City of Coral Gables v. Sakolsky

• Citation: 215 So.2d 329
• Decision Date: 24 September 1968
• Docket Number: No. 68--56,68--56
• Parties: CITY OF CORAL GABLES, a municipal corporation, Appellant, v. A. H. SAKOLSKY, Appellee.
• Court: Court of Appeal of Florida (US)

Page 329

215 So.2d 329

CITY OF CORAL GABLES, a municipal corporation, Appellant, v. A. H. SAKOLSKY, Appellee.

No. 68--56.

District Court of Appeal of Florida, Third District.

Sept. 24, 1968.

Rehearing Denied Nov. 22, 1968.

Charles H. Spooner, City Atty., and Robert D. Zahner, Asst. City Atty., Scott, McCarthy, Steel, Hector & Davis, Miami, for appellant.

Pallot, Silver, Pallot, Stern & Proby, Miami, for appellee.

Before PEARSON and HENDRY, JJ., and PIERCE, WILLIAM C., Associate Judge.

PIERCE, WILLIAM C., Associate Judge.

This is an appeal by appellant City of Coral Gables, a municipal corporation, from a final decree declaring invalid and unconstitutional a portion of the City's zoning ordinance, and ordering the City to issue to plaintiff therein, A. H. Sakolsky, a permit to build a building.

On January 5, 1965, Sakolsky filed application with the City Commission of Coral Gables for a permit to build a twelve-story high rise apartment building, encompassing 93 apartments and 167 automobile parking spaces. The proposed location of the building was on Lots 1, 2, 3, 33 and 34, Block 1, of Biltmore Section, located on the southeast corner of Balboa Plaza, facing the Granada Golf Course on the North. The applicable zoning regulations then in effect were contained in Section 9.03 of the Zoning Code of the City, as amended by Ordinance No. 1449, which provided inter alia that:

'(n)o building or structure to exceed three (3) stories or forty-five (45 ) feet in height shall be erected within the municipal limits.'

Provisions were made in the Ordinance for granting an exception to such height restriction, within the discretion of the City Commission, and after certain specified 'procedures and requirements' had been complied with. Section 9.03 is set out in the margin. ¹

Subsection (d), paragraph 2, of Section 9.03, a part of the 'Exception' provision, reads as follows:

'(d) The City Commission by ordinance shall provide standards, guides and qualifications to be considered with an application and shall not consider such application until written notification shall have been received by it from municipal agencies concerned that zoning, building or architectural requirements have been met.'

Public hearing was held before the City Commission upon the application on January 26, 1965, at which time a large group of affected property owners were present and apparently, from the record here, voiced considerable objection to the application. After lengthy discussion, the Commission by vote of four to one adopted a Resolution deferring action upon the application pending further consideration and for the purpose of affording the Commission an opportunity to 'provide standards, guides and qualifications' as contemplated in Subsection (d) aforesaid, which apparently had not therefore been done.

On February 5, 1965, Sakolsky filed mandamus suit seeking to coerce the City Commission to grant the application and issue the permit, contending as basis therefor that the Commission had no lawful authority to defer action upon the application and that its refusal to grant it was 'arbitrary, unreasonable and illegal'.

On April 27, 1965, the Commission enacted Ordinance No. 1475, amending Section 9.03 of the Zoning Code aforesaid, so as to prohibit the building of any apartment or hotel structure in the City more than three stories or 45 in height 'on property abutting Coral Gables single family or duplex residence zone'. The text of the amending Ordinance No. 1475 is set out in the margin. ²

On October 12, 1965, almost six months after Ordinance No. 1475 was enacted, Sakolsky filed the instant suit in the Dade County Circuit Court, asserting the unconstitutionality of the original Ordinance No. 1449 insofar as it authorized the City Commission to withhold approval of a permit to construct an apartment building of more than three stories. Specific grounds of alleged invalidity were that the Ordinance 'left to the sole discretion of the City Commission' the approval or disapproval of an application to 'erect a structure in excess of three stories' and that the Commission had 'failed to provide * * * standards, guides and qualifications' although the Ordinance had specified that such would be provided. The complaint contended that the application was governed by the Ordinance existing at the time application was filed and that the subsequent enactment of Ordinance No. 1475 on April 27, 1965 was inapplicable, notwithstanding the complaint was not filed until October 12, 1965, almost six months later. The complaint prayed that the Court hold Ordinance No. 1449 unconstitutional and invalid, and by Final Decree order the City to issue to Sakolsky the building permit applied for. The City answered and moved to dismiss the complaint.

On November 21, 1967, the Court entered Final Decree finding 'that Ordinance No. 1449, Sec. 9.03 subsec. 2(d) is invalid', that therefore 'there was no regulatory ordinance pertaining to the high rise application which was valid and enforceable at the time', that the City Commission acted 'unreasonably' and 'unjustifiably' in deferring action on Sakolsky's application on January 26, 1965, that his application was not subject to the subsequently enacted Ordinance No. 1475 because it could not 'have a retroactive applicability' and that the Commission should have granted the permit because 'the equities are altogether in favor of the plaintiff'. The Court thereupon adjudged said subsection 2(d) unconstitutional and ordered the City Commission to issue the permit for the erection of the twelve-story high rise apartment building as set forth in the application. We disagree with the circuit court and reverse.

Three reasons exist why, in our opinion, the complaint should have been dismissed: (1) the original Ordinance, Section 9.03, subsection 2(d) is valid and constitutional, and the action of the Commission in deferring action on the permit was within its plenary authority; (2) the complaint was prematurely filed before the Commission had acted on the application, and (3) the case was governed by Ordinance No. 1475, which was in effect at the time suit was filed, the validity of which ordinance is not challenged. We will briefly discuss these propositions seriatim.

(1) Validity of Section 9.03 and the Action of the Commission.

The authoritative right of municipal zoning has been firmly fixed as the law of the land since Fuclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. That case, decided by the U.S. Supreme Court in 1926, pioneered the right of a municipality through its legislative body, to regulate by ordinance the use or non-use of land and the nature and character of structural improvements thereon, within its municipal limits, subject only to constitutional limitations against discrimination, violation of due process, etc. As said by the high Court in Euclid--

'If the municipal council deemed any of the reasons which have been suggested, or any other substantial reason, a sufficient reason for adopting the ordinance in question, it is not the province of the courts to take issue with the council. We have nothing to do with the question of the wisdom or good policy of municipal ordinances. If they are not satisfying to a majority of the citizens, their recourse is to the ballot--not the courts.'

The rationale of Euclid was quickly followed by the Supreme Court of Tennessee in Spencer-Sturla Company v. City of Memphis, 155 Tenn. 70, 290 S.W. 608, which held:

'The reduction of fire hazards, provisions to reduce congestion in dwelling houses and neighborhoods, provisions designed to secure to families in their homes and laborers in their places of employment sufficient light and fresh air for their comfort and health, have a direct relation to and connection with the public purposes for which the police power may be exercised. So also are provisions for the preservation of property values. We think the segregation of residence districts from commercial districts within a particular city, The control of the height and bulk of buildings with regard to the area of the lot on which such buildings are constructed, the limitation of the number of families who may occupy a single dwelling, are powers which may be reasonably exercised by a municipal government for the protection and promotion of the public health, safety, morals and welfare; and we have not been able to find any constitutional inhibition against the reasonable exercise of such powers by the state or municipality.' (Emphasis supplied).

Yokley on Zoning Law and Practice, the leading textbook on the subject of zoning, contains a comprehensive review in its Second Edition, Volume 1, of the origin and development of municipal zoning.

The Florida Courts have kept the pace. Questions of zoning policy, of benefit or detriment, of what is good or bad for the city and the public, involve an exercise of police power and are essentially matters within the legislative orbit of the city. City of Miami Beach v. Greater Miami Hebrew Academy, Fla.App.1959, 108 So.2d 50; Josephson v. Autrey, Fla.1957, 96 So.2d 784. Zoning is the exclusive function of the appropriate zoning authorities and not the Courts, Hillsborough County v. Twin Lakes Mobile Home Village, Inc., Fla.App.1964, 166 So.2d 191; Allen v. Secor, Fla.App.1967, 195 So.2d 586, and a city's motive in enacting a zoning or rezoning ordinance is not subject to judicial inquiry. Housing Authority of City of Melbourne v. Richardson, Fla.App.1967, 196 So.2d 489. Thus, zoning as applied to the height of buildings has been upheld, Town of Bay Harbor Islands v. Burk, Fla.App.1959, 114 So.2d 225, and even compelling the discontinuance of an existing property use. Standard Oil Co. v. City of Tallahassee, CA5 Fla.1950, 183 F.2d 410.

In Neubauer v. Town of Surfside, Fla.App.1966, 181 So.2d 707, the circuit court had upheld a zoning ordinance of the town which restricted the use...