BREVARD COUNTY

v.

SNYDER

Petitioners seek review in certiorari of the denial of their rezoning application by the Hillsborough County Board of Commissioners (the “Board”). Petitioners seek to rezone the property from its current Agricultural Rural (AR) zoning to Planned Development (PD) in the Residential Planned – 2 (RP-2) category. The Petition (Doc. 13) is timely, and this court has jurisdiction. Fla. R. App. P. 9.030(c)(3) and 9.190(a). Having reviewed the Amended Petition (Doc. 34), Response (Doc. 68), Reply (Doc. 72), Notice of Filing Supplemental Authority (Doc. 153), Response to Notice of Filing Supplemental Authority (Doc. 164), 1 all appendices (Docs. 5, 6, 7, 37, 69 and 73), and applicable law, the

Hillsborough County evaluates rezoning requests according to the Future of Hillsborough Comprehensive Plan for Unincorporated Hillsborough County Florida (“Comprehensive Plan”). The Comprehensive Plan is required to contain “principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of …” unincorporated portions of the County. § 163.3177(1), Fla. Stat. (2016). The Future Land Use Element is a required element of the Comprehensive Plan. § 163.177(6)(a), Fla. Stat. The Future Land Use Element is required to designate future land uses and must include standards for the distribution of densities and intensities of development. Id. It also provides for a Livable Communities Element as a Plan extension.

The Comprehensive Plan is likened to a constitution for all future development within its boundaries. Rainbow River Conservation, Inc. v. Rainbow River Ranch, LLC, 189 So. 3d 312, 313 (Fla. 5th DCA 2016). Zoning regulation is how a comprehensive plan is implemented. Citrus Cnty. v. Halls River Dev., Inc.,⁸ So. 3d 413, 421 (Fla. 5th DCA 2009). Though comprehensive

Authority. 336 So. 3d 776 (Fla. 2nd DCA 2022).

The Court determined that it should permit Respondent an opportunity to respond to the Notice of Filing Supplemental Authority. Also, after the oral arguments were held, Respondent filed a motion to disqualify Petitioners’ entire law firm, which the Court had to resolve before entering this Order. plans set forth long-range maximum limits, they are implemented and controlled by a zoning ordinance, which may be more limited. See Miami-Dade Cnty. v. Walberg, 739 So. 2d 115, 117 (Fla. 3d DCA 1999) (quoting Board of County Comm’rs of Brevard County v. Snyder, 627 So. 2d 469, 475 (Fla. 1993).

In Hillsborough County, the Comprehensive Plan is implemented through the County’s Land Development Code (“LDC”) as required by law, including providing zoning districts and specific regulations. See § 163.3202(1), Fla. Stat. This includes regulations as to planned villages permitted under the RP-2 land use category. 2008 Comprehensive Plan for Unincorporated Hillsborough County, Future Land Use, p. 190.2 The RP-2 future land use designation indicates that the land is appropriate for single-family residential development outside the Urban Service Area and is “suitable for planned villages…to avoid a pattern of single dimensional developments that could create urban sprawl.” Id.

PROCEDURAL HISTORY AND FACTUAL SUMMARY

This matter arises from the Board’s denial of Petitioners’ application to rezone a site of approximately 102.6 acres in southern Hillsborough County from Agricultural Rural (“AR”) to Planned Development (“PD”) to develop a Planned Village. The subject property is located within the Aggregate Planned Village area, which permits planned villages under 160 acres. The property is southwest of Boyette Road and west of Balm Boyette Road in Riverview. Given

The current AR zoning allows one residence for every five acres. The property is in an area within the RP-2 Future Land Use designation, which contemplates residential development outside the Urban Service Area and allows for Planned Developments with a maximum of² units per acre when planned village policies are met. The proposed rezoning seeks to develop the maximum of 205 single family residential units with a lot size of 4400 square feet or greater, and a village node with commercial and retail uses. The project would allow 43.21 acres for open space and 58.51 acres of 205 clustered residential lots with a minimum lot size of⁴,400 square feet. The project contemplates²,767.5 square feet for retail commercial uses, a .88 acre village node, and reserves 43.21 acres for open space. The property is bounded to the north by an existing planned development. Another approved planned development is just across Balm Boyette Road to the east. The rest of the

The Land Development Code for Planned Villages provides that: To avoid the incompatibility of a higher density village proper being placed adjacent to low density development, an open buffer space of at least 250 feet wide shall surround at least 70 percent of the village proper perimeter. The location of the remaining 30 percent may remain flexible to allow for retrofitting or connecting to other Planned Villages.

Hillsborough County, Fla., Land Dev. Code § 5.04.02(G).

The County’s Development Services report addressed compatibility with the Comprehensive Plan. The report found that upon completion of the project, 70 percent of the perimeter would have buffers of at least 250 feet and the project will provide additional buffering around portions of the 30 percent perimeter where no buffer is required per the LDC.⁴ The Hillsborough County City-County Planning Commission staff, as well as the County’s Transportation Staff and the County’s Conservation and Environmental Lands Management Department, reviewed the application. None had any specific objections, subject to certain specified conditions. The rezoning proposal was found compatible by the Planning Commission staff, which determined the proposed project was consistent with the Comprehensive Plan – including the Riverview

As required by the County’s Land Development Code, the matter proceeded to a quasi-judicial hearing before a land use hearing officer. The first part of the bifurcated review process is evidentiary. The hearing officer may review documents and receive testimony under oath. In addition to considering the Comprehensive Plan, the parcel’s zoning history, reports of reviewing agencies, and permitted uses for the property, the hearing officer is also required to consider applicable goals, objectives, and policies contained in the Comprehensive Plan; availability and capacity of public services; the nature of any impacts on surrounding land use; the environmental impact of the proposed use; and applicable development standards established by the Board.

The record is comprised of the application and accompanying documents; staff reports and recommendations; exhibits and documentary evidence; the summary, findings, conclusions, and recommendation of the hearing officer; an audio recording of testimony at the hearing; and a verbatim transcript of the proceedings. This is the record that the Board reviews in the second hearing.

At the first land use hearing held February 15, 2021, in addition to county staff and speakers associated with the project application, three citizens residing in the community spoke in opposition to the proposed rezoning and provided written documentation. One citizen opposed the project mainly by objecting to the placement of the buffering, noting that wetlands did not need buffering but had it, while other areas had less buffering than he would like. He pointed out drainage issues with other recently rezoned properties and a lack of adequate services for the area including roads that would not support the additional traffic.

Finally, he noted other recent projects where developers sought and obtained variances to remove the commercial aspects of similar projects, which caused there to be no commercial establishments within 5-to-10 miles.

Another citizen spoke about the buffering and added that the traffic study was insufficient to account for added traffic of the other previously approved rezoned communities. A third citizen questioned the difference between net and gross acreage when considering what ratio of development would be used when wetlands are part of the property that is rezoned. During rebuttal, it was explained that if wetlands were less than 25 percent of the total acreage, it could be used in the total area calculation. In this case, it was under that figure at just over 21 percent. Experts testified that the project’s paved shoulders and ditches would adequately drain stormwater unlike other developments. Expert testimony also confirmed that the roads are adequate to handle the traffic of the proposed development and that water would not be discharged onto the roadway because of buffering and a lack of berms. After taking testimony and receiving evidence, the hearing officer recommended approval of the rezoning request, subject to certain conditions.

On April 13, 2021, the second portion of the rezoning process – a public meeting before the Board of County Commissioners – was held. Although limited to the record created in the proceeding before the hearing officer, the Board may hear from interested parties at the public meeting, as long as no new evidence is introduced, subject to special exceptions. Hillsborough County, Fla., Land Dev. Code §§10.03.04. D., 10.03.04. The Board codifies its decision by resolution. Hillsborough County, Fla., Land Dev. Code §10.03.04.G.1. The resolution must include “a statement of compliance or all points of noncompliance with the Comprehensive Plan, if different from the conclusions of the hearing officer.” Id. If the Board does not adopt the hearing officer’s recommendation, the resolution must state specific reasons for any decision contrary to that recommendation. Id.

The Board considered the rezoning application and heard oral argument, discussing various issues including concerns over the project meeting buffering requirements, concerns about infrastructure, and concerns about the proposed development being compatible with the surrounding area. Some board members echoed the concern of the citizens regarding the best placement of buffers. Ultimately, the Board denied the application for rezoning by a vote of⁴ to³, and codified this denial in Resolution RR21-032, which was filed with the Clerk on June 21, 2021. As the code requires, the Resolution cites grounds for rejecting the hearing officer’s recommendation. Hillsborough County, Fla., Land Dev. Code § 10.03.04.G.1. Noting the property’s location outside the urban service area, the Resolution, inter alia, stated that the clustering and mixed-use development would contribute to urban sprawl. The Board concluded that allowing development outside the Urban Service Area was not justifiable and would not be consistent with the Future Land Use Element.⁵ The Resolution further found that the placement of the buffers failed to meet the buffering requirement as set forth in section 5.04.02 (G) of the LDC. While one commissioner stated at the public hearing that “the timing is simply not now,” the Court cannot read further into those comments without reference to supporting facts. Notably absent from the conclusory statements of the Board members and the Resolution are factual and evidentiary references relied on in making the Board’s decision.6 STANDARD OF REVIEW Certiorari review of a quasi-judicial zoning decision is akin to a plenary appeal in that it is “a matter of right.” Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000).

In such proceedings, the landowner has the initial burden of proving that the proposal is consistent with the comprehensive plan and complies with all procedural requirements of the zoning ordinance. Martin Cnty v. Yusem, 690 So. 2d 1288, 1292-93 (Fla. 1997).

The circuit court reviews the agency’s quasijudicial decision to determine whether the local government provided due process, whether the local government followed the essential requirements of law, and whether competent substantial evidence in the record supports the decision. City of Deerfield Beach v. Valliant, 419 So. 2d 624, 626 (Fla. 1982). Competent substantial evidence is evidence that is sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). In a zoning matter, fact-based citizen testimony can constitute competent substantial evidence, but the opinion testimony of citizens is not a sound basis for denying a zoning change application. See Miami-Dade Cty.

V. Walberg, 739 So. 2d115, 117 (Fla. 3rd DCA 1999); City of Apopka v. Orange County, 299 So. 2d 657 (Fla. 4th DCA 1974). Courts are not entitled to reweigh evidence or substitute their findings for those of the administrative agency. Haines City Com’ty Dev.

V. Heggs, 658 So. 2d 523, 530 (Fla. 1995). LEGAL ANALYSIS Due Process Petitioners do not specifically argue a lack of due process, and the record supports that they received the process they were due. Lee County v. Sunbelt Equities, II, Ltd. P’ship, 619 So 2d 996, 1002 (Fla. 2d DCA 1993) (quoting Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991)).

However, Petitioners challenge the way the Resolution was drafted, by whom it was prepared, and dispute what constitutes the Board’s actual Resolution. Petitioners contend that since the Resolution was not drafted at a public meeting, it violated the Sunshine Law.

Moreover, Petitioners complain that the final Resolution omitted some statements made by commissioners and added reasons that were not discussed or evidenced at the public hearing.

Finally, since the Resolution was ultimately passed on a consent agenda, Petitioners argue the Resolution is a nullity because there was no opportunity for rebuttal. Further, Petitioners argue that the Commissioners’ statements at the public board meeting, rather than the Resolution as drafted, should be used to determine the rights of the Petitioners to rezone the property. Petitioners ultimately suggest that the actual resolution is the transcript of the hearing and Commissioner Smith’s discussion points made before the motion to deny Petitioner’s rezoning application.

The Court is unpersuaded by Petitioners argument as the cited authority is not applicable. While the Sunshine law should be construed in favor of disclosure, unfettered access is not contemplated by the Sunshine law. Information gathering when decision making authority is not delegated, is not subject to the Sunshine Law. Sarasota Citizens for Responsible Govt. v. City of Sarasota, 48 So. 3d 755, 762 (Fla. 2010).

Regarding Petitioners argument that the preparation of the Resolution by county attorney staff somehow violated the Sunshine Law, the Second District ruled that professional staff carrying out the directions of a board in its day-to-day administration are not “alter egos” of the board such that compliance with the Sunshine Law is required. Bennett v. Warden, 333 So. 2d 97, 99 (Fla. 2d DCA 1976) (neither letter nor spirit of the law requires professional staff activities to be conducted in public).

The public act was the approval of the Resolution, not the drafting of it. Although the Resolution is more detailed than the statements made at the Board meeting, it is consistent with the record and the members’ discussions on the motion for denial. By stating with specificity all points of noncompliance with the Comprehensive Plan, the Resolution complies with Hillsborough County, Fla., Land Dev. Code, 10.03.04.G.¹, which requires that all points of noncompliance be stated in any resolution. Where there is factual and legal support for the statements in the Resolution, the Court will not disturb it.

Essential Requirements of Law/Competent Substantial Evidence

If competent substantial evidence supports the local government’s decision, the decision is presumed to adhere to the essential requirements of law. State v. Wiggins, 151 So. 3d 457, 464 (Fla. 1st DCA 2014) (citing Dusseau v. Metro. Dade Cnty. D. of Cnty. Comm’rs, 794 So. 2d 170, 1276 (Fla. 2001)).

Thus, the essential requirements of law and the presence of competent substantial evidence are linked. Only if there is no competent evidence to support the Board’s decision may a court quash it. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).

Evidence contrary to the agency’s decision is outside the scope of the inquiry even when the court may agree with it. Wiggins, 151 So. 3d at 464 (quoting Dusseau).

Although contrary evidence may be relevant to the wisdom of the decision, it is irrelevant to the lawfulness of the decision. Id. Once a party shows that the rezoning meets the objectives of the comprehensive plan by competent substantial evidence, the burden then shifts to the county to show¹) the application does not meet the published criteria, and²) it is adverse to the public interest. Broward County v. G.B.V. Intern., Ltd., 787 So 2d. 838, 842 (Fla. 2001); Board of County Com’rs v. Snyder 627 So. 2d 469, 476 (Fla. 1993).

Petitioners contend that since the subject property is outside the area subject to a moratorium,⁷ the rezoning must be approved.

However, being outside of the moratorium zone does not automatically create the right to rezone property. Rezoning applications for property outside of a moratorium are subject to the same criteria and procedures for rezoning property in general and require the same method of approval. Petitioners contend that their initial burden of showing that the rezoning application meets the objectives of the Comprehensive Plan has been met because approval was given by the Planning Commission and county staff, who opined that the project was consistent with the Comprehensive Plan. Although not binding on the Board, these opinions are persuasive to show that the application is compatible with the Comprehensive Plan. While the Board is entitled to come to a different result if evidence supports it, in this case, no

However, complaints and opinions without more do not amount to competent evidence. Conetta v. City of Sarasota, 400 So. 2d 1051, 1053 (Fla. 2d DCA 1981); Katherine’s Bay, LLC v. Fagan, 52 So. 3d 19 (Fla. 3d DCA 2010).

While lay witnesses may offer their views about matters not requiring expert testimony, lay witness speculation is not competent substantial evidence. Katherine’s Bay, LLC v. Fagan, 52 So. 3d at 30; Pollard v Palm Beach County, 560 So. 2d 1358 (Fla. 4th DCA 1990)(lay witness opinions that proposed use would cause traffic problems, create light and noise pollution, and have unfavorable impact on area was not competent substantial evidence to support denial of rezoning application); City of Apopka v. Orange County, 299 So. 2d 657 (Fla. 4th DCA 1974)(the quasi-judicial functions of zoning should not be “controlled or even unduly influenced by opinions and desires expressed by interested persons at public hearings.”) The speculative opinion testimony of the citizens that the road was in poor condition and their concerns about flooding are not competent substantial evidence. Rather, the competent substantial evidence upon which the Board could rely was from experts who testified that the roadways would operate at acceptable levels. Experts also testified that flooding was addressed by the presence of ditches and a lack of berms, which are different than the developments with which this project was compared by the citizens. While these opinions and comments from citizens support that the project is not desired by them, it does not show incompatibility with the Comprehensive Plan. The largest concern of compatibility with the Comprehensive Plan raised by the Board and citizens was that of the placement of the buffers. Staff reported that at the initial phase of development, the amount of buffering is slightly less than is required.

However, the parties agree that the buffering would comply with the requirements at the time of completion of Envelope B.⁸ The Board contends that the amount of buffering and that the placement of buffers do not satisfy the requirement of the LDC or its intent. As the aggregate amount of buffering of 70 percent is included in the application, the Petitioners met the requirements as set forth in the LDC. The County also contends that the intent of the LDC’s buffering requirement was not met because the placement of the buffers was not in the most desired location. The intent of buffering is “[t]o avoid the incompatibility of a higher density village proper being place adjacent to low density development.” Hillsborough County, Fla., Land Dev. Code § 5.04.02(G).

Only a small portion of the subject property abuts a low-density residential development, and 250 feet of buffering is placed along more than 70 percent of that low density area. The “triangle area,” where commissioners found

Section 5.04.02(G) only requires 70 percent buffering of the village proper perimeter to accomplish its stated intent. Not only are the minimum buffering requirements met, it appears they are placed strategically to comply with the intention of the LDC. There was no competent substantial evidence that the placement of the buffering did not satisfy the stated intent of section 5.04.02(G) of the LDC. The County makes a separate incompatibility argument based on encouraging urban sprawl.

However, in 2005, the County recognized the Riverview Plan area as a “rapidly suburbanizing, no longer rural community.” Riverview Community Plan of the Livable Community Element, p.

85. This area is no longer rural and surrounding properties are already at suburban levels of density, suggesting this rezoning application is consistent and compatible with the Comprehensive Plan and current surrounding uses. As the County suggests, a goal of the Comprehensive Plan is to control urban sprawl. The Planned Village concept is specifically created and recognized to prevent urban sprawl. According to the text of the Comprehensive Plan, the RP-2 and PD designations - with open space areas, commercial development within the community and clustering of homes - were specifically enacted to combat urban sprawl. Although the decision to deny the rezoning application was based on a lack of compatibility with the Comprehensive Plan, failure to satisfy minimum buffering requirements, and promoting urban sprawl, the Board’s decision was not supported by substantial competent evidence. Indeed, the competent substantial evidence is that this development was consistent with the requirements of the planned development zoning classification and the Comprehensive Plan. Legitimate Public Interest Petitioners met their initial burden to show the rezoning application was consistent with the Comprehensive Plan and complies with all procedural requirements of the zoning ordinance.

However, that does not mean that Petitioners are automatically entitled to the requested rezoning. See Snyder, 627 So. 2d at 475; Sarasota Cnty v. Walberg, 739 So. 2d 115, 117 (Fla. 3d DCA 1999).

At this stage, the burden shifts and, the County must show that maintaining the current zoning classifications furthers a legitimate public interest in order to deny the rezoning application. It is the purview of the County, not the Court, to make decisions between two zoning alternatives. Marion Cnty v. Priest, 786 So. 2d 623, 626 (Fla. 5th DCA 2001).

Where there is a legitimate public purpose behind maintaining the existing zoning classification, a denial of rezoning is supported even if the requested rezoning was consistent with the Comprehensive Plan. See Sarasota County v. BDR Investments, L.L.C., 867 So. 2d 605, 608 (Fla. 2d DCA 2004).

Here, the Board determined that the retention of the existing Agricultural Rural zoning classification serves the legitimate public interest of protecting the character of surrounding properties and the goal of neighborhood preservation. These stated public purpose arguments were not founded on substantial competent evidence but rather, only by conclusory statements. After reviewing the record evidence, no competent substantial evidence was presented that retaining the current zoning would protect the character of the surrounding properties or preserve the neighborhood. The character of the neighborhood is an urban/rural transitional area where planned developments, such as the one proposed, are encouraged.

Moreover, the property in question is surrounded by other planned villages, a BMX park, and a radio tower. There was no evidence presented to or considered by the Board that supports retaining the zoning as AR-1 in order to further a legitimate public purpose.

CONCLUSION Petitioners met their burden of proof to show the rezoning application was compatible with the Comprehensive Plan and met the procedural requirements. As such, the burden of proof shifted to the County to show by competent substantial evidence that the rezoning application is inconsistent with the Comprehensive Plan or that maintaining the existing zoning classification accomplishes a legitimate public purpose. The County did not meet this burden.

Therefore, it is ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED, and the denial of Petitioners’ Rezoning Petition in Resolution RR21-032 is QUASHED.

DONE AND ORDERED in Tampa, Hillsborough County, Florida, on the date imprinted with the Judge’s signature.