Board of Com'rs of State Institutions v. Tallahassee Bank & Trust Co.

• Decision Date: 13 November 1959
• Citation: 116 So.2d 762
• Court: Florida Supreme Court
• Parties: SOARD OF COMMISSIONERS OF STATE INSTITUTIONS, a constitutional governmental agency of the State of Florida, Petitioner, v. TALLAHASSEE BANK & TRUST COMPANY, as Administrator cum Testamento annexo, Estate of John G. Riley, deceased, Winifred Lively Wesson, Caroline Lively Carraway, and Emily G. Lively, Trustees of the Church of God, a Florida corporation, and Hyman Myers, Respondents.

Page 762

116 So.2d 762

SOARD OF COMMISSIONERS OF STATE INSTITUTIONS, a constitutional governmental agency of the State of Florida, Petitioner, v. TALLAHASSEE BANK & TRUST COMPANY, as Administrator cum Testamento annexo, Estate of John G. Riley, deceased, Winifred Lively Wesson, Caroline Lively Carraway, and Emily G. Lively, Trustees of the Church of God, a Florida corporation, and Hyman Myers, Respondents.

Supreme Court of Florida.

Nov. 13, 1959.

Rehearing Denied Dec. 15, 1959.

Richard W. Ervin, Atty. Gen., Ralph M. McLane and H. Rex Owen, Asst. Attys. Gen., for petitioner.

Julius F. Parker, Caldwell, Parker, Foster, Madigan, Oven & Moriarty, Tallahassee, for Tallahassee Bank & Trust Co., as administrator cum testamento annexo, Estate of John G. Riley, deceased, Winifred Lively Wesson, Caroline Lively Carraway and Emily G. Lively.

Leo L. Foster, Tallahassee, for Hyman Myers.

James C. Truett, of Truett & Watkins, Tallahassee, for trustees of Church of God.

James Messer, Jr., Tallahassee, for City of Tallahassee.

HOBSON, Justice.

The Board of Commissioners of State Institutions, a constitutional governmental agency of the State of Florida, has filed a petition for certiorari directed to the opinion and decision of the District Court of Appeal of the First District in the case of Board of Commissioners of State Institutions v. Tallahassee Bank and Trust Company, 108 So.2d 74.

It is contended that said opinion is in direct conflict with this court's opinion in the case of City of Miami Beach v. Hogan, Fla.1953, 63 So.2d 493, which opinion was the predicate for our judgment in the companion case of City of Miami Beach v. Elsalto Real Estate, Inc., Fla.1953, 63 So.2d 495. We noted apparent conflict and issued the writ of certiorari.

The controlling point of law and the only one actually decided in the Hogan ¹ case was the applicability of the 'fairly debatable' rule. ² This rule became a part of the law of Florida by virtue of our opinion in the case of City of Miami Beach v Ocean & Inland Company, 147 Fla. 480, 3 So.2d 364. Said rule, according to the majority view in the Hogan case, was departed from in City of Miami Beach v. First Trust Company, Fla., 45 So.2d 681. In the case of State ex rel. Office Realty Company v. Ehinger, Fla., 46 So.2d 601, we reaffirmed the doctrine that upon the question of rezoning the court will not substitute its judgment for that of the governing body of a city if the question whether a change in zoning should be made is 'fairly debatable'.

In the Hogan case the condemnee attempted to secure an injunction in the equity court restraining the condemnation proceedings agianst her property until she might have time in the same equity cause within which to attack the zoning ordinance then in existence restricting the use of her property to residential purposes only. She contended that such ordinance was arbitrary, unreasonable, and placed an undue restriction upon the use of her land. This court merely held that under the facts the property owner would not be permitted to enjoin the condemnation suit for such purpose because the question whether a change in zoning should be made was 'fairly debatable' and, therefore, the court would not substitute its judgment for that of the city officials.

In the present case the condemnees sought from the trial court permission in the condemnation suit to present, by way of cross-claim, evidence of the alleged fact that their properties were adaptable to use as business properties in a classification known as Business-A Zone, and that a change in the zoning ordinance should have been made previous to the institution of the condemnation proceedings or would, in all reasonable probability, have to be made by the City Fathers in the proper performance of their official duty within the foreseeable future. This request was granted.

No contention is made herein that the learned trial judge failed to observe the rules of law in this state before applying the so-called Texas rule. ³ In all probability such contention is not asserted because implicit in the order of the trial judge entered after the pre-trial hearing, are findings that it would have been futile for the property owners to have attempted to exhaust their administrative remedies ⁴ and that the question whether their properties should have been rezoned was not 'fairly debatable'. Therein lies the real distinction between this suit and the Hogan case.

This case is not here on direct appeal. We have no right to review the findings of fact of the trial judge and possibly change such findings in order to create or establish the conflict alleged in the petition for certiorari filed in this court. ⁵ However, since the end result sought unsuccessfully by the condemnee in the Hogan case is the same end result obtained by the property owners in this condemnation suit, we would be justified in decreeing a conflict to exist if all of the findings on the material facts in the present action were the same, or substantially the same, as those set forth by this court in the Hogan opinion. Such is not the case.

The land owned by H. Gertrude Hogan was and is ocean front property. With this unquestioned fact as a premise this court said, and we quote:

'In all heavily populated municipalities the police power should be exercised by municipal officials to afford all of the people light, air, an opportunity for recreation, and, in the case of Miami Beach, sufficient park space or other space at public expense to enable all of the people a view of the ocean, the enjoyment of sunshine, fresh air and the actual use of the ocean for the general purposes recognized everywhere. The people of a municipality have a particular right to use the ocean and the land lying between mesne highwater mark and mesne lowwater mark for the purposes universally recognized.

'If all of the ocean front of Miami Beach was devoted to hotel purposes, then the citizens generally would have no access to the ocean unless they should become guests at one of the hotels.' ⁶

The foregoing pronouncements constituted the basis for our determination that the question whether a change in zoning should be made was 'fairly debatable'. This conclusion was reached with full knowledge, and in spite, of an allegation, which, in the state of the pleadings, had to be accepted as true, that the City of Miami Beach had failed and refused to rezone the subject property in order to secure it for less money, when contemplated condemnation should take place, then the city would have to pay if said property were rezoned, as it should be, to allow it to be utilized for multiple family apartments or hotels. Such allegation amounted to an attack upon the motive of the city concil in retaining the restrictive zoning ordinance, but was properly held insufficient to overcome the effect of the peculiar facts of the Hogan case, which caused the question of the propriety of rezoning to be 'fairly debatable'.

There are no proven facts, or any which might be said to be of common knowledge, concerning...