Sunday, May 4, 2014

What is reverse spot zoning? A (re)examination of the ongoing Palmer issue.

I have been asked whether Palmetto Bay’s Ordinance 30-110: DIVISION 30-110. RELIGIOUS FACILITIES, PRIVATE SCHOOLS, CHILD CARE FACILITIES, AND OTHER NON-GOVERNMENTAL PUBLIC ASSEMBLY USES, enacted/last modified (Ord. No. 2012-23, § 4, 11-5-2012) is discriminatory.  CLICK HERE to read the minutes from the 11/5/12 Village Council meeting, when the ordinance section on lighting was adopted by the 2012 village council.  Then Councilman Tendrich asked if (the section) concerning prohibiting lighting of recreational areas is more restrictive. The answer from the Village Attorney was that it was more restriction (page 10 of 14 of the minutes).

Palmetto Bay has been through this before.  See Palmer TrinityPrivate School, Inc., vs. Village of Palmetto Bay, Florida, et al., 3rd DCA Case No. 3D09-1587 (opinion filed March 24, 2010).  This is written opinion from the Third District appeal which came to be known as “Palmer I”

Please feel  free to read my February 5, 2012, post entitled “An(unofficial) update on the Palmer Zoning litigation; Palmer I, II and III. The present standard of court review” for greater detail.

Palmer I was the 2006 – 2008 zoning application proceedings which resulted in the first Palmer zoning hearing which denied the application by Ordinance 08-06, on the basis that the rezoning sought by Palmer was not consistent with the Village's Comprehensive Plan and Future Land Use Map," and that "Palmer Trinity failed to adequately establish through its traffic studies that its site specific application is compatible and within the proper level of service, and failed to establish the proposition that the proposed use would not negatively impact the community. . . ."

The Third District Court of Appeal cites to a flagship decision on spot zoning: Richard Road Estates, LLC v. Miami-Dade County Bd. of County Comm’rs, 2 So. 3d 1117, 1118 (Fla. 3d DCA 2009) (county’s refusal to grant a change in zoning resulted in impermissible reverse spot zoning). This decision was cited in Palmer I:

“Reverse spot zoning occurs when a zoning ordinance prevents a property owner from utilizing his or her property in a certain way, when virtually all of the adjoining neighbors are not subject to such a restriction, creating in effect, a veritable zoning island or zoning peninsula in a surrounding sea of contrary zoning classification. Reverse spot zoning is invalid, as it is confiscatory.”

In short: impermissible spot zoning occurs where Palmer Trinity is not afforded the same beneficial use and restrictions that are enjoyed by the owners of the surrounding properties. This includes how the government (Palmetto Bay - in this instance) chooses to regulate itself - the rules for lighting and noise in government building and parks.  You cannot have two sets of rules.  There needs to be a single unified set of rules.

NOTE: this ordinance was NOT in place during the initial zoning hearing on the site plan (SEE Palmer II) - wherein part of the Palmer conditions did include elimination of the field lighting. My personal concern was its affect on other nearby activities such as the Southern Cross Stargazing that would go on, weather permitting, each Saturday evening at neighboring Sadowski Park.

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