Agenda - Planning Commission - 05/07/1996

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Page 8 ~ April 15, 1996 Z.B. In M~y 1994, the City Attorney's Office sent the council a written opin- ion. It stab'ted the decision to allow a radiopharmacy in a general commercial district w~s questionable, but "not necessarily unreasonable." Although phar- macies were not listed as permitted uses in general commercial districts, they had been hllowed in general business and general retail zones "under a broad interpretation of permitted uses." However, the opinion also stated if the per- mit were !challenged, a court could strictly interpret district regulations to prohibit r~diopharmacies. In Jur~e 1994, the City Attorney's Office sent a second opinion stating the radiopha '~rmacy should not be prohibited just because radioactive materials would be present. It also said the zoning administrator's decision to issue the permit w~is not arbitrary. In July 1994, Syncor completed its building. It got a certificate of use and occupancy~ on Aug. 12, and started operating the radiopharmacy on Aug. 25, 1994. On Dec. 6, 1994, the association sued Syncor, 'the city, and the zoning administrator. The association asked the court to declare the ordinance pro- hibited the radiopharmacy, and to stop Syncor from operating it. The asso- ciation ch$imed Syncor's permit was void, and that the city and the zoning administrator failed to enforce the ordinance. Syncolr, the city, and the zoning administrator asked the court to dismiss the case, Oaying the association waited too .long to sue. Relying on a statute that allowed appeals of department decisions to the Board of Zoning Adjust- ments an4 on the board's rules of procedure, they claimed the association should have'· apPealed to the board within 45 days of the permit's issuance. The association said the limitations period for its lawsuit was in a different statute tha~t aPplied to "actions ... brought ... to require enforcement of and compliance with 'any zoning restriction ... based upon the violation ... of such restrictiom" That statute gave two years from the violation. The c~urt dismissed the case, and the association appealed. DECISION: Reversed and returned to the trial court. The tri~l court improperly dismissed the association's case. The associa- tion sued v~ithin the time allowed. The case was returned to the trial court for further proceedings. Contrary to Syncor's arguments, the board's 45-day appeal period did not supersede !he state statute's two-year period'in which to seek enforcement of zoning regglations. The two periods applied to different types of actions. The 45-day period applied to appeals claiming some error in a decision by the director of!safety and permits; the two-year period applied to lawsuits to stop zoning violations. If the two provisions conflicted, the statute that set forth the two-year period said it superseded any other laws inconsistent with it. Because the association sued to remedy an alleged zoning violation within two years Of the permit's issuance, it had to get an opportunity tO prove a violation. Although radiopharmacies had been allowed in similar zoning dis- tricts, they iwere not listed as permitted uses anywhere in the ordinance. Redfea~n v. Creppel, 436 So.2d 1210 (1983).