Petition for Writ of Certiorari to Review
Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING - Due Process –Substantial Competent Evidence-
Petitioners were not denied due process by not requiring sworn testimony cross examination
and by the repeated closing and reopening of the hearing; petitioner actually
attended and presented arguments; petitioner never complained or objected that
witnesses were not sworn during the rezoning hearings, nor did petitioner seek
to cross examine any witnesses-there is
no requirement that the witnesses be sworn. Consistency with the comprehensive
plan and the land development code were supported by competent substantial
evidence. Petition denied. Zephyrhills
Retail LLC, v. City of
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
ZEPHYRHILLS RETAIL, LLC., a
limited liability company,
Petitioner, CASE NO: 512006CA1803ES
THE CITY OF
Municipality organized under the laws of
COMMISSIONERS OF THE CITY OF
ZEPHYRHILLS, and GORE’S DAIRY
SUPPLY, Inc., a Florida Corporation, and
limited liability company.
ORDER AND OPINION
Petitioner seeks to overturn rezoning ordinance 955-06, which was approved by the Zephyrhills City Council on May 22, 2006. The ordinance granted a rezoning petition for a 63.43 acre parcel owned by Gore’s Dairy Supply. (At the time of the rezoning, the property was under contract to be sold to Zephyr Commons. Zephyr Commons is now the owner of the property). The rezoning changed the existing zoning from AC (Agricultural) and AR (Agricultural Residential) to C-2 (Community Commercial) for the purpose of developing a shopping center. Petitioner owns a competing shopping center on the property immediately adjacent to the subject property.
two issues for review. The first issue
raised is whether the Board violated procedural due process by not requiring
sworn testimony, not providing for cross examination and by improperly and
repeatedly closing and reopening the hearing without continuing it. This Court
finds that petitioner has failed to establish that its procedural due process
rights were violated. Careful review of
the record reveals that petitioner never complained or objected that witnesses
were not sworn during the rezoning hearings, nor did petitioner seek to cross
examine any witnesses. Therefore, these arguments have been waived. Moreover, there
is no requirement that the witnesses be sworn. City
This Court also
finds that petitioner’s argument that the hearings were repeatedly opened and
closed must also fail. The requirements
of procedural due process are reasonable notice and a fair opportunity to be
heard. Housing Authority of the City
second issue is that that rezoning, and in particular, consistency with the
comprehensive plan and the land development code, were not supported by competent substantial evidence.
A local government’s quasi-judicial decision must be upheld if there is any
competent, substantial evidence supporting it.
Finally, petitioner’s claim regarding the traffic analysis is equally without merit. The code requires only that a traffic impact analysis accompany an application for preliminary approval of a proposed development. Section 5.04.01. As argued by respondent, the code then provides for options for how the traffic impacts of a proposed development can be addressed. One of the options allows for the execution of a contract between the city and the developer that provides a schedule through which the necessary improvements will be made. Importantly, this requirement must be met “on or before occupancy of the development”—not during rezoning. Section 5.04.02(B). Although final approval of the development project itself cannot be complete until concurrency requirements are met, this requirement, on its face, does not pertain to the first step in the process-the rezoning. Here Zephyr Commons met the concurrency requirements very early by resolving these issues in conjunction with the rezoning itself and by negotiating a Development Agreement with the City to finalize the requirements. Accordingly, it is therefore,
ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED.
DONE AND ORDERED in
Chambers, at New Port Richey,
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Robert K. Lincoln, Esq.
Kristy A. Wooden, Esq.
Scott A. McLaren, esq.
Joseph Poblic, Esq.
Clarke Hobby, Esq.
Charles D. Waller, Esq.
P. Hutchison Brock, II, Esq.