City of Miami v. Thompson

• Decision Date: 21 January 1964
• Docket Number: No. 63-266,63-266
• Citation: 159 So.2d 877
• Parties: CITY OF MIAMI, a municipal corporation, Appellant, v. Horace THOMPSON, Appellee.
• Court: Florida District Court of Appeals

Page 877

159 So.2d 877

CITY OF MIAMI, a municipal corporation, Appellant, v. Horace THOMPSON, Appellee.

No. 63-266.

District Court of Appeal of Florida, Third District.

Jan. 21, 1964.

Rehearing Denied Feb. 13, 1964.

John R. Barrett, City Atty., and Edward J. Fitzpatrick, Asst. City Atty., for appellant.

William W. Charles, Miami, for appellee.

Before BARKDULL, C. J., and HORTON and HENDRY, JJ.

PER CURIAM.

The City of Miami appeals a final decree which invalidated the distance provisions contained in the city's comprehensive zoning ordinance relating to the erection of gasoline filling stations.

Under the ordinance, filling stations were permissible within the area where appellee's property was located, provided they were more than 350 yards from a 'church, hospital, school or other such institution where large numbers of pedestrians congregate.' The appellee's property was less than 350 yards from a church.

The city commission of the City of Miami, by Resolution 33462, dated March 7, 1962, upheld a recommendation of the City Planning Board in denying the appellee's application for a variance permit to erect a gasoline filling station on the property in question. On October 19, 1962, more than six months later, the appellee filed a bill for declaratory judgment and equitable relief alleging, inter alia, the exhaustion of administrative remedies and the invalidity of the distance limitations contained in the ordinance as being arbitrary, discriminatory and void. Appellant answered, denying that the ordinance was invalid as it applied to appellee's property. ¹ On January 15, 1963, prior to final hearing, appellant requested leave of the chancellor to file an amended answer setting up the affirmative defense of the appellee's failure to pursue the remedies prescribed by § 176.16, Fla.Stat., F.S.A., ² and specifically that the appellee had failed to timely file a petition for certiorari from the denial by the city commission of the appellee's requested variance. Appellant's request to amend was denied at the time of the final hearing and the final decree was subsequently entered.

Appellant contends that inasmuch as appellee sought special relief and the chancellor granted it without ruling on the general validity of the zoning ordinance, the complaint was subject to the thirty days' limitation of § 176.16, supra. In refutation, the appellee simply argues that § 176.14, supra, has no application to the City of Miami because the city has enacted its zoning regulations under direct charter powers (special acts) and not the general zoning law of the state. For the reasons now set forth, we must reject this argument of appellee.

It has not been made to appear, nor have we been able to ascertain, that the City of Miami, by charter authority or otherwise, has a prescribed method for reviewing the decisions of the administrative agencies of the city, including its legislative body, the city commission. In the absence of such a specified method of review, created by special statutory authority, the provisions of the general statutory law (§ 176.16, supra) must prevail. See Board of Adjustment of Fort Lauderdale v. Kremer, Fla.App.1962, 139 So.2d 448. The fact that the city has enacted its zoning...