Abenkay Realty Corp. v. Dade County
| Decision Date | 26 April 1966 |
| Docket Number | No. 65--794,65--794 |
| Citation | 185 So.2d 777 |
| Parties | ABENKAY REALTY CORP., a New York corporation authorized to do business in the State of Florida, Henry Katz and Gertrude Katz, his wife, Bernard Katz and Lucille Katz, his wife, Mark XX Investment Corp., a Florida corporation, and Mipac, Inc., a Florida corporation, Appellants, v. DADE COUNTY, a political entity of the State of Florida and the Church of the Living God, Appllees. |
| Court | Florida District Court of Appeals |
Kelly, Brooks & Ropes, Coral Gables, Horton & Schwartz, Miami, for appellants.
Thomas C. Britton, County Atty., and St. Julien P. Rosemond, Asst. County Atty., Sinclair, Barfield & Louis, for appellees.
Before HENDRY C.J., and PEARSON and SWANN, JJ.
The appellant, Abenkay Realty Corp., brings this appeal from a judgment of the circuit court denying a writ of certiorari. The petition for the writ was brought in the circuit court to review a decision of the Board of County Commissioners of Dade County which sustained, upon appeal, a resolution of the Zoning Appeals Board. Inasmuch as this is a review of a judgment of the circuit court denying a petition for writ of certiorari, our review of that judgment is limited. See Morris v. City of Hialeah, Fla.App.1962, 140 So.2d 615.
A chronological history of the events which lead up to the present controversy covers a space of almost 20 years. It may best be set out in tabular form as follows:
May 5, 1948 Building permit issued for single family residence but building used as the Church of the Living God.
April 14, 1964 Petitioners filed application for a permit to construct building to be used as a bar within 2500 feet of the church.
October 2, 1964 County Attorney rendered an opinion authorizing the issue of a permit, which in effect, declared that the church was using the premises illegally.
October 5, 1964 The church filed a formal request with the Zoning Appeals Board for eight variances with one exception.
November 18, 1964 Zoning Appeals Board granted church's request.
November 20, 1964 A permit was issued for the construction of a building to be used as a bar and package liquor store.
November 23, 1964 Church appealed, to the Zoning Appeals Board, the action of the Director of the Building and Zoning Department in issuing a permit to build a bar. On the same date a stop-work order was issued. (Following an injunction by the circuit court, the petitioners were allowed to go ahead with construction at their own peril.)
January 20, 1965 The Zoning Appeals Board cancelled and annulled the permit to build a bar.
April 22, 1965 The County Commission by resolution sustained the action of the Zoning Appeals Board revoking the permit.
September 9, 1965 The circuit judge denied the petition for certiorari finding that the evidence supported a finding that the Church had been a church since 1947.
Appellant brings two points on appeal. They are as follows:
'WERE THE ACTIONS OF THE COUNTY COMMISSION AND ZONING APPEALS BOARD REVOKING APPELLANTS' PREMIT ARBITRARY, UNREASONABLE AND A DENIAL OF DUE PROCESS UNDER THE CIRCUMSTANCES:
'UNDER THE CIRCUMSTANCES, WAS THE COUNTY AND ITS ADMINISTRATIVE AGENCY, THE ZONING APPEALS BOARD, ESTOPPED TO REVOKE THE PERMIT, AND IF SO, WAS THE APPELLEE CHURCH LIKEWISE ESTOPPED?
The burden of appellants' first point is that inasmuch as the Church of the Living God had been holding meetings in a building which was in violation of the Zoning Code, the building could not be considered a 'church' in the determination of an application for a building permit. The fact that the Zoning Appeals Board the County Commission and the circuit judge refused to follow this argument does not render their respective decisions arbitrary, unreasonable and a denial of due process.
The Code of Metropolitan Dade County provides:
The Code defines a church as: 'A legally approved structure used and approved on a permanent basis, primarily for the public worship of God.' Code of Metropolitan Dade County, § 33-1(27).
The ordinance is enacted pursuant to sections 561.44 and 561.441, Fla.Stat., 1963, 1 F.S.A., which are as follows:
'561.44 Licensing vendors near school or church; zoning regulations in cities and counties.--
'(2) The board of county commissioners of any county of the state may hereafter, by resolution, establish zones or areas, in the territory lying without the limits of incorporated cities or towns, wherein the location of a vendor's place of business licensed under this act may be permitted to be operated; provided, however * * * that no license under subsections (3) to (8) inclusive, of § 561.34, shall be granted to a vendor in the territory lying without the limits of incorporated cities or towns, whose palce of business is within twenty-five hundred feet of an established church or school * * *.'
'561.441 Additional zoning powers granted certain counties.--
'(1) From and after May 30, 1949, the county commissioners of those counties in the state where the sale of intoxicating liquors is permitted and where said commissioners are authorized to establish or have established zoning and planning boards, be and they are, hereby authorized to determine the distance from churches and schools within which intoxicating liquors may be sold in those areas within said counties outside the limits of incorporated cities and towns that are now, or which may...
To continue reading
Request your trial