TOWN OF REDINGTON SHORES, APPELLANT,
v.
ELISA INNOCENTI, APPELLEE
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The Town of Redington Shores appeals a trial court judgment requiring it to issue a building permit for a second-story addition to a residential property located in a commercial tourist facility (CTF) zoning district. The court reverses, holding that the addition would constitute an unlawful extension of a nonconforming use under the town's non-cumulative zoning code.
No. The proposed addition would constitute an unlawful extension of a nonconforming use and therefore violates the town's zoning code, which prohibits such extensions. The trial court's judgment requiring issuance of the building permit is reversed.
[1] A nonconforming use, established prior to the enactment of a zoning code, cannot be extended under a non-cumulative zoning ordinance.
[2] Under a non-cumulative zoning code, only designated uses are permitted in each zoning district, and residences are not allowed in a commercial tourist facility (CTF) dist…
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Join FLexlaw to unlock all legal intelligence“under appellant's non-cumulative code, residences are not permitted in the CTF district”
Establishes the legal framework that Innocenti's residence is a nonconforming use
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Join FLexlaw to unlock all legal intelligenceInnocenti owns a single-story residence within Redington Shores' municipal limits in an area zoned CTF (commercial tourist facility). She applied for …
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LEHAN, Judge.
Appellant city appeals from the trial court’s final judgment granting the relief requested by appellee property owner against the appellant by requiring the issuance of a building permit. We reverse.
Appellee owns a single story residence within the municipal corporate limits of appellant. Appellee applied for a building permit to add a second story with three additional bedrooms. When appellant refused to issue the permit, appellee brought this suit. The trial court, without explanation, determined that the proposed addition of the second story would be lawful.
The residence is located in an area zoned CTF, or commercial tourist facility. The zoning code of appellant provides for exclusive or non-cumulative zoning; that is, only designated uses are allowed in each zoning district. This differs from a cumulative zoning code under which designated uses and all “higher” uses are allowed in each zone. See 2 Rohan, Zoning and Land Use Controls § 1401 (1984). Under a cumulative zoning code, appellee’s residence would probably be allowed in a CTF zone. However, under appellant’s non-cumulative code, residences are not permitted in the CTF district.
Therefore, appellee’s residence, which existed at the time the current zoning code was enacted, is a nonconforming use. Ap-pellee has not challenged, either in the trial court or on appeal, the validity of appellant’s non-cumulative code. The issue which was before the trial court and is before us is simply whether the proposed addition to appellee’s residence would be lawful under the zoning code. In addition to being a nonconforming use by virtue of being a residence in a CTF district, the residence is, and would be with a second story, a nonconforming use as to coastal construction set-back line and as to parking spaces. With the second story, it would also be nonconforming as to side and rear set-back lines.
An extension of a nonconforming use, which the record shows would occur here if the second story were permitted, is not lawful. See Bixler v. Pierson, 188 So. 2d 681 (Fla. 4th DCA 1966). As in Bix-ler, appellant’s zoning code prohibits an extension of an existing nonconforming use.
Johnston v. Orange County, 342 So. 2d 1031 (Fla. 4th DCA 1977), cited by appellee, is distinguishable. There the Fourth District Court of Appeal refused to disapprove a certain use of property where the record failed to establish that the use would be an extension of a nonconforming use which had existed when the zoning was changed.
We reverse and remand for entry of judgment in favor of appellant.
DANAHY, A.C.J., and CAMPBELL, J., concur.
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The City OF Belleair Beach v. Belleair Beach Yacht Club, Inc., 551 So. 2d 530 (Fla. 2d DCA 1989)…elf, the phrase obviously seeks to limit construction of the buildings to the same size as the previously existing buildings. Otherwise, the phrase would operate as an unlawful extension of a nonconforming use. Town of Redington Shores v. Innocenti, 455 So. 2d 642, 643 (Fla. 2d DCA 1984). This interpretation is harmonious with the City’s zoning code, to which the parties made implicit reference in the 1978 agreement: “[T]he construction of any other facility, shall be performed in accordance with all applicab…
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The City OF ST. Augustine v. Graubard, 780 So. 2d 272 (Fla. 5th DCA 2001)…n, 188 So. 2d 681 (Fla. 4th DCA 1966). See also 3M National Advertising Co. v. Tampa Code Enforcement Bd., 587 So. 2d 640 (Fla. 2d DCA 1991); Lewis v. City of Atlantic Beach, 467 So. 2d 751 (Fla. 1st DCA 1985); Town of Redington Shores v. Innocenti, 455 So. 2d 642 (Fla. 2d DCA 1984). It also appears to me that the circuit court applied the incorrect law by reweighing the evidence presented to the City, substituting its judgment for that of the City Commission, which it must not do. St. Johns County v. Smith,…
Authorities Cited
- Bixler v. Pierson, 188 So. 2d 681 (Fla. 4th DCA 1966)
- Lewis v. Life Sav. & Loan Ass'n (a proposed state Sav. & loan association), 342 So. 2d 1031 (Fla. 1st DCA 1977)
- Johnston v. Orange Cnty., 342 So. 2d 1031 (Fla. 4th DCA 1977)