Broach v. Young
| Decision Date | 14 February 1958 |
| Citation | 100 So.2d 411 |
| Parties | Marie S. BROACH, Intervenor, Appellant, v. Ruth YOUNG, Plaintiff, and T. G. Muzzall et al., Defendants, Appellees. |
| Court | Florida Supreme Court |
Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellant.
McCune, Hiaasen, Kelley & Crum, Fort Lauderdale, for appellee.
Affirmed.
The trial court granted certiorari and quashed an order of the Board of Adjustment of Fort Lauderdale which denied a permit to construct a gasoline service station, holding:
'The defendant Board denied the application for a permit to construct a service station allegedly 1
The conclusion reached by the learned chancellor above quoted is amply supported by decisions of this Court. 2
After the property owner had instituted certiorari proceedings in the trial court to test the legality of the action of the Board of Adjustment in refusing the permit, and before the entry of the order (final decree) under review here, the governing body of the city enacted an amendment to its zoning ordinance with reference to the construction of gasoline service stations, one provision of which forbade such construction within a prescribed distance of, among other things, a public playground. 3 The subject property is within such prohibited area.
In the order under review the trial court disposed of this ordinance with the following observation:
'Another party has filed a petition for leave to intervene alleging Ordinance No. C-1164 of the City of Fort Lauderdale as a defense to this cause. The said ordinance was enacted subsequent to the application for a permit and to the issuance of the writ (of certiorari), and is, therefore, not available as a defense. (Emphasis supplied.)
In support of the conclusion that the subsequently enacted ordinance was not available as a defense, appellees rely almost wholly upon our opinions in the case of Aiken v. E. B. Davis, Inc., 1932, 106 Fla. 675, 143 So. 658 and Harris v. State ex rel. Wester, 1947, 159 Fla. 195, 31 So.2d 264.
The Aiken case did not hold that any subsequently enacted ordinance could not be a defense in any case. It held that the ordinance in that case was not available as a defense in that case. This conclusion is quite obvious when the opinions in the case are analysed in the light of the chancellor's findings. Davis applied for a permit to construct a filling station on a parcel of ground he said he owned and which was clearly available under the law for such use. At the time of the application the city had no zoning ordinance, although the record showed a general plan had been agreed on by the Town Council. They city refused the permit because, so it said, the applicant did not own the land. Davis then applied for and secured an alternative writ of mandamus to compel the issuance of such permit or to show cause why it should not issue. After the service of the alternative writ, by city, finding that it had no legal support for its refusal, then enacted a zoning ordinance restricting Davis' land to residential use as an emergency measure. Parenthetically it is a little difficult to understand how an ordinance of this kind, covering a whole city-as it did-and involving so many complex considerations, could fall within the spirit of the law allowing passage of certain ordinances as emergency measures. This, apparently, was what motivated the learned chancellor in that case for, in his order, he said:
106 Fla. 677, 143 So. 658, 659.
Moreover, Mr. Justice Davis so construed the chancellor's findings for, speaking for the court, he said, 'the final adoption of the (emergency) ordinance * * * is in contemplation of law an attempted judicial decree by the legislative power of the city against the then existing rights of the relator, and therefore that such ordinance as applied to relator, is unreasonable and arbitrary, as held by the circuit judge.' 106 Fla. 677, 143 So. 658. What the chancellor decided and what this Court decided was that the action of the city was taken-not in good faith and in the interest of the city's welfare-but in bad faith and solely for the purpuse of thwarting the court and supporting its admittedly unlawful act in denying the permit. The trial court and this Court were meticulously careful to point out that the decision was limited to facts in that case and to Davis' land. The ...
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Coral Springs Street Systems v. City of Sunrise, No. 03-11497.
...a court order compelling the grant of the permit would have constituted a defense against the claim. See also Broach v. Young, 100 So.2d 411, 414 (Fla.1958) (Drew, J., dissenting) ("The Aiken and Harris cases place this Court with those that hold that if the application is unreasonably refu......
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Davidson v. City of Coral Gables, 59-111
...See Aiken v. E. B. Davis, Inc., 106 Fla. 675, 143 So. 658; Harris v. State ex rel. Wester, 159 Fla. 195, 31 So.2d 264; Broach v. Young, Fla.1958, 100 So.2d 411. In the cases cited the circumstances were such as to justify the court in viewing the action of the governing authority in changin......
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Dade County v. Jason, 73--45
...85 units per acre. Sgromolo v. City of Asbury Park, supra; Gibson v. City of Oberlin, supra; Anno. 169 ALR 584. Compare Broach v. Young, Fla.1958, 100 So.2d 411. Having determined that the chancellor should be affirmed on directing the issuance of the permit, there is no reason to reach the......
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Father Ryan High School, Inc. v. City of Oak Hill By and Through Oak Hill Bd. of Zoning Appeals
...150 Conn. 484, 190 A.2d 915 (1963); Noonan v. Zoning Board of Review of Barrington, 90 R.I. 466, 159 A.2d 606 (1960); Broach v. Young, 100 So.2d 411 (Fla.1958); Bringhurst v. Zoning Bd. of Appeal & Adjustment, 198 La. 758, 4 So.2d 820 The cases cited by appellant for the proposition that a ......