City of Miami Beach v. State ex rel. Fontainebleau Hotel Corp., 58-715
Decision Date | 29 January 1959 |
Docket Number | No. 58-715,58-715 |
Citation | 108 So.2d 614 |
Parties | CITY OF MIAMI BEACH, Florida, a municipality created and existing under the laws of the State of Florida; Kenneth Oka, as Mayor and Councilman; Harold Spaet, Marcie Lieberman, Bernard Frank, Melvin Richard, D. Lee Powell and Harold Shapiro, as and constituting the City Council of the City of Miami Beach, Florida; O. M. Pushkin, as Chief Building Inspector of the City of Miami Beach, Florida, Appellants, v. STATE of Florida ex rel. FONTAINEBLEAU HOTEL CORP., a Florida corporation, Appellee. |
Court | Florida District Court of Appeals |
Sibley, Grusmark, Barkdull & King, Miami Beach, for petitioners.
Ward & Ward, Miami, Joseph A. Wanick, Miami Beach, and Ben Shepard, Miami, for respondents.
Hoffman, Kemper & Johnson, Miami, amicus curiae.
This is an appeal from a final judgment granting a peremptory writ of mandamus directing the appellants, respondents below, to issue a building permit to the appellee, petitioner below.
Petitioner's statement of its case for mandatory relief is as follows: It is the owner of a twelve-acre tract on Miami Beach, Florida, which is bounded on the east by the Atlantic Ocean, on the north by the Eden Roc Hotel property, and on the west and a part of the south by public streets. There is a large hotel situated upon the petitioner's property, and it was determined that 400 additional hotel rooms would be added to the present structure by building a fourteen-story building on the north side of its property, which was to be connected to the present hotel by a ballroom and lobby. Plans for this addition were submitted to the chief building inspector of the respondents for his approval and the issuance of a construction permit. These initial plans were rejected because the stairway of the building would project into the 20-foot setback or sideyard required by the then existing zoning regulation, upon the north side of the said property. However, a permit was issued allowing petitioner to commence construction of the first three floors of the contemplated fourteen-story building. Subsequently on October 6, 1958, the petitioner resubmitted its plans for approval having corrected the objection of a stairway projecting into the setback area. The amended plans were rejected as not complying with ordinance No. 1312, passed as an emergency amendment to the Building Code by respondents on October 1, 1958. The pertinent part of this ordinance reads as follows:
'Provided, however, that on lots fronting on the ocean no building shall be erected to a height in excess of thirty (30) feet, except that for each foot of the total number of feet that the building sets back from the ocean and/or sets back from the northerly property line, one-half (1/2) foot may be added to the height limit specified, not exceeding, however, the maximum height herein specified.'
The petitioner further alleged that the effect of the said ordinance is to require the petitioner to set back from the ocean 190 feet 'on the north or Eden Roc side of its property line, although no such setback is required for construction on the south side of its property line.' On October 29, 1958, prior to the filing of the petition for mandamus but subsequent to the submission of plans on October 6, 1958, which plans admittedly cured the defect as to setback except for the provisions of the emergency ordinance of October 1, 1958, the City Council of Miami Beach, adopted another emergency ordinance, namely No. 1321. The second ordinance was substantially the same as ordinance No. 1312 except for certain details not important to this cause. 1 Since the question involved is the clear legal right of the petitioner to a building permit on October 6, 1958 we need not further consider ordinance No. 1321 passed October 29, 1958. However, this latter ordinance is subject to the infirmities claimed to invalidate ordinance No. 1312 passed October 6, 1958, and it is mentioned so that it may be clear that this opinion covers the validity of both ordinances.
Petitioner alleges that the ordinance is a zoning ordinance, and that in order to be valid it must be enacted in accordance with the terms and provisions of the Miami Beach Zoning Enabling Act, Chapter 9837, Special Acts of 1923, which act the petitioner contends gives the city the power and authority to provide setbacks, yards, and open spaces. Further the act requires that only after notice and public hearing may a zoning regulation be adopted, and neither was notice given nor was a public meeting had. Therefore, the petitioner contends the ordinance is a nullity making the refusal of the respondents to issue the permit unjustifiable and unlawful. Thus petitioner concludes the court should compel the respondents to issue the permit.
The respondents in their return answered that under the general police powers given to them in the city charter, they have the right to regulate and restrict the beight, number of stories, size of buildings and other structures, the percent of lot that may be occupied, the size of the yards, courts and other open spaces. They contend that the primary purpose in requiring an additional setback for construction above the 30-foot level is to 'prevent the cutting off of light and air or the interfering with the view to the ocean' of property to the north. They further contend this inherent power to enact building code ordinances which control the nature of the construction of buildings is found in section 6, subd. (t) of the Charter of the City of Miami Beach, Special Act of the Legislature of Florida 1923, No. 9836, Chapter 10845, Special Acts of 1925, Chapter 13101, Special Acts of 1927, Chapter 16562, Special Acts of 1933, and Chapter 17608, Special Acts of 1935, which in addition to the other powers granted, gives these powers to the city:
'To adopt ordinances establishing fire limits or zones and to provide when and under what conditions structures for habitation, commercial or other uses may be constructed and maintained within or without such zone or zones, and the elevation, character and size of material or things which may be used in such structures, and provide for the construction of different classes in such manner as to provide for the safety of persons in, on or about the same, the ventilation thereof, and the admission of natural light therein.'
Section 6, subd. (x) also empowers the city
'to adopt all ordinances and do all things deemed necessary or expedient for promoting or maintaining the general welfare.'
In addition to the general powers under their charter the respondents also urge that sections 176.01-.03 Fla.Stat., F.S.A., 2 'especially' grants them a 'general specific power' to set the standards for the size and shape of buildings.
The court granted the peremptory writ holding in part that emergency ordinances No. 1312 and No. 1321 were in fact an exercise of powers granted the City by the Zoning Enabling Act, Chapter 176, Fla.Stat., F.S.A., and that the city had failed to exercise the power to adopt such ordinances in the manner prescribed. 3 It will be noted the petitioner claimed the invalidity of the ordinances upon the failure of the city to comply with the notice provisions of the Miami Beach Zoning Enabling Act, Chapter 9837, Special Acts of 1923 and that the trial court based its decision upon the failure of the city to comply with the notice provision of the Zoning Enabling Act, section 176.01 et seq., Fla.Stat., F.S.A. But this distinction is of no importance since both acts require notice and public hearing upon zoning ordinances and no notice or hearing was had upon the ordinances in question.
The appellant, city, in its brief raises two questions: (1) Does mandamus lie under the circumstances outlined? (2) Does the City of Miami Beach under its general charter powers have the right to pass the questioned ordinance as an amendment to its building code? The appellee suggests that the second question actually has two aspects: (1) Is an ordinance which requires a setback at ground level from a property line a zoning ordinance? (2) Is the ordinance invalid as an unreasonable use of the police power? In view of our holding that the final judgment must be substantially affirmed upon the points raised by the appellant, the additional argumens advanced as to the validity of the ordinance, by the appellee need not be considered.
It is well recognized in this state that for mandamus to issue the relator's right must be clear. City of Miami Beach v. State ex rel. Epicure, Inc., 148 Fla. 255, 4 So.2d 116, and cases cited therein; State ex rel. Bigler v. City of Miami, Fla.1949, 40 So.2d 207. However, it has been held that mandamus is an appropriate remedy to require the issuance of a permit where an ordinance designed to prohibit its issuance appears invalid on its face. State ex rel. Shad v. Fowler, 90 Fla. 155, 105 So. 733; City of Miami Beach v. State ex rel. Lear, 128 Fla. 750, 175 So. 537. The appellant relies upon City of Coral Gables v. State, Fla.1950, 44 So.2d 298, 301, as overruling the holding in the cases cited, but we find the following statement in the Coral Gables case:
'For example, if, upon an examination of the ordinance and the charter of the City of Coral Gables, it should appear that the charter of the city and the applicable general law did not permit or authorize the enactment of Ordinance No. 271, then the ordinance on its...
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