Title: Opinion File 73-70 thru 73-74
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003347/00001
 Material Information
Title: Opinion File 73-70 thru 73-74
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Buddy Blain's Collections - Opinion File 73-70 thru 73-74
General Note: Box 14, Folder 3 ( Opinions 1972 - 1973 - 1972 - 1973 ), Item 32
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003347
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



October 8, 1973 ~ "On/Y d

RE: Planning Commission/Zoning Commission
disputes with city/County Government

I can find no case which indicates that zoning or planning
commissions are even empowered to sue city or county governments,
much less any successful suits. The relationship between these
entities is illustrated well in Hall vs. Korth (1971, 3rd
D.C.A., Fla.) 244 So. 2d 766 copy attached.

However, the analogy between a zoning commission and
a basin board of the SWFWMD is subject to one caveat while the
zoning commission is empowered to hold public meetings, the
Only express action they can take is to "recommend" decisions.
(Section 176.07 F.S. (1971)) As we have previously discussed,
basin boards have no express powers only duties.



766 Fla.


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seller of the property has an interest in re-
ceiving the full measure of value for his
land, which would be the fee. Finally,
or perhaps saying something said before in
another way, since appellant's leasehold in-
terest does not cover and is not coextensive
with the easement in favor of the Road
Department, he has no justiciable interest
in whether or not the state should be re-
quired to condemn the fee. This is a ques-
tion between two public agencies not direct-
ly involving the appellant and thus he has
no justiciable interest therein. Colby v.
Colby, Fla.App.1960, 120 So.2d 797; Grable
v. Hillsborough County Port Authority,
Fla.App.1961, 132 So.2d 423; Brautigam v.
Mac Vicar, Fla.1954, 73 So.2d 863.
No error or abuse of discretion having
been demonstrated, the order appealed is

W~ n~llrr

REED and OWEN, JJ., concur.


James MEEKS, a/k/a James A. Meeks,
W. Rogers TURNER, as Judge of the Crim-
inal Court of Record, in and for Orange
County, Florida, Respondent.
No. 70-983.

District Court of Appeal of Florida,
Fourth District.
Jan. 27, 1971.

Rehearing Denied March 16, 1971.

Petition for Writ of Mandamus.

William B. Barnett of Edward J. Hanlon,
Jr., & Partners, Orlando, for petitioner.
Earl Faircloth, Atty. Gen., Tallahassee,
and Charles W. Musgrove and Rodney
Durrance, Jr., Asst. Attys. Gen., West Palm
Beach, for respondent.

Chuck HALL, et al., Appellants,
Howard J. KORTH, Appellee.
No. 70-608.

District Court of Appeal of Florida,
Third District.
March 2, 1971.

Proceeding on an application for a
change in zoning. The Circuit Court, Dade
County, Francis X. Knuck, J., entered judg-
ment quashing action of the county com-
mission in denying zoning changes and the
commission petitioned for certiorari. The
District Court of Appeal held that sub-
stantial evidence supported trial judge's
finding that action of county commission
in denying application for change in zoning
of tract from basic agriculture to that
which would permit a planned unit devel-
opment was capricious and without reason-
able basis in the record before the county




On the basis of our review of the briefs,
the record in this case and the oral argu-
ment, we are of the opinion that relator
is not entitled to the relief requested. See
Woodward, Relator v. Edwards, Judge,
Fourth District Court of Appeal, 244 So.2d
438, opinion filed December 11, 1970, and
State v. Carroll, Fla.App.1970, 240 So.2d

Accordingly, the petition for writ of
mandamus is denied and the alternative
writ is discharged.



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Cite as, Fla., 244 So.2d 766

1. Zoning <=193
Mere fact that planning department,
zoning department, and zoning appeals
board recommended approval of changes in
zoning of a tract of land from basic agri-
culture to that which would permit a
planned unit development did not require
county commission to approve the zoning

2. Zoning <=609
Substantial evidence supported trial
judge's finding that action of county com-
mission in denying application for change
in zoning of tract from basic agriculture
to that which would permit a planned unit
development was capricious and without
reasonable basis in the record before the
county commission.

3. Zoning e=744
A determination as to whether con-
sideration of certain evidence by trial court
on appeal from county zoning commission
was improper could not be made on appeal
where reviewing court did not have benefit
of material to which objection was made.


Thomas C. Britton, County Atty.. and
St. Julien P. Rosemond, Asst. County Atty.,
for appellants.

Sibley, Giblin, Levenson & Ward, Miami
Beach, Shalle Stephen Fine, Miami, for ap-

Leonard Selkowitz, Miami, as amicus

Before PEARSON, C. J., and HENDRY
and SWANN, JJ.


This appeal is by the Dade County Com-
mission from a final judgment of the cir-
cuit court on appellee's petition for writ
of certiorari. The final judgment quashed
the action of the County Commission in
denying appellee's application for zoning

changes upon a parcel of land 73 acres in
area which is located in Dade County,
Florida. On this appeal the County urges
that there was no substantial competent evi-
dence before the circuit court that the
County Commissioners' denial of the ap-
plication for zoning change was improper.
The appellee applied to the appropriate
authority of Dade County for changes in
the zoning of his tract of land from basic
agriculture to that which would permit a
planned unit development thereon. The
Metropolitan Dade County Planning De-
partment recommended the approval of ap-
pellee's application. The Dade County
Building and Zoning Department also ap-
proved the proposed plan of development.
The application for approval of the plan
was brought before the Zoning Appeals
Board which also approved the plan. An
appeal was taken to the appellant, Commis-
sion, by an objector and the appeal came
on for hearing before the Commission
where the Commission by a four-three vote
reversed the Zoning Appeals Board and
denied appellee's application. Appellee
then filed a petition for writ of certiorari
in the circuit court of Dade County. After
a full review of the record of the evidence
presented to the Dade County Commission
and upon which the reversal of the action
of the Zoning Appeals Board was based,
the circuit court found:

* *

"6. The Court finds that the objec-
tions raised to the granting of plaintiff's
application are, in fact, simply asser-
tions of the objectors which are totally
unsupported and, in fact, are contradicted
by the record. An inspection of the rec-
ord discloses no evidence or testimony
other than bald assertion in behalf of the
objectors to support their position or to
contradict the record as reflected in the
Court's findings above set out. The
perimeter land in the proposed develop-
ment would carry the exact zoning of
the adjoining lands outside of the de-
velopment. This clearly protects the ad-
joining 'property owners.

Fla. 767

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768 Fla. 244 SOUTHERN RE

"7. The question to be determined
then is whether the county commission's
denial of plaintiff's application based up-
on the record as adduced, is a departure
from the essential requirements of the
law. The Court is of the opinion that
the county commission in exercising its
discretion with respect to a zoning ap-
plication is not free to act out of whim
or caprice but to the contrary is required
to exercise a sound discretion based upon
the record as adduced before it. There
is no question that this application came
to the county commission bearing the
approval and recommendations of the
public agencies such as the Planning
Board which are required to consider
the application and pass thereon from a
technical point of view. The application
further received the approval of the
Zoning Appeals Board in the first in-
stance. The application is consistent
with and in conformity with the require-
ments of the general land use Master
Plan adopted by the county authorities
to govern the pattern of development of
Dade County. The specific objections
raised to the approval of the plan are not
supported by and, in fact, are contra-
dicted by the record.

"8. The right to zone is an infringe-
ment upon the right of a property holder
to use his property for any lawful pur-
pose he wishes. The right to zone is
justified and supported under the police
power of the state to regulate the use
of property for the betterment of the
public health, safety and welfare as part
of a comprehensive plan for the use and
development of property within the zon-
ing authority's jurisdiction. The zoning
authority has laid down guide lines for
the development of Dade County in the
general land use Master Plan. It has
further established technical agencies to
pass upon the specific application of
those guide lines to insure conformity
with a comprehensive and overall plan.
When property owners have developed
plans for the lawful use of their prop-
erty which are in conformity with the


general standard adopted for the county
and are in further conformity with the
specific application thereof, they are en-
titled to have such property used and
made available for use under those plans
unless the record demonstrates that there
is a valid objection to such use grounded
in the public health, safety or welfare.
To hold otherwise would be unwarranted
and unlawful (not to say unconstitution-
al) deprivation of the owners' property

Based upon these findings and others
not necessary for discussion at this time the
circuit court quashed the County Commis-
sion's decision and directed the Commission
to grant the application of the appellee.
This appeal is from that final judgment.

On this appeal the County presents three

"Point I. The mere fact the Planning
Department, Zoning Department, and
Zoning Appeals Board recommended the
plan does not require the County Com-
mission to approve the plan.

"Point II. Korth has not demonstrated
by substantial competent evidence that
the denial of his application is not fairly

"Point III. Evidiciary matters exhibited
to the County Commission but not placed
in the record of the County Commission
are not admissible in a certiorari pro-

[1] In considering point one we agree
with the County that the recommendations
of the Planning Department, Zoning De-
partment and Zoning Appeals Board, were
simply recommendations and that the Coun-
ty was not bound by their action. Never-
theless, the actions of these duly constituted
administrative bodies of the County gov-
ernment in zoning matters were a part of
the record before the County Commission,
and they were entitled to consideration by
that Commission and the circuit court. If
the judgment of the circuit court had been
predicated simply upon the action of the


Cite as, Fin., 244 So.2d 769

Planning Department, and Zoning Appeals
Board, then appellants' point one would
have merit for reversal. We find however,
that the finding of the circuit court that
the action of the Commission was not sup-
ported by substantial competent evidence
was based upon the entire record before the
County Commission at the time of its de-
nial of appellee's application. This record
contains much more than recommendations
of the administrative agencies. Therefore
appellants' point one does not set forth a
proper point for reversal.

[2] Point two urges that the appellee
did not demonstrate before the circuit judge
that the denial of his application by the
County Commission was not a legislative
act within the fairly debatable rule as ap-
plied to zoning matters. Our review of
the record convinces us that there is com-
'petent substantial evidence to support the
trial judge's finding that the record be-
fore the County Commission shows that its
action was capricious and without reasona-
ble basis in the record before it. We think
that the circuit court's judgment that the
Commission's decision was not supported
by the Commission's record has not been
shown to be in error on this appeal. See
City of Miami Beach v. Lachman, Fla.
1953, 71 So.2d 148; Burritt v. Harris, Fla.
App.1964, 166 So.2d 168; 33 Fla.Jur. Zon-
ing 30 (1961).

[3] Appellants' third point complains as
to a part of the record before the County
Commission which was considered by the
circuit court but was not brought to this
court. Specifically, appellant complains
that the trial court considered a map, a tape
and slides which were before the Commis-
sion and used by them but which were not
formally introduced into evidence. This
court does not have the benefit of the mate-
rial to which appellant now objects. Ap-
pellants specifically instructed that the
r slides were not to be included in the rec-
ord before this court. Under such cir-
cumstances we are unable to determine
whether this ruling would be prejudicial
244 So.2d-49
Fla.Cases 244-245 So.2d-17

error even if we determined that a proce-
dural error was committed. We therefore
find no reversible error under point three.
See Hall v. Davis, Fla.App.1958, 106 So.
2d 599.

Having examined the record which was
before the circuit court and upon which it
based its findings and conclusions in the
final judgment appealed, we hold that the
judgment of the circuit court has not been
shown to be in error.



Lester W. JOHNSON, Appellant,


Louis POWERS, Appellant,


Herman W. TURNER, Appellant,


Samuel JOHNSON and Elizabeth Johnson,
No. N-256.

District Court of Appeal of Florida,
First District.
March 2, 1971.

Appeal from Circuit Court, Duval Coun-
ty; Thomas A. Larkin, Judge.

Blalock, Holbrook, Lewis, Paul & Ben-
nett, Jacksonville, for appellants.

Marks, Gray, Conroy & Gibbs, Jackson-
ville, for appellee.

Fla. 769

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