Derwin B. SMITH, II, et al., Petitioners, v. CITY OF CLEARWATER, et al., Respondents.
No. 59382.
Supreme Court of Florida.
July 23, 1981.
Rehearing Denied Oct. 2, 1981.
John T. Allen, Jr., St. Petersburg, for petitioners.
Tom R. Moore, Clearwater, for respondent City of Clearwater.
Andrew J. Rodnite, Asst. County Atty., Clearwater, and Charles L. Siemon of Ross, Hardies, O’Keefe, Babcock & Parsons, Chicago, Ill., for respondent Pinellas County Planning Council.
Jim Smith, Atty. Gen., Ken Tucker, Deputy Atty. Gen., and Thomas R. Tedcastle, Asst. Atty. Gen., Tallahassee, for State of Florida, amicus curiae.
*408Alfred W. Clark, Deputy Gen. Counsel, Tallahassee, for Department of Environmental Regulation, amicus curiae.
PER CURIAM.
The petition for review reflected probable jurisdiction in this Court. After having heard oral arguments and upon further consideration and analysis of the matter, we have determined that Smith v. City of Clearwater, 383 So.2d 681 (Fla.2d DCA 1980), conflicts with neither Estuary Properties, Inc. v. Askew, 381 So.2d 1126 (Fla.1st DCA 1979), nor Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981). In their brief on the merits and during oral argument petitioners alleged conflict between the instant district court opinion and Gulf & Eastern Development Corp. v. City of Fort Lauderdale, 354 So.2d 57 (Fla.1978); we likewise find no conflict with that case. Accordingly, the petition for review is dismissed.
It is so ordered.
SUNDBERG, C. J., and BOYD, ENGLAND, ALDERMAN and McDONALD, JJ., concur.
OVERTON, J., dissents with an opinion with which ADKINS, J., concurs.
OVERTON, Justice,
dissenting.
I dissent. I find clear conflict with Gulf & Eastern Development Corp. v. City of Fort Lauderdale, 354 So.2d 57 (Fla.1978), with regard to the due process notice requirements of new zoning. Additionally, in my view, this case is not controlled, on the merits, by Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981); Graham is distinguishable on the facts. I believe that the record in this cause clearly establishes that the action of the city was arbitrary, abusive of the zoning process, and intentionally confiscatory. I would accept jurisdiction and reverse.
ADKINS, J., concurs.