Press Release r ,
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PRESS RELEASE
June 25, 1990
MATTSON & TOBIN
KEY LARGO, FLORIDA
(305) 852 -3388
District Court of Appeal Returns Zoning Power to Monroe County --
Property.Owner's Lawsuit Against DCA Benefits All
The law firm of Mattson & Tobin announced today that the First District Court of
Appeal overturned the decision of a hearing officer that had allowed the Department of
Community Affairs ( "DCA ") and the Cabinet to downzone 13 "Destination Resort" proper-
ties in Monroe County to less intensive zoning districts. "Shorty" Allen v. Martinez et al.,
and DCA, Case Nos. 89 -1023 & 89 -2377 (Fla. 1st DCA, Opinion filed June 21, 1990). The
Court of Appeal held that Chapter 380 ". . . indicates a legislative intent that zoning and
rezoning be a local government function and not a state rule - making function." The Court
ruled that any effort by DCA to "determine whether property should be rezoned," or any
attempt by the Governor and Cabinet to rezone "by rule" under Chapter 380, would
amount to "an unconstitutional denial of due process to the affected property owners." The
Court delivered a death knell to DCA's interpretation of the ACSC statute which allows it,
"no more than once a year," to "recommend" to the Governor and Cabinet "the enactment,
amendment, or rescission of a land development regulation" of Monroe County. DCA had
maintained that it had the power to re -zone individual parcels of land in Monroe County.
The Court found otherwise, holding that the legislature had not deprived Monroe County
of this traditionally local government function. This is a major victory for local government
as well as Mr. Allen.
The lead attorney for the property owner, Jim Mattson of Mattson & Tobin in Key
Largo, characterized the win as "pulling one of the teeth" of the "state dragon, DCA."
Mssrs. Mattson & Tobin, and their co- counsel Fred Tittle of Tavernier, stated that they
hope this is the opening that will allow them to break the hammerlock grip that DCA has
on land use decisions in Monroe County. Monday they said that their next target is DCA's
absolute, unbridled, veto power over all permits, development orders, zoning changes, and
land use regulation amendments approved by Monroe County.
The Allen case started in mid -1988, when DCA Chief Tom Pelham ordered his staff
to draw up a list of "Destination Resort" parcels that "never should have been designated
DR." Never mind the fact that each of these designations had been approved by both DCA
and the Cabinet only two years earlier (July 29, 1986), before Pelham was anointed grand
protector of the Keys. This decision, according to the District Court of Appeal was
"accomplished at the [DCA] level without the property owner being notified or having an
r opportunity to appear in opposition."
In August of 1988, then - Planning Czar Donald Craig, at DCA's request, scheduled
the 13 DCA - proposed downzonings for hearings before the Planning Commission and
Board of County Commissioners, but Craig failed to advertise the locations of the parcels
being downzoned, and failed to give notice to the affected property owners. Faced with
1 these defects in notice by a lawsuit filed by Mattson & Tobin on behalf of one of the 13
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property owners, the Planning Commission cancelled that set of hearings within four hours
after the suit was filed. That fiasco allegedly cost the County $46,000 to "do it right," and
both Craig and the County Attorney were criticized by Planning Commissioner Milt Mravic
and the BOCC for their lapses. With this fiasco in mind, Craig quietly abandoned the 13
DR downzoning proposals and his DCA "handlers" took up the cudgel. (Mattson noted
today that the County is still fighting the award of attorney's fees in that case, and that the
cost of fighting for the fee award is now in excess of $25,000, which he predicts the County
will eventually be ordered to pay.)
Knowing that Craig's downzoning effort was dead, DCA published a voluminous
"Notice of Proposed Rule" in the Florida Administrative Weekly in November 1988, buried
in which they printed a single sentence stating that 13 properties would be re- zoned, with-
out any hint as to which properties or where they were. Since only about 3 people in the
Keys subscribe to the Florida Administrative Weekly, DCA obviously thought they were
home free. The obscure reference, in an even more obscure publication, said that inter-
ested persons should contact the DCA in Tallahassee if they wanted to know what was
being "re- zoned." Presumably DCA expected all 25,000 property owners in the Keys, once
they had read their Florida Administrative Weekly, to give them a call and see if their
property was being rezoned. In the manner in which they always operate, DCA scheduled
three "public hearings" in Monroe County beginning one week after the deadline for filing an
administrative challenge to the "rule." Only three property owners, including Shorty Allen,
caught on to what was happening and filed an administrative "rule challenge" on the day
before Thanksgiving 1988.
After a hearing in Tallahassee in January 1989, a state hearing officer threw out
DCA's proposed rule on the basis of inadequate notice and the failure to evaluate the eco-
nomic impact on people in Monroe County. Unfortunately, the hearing officer also ruled
that, "if' DCA followed the rule- making procedures faithfully, they and the Cabinet did
have the statutory authority to re -zone property in Monroe County by the rule - making pro-
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cess. Even though Allen had "won," in that the DCA rule was thrown out, Mattson and
Tittle appealed the hearing officer's decision to the First District Court of Appeal. Oral
argument was had on January 30, 1990, one year after the administrative hearing, and the
favorable decision was rendered June 21, 1990, two years after it had begun.
The Allen decision has broad implications, according to Mr. Mattson. After the
hearing officer threw out their 1988 rule, DCA came right back in 1989 with the same pro-
posal, this time paying minimal lip service to due process and economic impacts. To gen-
erate political support for its 1989 rule, DCA issued its "death penalty" in July of 1989,
appealing 94 building permits and driving the construction industry, as well as thousands of
property owners, into a frenzy. "Support our rule," DCA said in effect, "and only a few
property owners will lose millions of dollars in property values." "In return," DCA was
saying, "we will dismiss the building permit appeals and release our death grip for 6 months
or so." Some of our County officials (Commissioners Lytton and Jones, County Adminis-
1 trator Brown, and County Attorney Randy Ludacer) tried to stop it, but the opportunity to
pick up "environmental" votes statewide, at the expense of no more than about 13 property
owners in Monroe County who stood to lose millions of dollars, was too good for the Cabi-
net to pass up. (Planning Czar Craig, however, vocally and vociferously supported DCA's
rule.) So, on August 21, 1989, the Cabinet approved the downzoning of 13 Destination
Resort parcels; an action which the District Court of Appeal has just held unconstitutional!
Mr. Mattson noted with humor that one of the improperly re -zoned parcels is the
Marathon land on which the County proposes to build its government center. That land
will now revert back to Destination Resort -- which does not allow office buildings! The
duplex area on Knight's Key will return to DR from IS -D; Valhalla Island will revert to DR
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,` from MU; Shorty Allen's property goes back to DR from Suburban Residential; and so on.
Even the Coast Guard station in Marathon will, once again, be zoned DR.
When asked what their client will do next, Mssrs. Mattson and Tittle said that
Shorty Allen has been deprived of the use of his property for two years, and is entitled to
"temporary taking" damages under the Fifth Amendment to the United States Constitution.
What that amount might be is uncertain, but they are certainly at least the interest value on
his land (10% x 2 years x $2 million = $400,000). Allen will almost certainly proceed with
development plans for his 10.3 acre parcel, before the state government comes up with
some other bright idea.
For a copy of the opinion, telephone Mattson & Tobin at 852 -3388 and we will fax it
to you. It's 11 pages long.
-4 -END -
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1 1.' LAW OFFICES
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MATTSON & TOBIN
Post Office Box 586
Key Largo, FL 33037
Telephone (305) 852 -3388
FAX (305) 852 -6967
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without notice to affected property owners and without affording
w' them an opportunity to be heard, any rezoning by the State
Commission by rule under the procedure set forth in the statute
would be an unconstitutional denial of due process to the
affected property owners.
When read as a whole, Chapter 380 indicates a legislative
i ntent that zoning and rezoning be a local governmental function
and not a state rule - making function. Section 380.021 sets forth
ki
the purpose of the law. After stating that the legislative
intent is to protect the natural resources and environment of the
state, and to establish land and water management policies to
:
. guide and coordinate local decisions relating to growth and
Al
,, development, the section specifically provides:
. . (Sluch state land and water management policies
should, to the maximum possible extent, be implemented
by local governments through existing processes for the
- r , guidance of growth and development; and that all the
existing rights of private property be preserved in
rr' accord with the constitutions of this state and of the
:, United States.
:N
Section 380.06(11), relating to developments of regional impact,
provides that after an application for development is approved as
to sufficiency by the planning agency, the appropriate
local government shall give notice and hold a public hearing on
the application in the same manner as for a rezoning. . . ."
We find no merit to the remaining issues on appeal.
Reversed in part and affirmed in part.
:
ZEHMER and BARFIELD, JJ., CONCUR.
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: IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
i
E.L. "SHORTY" ALLEN, * NOT FINAL UNTIL TIME EXPIRES TO
* FILE MOTION FOR REHEARING AND
Appellant, * DISPOSITION THEREOF IF FILED.
P *
v. * CASE NOS. 89 -1023 & 89 -2377
*
HONORABLE Bob MARTINEZ, *
GOVERNOR, et al., *
*
Appellees, *
t' *
and *
*
FLORIDA DEPARTMENT OF *
COMMUNITY AFFAIRS, *
✓ *
Intervenor /Appellee. *
w
Opinion filed June 21, 1990.
. An Appeal from an order of the Division of Administrative
Hearings, State of Florida.
2
A James S. Mattson, of Mattson & Tobin, Key Largo; Fred Tittle, of
Tittle & Tittle, P.A., Tavernier, for Appellants.
John W. Costigan and P. Tim Howard, Department of Legal Affairs,
' Tallahassee, for appellee Administration Commission; G. Steven
t Pfeiffer, General Counsel, David L. .Jordan, Barbara Jo Finer, and
,rf Robert Byerts, Senior Attorneys, Department of Community Affairs,
1 Tallahassee, for appellee Department of Community Affairs.
A
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ti THOMPSON,k'ORD L. (Rat.), Associate Judge.
This is a consolidated appeal from a final administrative
order entered in Case No. 89-1023, relating to the validity of
a certain rules adopted by the Administration Commission of Florida
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(State Commission) and Case No. 89 -2377, relating to motions for
attorney's fees filed by the parties. In Case No. 89 -1023, the
appellant contends the hearing officer erred in finding that Fla.
Admin. Code Rules 28- 20.019, .022 and .023 were a valid exercise
of delegated legislative authority, that they did not exceed the
agency's grant of rule -- making authority, and that the rules did
not enlarge, modify or contravene the specific provisions of the
law implemented. The hearing officer did hold the rules were an
4
invalid exercise of delegated legislative authority in that they
were not adopted in accordance with the applicable rule-making
procedures set forth in §120.54, Fla. Stat. In Case No. 89 -2377,
Allen appeals the final order of the hearing officer dismissing
his motion for attorney's fees and granting the State
Commission's motion for attorney's fees and costs. We affirm in
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part and reverse in part.
, Zt ,Z Allen is the owner of a 10.32 acre parcel of land on Key
Vaca in Marathon, Monroe County. His property was zoned
P destination resort (DR) on February 28, 1986, by ordinance of the
Monroe County Board of County Commissioners (County Board),
: pursuant to the zoning authority authorized by §125.01(g)(i),
Fla. Stat. The DR zoning allowed Allen to build up to 15 hotel
units per acre or a total of 155 units. This zoning was approved
by the State Commission and the Department of Community Affairs
(State Department), and became effective on September 15, 1986.
Immediately after the zoning of Allen's property, the State
Department contracted with Monroe County to conduct a study of
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all property zoned DR in order to determine which parcels should
retain the DR designation and which should receive a different
zoning. Thirty -two properties were potentially affected by the
study. The study recommended that thirteen of these properties,
including Allen's, be rezoned. Alien's property was the subject
of a proposed down - zoning under proposed Fla. Admin. Code Rule
28- 20.023(f), from DR to suburban residential (SR). A SR zoning
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would permit Allen to build only one residential dwelling unit
per acre, or a total of 10 units, instead of the 155 units
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permitted under DR zoning.
The State Department's recommendation that the State
Commission down -zone the 13 parcels, including Allen's 10- -acre
parcel, by the adoption of rules was made without any notice to
the property owners of the 13 parcels, and without any
opportunity for them to be heard in opposition to the
recommendation by the State Commission on the proposed rules.
Before the recommended rules were adopted, three public hearings
were held in Monroe County. A completely inadequate notice of
these hearings was published and a totally inadequate notice of
the proposed rules was published in the Florida Administrative
A
Weekly. The 13 owners, whose property was being down -zoned and
substantially reduced in value, were never advised by mail of the
. proposed rules. The hearing officer found that the notice
published in the Florida Administrative Weekly failed to comply
with the rovisions of §120.54, Fla. Stat., in several respects
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and was insufficient to provide notice of the agency's intended
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action. She further found that the estimate of revised economic
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impacts on all affected persons did not constitute an economic
impact statement, much less a det
ailed economic impact statement.
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She therefore found that the agency had materially failed to
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follow the applicable rule- making procedures set forth in §3.20.54
and that the rules were an invalid exercise of delegated
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legislative authority. She did find that the State Commission
had the legal authority to rezone the property in
:a P P Y question by
- rule if it complied with the provisions of §120.54.
The State Department and the State Commission contend that
' i the State Commission has been statutorily authorized to enact
'' amend or rescind Monroe County Development Regulations, including
1 zoning and rezoning of property, and that this power to adopt,
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:, amend or rescind Monroe County regulations, including zoning, has
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been constitutionally delegated to the State Commission by the
10 Legislature. They rely on §163.3164(22), §380.031(8), and
If §380.0552(9), Fla. Stat. Section 163.3164(22) defines land
o.
development regulations as "ordinances enacted by governing
1 bodies for the regulation of any aspect of development
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1 '1 [including) any local government zoning, rezoning, subdivision,
li building construction, or sign regulations or any other
regulations controlling the development of land, except that this
definition shall not apply in s.163.3213." The latter definition
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_, obviously has nothing to do with the issue in this case which
involves the right of a state agency to zone or rezone by Chapter
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120 rule and not by local government ordinance.
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. Section 380.031(8) provides as follows:
"Land development regulations" include local zonyza,
subdivision, building, and other regulations
controlling the development of land.
(Emphasis supplied.)
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si.' Section 380.0552(9) provides:
1 MODIFICATION TO PLANS AND REGULATIONS. Any land
1 development regulation or element of a local
A comprehensive plan in the Florida Keys Area may be
. enacted, amended, or rescinded by a local. government,
; but the enactment, amendment, or rescission shall
become effective only upon the approval thereof by the
state land planning agency. The state land planning
,-.z. agency shall review the proposed change to determine if
it is in compliance with the principles for guiding
development set forth in chapter 27F -8, Florida
x Administrative Code, as amended effective August 23,
-' 1984, and shall either approve or reject the requested
changes within 60 days of receipt thereof. Further,
the state land planning agency, after consulting with
the appropriate local government, may no more often
than once a year, recommend to the Administration
Commission the enactment, amendment, or rescission of a
land development regulation or element of a local
comprehensive plan. Within 45 days following the
receipt of such recommendation by the state land
r planning agency, the commission shall reject the
recommendation, or accept it with or without
a
modification and adopt it, by rule, including any
4 changes. Any such local development regulation or plan
shall be in compliance with the principles for guiding
development.
d
4 This section first provides that any land development regulation,
which includes zoning or rezoning, may be enacted, amended or
rescinded by a local government but that this action shall become
effective only upon approval by the state land planning agency
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which is the State Department. The last part of this section
purports to authorize the State Department, after consultation
w ith the local g overnment, t o recommend to the State Commission
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the enactment, amendment or rescission of a land development
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regulation which includes zoning. Upon receipt of the
recommendation, the State Commission may then reject the
recommendation or accept it, with or without modification, and
adopt it by rule.
As set forth in appellee's additions to the statement of
facts the following procedure took place:
1. On February 28, 1986, Monroe County enacted
Resolution No. 049 -1986, which adopted the Monroe
County Comprehensive Plan and Land Development
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Regulations. Resolution No. 049 -1986 was approved,
with amendments, by the Department of Community Affairs
and the Administrative Commission, effective September
15, 1986. As part of the Comprehensive Plan, the
entire County was redesignated or rezoned, including
the properties owned by Petitioners. The propert(y)
4 owned by ...Allen... was designated DR in the Monroe
County Comprehensive Plan and Land Development
Regulations. R -159. (Final Order, Findings of Fact 9,
p.6)
2. Immediately after the passage of the Monroe
1 County Comprehensive Plan and Land Development
'r Regulations, the Department of Community Affairs
contracted with Monroe County to have Monroe County
conduct a study of all properties located in Monroe
County designated as DR. After the submittal of the DR
; report by Monroe County to the Department, several
employees of the Department of Community Affairs and
several employees of Monroe County reviewed the 22
properties designated as DR in Monroe County. They •
dev- .. -'d our cr' -.'a and a--__: ! •u. crte 'a
to each parcel. Based upon "balancing" those criteria,
they de ided wh4.ch p rce s should_ retain tie i?R
designaion and which parcels should receive a
o different designation. They selected 13 parcels for
which the D�,,,desienatj j should be removed. The Allen
... propert(y) was among the 13... R -160. (Final Order,
Finding of Fact 11, p. 7)
3. The legsetary of the Department of Community
t,• Affairs deterp3ned that the Monroe County Comprehensive
Plan and Land Development Regulations (should be
amended) in several different ways. One of those ways
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involved reducing the number of DR designations in
Monroe County. instructed his staff to draft
proposed rules to be presented to the Administrative
Commission to accomplish those purposes. R -160. (Final
Order, Findings of Fact 12, p. 7)(Emphasis supplied.)
At no time was Allen ever notified by publication, much less
by mail, that the State Department, which is the state planning
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agency, was considering down - zoning his DR property to SR or that
the state planning agency made the decision to down -zone his
property and to propose rules accomplishing this down - zoning for
enactment by the State Commission. Before enacting the rule to
down -zone Allen's property, the State Commission did hold three
f public hearings, but it did not notify Alien by mail, as required
by county rezoning procedure, nor did it afford him a reasonable
opportunity to be heard.
Zoning has traditionally been a local government function.
Counties and municipalities are authorized by law to perform this
function in accordance with specific provisions that assure
notice and due process to property owners who will be affected by
the zoning or rezoning. There is no question but that due
process requires that an affected landowner be given prior notice
and an opportunity to be heard before action is taken by a zoning
authority to alter the use to which the owner is permitted to put
his land. The Secretary of the State Department determined that
1 Allen's parcel, among others, should be rezoned and he instructed
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his staff to draft proposed rules to be presented to the State
Commission to accomplish this purpose. This decision was reached
without Allen being given any notice or opportunity to be heard
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in opposition to the rezoning. It is clear that much, if not all
,I of the fact- finding discussion and consideration of the merits or
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demerits of the down - zoning of Allen's property were accomplished
I at the state planning agency level without the property owner
being notified or having an opportunity pportunity to appear in opposition.
Although the State Commission was not bound by the recommendation
of the State Department, it is obvious that the planning agency's
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proceedings and recommendation resulted in input which was
ti material and substantial in the ultimate decision making process
of the State Commission. Due process requires that an affected
landowner be entitled to notice and an opportunity to be heard at
the state planning agency stage of the process. In Gulf � C
- - il • v _• -n741. •_• v. .i 0 t. aude da 354 So.2d 57
(Fla. 1978), our supreme court was presented with a similar due
a process issue in a municipal rezoning case. In Gulf a petition
was filed to rezone certain property in Ft. Lauderdale. The Ft.
Lauderdale Planning and Zoning Board ,held a public hearing on the
proposed zoning. After the hearing the Planning and Zoning Board
recommended to the City Commission that the property be rezoned.
The City Commission held a public hearing on the rezoning
ordinance and the property owner objected on the grounds that he
ii, had not been notified by the city of the rezoning proposal or the
prior hearing of the Planning and Zoning Board. Notwithstanding
the objection the City Commission passed the rezoning ordinance
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recommended by the Planning and Zoning Board. In a circuit court
,a action the court found that the property owner had not been
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notified of the rezoning proposal and the Planning and Zoning
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Board hearing thereon, and declared the ordinance invalid. The
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city appealed and the district court reversed holding that the
Planning and Zoning Board was only a recommendatory authority
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ii and, so long as the affected landowner had the opportunity to be
,.c. heard by the City dommission, the landowner was not deprived of
procedural due process. The property owner filed a petition for
certiorari to the supreme court. The supreme court reversed the
4
district court's decision holding that due process required that
`v a landowner be afforded notice and an opportunity to be heard at
the planning and zoning board stage of the zoning process where
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under city ordinance such board enjoyed a de facto interim zoning
y+ authority and much, if not all, the fact -- finding, discretion and
consideration with respect to the merits of a zone change were
accomplished at the board level.
Although the state planning agency does not have any de
facto interim zoning authority, much, if not all., of the fact -
finding, discretion and consideration with respect to the merits
of a zone change were accomplished at the state planning agency
level of which the property owner had no notice or opportunity to
be heard. For all practical purposes, the property was rezoned I
without the owner having notice or an opportunity to be heard.
=l. Further, in Friends of the Everglades. Inc. v. Board of County
Commissioners, 456 So.2d 904 (Fla. 1st DCA 1984), this court held 1
• z ; that the concept of due process contemplates that before
constitutional property rights are infringed upon, the property
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., owner must be
given reasonable notice of the proposed action and
an opportunity to be heard. Although the court held that the
legislative scheme for public participation at the local level
• and the development of reasonable impact process coupled with the
limited standing to appeal the ultimate decision of local
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authorities does not violate constitutional guarantees of equal
protection access to the court and due process, it did
specifically find:
Chapter 380 nonetheless provides for public
_' notice and hearing on applications for
development approval, which proceedings are
to be held "in the same manner as for a
rezoning." Section 380.06(1). Case law
instructs that procedures relating to
rezoning require that "an affected Jar4downes
be given prior notice and an opportunity to
F be heard before action is taken by a zoning
authority to alter the use to which the owner
: is permitted to put his land."
. .d. at 911. (Emphasis in original).
.-Y Section 380.0552(9), Fla. Ctat., constitutionally authorizes
the county to zone or rezone, subject to approval by the State
Department, and this method of rezoning constitutionally affords
. the property owner due process in that the county rezoning
statute requires notice by mail to the property owners and an x
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opportunity to be heard. For that reason, we do not hold that
•
' §380.0552(9) is unconstitutional as it can be applied in a
constitutional manner. However, to the extent that the section
purports to authorize a determination by ::e::::::::::::%::
; whether property should be rezoned, and
1 State Commission of proposed rules to accomplish the rezoning
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.1“wcycl P1i4mty owners.
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Whin 1..210 as a wliviw, CL,aiLtc 380 iiiwlil.:al.e a luyialalive s
M1 _ intent that zoning and rezoning be a local governmental function
and not a state rule- making function. Section 380.021 sets forth
" the purpose of the law. After stating that the legislative
intent is to protect the natural resources and environment of the
state, and to establish land and water management policies to
'11 rill rrruaiirrir 1.■i1 iiusi.irss s.lslrirs is ■rouilr Sri m)
'il development, the section specifically provides:
(S]uch state land and water management policies
should, to the maximum possible extent, be implemented
r by local governments through existing processes for the
° 3 guidance of growth and development; and that all the
existing rights of private property be preserved in
accord with the constitutions of this state and of the
United States.
_t Section 380.06(11), relating to developments of regional impact,
1
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provides that after an application for development is approved as
1
} to sufficiency by the planning agency, ". . . the appropriate ,
t local government shall give notice and hold a public hearing on
: the application in the same manner as for a rezoning. . . .
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� We find no merit to the remaining issues on appeal.
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Reversed in part and affirmed in part. L
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ZEHMER and BARFIELD, JJ., CONCUR.
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