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CIRCUIT COURT OF APPEAL
IN THE EIGHTEENTH JUDICIAL CIRCUIT MARYANNE MORSE
STATE OF FLORIDA Clerk of CouPs Seminole Co. Ft
TO THE HONORABLE JUDGE OF THE COUNTY COURT OF SEMINOLE COUNTY,
FLORIDA, WHEREAS in that certain cause filed in this Court styled:
RICHARD S. CASSELBERRY,
Appellant from City Commission decision
CITY OF SANFORD, APPEAL NO 92-15
Appellee
The attached opinion was rendered on 12-23-92.
YOU ARE HEREBY COMMANDED that such further proceedin~ be had
in said cause in accordance with the decision and judgment of this
Cour~ the rules of procedure and laws of the State of Florida.
WITNESS THE HONORABLE ROBERT B. MCGREGOR
Judge of the Circuit Court of the Eighteenth Judicial Circuit of
the State of Florida ~nd the seal of said Court at Sanford,
Florida, this 21ST day of January, 1993.
MARYANNE MORSE, CLERK of the
CIRCUIT COURT IN AND FOR
SEMINOLE COUNTY, FLORIDA
IN THE CIRCUIT COURT OF THE
EIGHTEENTH JUDICIAL CIRCUIT,
IN AND FOR SEMINOLE COUNTY,
FLORIDA
APPEAL NO: 92--15
RICHARD S. CASSELBERRY,
Plaintiff, "'
vs.
CITY OF SANFORD,
Defendant.
/
Decision filed December 23, 1992
Appeal from the City Commission
of the City of Sanford, Florida.
Thomas R. Peppler, Esq.
John W. Howell, Esq.
for Appellant
Donna L, McIntosh, Esq.
for Appellee "Not Final Until Time Expires
To File Rehearing MOtion and,
If Filed, Disposed of."
PER CURIAM
Th~s is an appeal from the denial by the City Commission of
the City of Sanford, Florida, of an application for a conditional
use. Petitioner sought to use his property as a two family
dwelling. The area in which the property is located is zoned
single family residential, with two family dwellings permitted as
a conditional use. The parties have agreed, and the court so
finds, that the appeal should be treated as a Petition for a Writ
of Certiorari. City of Deerfield Beach v. Vail!ant, 419 So.2d
624 (Fla. 1982). The parties will therefore be referred to as
Petitioner and Respondent.
Petitioner claims that Respondent's actions departed from
the essential requirements of law, and that its decision was not
supported by competent substantial evidence. Petitioner makes no
claim that he was not afforded procedural due process.
I. DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW
Petitioner claims that the City Commission departed from the
e~sential requirements of law in two respects:
1. That the decision was based on an unwritten policy
rather than any specific provision of the zoning code.
2. That the City Commission incorrectly applied a twenty
foot rear setback requirement to existing buildings such as
Pet it loner ' s.
Petitioner contends that the decision of the City Commission
was based upon an unwritten policy to "re-establish... single
fa ~1 uses.. in the downtown residential historic area. This
.m y o"
language was taken from paragraph four (4) the advisory report to
the City Commission by the City Planner, Jay Marder. Mr.
Marder ' s statement, is, however, taken out of context. It was
simply part of his discussion of the factors which led to the
1983 rezoning of this area from multiple family residential to
single family residential. All zoning ordinances are a form of
legislation and, as such, are based on some underlying purpose
which has been determined by the governing body to further the
2
general welfare of the public. Mr. Marder's report clearly indi-
cates that the City Commission had determined that the multi-
family residential zoning of this area was detrimental to the
public welfare, while single family residential zoning would be
beneficial to the public welfare. Accordingly, it rezoned the
area to achieve the legislative purpose of restoring the single
family residential character of the neighborhood. Appellant's
first point is without merit.
One of the two grounds given by the City Commission for
denial of the conditional use was that the property failed to
comply with the twenty foot rear setback requirement of the
zoning code. Petitioner contends that this requirement only ap-
plies to new construction. However, nothing in the zoning code
indicates that the rear set-back requirement is limited in this
fashion. In fact, Section 3.7(B)(1) of the City Code states that
conditional uses"...shall be subject to the general requirements
of this ordinance was well as the specific provisions applicable
within the zoning district..." (e p ~s's added). The Petitioner
mh
has cited examples of other properties near his property that
were dealt with differently by the Respondent, but those actions
were either taken on requests for a variance, on properties zoned
differently, or properties that the Petitioner has failed to show
were not "grandfathered in" by the original zoning ordinance.
The Petitioner has not been able to show one example of a condi-
tional use being granted in this zoning classification for an ex-
isting structure originally built as a single-family dwelling
3
where the applicant failed to comply with the statutory require-
ments. Petitioner has failed to demonstrate that Respondent's
actions departed from the essential requirements of law.
II. FAILURE TO BASE DECISION ON COMPETENT SUBSTANTIAL EVIDENCE
Petitioner asserts three bases for arguing that the decision
of the City Commission was based upon insufficient evidence:
1. That the decision was based upon public opposition and
lay opinion, rather than competent evidence.
2. That the evidence did not support the determination that
the application failed to comply with the reasonable procedural
requirements of the City zoning code.
3. That no competent, substantial evidence supported the
determination that the granting of the conditional use would be
adverse to the public interest.
Petitioner asserts, and this court agrees, that a decision
to grant or deny a conditional use cannot be based upon public
opposition or lay opinion about what might happen, unsupported by
expert testimony, Flowers Baking Company v. City of Melbourne,
537 So.2d 1040 (Fla. 5th D.C.A. 1989). Although some residents
simply voiced opposition to the application which was not
grounded upon factual statements or personal observation, the or-
der of the City Commission never referred to that opposition in
either its findings or conclusions. Furthermore, the City Com-
mission concluded that the application had to be denied because
4
the property failed to meet the twenty foot rear set-back
requirement. That finding was based upon the admission by
Petitioner's own counsel at the hearing before the City Planning
and zoning Board, as well as factual statements based on personal
observation by affected residents. Petitioner's first argument
is without merit.
Petitioner's own admission that the property fails to comply
with the twenty foot rear set-back requirement also disposes of
his second argument. Requiring full compliance with the set back
requirement was completely reasonable, considering the fact that
Petitioner desired to put his property to a higher intensity use
than other properties similarly situated within the same zoning
district.
Petitioner's last argument fails because he did not carry
his initial burden of demonstrating that his application complies
with the reasonable procedural requirements of the City Zoning
Code. It was undisputed that his property failed to comply with
the rea~ set-back requirement. Therefore, the burden never
shifted to the City to demonstrate by clear and convincing
evidence that public necessity required a more restrictive use,
Snyder vs. Board of County Commissioners, 595 So.2d 65 (Fla. 5th
D.C.A. 1991), or, alternatively, to demonstrate by competent sub-
stantial evidence that the use was adverse to the public inter-
est. Irvine vs. Duval County Planning Commission, 495 So.2d 167
(Fla 1986).
5
Petitioner has failed to demonstrate that the City Commis-
sion departed from the essential requirements of law, or that its
decision was not based upon competent, substantial evidence. The
Petition.for Writ of Certiorari is DENIED.
DONE AND ORDERED in Chambers at Sanford, Seminole County,
Florida, this ~ day of December, 1992.
A A . DICKEY,
CI CUT JUDGE /
NEWMAN D. BROCK,
CIRCUIT JUDGE
6 CERTIFIED COP'f
MARYA,NNE MORSE
· DEPU'i'y ~