Rezoning – Adapting Our Way of Living in Covid-19
PENSACOLA, FL (August 27, 2020)
Zoning is a designation assigned by the government to an area of land that regulates how properties within the area are allowed to be developed and used. Zoning districts generally specify the areas in which residential, commercial, industrial, recreational or agricultural activities may take place. Zoning is one of the most common forms of land-use regulation used to control local development. These land use regulations are intended to maintain a level of order and efficiency within a local government’s jurisdiction, while keeping each zone optimized for its intended purpose.
One of the earliest systems used in America to control the use of land was established in the English colonies of Massachusetts Bay when it became evident that gun powder mills should not be placed within the center of town.[1] Another example of early zoning occurred in July 1896 with a New Orleans regulation which restricted brothels and other dwelling places of prostitutes to a specific district within the City.[2] Modern zoning laws may reassure home owners that a solid waste facility will not open across the street and restrict liquor stores from operating near childcare facilities, but they also regulate the commingling of goats and people and frustrate goat yoga enthusiasts.[3] With such a varied scope of human activities regulated, new businesses must determine their use classification to ensure that they are operating within the appropriate zone. Failure to do so may result in government prohibition or other enforcement action on their operations.
As we continue to press through the COVID-19 crisis, many established businesses and existing land uses are forced to adapt to a new way of operating. This adaptation may result in a business completely changing the nature and kind of business they operate to mitigate any losses and, in some cases, to avoid financial ruin. Pensacola is no exception. Locally, we have watched restaurant owners repurpose their business from in-house dining to a bread and meat retail store.[4] We’ve watched our local Double-A baseball team, the Pensacola Blue Wahoos, convert its award winning “2020 Best of the Ballparks” stadium[5] from a professional sports venue to a disc golf center,[6] a movie theater, [7]a driving range, [8]and one of the most unique Airbnb short term rentals in the world.[9] In these instances, the zoning was not in conflict with the new use.
So what should you do if you own a business and need to change its function to adapt to the new pandemic world and in doing so, you learn that your operation is prohibited or restricted by the zoning code? You may need to apply for a rezoning or other land use change.
When owners want to use or develop property in a manner that does not conform to the current zoning, they may apply for a rezoning. An approved rezoning is reviewed for consistency with the jurisdiction’s growth management law, typically a Land Development Code and Comprehensive Plan, and benefits the area as a whole. Although the process varies throughout each county and city in Florida, there are also some similarities. To simplify the issue for the purposes of this article, we’ll provide an overview of the process in Escambia County, Florida.
As a property owner, your right to request a rezoning in Escambia County and the procedure to do so are specified in Escambia County Land Development Code Section 2-7.2.[10]
The first step in the process is to complete and submit an application for rezoning and pay the applicable fees.[11] Once you have submitted all of the paperwork, a public hearing before the Escambia County Planning Board, or local planning agency (LPA) if in another jurisdiction, will be scheduled.[12] Based on the information provided in the application and at the hearing, the Planning Board will make a recommendation to the Board of County Commissioners, which will also hold public hearing(s) as required by law.
To ensure that everyone who may be impacted by the rezoning has a chance to attend and/or speak at the hearing(s), all public notices must be issued in accordance with state law. Furthermore, the Escambia County Land Development Code Section 2-7.2(2)(c) mandates that public notices are sent to all property owners within specified distances of the property lines of the parcel being rezoned. In Escambia County, the distances vary based upon the site’s location in the County.[13]
A rezoning determination by the Planning Board or LPA is reached through the evidentiary process of a quasi-judicial hearing. Quasi-judicial hearings are similar to court proceedings. The hearings are conducted with more formality than legislative public hearings and are akin to informal trials. A quasi-judicial decision requires two key elements: a finding of facts and the exercise of some discretion in applying predetermined policies to the request. In quasi-judicial hearings, parties are entitled — as a matter of due process — to cross-examine witnesses, present evidence, demand that witnesses testify under oath, and demand a decision that is based on a correct application of the law and competent substantial evidence in the record.[14]
Quasi-judicial decisions are more involved, and the general rule places the burden on the property owner or applicant to demonstrate compliance with the local government’s code of ordinances and land development regulations and consistency with the comprehensive plan.[15] If the initial burden is met, the onus shifts to the local government to demonstrate that maintaining the existing zoning on the property serves a legitimate public purpose or that the decision denying the rezoning is not arbitrary, discriminatory, or unreasonable.16
In Escambia County, Florida, to obtain a rezoning, the applicant must provide competent and substantial evidence to satisfy the following approval conditions:
“Approval conditions.
Rezoning. The applicant has the burden of presenting competent substantial evidence to the reviewing board establishing that the requested zoning district would contribute to or result in a logical and orderly development pattern. The appropriate surrounding area within which uses and conditions must be considered may vary with those uses and conditions and is not necessarily the same area required for mailed notification. A logical and orderly pattern shall require demonstration of each of the following conditions:
- Consistent with comprehensive plan. The proposed zoning is consistent with the future land use (FLU) category as prescribed in LDC chapter 3, and with all other applicable goals, objectives, and policies of the comprehensive plan. If the rezoning is required to properly enact a proposed FLU map amendment transmitted for state agency review, the proposed zoning is consistent with the proposed FLU and conditional to its adoption.
- Consistent with zoning district provisions. The proposed zoning is consistent with the purpose and intent and with any other zoning establishment provisions prescribed by the proposed district in chapter 3.
- Compatible with surroundings. All of the permitted uses of the proposed zoning, not just those anticipated by the rezoning applicant, are compatible, as defined in chapter 6, with the surrounding uses. The uses of any surrounding undeveloped land shall be considered the permitted uses of the applicable district. Compatibility is not considered with potential conditional uses or with any nonconforming or unapproved uses. Also, in establishing the compatibility of a residential use, there is no additional burden to demonstrate the compatibility of specific residents or activities protected by fair housing law.
- Appropriate if spot zoning. Where the proposed zoning would establish or reinforce a condition of spot zoning as defined in chapter 6, the isolated district would nevertheless be transitional in character between the adjoining districts, or the differences with those districts would be minor or sufficiently limited. The extent of these mitigating characteristics or conditions demonstrates an appropriate site specific balancing of interests between the isolated district and adjoining lands.
- Appropriate with changed or changing conditions. If the land uses or development conditions within the area surrounding the property of the proposed rezoning have changed or are changing, the changes are to such a degree and character that it is in the public interest to allow new uses, density, or intensity in the area through rezoning; and, the permitted uses of the proposed district are appropriate and not premature for the area or likely to create or contribute to sprawl.”[16]
Based on its findings as to each criterion, the Planning Board will make a recommendation to the Board of County Commissioners to either approve or deny the request for rezoning. The Board of County Commissioners will hold a second public hearing. If the request meets the criteria, the County Commissioners may vote to approve the request.
Once the property is rezoned, the owner is vested with the right to use its property for any purpose which is permitted by the Land Development Code. In response to the pandemic, some cities have reduced the red tape to accomplish the necessary change as we all get back to business in 2020.[17]
Zoning ordinances have been deemed to be valid exercise of a local government’s police powers and bear a substantial relation to the health, safety, and general welfare of residents in the area and in surrounding neighborhoods.[18] Individual landowner rights must yield to a proper exercise of the police power as reflected in the zoning ordinance. Reasonableness is the proper measure in balancing public and private interests to determine the validity of zoning regulations or laws.[19] Restrictions within reasonable limits on the use of property for the common good have been consistently recognized as valid, and when the use and zoning are not in harmony, an application for rezoning or other land-use approval may be necessary and appropriate to ensure a continuation of business operations.[20] When a government unreasonably denies a rezoning request or places other unnecessary restrictions on the use of your property, there may be remedies available at law.
As property rights attorneys, Clark Partington stands ready to address your zoning needs, whether it be a rezoning on your parcel, a change in use for your business, or a challenge to a change of zoning or use by a neighboring parcel. We look forward to assisting in all land use matters to ensure that your rights are protected and your property is not unnecessarily constrained or inordinately burdened so that you can carry out your business, even if not as usual.
[1] “A Basic Introduction to Land Use Control Law and Doctrine” by E. F. Roberts. The Proceedings of the Conference on Rural Land-Use Policy in the Northeast (Atlantic City, New\Jersey, October 2-4, 1974). Cornell University 1975, https://files.eric.ed.gov/fulltext/ED108775.pdf, last accessed on August 24, 2020.
[2] L. Ho’te v. New Orleans, 177 U.S. 587 (1900). “Prelude to Euclid: The United States Supreme Court and the Constitutionality of Land Use Regulation, 1900-1920” by Joseph Gordon Hylton. Washington University Journal of Law & Policy Volume 3 Evolving Voices in Land Use Law: A Festschrift in Honor of Daniel R. Mandelker; January 2000 https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1469&context=law_journal_law_policy, last accessed on August 24, 2020.
[3] “Goat Yoga, Meet the Zoning Board” by Daniel Nasaw, Oct. 1, 2017. https://www.wsj.com/articles/goat-yoga-meet-the-zoning-board-1506877315, last accessed on August 24, 2020.
[4] “Cypress pivoting from restaurant to bread and meat retail store, partnering with Evans Meats,” Jake Newby. Pensacola News Journal. May 29 2020. https://www.pnj.com/story/news/2020/05/29/cypress-pivots-bread-and-meat-retail-store-still-serve-brunch/5275238002/, last accessed on August 24, 2020.
[5] “Blue Wahoos Stadium wins Best of the Ballparks 2020 Double-A honors” July 9, 2020. https://ballparkdigest.com/2020/07/09/blue-wahoos-stadium-wins-best-of-the-ballparks-2020-double-a-honors/#:~:text=Blue%20Wahoos%20Stadium%20wins%20Best%20of%20the%20Ballparks%202020%20Double%2DA%20honors,-By%20Ballpark%20Digest&text=It%20was%20Blue%20Wahoos%20Stadium,their%20favorite%20Double%2DA%20facility, last accessed on August 24, 2020.
[6] “Another alternative ballpark use during a pandemic: Fore!” May 18, 2020.
https://ballparkdigest.com/2020/05/18/another-alternative-ballpark-use-during-a-pandemic-fore/, last accessed on August 25, 2020.
[7] “Blue Wahoos resume summer events schedule with movie, fireworks.” By Bill Vilona July 15, 2020 https://www.pnj.com/story/sports/2020/07/15/blue-wahoos-resume-summer-events-schedule-movies-fireworks/5426017002/
[8] “Golf in Blue Wahoos Stadium? Your chance to tee it up on the diamond this week only” by Bill Vilona July 29, 2020. https://www.pnj.com/story/sports/2020/07/29/blue-wahoos-stadium-opens-golf-event-eagles-outfield/5541959002/, last accessed on August 25, 2020.
[9]https://www.airbnb.com/rooms/43485958?source_impression_id=p3_1598314017_gK%2Fik1F9fxwTObZ5, last accessed on August 24, 2020.
[10] https://library.municode.com/fl/escambia_county/codes/code_of_ordinances?nodeId=PTIIILADECO_CH2DECORE_ART7LDCOPLAM_S2-7.2LDZOMATEAM, last accessed on August 24, 2020.
[11] https://myescambia.com/our-services/development-services/planning-zoning/rezoning
[12] 163.317(1), Florida Statutes.
[13] “Notification. At least 15 days prior to the hearing, notification shall be sent via U.S. mail to the address registered with the property appraiser for each owner of real property with any portion of the property located south of Nine Mile Road within 500 feet of the subject property. For property located north of Nine Mile Road, notification will be sent to properties within 2,500 feet of the subject property. The cost of the mailing is to be borne by the applicant.” §2-7.2(2) (c), Escambia County Land Development Code.
[14] “A Fair Trial before Quasi-Judicial Tribunals as Required by Due Process” Omar T. McMahon; Marquette Law Review, Volume 29 Issue 2. February 1946 https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3505&context=mulr, last accessed on August 25, 2020.
[15] SPECIAL-USE REZONING APPLICATION AND HEARING INFORMATION COVER PAGE, Escambia County, Florida Development Services Department. https://myescambia.com/docs/default-source/sharepoint-developmental-services/planning-board/special-use-rezoning-form.pdf?sfvrsn=7b5c0f6d_2, last accessed on August 25, 2020.
[16] https://library.municode.com/fl/escambia_county/codes/code_of_ordinances?nodeId=PTIIILADECO_CH2DECORE_ART7LDCOPLAM_S2-7.2LDZOMATEAM, last accessed on August 24, 2020.
[17] “City Council Approves Zoning Changes to Expedite Business Recovery Citywide.” May 12, 2020. https://www.santamonica.gov/press/2020/05/12/city-council-approves-zoning-changes-to-expedite-business-recovery-citywide, last accessed August 24, 2020.
[18] “POLICE POWER AND THE PUBLIC TRUST: PRESCRIPTIVE ZONING THROUGH THE CONFLATION OF TWO ANCIENT DOCTRINES” by Donna Jalbert Patalano, Managing Editor, Boston College Environmental Affairs Law Review 2000–01. Symposium Coordinator, Jane Jacobs & The New Urban Ecology, Boston College Law School (Nov. 18, 2000) https://www.bc.edu/content/dam/files/schools/law/lawreviews/journals/bcealr/28_4/11_FMS.htm, last accessed on August 24, 2020.
[19] “The Reasonableness of Aesthetic Zoning in Florida: A Look beyond the Police Power” by Russell P. Schropp. Fall 1982 https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=2107&context=lr, last accessed on August 24, 2020.
[20] “The Essential Ingredients for Zoning Litigation” by Allen Fonoroff Fordham Law Review Volume 29 Issue 4 Article 6 1961 https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1687&context=flr
Meredith D. Crawford is a board-certified specialist City, County & Local Government attorney in the Environmental and Land Use practice area of Clark Partington’s Commercial Litigation Department. Meredith’s practice primarily focuses on local, state, & federal land use law, planning & litigation; community association planning; government administration; and associated environmental permitting.
If you or your business has questions about this or other City and Local Government legal questions, please contact the author, Meredith, at 850-434-9200 or mcrawford@clarkpartington.com.
About Clark Partington:
Clark Partington is the largest business focused firm in the Florida panhandle with offices in Pensacola, Destin, Grayton Beach & Tallahassee. The firm also maintains a presence in South Alabama with an Orange Beach office. Since 1976 Clark Partington has grown to over forty lawyers and has served the people and businesses of Florida through an innovative and collaborative approach to practicing law. Our lawyers are consistently recognized for their service to the profession and excellence in the courtroom. More information about the firm’s practice, its attorneys, and recognitions may be found at www.clarkpartington.com.[/vc_column_text][/vc_column][/vc_row]
