FLOWERS BAKING CO., ETC., PETITIONER,
v.
CITY OF MELBOURNE, RESPONDENT
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The court held that the city council improperly denied a conditional use permit for gasoline sales ancillary to a convenience store.
An applicant met all zoning code requirements and board stipulations for a conditional use permit for gasoline pumps. Local residents objected, and th…
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COWART, Judge.
Petitioner applied for a conditional use permit for gasoline pumps and gasoline sales ancillary to a proposed convenience store in the City of Melbourne. Although the applicant agreed to meet the city zoning code’s conditional use requirements for service stations, and also agreed to all of the Planning and Zoning Board’s stipulations, local residents objected and the city council denied the permit. The applicant’s petition to the circuit court for a writ of certiorari was denied.
Once the applicant met the initial burden of showing that his application met the criteria of the city zoning code for granting such a permit, the burden was on the zoning authority to demonstrate, by substantial, competent evidence presented at a public hearing and made part of the record, that petitioner’s application did not meet the zoning code requirements and that the requested permit was, in fact, adverse to the public interest. See Irvine v. Duval County Planning Commission, 495 So. 2d 167 (Fla.1986), affirming the dissent of Judge Zehmer in Irvine v. Duval County Planning Commission, 466 So. 2d 357 at 362 (Fla. 1st DCA 1985). Objections of local residents to the conditional use permit based on fears as to increased traffic do not constitute such substantial, competent evidence. See BML Investments v. City of Casselberry, 476 So. 2d 713 (Fla. 5th DCA 1985), rev. denied, 486 So. 2d 595 (Fla.1986).
WRIT GRANTED. REMANDED to the circuit court with instructions to direct the issuance of the conditional use permit.
DAUKSCH, J., concurs.
SHARP, C.J., concurs in result only.
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Snyder v. Bd. OF Cnty. Comm'rs OF Brevard Cnty., 595 So. 2d 65 (Fla. 5th DCA 1991)…he use of land in each category. . Rathkopf, supra, 27A-6. . Rathkopf, supra, 27A-5. . See Bailey v. City of St. Augustine Beach, 538 So. 2d 50 (Fla. 5th DCA 1989), rev. denied, 545 So. 2d 1366 (Fla.1989); Flowers Baking Co. v. City of Melbourne, 537 So. 2d 1040 (Fla. 5th DCA 1989), rev. denied, 545 So. 2d 1366 (Fla.1989); Porpoise Point Partnership v. St. Johns County, 532 So. 2d 727 (Fla. 5th DCA 1988). . See e.g., Porpoise Point. . A "floating zone” is an ordinance creating a zoning classification auth…
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Hirt v. Polk Cnty. Bd. OF Cnty. Comm'rs & Jack M. Watkins, Sr., 578 So. 2d 415 (Fla. 2d DCA 1991)…Board made its decision. In De Groot, the supreme court explained that a quasi-judicial function is characterized by a decision which is made contingent on evidence deduced at a judicial-type proceeding. See Flowers Baking Co. v. City of Melbourne, 537 So. 2d 1040 (Fla. 5th DCA), review denied, 545 So. 2d 1366 (Fla.1989); Town of Indialantic v. Nance. For example, in De Groot, a decision by a Civil Service Board regarding whether a petitioner’s job should be abolished was reviewable by certiorari. The court s…
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City OF Melbourne v. Hess Realty Corp., 575 So. 2d 774 (Fla. 5th DCA 1991)…COBB, Judge. The issue posed in the instant appeal, as it was in Flowers Baking Co. v. City of Melbourne, 537 So. 2d 1040 (Fla. 5th DCA), review denied, 545 So. 2d 1366 (Fla.1989), is whether the City of Melbourne properly denied a conditional use permit to install gasoline pumps in conjunction with a proposed convenience store. Unlike the earlier case, the applicant…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Irvine v. Duval Cnty. Planning Comm'n, 495 So. 2d 167 (Fla. 1986)
- Irvine v. Duval Cnty. Planning Comm'n & the City Of Jacksonville, 466 So. 2d 357 (Fla. 1st DCA 1985)
- BML Invs. v. City OF Casselberry, 476 So. 2d 713 (Fla. 5th DCA 1985)