GC-G01-4594 - Gary's Grading, Inc. v. Polk County

IN THE TENTH JUDICIAL CIRCUIT COURT FOR HARDEE, HIGHLANDS, AND
POLK COUNTY, FLORIDA

Case No. GC-G01-4594

GARY’S GRADING, INC.,

Petitioner,

POLK COUNTY, a political subdivision of the state of Florida,

Respondent.

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OPINION OF THE COURT

This matter came before the court on a petition for writ of certiorari filed by Petitioner, Gary’s Grading, Inc., on December 7, 2001. Petitioner seeks review of the ruling of the Polk County Board of County Commissioners (Respondent) denying its request for a Conditional Use Permit (CUP) for non-phosphate mining on property owned by Petitioner. This court has jurisdiction. Fla. R. App. P. 9.100. Certiorari is denied.

On April 27, 2001, Petitioner applied for a CUP that would enable it to operate a borrow pit on approximately 20 of 39 acres of pastureland, which at the time was being used for cattle grazing. The land is located on County Road 542 in the Poinciana area and is located one mile west of Poinciana Parkway north of Hatcheneha Road. To the north and east of the proposed site is vacant land, to the southeast are two single-family residential dwelling units, to the south is pastureland with some residential developments along the south side of Lake Hatcheneha Road, and to the west are trees and a single-family dwelling unit.

Pursuant to the Land Development Code, the petition was classified as Level 3 review, which meant that the proposal would be reviewed by various County departments, acting as the Development Review Committee (DRC), which then issues their comments and reports their findings to the Planning Commission, which is a board of citizens appointed by the Respondent. After a hearing on August 15, 2001, the Planning Commission denied the application. Petitioner appealed the ruling of the Planning Commission and the matter came before the Respondent for a de novo public hearing on November 7, 2001.

At the hearing, Petitioner submitted an agenda comprised of a summary of the case, the decision of the Planning Commission and the Development Review Committee Staff Report. The Staff Report addressed the issues of compatibility with surrounding land uses, the capacity and condition of roadways surrounding the proposed operation, and the economic factor on the Kissimmee/Orlando market areas. Based on the findings contained in the Staff Report, the DRC concluded that the "proposed request is consistent with the surrounding land uses and general character of the area; and is consistent with the Polk County Land Development Code and the Polk County Comprehensive Plan." Subsequently, the DRC recommended that the Planning Commission approve the application for a CUP.

Timothy Campbell, counsel for Petitioner, spoke at the hearing and presented the CUP request and addressed some of the probable concerns. In response to the potential impact on traffic, Mr. Campbell proffered that traffic would be alleviated due to Petitioner’s construction fill in the Poinciana development area from a site nearly 10 miles to the west. Addressing the concerns of Petitioner’s burning of brush and trees, Mr. Campbell averred that Petitioner previously agreed that there would be no burning. One other person, Mr. Norman Pope, an owner of adjacent property, spoke in support of the proposal and stated the effect on traffic would be minimal.

Ben Darby, who represented adjoining landowners to the subject property, spoke on behalf of Respondent. Mr. Darby testified that the proposed borrow pit was not compatible with the surrounding area, that the air quality of the area would be adversely affected, that traffic would be unduly burdened, and that the pit could potentially become an attractive nuisance to children. Mr. Darby then presented local residents to state their opposition to the proposed borrow pit. Several residents addressed the Respondent and among the worries brought up were the pit’s impact on traffic, the devaluation of surrounding property, the noise of the trucks and the potential air pollution.

After considering the testimony and arguments from counsel, the Board of County Commissioners voted unanimously to affirm the Planning Commission’s decision and deny the application for CUP. Petitioner filed this petition seeking review of the County=s ruling.

II.

Common law certiorari is available in the circuit court to review the actions of local administrative bodies which are not governed by the Florida Administrative Procedure Act. DeGroot v. Sheffield, 95 So. 2d 912 (Fla. 1957). Certiorari is an extraordinary remedy reserved for those situations in which Athere has been a violation of a clearly established principle of law resulting in a miscarriage of justice.@ Combs v. State, 436 So.2d 93, 96 (Fla. 1983). Review in the circuit court is limited to a determination whether: (1) procedural due process has been accorded; (2) the essential requirements of the law have been observed; and (3) the findings and judgment are supported by competent substantial evidence on the record. Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla. 1995).

An applicant seeking a CUP must establish by competent substantial evidence that the proposal is consistent with the comprehensive plan and complies with local zoning regulations. Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469, 472 (Fla. 1993); Irvine v. Duval County Planning Commission, 466 So.2d 363, 365 (Fla. 1^st DCA 1985) (Zehmer, J. dissenting). The applicant must show that the requested use can be granted without substantial detriment to public good, and that granting the exception will not impair the intent of the comprehensive plan. Irvine, 466 So.2d at 365, (Zehmer, J. dissenting). Because the use is one that has already been sanctioned by legislation, the burden on the applicant is much less than that required for a zoning change. Id.

If the applicant makes a prima facie showing of compliance, then the burden shifts to the zoning authority to show by competent substantial evidence that the request does not meet the required standards, and that the request is averse to public interest. Id. A determination of whether the applicant has made the requisite showing must be based on specific criteria set forth in the zoning regulations. Id.

III.

As the issues of whether procedural due process has been afforded or the essential requirements of the law have been observed were either conceded or not raised, resolution of this matter turns on whether the County=s decision is supported by competent substantial evidence on the record and fulfills a legitimate public purpose.

IV.

Policy 2.125-G3, Polk County Comprehensive Plan requires the County to adopt developmental regulations that adhere to the following standards: 1) minimize the adverse impact on environmentally sensitive lands; 2) maximize the ability to restore or mitigate environmentally sensitive lands; 3) minimize the adverse impact of truck, heavy machinery traffic on residential streets; and 4) minimize the effect of adverse external impacts such as dust, noise, and visual impacts on non-industrial areas

The Respondent heard testimony in opposition to the application which stated: 1) wind-borne sand and dust would be a nuisance and affect air quality; 2) truck traffic is noisy and would be a hazard to the local residents around the proposed site; 3) the pit would have a detrimental effect on the wells and springs in the area; 4) the noise generated by the water pump would be a nuisance to adjacent landowners; 5) the surrounding roads are not able to handle the heavy truck traffic. In rejecting the application, the Respondent appears to have considered each criterion before concluding that a non-phosphate mine was not appropriate for that location.

Since Petitioner conceded that due process was provided and Respondent conceded that Petitioner met its initial burden in proving that all procedural requirements of the Polk County Zoning Ordinance have been met, the Respondent needs only show that its decision is supported by competent, substantial evidence and furthers a legitimate public purpose.

VI.

First, the Court finds that in denying the application, the Respondent was acting in furtherance of the local residents’ interests by ensuring that their health and well-being would not be adversely affected by the borrow pit. Second, the denial is supported by substantial competent evidence and appears to be based upon Policy 2.125-G3 which requires the County to consider the environmental impact, the effect of industry on residential areas, the impact of noise and dust, and the long-term impact on lands. The findings reflect each criterion.

Accordingly, it is ORDERED that the petition for writ of certiorari is DENIED.

ORDERED June 2002.

CHARLES B. CURRY, Chief Judge