METROPOLITAN DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA AND ANOVIV REALTY COMPANY, PETITIONERS,
v.
MICHAEL B. FULLER, RESPONDENT
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Metropolitan Dade County and Anoviv Realty Company sought review of a circuit court decision that reversed the county commission's grant of an "unusual use" permit for an employee trailer camp on industrially zoned property. The court held that an unusual use is governed by a public interest test, not a hardship requirement, and reversed the circuit court's erroneous application of variance standards.
An unusual use is subject only to the public interest test under section 33-311(d) of the Code and is not subject to the variance-hardship requirement. The circuit court's decision, which applied the variance-hardship standard, was a departure from the essential requirements of the law.
[1] An "unusual use" permit, as authorized by county code, is governed by a standard requiring the proposal to serve the public interest, not by the hardship requirement appl…
[2] The test for an "unusual use" permit requires consideration of whether the proposed use would have an unfavorable effect on the economy, generate excessive noise or traff…
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Join FLexlaw to unlock all legal intelligence“an unusual use, like a special exception, is subject only to the test enunciated in section 33-311(d) of the Code, which is essentially whether the proposal serves the public interest.”
Establishes the correct legal standard governing unusual uses, distinguishing them from variances.
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Join FLexlaw to unlock all legal intelligenceThe Dade County Commission granted Anoviv Realty Company an "unusual use" permit under section 3313(e) of the Dade County Code for an employee trailer…
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SCHWARTZ, Chief Judge.
As specifically authorized by section 3313(e) of the Dade County Code, the county commission granted the petitioner Anoviv Realty Company an “unusual use” for an employee trailer camp on its industrial (IU-1) zoned property. On appeal, the circuit court held that that relief was governed by the showing necessary to sustain a “use variance,” that is, a legally cognizable “hardship,” and, because no such hardship had admittedly been demonstrated, reversed the resolution in question.
It is clear, however, that an unusual use, like a special exception, is subject only to the test enunciated in section 33-311(d) of the Code,1 which is essentially whether the proposal serves the 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 DCA 1977). It is specifically not subject to the variance-hardship requirement. Hemisphere Equity Realty Co. v. Key Biscayne Property Taxpayers Association, 369 So. 2d 996 (Fla. 3d DCA 1979); 3 Anderson, American Law of Zoning §§ 21.01-.02 (3rd ed. 1986). The decision below therefore clearly embodies a departure from the essential requirements of the law and is consequently quashed.
Since the circuit court has not yet determined whether the unusual use was properly granted under the appropriate standard, see Irvine v. Duval County Planning Commission, 495 So. 2d 167 (Fla.1986); Alachua County v. Eagle’s Nest Farms, Inc., 473 So. 2d 257 (Fla. 1st DCA 1985), review denied, 486 So. 2d 595 (Fla.1986); Grefkowicz v. Metropolitan Dade County, 389 So. 2d at 1042, the cause is remanded for consideration of this issue and for further proceedings consistent herewith.
Quashed, remanded.
. This provision states:
(d) Special exceptions, unusual and new uses. Hear application for and grant or deny special exceptions; that is, those exceptions permitted by the regulations only upon approval after public hearing, new uses and unusual uses which by the regulations are only permitted upon approval after public hearing; provided the applied for exception or use, including exception for site or plot plan approval, in the opinion of the zoning board, would not have an unfavorable effect on the economy of Dade County, Florida, would not generate or result in excessive noise or traffic, cause undue or excessive burden on public facilities. including water, sewer, solid waste disposal, recreation, transportation, streets, roads, highways or other such facilities which have been constructed or which are planned and budgeted for construction, are accessible by private or public roads, streets or highways, tend to create a fire or other equally or greater dangerous hazards, or provoke excessive overcrowding or concentration of people or population, when considering the necessity for and reasonableness of such applied for exception or use in relation to the present and future development of the area concerned and the compatibility of the applied for exception or use with such area and its development.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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MacHado v. Musgrove, 519 So. 2d 629 (Fla. 3d DCA 1987)…section 33-18, Dade County Code, unlike commercial offices, are contemplated in estate residential 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 questi…
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Jesus Fellowship, Inc. v. Miami-Dade Cnty., 752 So. 2d 708 (Fla. 3d DCA 2000)…es its burden, which is to demonstrate that the applicant’s requests do not meet the standards and are in fact adverse to the public interest.3 See Irvine v. Duval County Planning Comm., 495 So. 2d 167 (Fla.1986); Metropolitan Dade County v. Fuller, 497 So. 2d 1322 (Fla. 3d DCA 1986). The basis for the circuit court’s errors here was its conclusion that the simple fact that the Commission had before it the county zoning maps, the professional staff recommendations, aerial photographs, and testimony in objecti…1 / 3
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The Vill. OF Palmetto BAY v. Palmer Trinity Private Sch., Inc., 128 So. 3d 19 (Fla. 3d DCA 2012)…that the [special] exception requested by petitioner did not meet such standards and was, in fact, adverse to the public interest.’ ”); Jesus Fellowship, Inc. v. Miami-Dade Cnty., 752 So. 2d 708, 709 (Fla. 3d DCA 2000); Metro. Dade Cnty. v. Fuller, 497 So. 2d 1322 (Fla. 3d DCA 1986). In essence, therefore, everything in the circuitous legal journey which followed was an exercise in superfluousness and futility. Since the effect of the order now under review, however fashioned, was to require what was requir…1 / 2
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Irvine v. Duval Cnty. Planning Comm'n, 495 So. 2d 167 (Fla. 1986)
- Hemisphere Equity Realty Co., Inc. v. KEY Biscayne Prop. Taxpayers Ass'n, 369 So. 2d 996 (Fla. 3d DCA 1979)
- Grefkowicz v. Metro. Dade Cnty., 389 So. 2d 1041 (Fla. 3d DCA 1980)
- Alachua Cnty. v. Eagle's Nest Farms, Inc., 473 So. 2d 257 (Fla. 1st DCA 1985)
- B. S. Enters., Inc. v. Dade Cnty., 342 So. 2d 117 (Fla. 3d DCA 1977)
- Bd. OF Cnty. Comm'rs OF Dade Cnty. v. First Free Will Baptist Church, 374 So. 2d 1055 (Fla. 3d DCA 1979)
- Carlos Ests., Inc. v. Dade Cnty., 426 So. 2d 1167 (Fla. 3d DCA 1983)
- Dade Cnty. v. Fla. Mining & Materials Corp., 364 So. 2d 31 (Fla. 3d DCA 1978)