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 Zephyrhills, No. 512006CA1803ES, (Fla. 6th Cir. App. Ct. March 15, 2007).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

 

 

ZEPHYRHILLS RETAIL, LLC., a Delaware

limited liability company,   

                        Petitioner,                                                                                                                                                                                                     CASE NO: 512006CA1803ES

v.                                                                                                                                                        

 

THE CITY OF ZEPHYRHILLS, FLORIDA, a

Municipality organized under the laws of

Florida, and THE BOARD OF CITY

COMMISSIONERS OF THE CITY OF

ZEPHYRHILLS, and GORE’S DAIRY

SUPPLY, Inc., a Florida Corporation, and

ZEPHYR COMMONS, L.L.C., a Florida

limited liability company.

Respondents.

___________________________________/

 

  

 

 

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.

Petitioner raises 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 of St. Petersburg v. Cardinal Industries Development Corp., 493 So. 2d 535 (Fla. 2d DCA 1988).   

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 of Tampa v. Robinson, 464 So. 2d 158 (Fla. 2d DCA 1985). In this case, the City Council held three separate hearings on the ordinance. Not only did petitioner have notice of the hearings, petitioner actually attended and presented argument.  Petitioner was also afforded the opportunity to meet with (and did meet with) the Planning Commission about the rezoning prior to the public hearings.  Accordingly, it can not be said that petitioner was in any way denied procedural due process.  

Petitioner’s 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. Orange County v. Butler, 877 So. 2d 810 (Fla. 5th DCA 2004).  The Circuit Court’s role when acting in its appellate capacity in a rezoning case is to search the record to see if any competent substantial evidence exists to support the Board’s decision.  Dorian v. Davis, 874 So. 2d 661 (Fla. 5th DCA 2004).  In the instant case, Zephyr Commons presented evidence, testimony, and argument in support of the rezoning. Jane Caldera, a traffic engineer provided expert testimony concerning the traffic impacts of the proposed development.  Her testimony and report contained a detailed discussion of the limitation on Zephyr Commons’ development of the property to a total of 470,000 square feet.  It concluded that the proposed development, and, in turn, the resulting traffic, would have “minimal impact” on the relevant roadway segments and intersections. Todd Vande Berg, Director of Development Services for the City of Zephyrhills, confirmed that the rezoning is consistent with the Comprehensive Plan and Land Development Code. Mr. Vande Berg explained to the City that the traffic study had been submitted to the City’s own traffic engineers, Kimley Horne, for review. Vande Berg’s testimony established that the City’s traffic engineers worked together with Zephyr Commons’ traffic engineer to develop an agreeable traffic plan that complied with the city’s requirements.  Thus, there was competent substantial evidence to support the findings of the Board.

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, 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:

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.