Balm Rd. Inv., LLC v. Hillsborough Cnty. Bd. of Cnty. Commissioners

336 So.3d 776

BALM ROAD INVESTMENT, LLC ; Cassidy Holdings, LLC ; Ballen Investment, LLC ; Highway 301 Investors, LLC ; and McGrady Road Investment, LLC, Petitioners,

v.HILLSBOROUGH COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.

No. 2D21-1033

District Court of Appeal of Florida, Second District.

February 11, 2022

Hala Sandridge of Buchanan Ingersoll & Rooney PC, Tampa, for Petitioners.

Carly J. Schrader, Gregory T. Stewart, and Elizabeth Desloge Ellis of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Respondent.

Jacob T. Cremer and Nicole A. Neugebauer of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Tampa, for Amici Curiae Hillsborough County Farm Bureau, Inc., and Florida Farm Bureau Federation.

Clayton T. Osteen, Anthony D. Tilton, Patrick S. Bickford, and Benjamin B. Bush of Ausley & McMullen, P.A., Tallahassee, for Amicus Curiae Florida Home Builders Association.

LUCAS, Judge.

Balm Road Investment, LLC; Cassidy Holdings, LLC; Ballen Investment, LLC; Highway 301 Investors, LLC; and McGrady Road Investment, LLC, have filed a second-tier petition for certiorari challenging the Hillsborough County Board of County Commissioners' denial of their development application. Because of the narrow scope of second-tier review, we must deny their petition.

The petitioners in this case, a group of landowners, hoped to develop a "planned village" community¹ in a rural area of southern Hillsborough County. Not one county agency, office, or adjacent governmental entity that reviewed the petitioners' rezoning application—whether it was the county's transportation staff, Development Services Department, Water Resource Services, the Hillsborough County School Board, the Hillsborough Area Regional Transit Authority, the Conservation and Environmental Lands Management Department, or the Environmental Protection Commission—had any objection to the planned development. The Hillsborough County Planning Commission reviewed the application and concluded that it complied with the requirements of the county's comprehensive plan, as well as "the vision of the Balm Community Plan" and that it met all the zoning requirements for this type of designation. The zoning hearing master who considered the application and the evidence recommended the application's approval.

When the application came before the Hillsborough County Commission at a public hearing, four local residents spoke out against it.² After hearing their objections and the petitioners' presentation, a divided Hillsborough County Commission voted to reject the application outright.

The petitioners then sought first-tier certiorari relief in the circuit court. The court below rendered an extensive written order denying the petition. The court acknowledged that the petitioners' application "appears to approach stated goals in terms of the clustering ratios, buffers, and land dedicated for commercial and servicer-oriented uses." Nevertheless, according to the court, the landowners failed to meet their initial burden of showing their proposed rezoning was consistent with the county's comprehensive plan. Accord Bd. of Cnty. Comm'rs of Brevard Cnty. v. Snyder , 627 So. 2d 469, 476 (Fla. 1993).

With all due respect to the circuit court, that conclusion simply cannot be justified. These petitioners met their evidentiary burden. Indeed, the evidence below was overwhelming that this proposed development was consistent with the requirements of the planned development zoning classification and the comprehensive plan.³ The circuit court concluded to the contrary only because it plucked one point of data from the petitioners' traffic study about anticipated car trips on a county road, looked at an aerial picture of the area around the proposed development, and remarked that "the project shows heavy reliance on the automobile for transportation."⁴

We are of the opinion that the court below erred in its assessment of the evidence. But our court cannot give relief to the petitioners despite that error. See Custer Med. Ctr. v. United Auto. Ins. Co. , 62 So. 3d 1086, 1092 (Fla. 2010) ("[W]hen a district court considers a petition for second-tier certiorari review, the 'inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,' or, as otherwise stated, departed from the essential requirements of law." (quoting Haines City Cmty. Dev. v. Heggs , 658 So. 2d 523, 530 (Fla. 1995) )); Biscayne Marine Partners LLC v. City of Miami , 273 So. 3d 97, 101 (Fla. 3d DCA 2019) ("Our review on second-tier certiorari is extremely limited."); Alvey v. City of North Miami Beach , 206 So. 3d 67, 70 (Fla. 3d DCA 2016) (granting second-tier certiorari but noting "we are not reweighing the evidence—which we cannot do"). "[I]t is not the function of this Court on second-tier certiorari to correct error or reweigh the evidence." City of Miami v. Hervis , 65 So. 3d 1110, 1115 (Fla. 3d DCA 2011).

This extreme deference is grounded in part upon the historic nature of certiorari relief, see Custer Med. Ctr. , 62 So. 3d at 1092-93, and in part upon the purported expertise of agency fact-finding in zoning determinations, see Wiggins v. Fla. Dep't of Highway Safety & Motor Vehicles , 209 So. 3d 1165, 1171 (Fla. 2017) ("This Court has deferred to the findings of an agency fact-finder in the context of zoning and policy determinations, as the agency fact-finder in theory has the requisite experience, skill, and perspective to adequately adjudicate specialized proceedings.").⁵ We recognize that certiorari review of zoning decisions can sometimes lead to troubling and anomalous results. See generally Evans Rowing Club, LLC v. City of Jacksonville , 300 So. 3d 1249, 1250-56 (Fla. 1st DCA 2020) (B.L. Thomas, J., concurring specially) (Makar, J., concurring). It certainly seems so in the case at bar. The petitioners' private property rights have been curtailed for what appears to be simply a general distaste for development rather than any codified standards. But because these landowners cannot obtain a plenary review of the Commission's decision, we are constrained by...