BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, HARRY TOUBY, KATHLEEN TOUBY, BUD H. RICE, JACK COOK AND INA COOK, PETITIONERS,
v.
FIRST FREE WILL BAPTIST CHURCH, RESPONDENT
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A church sought a special exception to build in an agricultural zone in Dade County where churches are not a permitted use. The circuit court granted certiorari relief overturning the county's denial, but the District Court of Appeal reversed, holding that the applicant bears the burden of proving the special exception criteria are met.
The applicant for a special exception bears the burden of proof to establish the existence of the criteria set forth in the relevant zoning code section. The circuit court erred in granting certiorari relief because it improperly shifted the burden to the county to demonstrate why the application should not have been granted.
[1] A circuit court departs from the essential requirements of law when it grants a petition for writ of certiorari and denies a rehearing without proper grounds.
[2] The burden of proof rests on the applicant seeking a special exception to establish the existence of criteria set forth in zoning ordinances.
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Join FLexlaw to unlock all legal intelligence“to be entitled to a special exception the applicant (respondent herein) must establish the existence, etc., of the criteria set forth in Section 33-311(d).”
Establishes that the burden of proof rests on the applicant seeking the special exception, not the county.
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Join FLexlaw to unlock all legal intelligenceFirst Free Will Baptist Church applied for a special exception to build a church and related facilities in Dade County in a district zoned AU (agricul…
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KEHOE, Judge.
Petitioners, respondents below, bring this appeal and petition for writ of certiorari from an order entered by the circuit court granting a petition for writ of certiorari, dated February 14, 1978, in favor of respondent herein, petitioner below, and an order, dated April 21, 1978, denying a rehearing of the matter. W'e will treat the appeal and petition as a petition for writ of certiorari, and grant the petition.
Respondent desired to build a church and related facilities in Dade County, Florida, in a district zoned AU (agricultural). Churches are a permitted use only in a district zoned RU-3 (four-unit apartment house district). Respondent made an application to the Zoning Appeals Board (ZAB) for a special exception to build a church, etc. After a hearing, the ZAB denied the application in Resolution No. 4-ZAB-287-77. Thereafter, respondent filed a petition of appeal from the decision of the ZAB to the Board of County Commissioners of Dade County (Board). After a hearing, the Board also voted to deny the application and adopted an appropriate resolution, i. e., Resolution No. Z-197-77. Subsequently, respondent filed a petition for writ of certiorari with the circuit court.
The circuit court first entered an order granting the petition and thus entered an order denying petitioners’ motion for rehearing. From these orders, petitioners brought the instant petition for writ of certiorari.
In entering its orders granting the petition for writ of certiorari and denying a rehearing, the circuit court impliedly and expressly found the petitioners had failed to carry their burden of demonstrating that the application by respondent should not have been granted. Our reading of Chapter 33, Code of Metropolitan Dade County, and in particular Section 33-311(d) thereof, indicates that to be entitled to a special exception the applicant (respondent herein) must establish the existence, etc., of the criteria set forth in Section 33-311(d).
See Bd. of Cty. Com’rs of Metro. Dade Cty. v. Lowas, 348 So. 2d 13 (Fla. 3d DCA 1977).
Although the Lowas case involved an “unusual use” as compared with an “exceptional use” in this case, we believe that under Section 33-311(d) the burden of proof is the same for both “uses,” i. e., on the applicant, rather than on the County, to establish the criteria, etc., set forth in the Section.
Accordingly, for the reasons set forth above, we believe that the circuit court departed from the essential requirements of the law by entering the order granting the petition for writ of certiorari and entering its order denying the petition for a rehearing; therefore, the instant petition for writ of certiorari is granted and the orders subject thereof are quashed, and Resolution Nos. 4-ZAB-287-77 and Z-197-77 are reinstated.
Granted.
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MacHado v. Musgrove, 519 So. 2d 629 (Fla. 3d DCA 1987)…zones so long as they satisfy the impact requirements of that section and section 33-311(d), for unusual uses. See Metropolitan Dade County v. Fuller, 497 So. 2d 1322 (Fla. 3d DCA 1986), and Board of County Comm’rs v. First Free Will Baptist Church, 374 So. 2d 1055 (Fla. 3d DCA 1979). I PLANNING AND ZONING AS SEPARATE FUNCTIONS Application of the fairly debatable standard to both the land use and zoning questions, as is often done, tends to obscure the difference between their distinct functions. Land use p…
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Irvine v. Duval Cnty. Planning Comm'n & the City Of Jacksonville, 466 So. 2d 357 (Fla. 1st DCA 1985)…re, we find Florida cases illustrating the view that the burden of proof may. indeed be placed upon the applicant for the exception. Pylant v. Orange County, 328 So. 2d 199 (Fla.1976); Board of County Commissioners v. First Free Will Baptist Church, 374 So. 2d 1055 (Fla. 3d DCA 1979). Therefore, in the absence of a showing that the Commission acted contrary to the requirements of the zoning ordinance by which the proceedings were governed, it cannot be determined that the Commission, by placing the burden upon…1 / 2
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Metro. Dade Cnty. v. Fuller, 497 So. 2d 1322 (Fla. 3d DCA 1986)…public interest. See Carlos Estates, Inc. v. Dade County, 426 So. 2d 1167 (Fla. 3d DCA 1983); Grefkowicz v. Metropolitan Dade County, 389 So. 2d 1041 (Fla. 3d DCA 1980); Board of County Commissioners of Dade County v. First Free Will Baptist Church, 374 So. 2d 1055 (Fla. 3d DCA 1979); Dade County v. Florida Mining & Materials Corp., 364 So. 2d 31 (Fla. 3d DCA 1978), cert. denied, 372 So. 2d 467 (Fla.1979); B.S. Enterprises, Inc. v. Dade County, 342 So. 2d 117 (Fla. 3d [*1323] DCA 1977). It is specifically not…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bd. OF Cnty. Comm'rs OF Metro. Dade Cnty. & Dade Cnty. v. Lowas, 348 So. 2d 13 (Fla. 3d DCA 1977)