City of Miami Beach v. Jonathon Corp.
| Decision Date | 11 August 1970 |
| Docket Number | Nos. 69--1026,69--1027,s. 69--1026 |
| Citation | 238 So.2d 516 |
| Parties | CITY OF MIAMI BEACH, a municipal corporation under the laws of the State of Florida, and Meyer Z. Reuben, as Chief Building Inspector of the City of Miami Beach, Florida, Appellants, v. JONATHON CORPORATION, a Florida corporation and Arizona Leasing Corp., a New York corporation, Appellees. |
| Court | Florida District Court of Appeals |
Joseph A. Wanick, City Atty., and Ira M. Elegant, Asst. City Atty., for appellants.
Rosen & Rivkind, Miami Beach, for appellees.
Before PEARSON, C.J., and CHARLES CARROLL and HENDRY, JJ.
The City of Miami Beach and its chief building inspector seek review of a summary final judgment in mandamus (69--1026) and of the peremptory writ of mandamus (69--1027). The judgment was entered upon a motion for summary judgment after the filing of appellants' return to the alternative writ, a reply to the return, and the deposition of the chief building inspector.
The points on appeal raise the following questions:
(1) Was there sufficient proof of the right of the appellees to bring the petition for mandamus? (2) Does the record establish without issue that the appellees had exhausted their administrative remedy? (3) Is there a genuine issue of material fact raised by the city's allegation that it had subsequent to the denial of the building permit begun proceedings to take by eminent domain the property involved?
Appellants' first point urges an insufficient verification of the petition and insufficient proof of the appellees' right to do business in this state. See § 613.04, Fla.Stat., F.S.A. We hold the verification and proof of compliance with the statute were sufficient. See Hogue v. D. N. Morrison Const. Co., 115 Fla. 293, 156 So. 377, 383, 95 A.L.R. 357 (1934).
Appellants' second point, which urges a failure to exhaust administrative remedies, rests upon the following factual background. In April or May 1968 the appellees applied to the City of Miami Beach for a permit to build on the property. The permit was refused because the plan submitted did not meet the parking requirements of the City of Miami Beach. Appellees then applied for a variance of the parking requirement to the Zoning Board of Adjustment, which held a public hearing on May 21, 1968. As a result of the public hearing the variance was granted. This variance was subsequently approved by the city council. Thereafter on a day not specified the petitioners again applied for a building permit in accordance with the previously submitted plan. As to this application the chief building inspector testified as follows:
'Q All right. What happened on that occasion?
A On that occasion, the plans were--the complete plans had been submitted and they were examined by my department. They were examined by the Public Works Department and approved and some certain changes and recommendations had been made and it was returned to my department--my office to be--for a permit to be issued.
Q All right. Did you issue a permit?
A No, we did not.
Q Why not?
A I was instructed to not issue a permit by the City Manager's office.
Q And were you told why you couldn't issue a permit?
A They said this was a matter of opposition to the permit from some local organization and that the matter was put on the agenda for discussion for the December City Council meeting and I should hold it off until the matter is determined by then.
Q Had the owners or their representatives otherwise complied with all of the requirements, to your knowledge, at the time that they submitted the request for the building permit on this last occasion and to have received the same at that time?
A Yes, sir.
Q And, as I understand it, the only reason that you refused to grant a permit was because of your instruction from the City Manager not to do so?
A Yes, sir.
Q Did he tell you what the objection was that was coming up before the Council?
A He said there was--there was an objection before the Council regarding the use of the property for a high rise apartment building and objections to the action of the City Council when they approved it.
Q To your knowledge, has this property been zoned for high rise since 1931?
A Yes, it has.'
The City of Miami Beach in its defense to the motion for summary judgment presented an affidavit of the then city manager of the city. The affidavit stated by way of conclusion that the zoning ordinance of the City of Miami Beach provides an administrative remedy by way of appeal to the Board of Adjustment by an aggrieved party to review a decision of the administrative official charged with the enforcement and interpretation of the zoning ordinance. A certified copy of § 22 of the Zoning Ordinance is attached to the affidavit. This section provides as to the Board of Adjustment as follows:
'Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance, the Board of Adjustment shall have the power in passing upon appeals, to vary or modify any regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.
The question thus presented is whether the appellees were required to appeal to the Board of Adjustment in order to have a clear legal right to the issuance of a building permit. We think the trial judge correctly decided as a matter of law that the chief building inspector was not entitled to exercise any discretion in the issuance of a permit. The proposed plan, except for the portion dealing with parking facilities, had already been approved. Once the variance concerning the parking facilities was granted, the appellees had a clear legal right to the issuance of a permit. The record as above quoted affirmatively shows that the inspector refused to issue a permit because of a hold order placed by the city manager and not because of any question of compliance with the building or zoning ordinances of the City of Miami Beach. In addition a reading of the ordinance attached to the affidavit in opposition to the motion for summary judgment clearly shows that the Board of Adjustment has jurisdiction only in matters of zoning. Since no question of zoning was involved in this case, no appeal to the Board of Adjustment was necessary. The present case therefore falls within the rule that the exhaustion of...
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