HILLSBOROUGH ASSOCIATION FOR RETARDED CITIZENS, INC., ET AL., PETITIONERS,
v.
CITY OF TEMPLE TERRACE ET AL., RESPONDENTS

Fla. | 1976-05-12
No. 48504
OVERTON, C. J., and ADKINS and SUNDBERG, JJ., concur., ROBERTS, J., concurs in judgment adopting DCA decision.
332 So. 2d 610 Florida Supreme Court (1976) Positive Treatment
Cited by 12 cases

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Holding

State agencies are generally subject to municipal zoning ordinances, and local administrative proceedings are the appropriate forum for weighing competing governmental interests regarding non-conforming uses.


Headnotes

[1] State agencies must generally seek local government approval for non-conforming uses, with local administrative proceedings serving as the forum to weigh competing govern…

[2] Municipal zoning powers derived from constitutional home rule provisions differentiate state agencies from the state's immunity from municipal utility taxes.

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Facts & Procedural History

A private non-profit corporation, under contract with the state, established a respite care center in a single-family residential zone, violating muni…

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Opinion of the Court
ENGLAND, Justice.

ENGLAND, Justice.

The Second District Court of Appeal has certified to us, pursuant to Article V, § 3(b)(3) of the Florida Constitution, a question of great public interest on which it passed in a decision reported at 322 So. 2d 571.1 The question involves the extent to which agencies of the state are subject to municipal zoning ordinances.

The Hillsborough Association for Retarded Citizens, Inc. is a private non-profit corporation under contract with the Division of Retardation of the Department of Health and Rehabilitative Services to provide a respite care center where the guardians of retarded persons can leave their charges for short periods of time. The Association established such a center in a privately-owned house located in an area of the City of Temple Terrace zoned for single family residences, in clear violation of municipal ordinances. It had not sought prior permission to engage in a non-conforming use.

As the district court noted, the issue involved in this case has statewide significance, important intergovernmental consequences, and no clear precedent in this jurisdiction. We have heard oral argument and had the benefit of briefs from the named parties, the Attorney General of Florida, and the Department of Health and Rehabilitative Services.2 These presentations on the very difficult legal issues involved in this case have been thorough and skillful. Our review of the matter persuades us to adopt the position asserted by the City and adopted by the district court.3 The opinion authored by Judge Grimes below has also simplified our task, being a craftsmanlike product which has fully explored and evaluated the issues and their legal effects. We cannot improve on his analysis, and it would serve no purpose to rephrase it. We adopt his opinion as our own.

The only point of law urged here which is not addressed in the opinion below is the applicability of our decision in Dickinson v. City of Tallahassee, 325 So. 2d 1 (Fla.1975), adopted after the district court had ruled. In Dickinson we held that the state was immune from a municipal utility tax, in part because Article VII, § 9(a) of the Florida Constitution did not expressly waive the state’s sovereign immunity from taxation and in part because the applicable statute did not expressly confer on municipalities the power to impose a utility tax on the state. Sovereign immunity is no guide here as we deal with a zoning power of municipalities which is derived from Article VIII, § 2(b) of the Florida Constitution by way of the Municipal Home Rule Powers Act.4 This constitutional delegation of municipal authority differentiates Dickinson.

We conceive that the effect of our decision will be that the state will always cooperate with local government when it has decided to achieve an objective by means of a non-conforming use. Except where a specific legislative directive requires a non-conforming use in the particular area, local administrative proceedings will provide the forum in which the competing interests of governmental bodies are weighed.5

The procedural circumstances of this case call for a determination by the trial court rather than the local zoning authority, though generally we would expect the courts in the future to defer action until administrative proceedings were completed. For this reason, the decision of the district court is affirmed.

OVERTON, C. J., and ADKINS and SUNDBERG, JJ., concur. ROBERTS, J., concurs in judgment adopting DCA decision.

. All parties agree that our review extends to the “decision” of the district court, rather than the question on which it passed. Rupp v. Jackson, 238 So. 2d 86 (Fla.1970).

. After oral argument, the School Board of Orange County was granted leave to file a brief as a friend of the Court. The Board argues that the constitutional genesis of school boards differs from that of other state agencies, and that school boards have been granted location powers paramount to local zoning authority. The City of Temple Terrace has controverted these assertions. The issues raised by the school board are not appropriately resolved in this proceeding where it is not a party and no dispute presently exists. For that reason we expressly decline to pass on the applicability of this decision to those agencies.

.An ancillary benefit in resolving intergovernmental disputes results from our adoption of the City’s view. By requiring state agencies to seek local approval for non-conforming uses, an administrative solution is always present in the form of zoning appeals. In contrast, if the state were not required to seek local approval, the city would always be forced to litigate its disagreement, as happened here. It serves the public’s benefit to resolve these controversies in a way which does not mandate the most expensive and least expeditious way of settling intergovernmental disputes.

. Section 166.021(4), Fla.Stat. (1973).

. See, Note, Governmental Immunity From Local Zoning Ordinances, 84 Harv.L.Rev. 869, 883-885 (1971). Petitioner has raised here its concern that local governments will he able to thwart state policy by refusing to approve zoning for legislative projects. The courts are available, however, to review the balance struck in administrative proceedings. Beyond that, as petitioner states in its brief, “the State of Florida possesses the power to exempt itself from local zoning ordinances.”


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Citator

Cited By

  • City OF Gainesville v. State, 778 So. 2d 519 (Fla. 1st DCA 2001)
    …ign immunity shields it from liability for the City’s fees.3 Such a claim is reminiscent of the claim made on behalf of the Department of Health and Rehabilitative Services (HRS) in Hillsborough Ass’n for Retarded Citizens v. City of Temple Terrace, 332 So. 2d 610 (Fla.1976). It was contended there that HRS, as a state agency enjoying sovereign immunity, and a contractor furnishing residential services on HRS’s behalf did not have to abide by municipal zoning ordinances. Rejecting the “superior sovereign test…
  • City OF Miami Beach v. Rocio Corp., 404 So. 2d 1066 (Fla. 3d DCA 1981)
    …essly preempted to state . . . government” and therefore excepted from the City’s powers under section 166.-021(3)(c). See also City of Temple Terrace v. Hillsborough Association for Retarded Citizens, Inc., 322 So. 2d 571 (Fla. 2d DCA 1975), aff’d, 332 So. 2d 610 (Fla.1976); City of Miami Beach v. Forte Towers, Inc., supra. The Florida legislature has spoken on the subject of condominium conversion in Chapter 718, Florida Statutes (1979), which defines as its purpose: [*1069] (1) To give statutory recognitio…
  • Reed v. State, 470 So. 2d 1382 (Fla. 1985)
    …nts petitioner the right to a jury trial. We decline to do so. First, our scope of review encompasses the decision of the court below, not merely the certified question. Hillsborough Association for Retarded Citizens, Inc. v. City of Temple Terrace, 332 So. 2d 610 (Fla.1976); Rupp v. Jackson, 238 So. 2d 86 (Fla.1970). Second, the court below addressed the right to a jury trial under the United States Constitution and properly so, since we have held “that the federal petty crime exception to the jury trial req…

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