Opinion
No. 87-1711.
February 9, 1988. Rehearing Denied May 10, 1988.
Appeal from the Circuit Court, Dade County, Appellate Division, Richard Yale Feder, Theodore G. Mastos, Amy Steele Donner, JJ.
Fine, Jacobson, Schwartz, Nash, Block England and Stanley B. Price and Linda Ann Wells, for petitioner.
Robert A. Ginsburg, Co. Atty., and Robert L. Krawcheck, Asst. Co. Atty., for respondent.
Before HENDRY, NESBITT and FERGUSON, JJ.
The Salvation Army (SA) seeks certiorari review of a decision by the Eleventh Judicial Circuit Court, Appellate Division, affirming the revocation of a building permit by the Board of County Commissioners and the Zoning Appeals Board. We hold that petitioner failed to sustain its burden of showing the zoning resolution was not supported by competent, substantial evidence, and thus failed to make the required showing of Combs v. State, 436 So.2d 93, 96 (Fla. 1983), that the circuit court violated a "clearly established principle of law resulting in a miscarriage of justice."
In 1974, petitioner's predecessor, the Perrine Peters Methodist Church, enlisted the support of neighboring homeowners to obtain a special zoning exception for the construction of a church facility. The area, zoned RU-1 Single Family, is developed with modest, well-kept, single family homes. Through provisions incorporated into a site plan and made a condition of the special exception approval, the neighbors were promised: 1) a predominantly church use; 2) in a park-like setting; and 3) conforming to a campus-like site plan. However, the contemplated church facility of six small buildings was not built. In 1984 the property was sold to SA who planned to build its South Dade Corps Complex on the property. As succeeding owner of the property, petitioner acknowledged the strict site plan limitations, but then proposed substantial changes in construction which were not in compliance with the plans approved by the county commission in 1974.
The new plans called for a community center consisting of one 9,614 square foot building housing a gymnasium where band and other programs could be conducted, and a small chapel. The building's design called for a pitched roof approximately five stories high over a floor area comparable in size to a football field. After meeting with Building and Zoning Department representatives, SA modified its site plans in an attempt to bring them into substantial compliance with the plans approved in 1974. Forty percent of the building's roof height was deleted, leaving a single massive structure with a relatively flat roof similar in appearance to a warehouse or armory. By contrast, the 1974 plans (designed to minimize building mass) called for a traditional, steeply inclined church roof which receded sharply from low profile exterior walls approximately one-third the height of the roof. As one of six relatively small buildings, the church and other improvements were to be scattered over the site in campus-like fashion. Despite these apparent differences, the Building and Zoning Department determined the SA plans to be in substantial compliance with the original proposal.
A neighboring homeowner requested a hearing before the Zoning Appeals Board (ZAB) contending the SA plans were not in accordance with the earlier plan approved by County Commission Resolution No. Z-295-74. The ZAB found the SA proposal had departed substantially from the approved 1974 site plan and reversed the agency decision to issue a building permit, (Resolution No. Z-154-86). SA appealed to the County Commission. After all parties were heard, the commission voted to deny SA's appeal and the building permit was revoked. SA appealed to the circuit court, appellate division, which affirmed the commission's decision. This certiorari proceeding followed.
In 1983, the Supreme Court of Florida reexamined the standards which govern a district court's review by certiorari of an appellate decision of a circuit court:
[T]he district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.Combs, 436 So.2d at 95-96. The sole issue of this cause on appeal before the circuit court was whether SA's site plans were in substantial compliance with those approved by the county commission in 1974.
When measured against the administrative substantial compliance regulations, the disparity between the approved plan and the proposed plan becomes apparent. Among the enumerated criteria to be considered, when determining substantial compliance, is the requirement that "there is no transfer of density from one building to another or from one stage of development to another." (Bulletin No. 75-1-3, Metropolitan-Dade County Building and Zoning Department.) Here, the transfer of a development of six small scattered buildings in a campus-like setting into the construction of one massive structure constitutes a substantial density transposition.
Another criteria to be met is compatibility of building elevations, renderings and perspectives. After studying both site plans, an architectural expert testified that the tremendous scale of the proposed SA center was incompatible with the surrounding residential area, unlike the approved 1974 plan for several smaller buildings spread throughout a campus setting which was very compatible.
In the case at bar, the county commission had previously granted a special exception conditioned upon substantial compliance with a site plan. The administrative decision challenged does not revoke the special exception, nor does it prevent SA from obtaining a building permit to build the facility approved in 1974.
In accordance with this opinion we find Zoning Resolution No. Z-154-86 is supported by substantial, competent evidence and the decision of the circuit court is in conformance with the essential requirements of law. The petition for writ of certiorari is therefore denied.
Certiorari denied.
NESBITT, J., concurs.
On a close examination of the record I am drawn, reluctantly but unavoidably, to conclude that this case was not at all about site plan nonconformance — only about dislike for the prospective new neighbor by a large group of residents.
Long before any lawful reason was advanced to the administrative tribunals as grounds for denying the petitioners a building permit, the actual reason was already a matter of public record. A petition signed by neighboring homeowners, submitted to the Zoning Appeals Board and to the County Commission, stated:
Over 700 signatures were appended to the petition submitted to the Zoning Appeals Board. By the time of the hearing before the County Commission the number of signatures had swelled to over 1,000.
WE THE UNDERSIGNED DO NOT WANT THE SALVATION ARMY TO BUILD ANY STRUCTURES FOR ANY PURPOSES ON THE PROPERTY NORTH OF S.W. 184 STREET BETWEEN S.W. 94 AVENUE AND S.W. 97 AVENUE, DADE COUNTY FLORIDA. [Emphasis added.]
There is otherwise no competent substantial evidence in the record to support the commission's decision.
In 1974, the Perrine Peters Methodist Church applied for and was granted a special exception to construct a church and related facilities, along with an unusual use permit for a day nursery and a kindergarten to be operated on the property. The site plan called for six separate buildings consisting of a sanctuary, fellowship hall, 424-seat chapel and office. Two separate buildings were designated for unspecified future use. According to a letter of intent, the Methodist Church planned to use its facilities to serve the community with church oriented activities such as Boy Scouts, Girl Scouts, plays, public protestant service classes, bazaars, and indoor and outdoor sports.
In response to the fears of neighbors, the Salvation Army, as the successor owner of the property, promised that it would use the facility exclusively for traditional church and church-related services similar to its church in Hialeah, and proffered an additional declaration that it would not use its Perrine property for drug or alcohol rehabilitation centers, for adult congregate living facilities, for an adolescent treatment center or as a place to feed, clothe, house or otherwise care for the homeless or indigent.
After acquiring the property zoned for church use, Salvation Army representatives met with representatives of the Building and Zoning Department to determine what modifications, if any, were needed to bring its site plan into compliance with the plan earlier approved for the Perrine Methodist Church. Based on a site plan, as modified in accordance with the Building Director's recommendations, and a declaration of use, the Director of the Building and Zoning Department issued the Salvation Army a building permit.
The majority adopts a neighboring homeowner's exaggerated comparison of the Salvation Army's 9,614 square foot building to the size of a football field. A football field, five times larger, has 48,000 square feet.
On March 6, 1986, Mr. Webster, a neighboring homeowner, appealed the Zoning Appeals Board's decision awarding the permit, contending that the Salvation Army's site plans did not comply with those approved by the County Commission in 1974. At a public hearing before the Zoning Appeals Board, experts from both the Dade County Building and Zoning Department appeared and testified that the Salvation Army's site plans were in substantial compliance with the plans approved by the County Commission in 1974. The department recommended denial of the neighbor's appeal. Neither the appellant-neighbor, nor the other residents appearing with him, presented competent evidence of noncompliance. Instead they voiced objections to the religious organization, and concerns about drug users, bums and derelicts. Mr. Webster:
We don't intend to allow this facility to invade our lives.
It will probably attract the destitute and outcasts who are the concomitant of the Army. Not only in Dade County but throughout the world and indeed they are inseparable.
On that plea, along with the petition signed by neighbors, the Zoning Appeals Board reversed the decision issuing the Salvation Army a permit to build. Dade County Commissioners succumbed to the same political pressure.
The majority embraces two hypertechnical points from the County's argument as proof of substantial noncompliance of the Salvation Army's site plan: (1) transfer of density from one building to another or from one stage of development to another, (2) compatibility of building elevations, renderings and perspectives. Of significance is that both points rely on guidelines established by the Director of Building and Zoning to determine whether a plan for actual development is in substantial compliance with a site plan as administratively approved.
Those guidelines make it clear that an actual plan for development need not "exactly" comply with the site plan — that "substantial compliance" "permits(s) some flexibility." Applying its own guidelines the Director of Building and Zoning found the Salvation Army's site plan in substantial compliance.
The only expert called by the opponents was an architect who also resides in the community. She argued, however, that the Salvation Army proposed a usage different than that approved for the Perrine Peters Methodist Church. At the commission hearing, she said:
I submit to you that as an architect registered in Florida, I can take . . . your list of substantial compliance and I can abide by every single regulation, every single criteria on this list and I can build a building of virtually any usage because what this document . . . fails to do is to take into account or really perhaps it just assumes that there will be no problem; it fails to take in usage.
On the subject of technical compliance she conceded that the Salvation Army building is the same height as the proposed Methodist building. On the question of site plan compliance generally she further conceded, "yes, they have met the letter of substantial compliance." The criticism, was in essence, a subjective opinion that the building was not as pleasing, aesthetically, as those in the site plan approved for the Perrine Peters Methodist Church.
We have held that objections of residents in surrounding neighborhoods to a proposed construction or development do not alone constitute a sound basis for denying permission to build. B.S. Enterprises, Inc. v. Dade County, 342 So.2d 117 (Fla. 3d DCA 1977). Accord BML Inv. v. City of Casselberry, 476 So.2d 713 (Fla. 5th DCA 1985), rev. denied, 486 So.2d 595 (Fla. 1986); Conetta v. City of Sarasota, 400 So.2d 1051 (Fla. 2d DCA 1981); City of Apopka v. Orange County, 299 So.2d 657 (Fla. 4th DCA 1974). In a strong statement of the law the City of Apopka court wrote:
Although notice to and hearing of the proponents and opponents of an application for a special exception or other zoning change are essential and all interested parties should be given a full and fair opportunity to express their views it [is] not the function of the Board of County Commissioners to hold a plebiscite on [an] application for [a] special exception.
Writing for the majority in an oft-cited case of this court, Chief Judge Schwartz stated the principle even stronger:
The law . . . will not and cannot approve a zoning regulation — or any governmental action adversely affecting the rights of others — which is based on no more than the fact that those who support it have the power to work their will.Allapattah Community Ass'n, Inc. v. City of Miami, 379 So.2d 387, 394 (Fla. 3d DCA), cert. denied, 386 So.2d 635 (1980).
On this record there is no basis for disagreement. County Commissioners reversed the Building Director's decision to issue the Salvation Army a building permit solely because that was the desire of vocal neighboring residents.