A circuit judge says commissioners let public pressure lead their denial of a rezoning request and strikes it down.
By WILL VAN SANT
Published October 6, 2004
BROOKSVILLE - Fifth Judicial Circuit Judge Richard Tombrink has overturned a May 12 County Commission decision that stopped a Miami woman and her brother from developing 200 acres they own north of Centralia Road, about a mile east of U.S. 19.
At that spring meeting, about 30 area residents burst into applause when the plan was unanimously defeated. They had expressed concern that proposed wells and septic systems would foul groundwater and stressed how much they cherished the area's rural character.
In making his decision, Tombrink noted that county planning professionals had recommended approval of the disputed rezoning, which would have allowed 148 1-acre lots to be created on the property.
The rezoning was consistent with the county's comprehensive plan and land use regulations, Tombrink said, and on at least three sides of the property, development densities are "approximately equal" to what was sought by owners Janis Moore Tucker of Miami and her brother, Marshall H. Moore.
The judge said the County Commission had disregarded state land use law, which allows for citizen testimony to be decisive in zoning hearings but only when that testimony is considered substantive and based on facts.
"Rather," Tombrink wrote in his decision, "it appears that most of the testimony was only a knee-jerk reaction of surrounding residents who objected to additional growth and development in their back yards with no evidence to support their positions."
Resident Kylee Moss, a chiropractor, said the fuss she and others made was not based only on emotion but on legitimate concern for how the development would affect public health and on the recognition that surrounding densities, while perhaps "approximately equal" in some sense, are not 1-acre, but 2.5, 5 and 10 acres.
"I'm a little disappointed," Moss said. "It doesn't make sense."
Senior Assistant County Attorney Kurt Hitzemann said about five times a year his office must defend the County Commission's land use decisions.
In this instance, it is likely the board will have to rehear the case again.
Meanwhile, the county will contest Tombrink's decision in the 5th District Court of Appeal.
"I will look at it now and do a little research and divine the best basis of an appeal," Hitzemann said, "believing as I do that the board was justified in making the decision that it did."
