO: Okay, well, deny the P-U-D…

 

Mariano then amended the motion to deny the P-U-D and go to A-R one zoning. After further discussion, he went on to state “I think I’ve set the record where we’ve go, we got good background to …make this motion stand.” The motion passed three to two. The PUD was denied, and A-R 1 was recommended.

Petitioner filed the Petition for Writ of Certiorari on October 25, 2006. Upon review of the file, it came to this Court’s attention that the Order complained of had not been filed with the Court. On December 19, 2007, this Court entered a Notice to File Order Under Review. On January 9, 2007, Respondent filed its’ Notice of Filing Resolution No. 06-123RZ with this Court. That document is dated September 26, 2006, and was apparently filed with the Pasco County Clerk on November 29, 2006.    

This Court, having reviewed the record in its entirety, is concerned about the substantial discrepancy between the record and the written order.  Specifically, the record reveals that there was a change in zoning from Residential 3 to AR 1.  However, that change is not contained in the written order. Not only is the change not mentioned; there  is absolutely no reference to AR 1 zoning in the written order whatsoever.  This is of great concern to this Court because that issue was repeatedly addressed in the transcript and appears to have ultimately passed by motion.  Accordingly, the Court finds it necessary to address both the transcript and the written order.

In light of the transcript, it appears that the Board of County Commissioners changed or attempted to change the zoning of the subject property to AR 1.  If in fact that is what they did or attempted to do, this Court will grant the Petition for Writ of Certiorari on that issue alone.  As argued by Petitioner, without notice, presentation of any evidence, or any discussion, the Board unilaterally voted to change the zoning on Petitioner’s property to an AR 1 zoning district (the result of which would be a limit of only one unit per acre, or 39 lots). The Board failed to provide the Petitioner the appropriate notice of its intentions to rezone the property to AR 1 and failed to permit the Petitioner the opportunity to address the unilateral down zoning without due process of law. In effect, the BOCC completely ignored its own Comprehensive Plan (which allowed three units per acre) and unilaterally changed its Zoning Map without notice, without hearing, without evidence, and without following the essential requirements of law.

If, however, what the Board ultimately ordered is that which is in the written Order, then this Court will reverse because the decision is not supported by competent substantial evidence and the Board ignored the obvious requirements of law. As argued by Petitioner, despite the County staff recommendation of approval, the unanimous recommendations for approval by its two advisory boards, and its own instructions to its staff, the Board inexplicably ignored the evidence in this case and denied the Petitioner’s request for a 78 lot subdivision. It appears from the record that Petitioner met its initial burden of establishing by competent substantial evidence that it complied with the reasonable procedural requirements of the zoning ordinance and that the zoning and use sought for the property was consistent with the applicable Comprehensive Plan.   As Petitioner argued  “….[a]s the record in this case makes clear, the county’s governing board did no more than acquiesce to the resident commissioner’s whims and desires for development in his geographic district, and thereby ignored all the facts and evidence presented by its own staff, all of its own advisory boards, and the Petitioner. There is no legally valid record evidence whatsoever to support the Board’s decision in denying the rezoning . . . “  It is, therefore,   

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED.    

 

            DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ________ day of _____________, 2007. 

 

                                                                                    _______________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    __________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

                                                                                                                                                                                                                                                                                   

Copies furnished to:

James A. Martin, Esq.

W. Elizabeth Blair, Esq.