PLANNING AND ZONING BOARD v. KAGER, 351 So.2d 402 (Fla.App. 1 Dist. 1977)

PLANNING AND ZONING BOARD OF THE TOWN OF ORANGE PARK, ETC., APPELLANT, v. JOHN KAGER AND MELISSA KAGER, APPELLEES.

No. DD-477.District Court of Appeal of Florida, First District.
November 7, 1977.

Claude L. Mullis, Jacksonville, for appellant.

Steven R. Heller, Jacksonville, for appellees.

SMITH, Acting Chief Judge.

The planning and zoning board of the Town of Orange Park appeals from a circuit court judgment granting appellees’ petition for writ of certiorari and ordering the Town to grant a zoning exception in a residential area to permit use of a seven and a half acre tract for a school. The board denied the exception on several stated grounds, among them that the property is too small for a school and that noise, traffic and other characteristics of a school would be inharmonious in the neighborhood. Appellees did not appeal to the Orange Park town council, as was their right under the ordinance code.

There was no showing in the circuit court that an appeal to the town council would have been futile. The council heard a prior appeal with evident consideration and concern. Resort to the circuit court was premature and certiorari should have been denied. See Odham v. Foremost Dairies, Inc., 128 So.2d 586
(Fla. 1961); DeCarlo v. Town of West Miami, 49 So.2d 596 (Fla. 1950). Nor did the record before the circuit court demonstrate that the board acted arbitrarily. The assigned reasons for denying the exception had a basis in the informal record and were fairly debatable. Rinker Materials Corp. v. Citizens and Property Owners, etc., 313 So.2d 80 (Fla. 4th DCA 1975).

REVERSED.

ERVIN and MELVIN, JJ., concur.

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