Bal Harbour Club, Inc. v. Dade County

• Decision Date: 13 May 1969
• Docket Number: No. 68-607,68-607
• Parties: BAL HARBOUR CLUB, INC., a Florida corporation, Appellants, v. DADE COUNT, a political subdivision, et al., Appellees.
• Court: Florida District Court of Appeals

Page 428

222 So.2d 428

BAL HARBOUR CLUB, INC., a Florida corporation, Appellants, v. DADE COUNT, a political subdivision, et al., Appellees.

No. 68-607.

District Court of Appeal of Florida, Third District.

May 13, 1969.

Blackwell, Walker & Gray, Melvin T. Boyd and James E. Tribble, Miami, for appellants.

Thomas C. Britton, County Atty., and Roy S. Wood, Jr., Asst. County Atty., Shutts & Bowen, Miami, for appellees.

Before PEARSON, HENDRY and SWANN, JJ.

PER CURIAM.

The appellant was the plaintiff below, and sought to have a tax assessment made on its property by the appellee, taxing authorities, set aside, along with other appropriate relief. The trial court found in favor of the taxing authorities and denied the relief requested.

The sole question on appeal is whether the trial judge erred in adopting the appraisal of the appellee's expert, Mr. Lummus, as the fair market value of plaintiff's property for the year 1966.

The property in question contains two specific parcels, but we need focus attention on one only, that parcel being referred to as Tract A. ¹ This is oceanfront property, presently zoned by the Bal Harbour Village Council for single family residence and private club use. In 1963, the land portion of Tract A (plus that of Tract E, see footnote 1, supra) was assessed at $223,000; in 1964, it was assessed at $446,000; and in 1966, it was assessed at $1,860,030. The assessments for the improvements on the property are not at issue, and we now proceed to examine the correctness of the defendant's expert, Lummus.

Mr. Lummus was certainly qualified as an expert witness, and by no means are we demeaning his credentials. However, the substance of his testimony ² showed the following: (1) that Lummus was of the opinion that the present zoning of the property for private club and single family residence was 'unreasonable, terribly unreasonable' in light of the fact that the adjacent properties to either side were zoned for multiple use; (2) that the reasonable future use of the property would be that of multiple family dwellings, but would first necessitate a rezoning of the tract; (3) that such a rezoning was reasonably possible in the event that the property were sold; ³ (4) that the property, if sold to a buyer anticipating a rezoning to enable said buyer to erect a multiple family dwelling, would bring about $4,000 per ocean foot, or, stated another way, that the fair market value of the property here in question was between 1.3 and 1.6 million dollars.

We hold that the court's order based upon Lummus' expert testimony was incorrect. Our decision is controlled by Williams v. Simpson, Fla.App.1968, 209 So.2d 262, which presented a very similar factual situation to the First District Court of Appeal. There, it was held that the county tax assessor's expert witness' appraisal, admittedly based on the subject property's ultimate potential which the witness estimated would not be realized for about five years, and further based on the assumption that the property should and could be rezoned so as to effect such ultimate potential, was not competent evidence for determination of valuation for tax purposes. Moreover, as to Lummus' assertion that two similar private clubs in the Miami area pay the same taxes as the adjacent hotel and apartment property, we take judicial notice that The Surf Club, Surfside, Florida, and The Bath Club, Miami Beach, Florida, are both presently zoned for multiple family occupancy ('RE' and 'RT' respectively), thereby giving each of them the same tax status as their neighboring tracts. In conclusion then, we hold that Lummus' testimony here was likewise based on such speculation and conjecture as to make his testimony incompetent as a basis for the court's determination of proper valuation.

Section 193.021, Fla.Stat. F.S.A. was the basis for the Williams holding, supra, and that statute has been judicially examined before with regard to the prohibitions against the taxing authorities' consideration of potential use. Walter v. Schuler, Fla.1965, 176 So.2d 81; Lanier v. Overstreet, Fla.1965, 175 So.2d 521; Homer v. Dadeland Shopping Center, Inc., Fla.App.1969, 217 So.2d 844; Staninger v. Jacksonville Expressway Authority, Fla.App.1966, 182 So.2d 483, 22 A.L.R.3d 950 (see Judge Wigginton's specially concurring opinion, id. at 489). Admission by the trial court of such speculative testimony appears to have violated § 193.021(2) Fla.Stat. F.S.A.

We therefore hold that the court erred in entering the final judgment and decree being appealed, and remand the cause for determination of the assessment in accord with this opinion.

Reversed and remanded.

PEARSON, Judge (dissenting).

It seems to me that the question involved on this appeal is whether there is competent substantial evidence to support the finding of the trial judge. In Re Thompson's Estate, Fla.1955, 84 So.2d 911; Reserve Insurance Co. v. Earle W. Day & Co., Fla.App.1968, 209 So.2d 709. An appellate court does not ordinarily weigh the evidence and determine its creditability. Citizens Ins. Co. of New Jersey v. Harris, Fla.1949, 40 So.2d 775. Therefore the majority must have proceeded upon a conclusion that the evidence before the trial judge was so speculative as not to afford a basis for his finding. I think that conclusion is mistaken for the...