Bal Harbour Village v. State ex rel. Giblin

• Decision Date: 05 September 1974
• Docket Number: No. 74--673,74--673
• Citation: 299 So.2d 611
• Parties: BAL HARBOUR VILLAGE, a municipal corporation, and R. W. Patterson, Appellants, v. STATE of Florida ex rel. V. E. GIBLIN, as Trustee, Appellee.
• Court: Florida District Court of Appeals

Page 611

299 So.2d 611

BAL HARBOUR VILLAGE, a municipal corporation, and R. W. Patterson, Appellants, v. STATE of Florida ex rel. V. E. GIBLIN, as Trustee, Appellee.

No. 74--673.

District Court of Appeal of Florida, Third District.

Sept. 5, 1974.

Rehearing Denied Sept. 26, 1974.

Shutts & Bowen and Robert A. Jarvis, Jr., Miami, for appellants.

Sibley, Giblin, Levenson & Ward, Miami Beach, for appellee.

Before PEARSON, HENDRY and HAVERFIELD, JJ.

PER CURIAM.

The appellants, Bal Harbour Village and R. W. Patterson, the village official charged with the duty of issuing building permits, appeal a final judgment awarding a peremptory writ of mandamus to the appellee, V. E. Giblin, as Trustee. The writ commanded the Village to issue a building permit to the appellee for the construction of an oceanfront apartment building.

The trial judge has given us the benefit of an extensive opinion containing a history of the case as follows:

'The command of the Alternative Writ required the Respondents to forthwith issue to the Petitioner the building permit as sought and described in the Alternative writ and in default thereof the Respondents were required to show cause, if any they had, before this Court on the 8th day of March, 1974, at 12:00 noon, why the Court should not render a final judgment in mandamus awarding to the Petitioner a peremptory writ of mandamus requiring the issuance of such building permit.

'Upon the return date the Respondents filed a motion to quash and a motion to strike the Alternative Writ, which were argued, and the said motions were denied. At the request of the Respondents the Court extended the time in which the Respondents might file a return to the Alternative Writ until March 18, 1974. After the return was filed, the cause was then set for the disposition of all motions and matters for April 11, 1974. On April 8, 1974, the Petitioner filed her motion for the issuance of the peremptory writ and for a judgment awarding the same, the return of the Respondents notwithstanding. The only question for the Court to determine, therefore, is whether the return is sufficient.'

The trial judge found that the return was not sufficient upon the following statement of the law governing mandamus:

'The return must be measured by the rules of pleading, which are particularly and peculiarly applicable to a mandamus proceeding. The 'statement of a return to an alternative writ of mandamus should be positive and not on information and belief.' State v. Haskell, (72 Fla. 176) 72 So. 651. 'The return to an alternative writ of mandamus should for the purpose of making an issue set up a positive denial of material facts as stated or should state other facts sufficient to defeat relator's right.' State v. Haskell, supra. Thus a general denial is insufficient. A denial of matters alleged in an alternative writ of mandamus by way of inducement does not present a material issue. See State v. Haskell, supra. 'All facts sufficiently alleged in an alternative writ of mandamus not specifically denied are admitted to be true, and that a return containing mere averments of lack of knowledge of the truth of the averments of an alternative writ presents no material issue and may be disregarded.' State v. Scholtz, (119 Fla. 460) 158 So. 812. A return is insufficient which attempts to deny the Petitioner's right 'in general terms' and which failed to 'allege specific facts which would put in issue the Petitioner's right.' See Liebman v State, 136 So.2d 645. A return to an Alternative Writ of Mandamus, to be sufficient, 'must state all the facts relied upon by the Respondent with such precision and certainty that the court may be fully advised of all the particulars necessary to enable it to pass upon the sufficiency of the return; and its statements cannot be supplemented by inference of intendment. State v. Atlantic Coast Line R. Co., (97 Fla. 816) 122 So. 256. In that same case (State v. Atlantic Coast Line R. Co., supra) the Supreme Court of Florida points out that 'great strickness of pleading is required in returns' and a general denial is insufficient and such denial will be qualified by positive averments. 'Allegations of ultimate conclusions of fact are insufficient.' Jukes et al. v. State, (123 Fla. 260) 166 So. 552.

"In mandamus neither a demurrer to the answer nor a motion for the peremptory writ, the answer notwithstanding, admits either conclusions of law or conclusions of fact not sustained by facts properly alleged.' See State ex rel. v. Seaboard Airline Ry. Co., (92 Fla. 61) 109 So. 656 at page 664. When the return amounts to a confession and avoidance 'though containing denials of some portions of the alternative writ, the avoidance must be as broad as the confession, or the return will be held bad and a peremptory writ issued, notwithstanding the interposition of a return containing denials.' State v. Smith, (105 Fla. 368) 141 So. 318. Thus, an example of the strictness required in the pleading of facts in a return is shown in the case of State ex rel. (Burr) v. Seaboard Airline Ry. Co., (92 Fla. 61) 109 So. 656. In that case the Supreme Court of Florida pointed out:

'Where the allegations of an alternative writ of mandamus show that the shipments to which an intrastate rate is commanded to be applied are intrastate shipments, and the answer to the alternative writ avers conclusions that the shipments are interstate shipments, but does not state facts that clearly show the shipments to be in fact and in law interstate and not intrastate shipments, such answer is not a good defense to the issuance of a peremptory writ.'

'Measuring the Respondents' return by these rules, it appears that all allegations on infirmation and belief and all denials based on information and belief and all denials that are not positive or specific and all conclusions of fact and law are to be disregarded and are of no avail as a defense against the peremptory writ of mandamus. Moreover, all allegations of the Alternative Writ to which the Respondents aver that they are without knowledge and all denials which are not positive or specific or which are not supported by averments of fact are admitted and all specific and positive denials of matters of inducement raise an immaterial issue constituting no defense to the Alternative Writ.'

The trial court found that the response of the Village raised no factual issues but did raise two issues of law:

'A. The failure of the Village of Bal Harbour to give notice of a public hearing and hold a public hearing in the enactment of its two zoning ordinances No. 11 and No. 158 are not fatal to the validity of those ordinances.

'B. The petitioner is estopped from urging the invalidity of Ordinances 11 and 158 or has waived her right to question the validity of said ordinances because her representatives participated in meetings of the City Council of Bal Harbour Village prior to the adoption of Ordinance No. 158.'

In each instance the judge held that the legal defense raised by the Village were not sustainable under the law. Thereupon, the final judgment awarding the peremptory writ was entered and after the denial of post-judgment motions, this appeal followed.

Appellants' first point challenges the judgment upon the basis that the petition and writ were legally insufficient and therefore that the court erred in denying appellants' motions directed to the alternative writ. It is urged that the petition failed to show a clear legal right to the issuance of the building permit; that on its fact the petition showed that the petitioner had not complied with conditions precedent and had not exhausted her administrative remedies.

Appellants' position is obviously well taken if either its comprehensive zoning ordinance number 158 or the predecessor ordinance number 11 is valid, but we pass that question for discussion under appellants' point III. We have examined the petition and the alternative writ in the light of appellants' other arguments and we find that they are sufficient. Ray v. Wilson, 29 Fla. 342, 10 So. 613 (1892); State ex rel. Kersey v. Jinkins, 1942, 152 Fla. 113, 10 So.2d 914; Sanitarians' Registration Board v. Solomon, Fla.App.1963, 148 So.2d 744, reversed Fla.1963, 155 So.2d 353.

The second point presented contends that the return of the appellants raised material issues of fact. If this is true then of course the trial judge erred in issuing the peremptory writ without a trial of the issues of fact raised. See City of Bradenton v. State ex rel. Perry, 118 Fla. 838, 160 So. 506, 100 A.L.R. 400, (1935); State ex rel. Johnson v. Roberts, 134 Fla. 326, 184 So. 14 (1938).

The issues of fact suggested by appellants are: (1) the rights and duties of the Village with reference to appellee's compliance with the South Florida Building Code, and (2) whether the revised plans and specifications submitted by appellee were approved by the Fire Safety Bureau of Metropolitan Dade County and the Pollution Control Department of Metropolitan Dade County.

The return did not specify with any particularity any condition precedent in the building code which had not been satisfied by the revised plans and specifications. The law places a specific burden upon the municipality to come forward with exact facts upon which it refused to perform the act required by the alternative writ. Such facts are pecularily within the knowledge of the municipal officials. If, as contended by the municipality, the approval by the Fire Safety Bureau of Metropolitan Dade County and the Pollution Control Department are 'conditions precedent' to the issuance of a building permit by the municipality, then the return must specify with particularity that the approvals are required by ordinances of the municipality, that it is petitioner's duty to supply written approval and allege that the written approval has not been furnished by the petitioner. These allegations do not appear in the return despite the fact that...