Construction in Good Faith is not “Discontinuance” of a Non-Conforming Use

The Second District upheld a circuit court’s decision that a code enforcement action brought by the County because a landowner resumed a non-conforming use after it had been closed for over 6 months while under re-construction pursuant to building permits. There are some other intervening facts, and the Court rejected the circuit court’s treatment of them as mixed questions of fact and law, finding that the circuit court had reweighed the evidence. More reason why we need guidance on written orders.

The District Court’s opinion also recognized that review of the code enforcement magistrate’s decision was properly taken as an appeal.

Once again, No Deference to Local Interpretation of Comprehensive Plans

In Saadeh v. City of Jacksonville, the First District held (again) that a local government’s interpretation of the comprehensive plan – or other ordinances – gets no deference when the court can interpret the plain meaning. The case involves a “second go-round” after the District had rejected an earlier interpretation that allowed a private rowing club in a residential area. The city had amended the zoning regulations, rezoned the property to a PUD and included provisions intended to permit the rowing club to be treated as a park or recreational use.
First, the court reiterated its earlier opinion that:

The test in reviewing a challenge to a zoning action on grounds that a proposed
project is inconsistent with the comprehensive land use plan is whether the
zoning authority's determination that a proposed development conforms to each
element and the objectives of the land use plan is supported by competent and
substantial evidence. The traditional and non-deferential standard of strict
judicial scrutiny applies.
Dixon v. City of Jacksonville, 774 So.2d 763, 764 (Fla. 1st DCA
2000).

The court then goes on to apply this rule to disallows Jacksonville’s legislative attempt to make exactly the rowing club a park use, holding in effect that ownership, not use, controls whether the City can permit this use in a residential district.

The Respondents urge that our prior holding in Saadeh does not control this
case, because the City of Jacksonville has since defined “parks” to include a
much broader range of facilities and uses. Indeed, they contend that the new
definition makes no distinction between public and private ownership and thus,
they suggest, is intended to incorporate both. We disagree. While, at the time
of our decision in Saadeh, the Jacksonville Ordinance Code did not include a
definition of “park,” the Code now defines that term as “an area designed to
include a combination of passive recreation ... as well as active recreation ...
attracting visitors from the community and beyond a one-mile radius.” See
Jacksonville Ordinance Code, § 656.1601. Nonetheless, this new definition is
substantially the same as the plain and ordinary meaning of the word “park” as we previously defined it, that is, “an area used for recreation and amusement.” Furthermore, the Ordinance Code also continues to separately define a “private club” as “buildings or facilities owned or operated by a corporation, association, or persons for a social, educational, or recreational purpose.” See Jacksonville Ordinance Code, § 656.1601. The Stanton Foundation falls squarely
within this definition. Thus, despite the newly amended definition of the term “park,” we continue to agree with our previous ruling, that Stanton's interpretation of the Ordinance Code and its definitions “is so broad as to render the referenced term ‘parks' meaningless.” Saadeh, 912 So.2d at 31. We conclude that Stanton's use of the property is as a private club, rather than as a public park.
Turning to the Comprehensive Plan, the Stanton Foundation's property is designated LDR, and as such is intended as a primarily residential area, permitting housing developments and single family residences in a gross density range of up to seven dwelling units per acre. See Jacksonville Ordinance Code, § 656.305. Pursuant to, and consistent with, the Comprehensive Plan, Jacksonville's Land Use Regulations permit a number of primary uses, as well as “uses by exception” within the LDR category. Notably, the LDR category does not permit the operation of a private club, either as primary use or as a use by exception. In contrast, a private club is expressly included as a permissible use by exception within the Medium and High Density Residential (MDR, HDR) land use categories. See Jacksonville
Ordinance Code, § 656.306(A)(II)(c)(9); § 656.307(A)(II)(c)(6).
This court has previously rejected attempts to rezone property where the intended use is not permitted in the Comprehensive Plan, either specifically or by reasonable implication. (emphasis added)
The court therefore held that the neighbors were entitled to certiorari and quashal
of the circuit court’s decision and of the City’s grant of the PUD.

Critical points: First, A de novo action under s. 163.3215 (2) should have been the sole means by which a consistency challenge was brought. Why is there no discussion? Has the First District turned consistency questions that turn solely on the interpretation of the plan and zoning regulations into an “essential requirements of law” issue that is not the determination of whether the development order is consistent with the plan? Second, is non-deferential review only available to review the approval of a development order? Is it not available to review the denial of a development order if the developer alleges that the local government’s interpretation of the plan or the zoning ordinance are not justified?