City of Miami v. Zorovich

• Decision Date: 07 February 1967
• Docket Number: No. 66-115,66-115
• Citation: 195 So.2d 31
• Parties: The CITY OF MIAMI, a municipal corporation of the State of Florida, Appellant, v. Sam ZOROVICH, Jerome H. Weinkle and Alan B. Kessler, Appellees.
• Court: Florida District Court of Appeals

Page 31

195 So.2d 31

The CITY OF MIAMI, a municipal corporation of the State of Florida, Appellant, v. Sam ZOROVICH, Jerome H. Weinkle and Alan B. Kessler, Appellees.

No. 66-115.

District Court of Appeal of Florida, Third District.

Feb. 7, 1967.

Richard B. Stone, City Atty., Edward J. Fitzpatrick, Asst. City Atty., and Horton & Schwartz, Miami, for appellant.

William W. Charles, Watson & Watson, and Sam Daniels, Miami, for appellees.

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

PEARSON, Judge.

The City of Miami appeals a final decree which holds invalid its zoning classification of a plot of land located adjacent to Biscayne Bay. The City was defendant in the trial court, and the appellees, Sam Zorovich, Jerome H. Weinkle, and Alan B. Kessler, were the plaintiffs.

The complaint ¹ alleged that the present zoning classification of appellees' property '* * * which prohibits motels is arbitrary, void, unreasonable, discriminatory, unconstitutional and unrealistic, and that this Court on final hearing should declare same invalid, void, unenforceable and unconstitutional as applied to plaintiffs' property, and that the property should either be rezoned R-5 or the specific relief granted to allow the operation of motel * * *'. The final decree, entered after trial, granted the relief as prayed. The chancellor found that the present zoning classification is 'unrealistic, unreasonable, arbitrary and void'. He further found that it was unconstitutional, and that 'it is not debatable, but conclusive, that Plaintiffs' property cannot be used for its highest and best use under zoning classification R-5A.' ²

The City on this appeal has presented a single point:

'WHETHER THE CHANCELLOR ERRED IN DETERMINING UNDER THE APPLICABLE LAW AND EVIDENCE, THE R-5A CLASSIFICATION WAS UNCONSTITUTIONAL AS APPLIED TO THE PLAINTIFFS' PROPERTY.'

The burden of appellant's argument under this point is that the evidence in the record does not sustain the chancellor's findings. We conclude that the evidence does not support the decree and we reverse.

The chancellor in his comprehensive final decree has set forth the basic consideration in the case:

'The issue to be determined in this litigation resolves itself, therefore, into a question of whether or not the validity of the ordinance enacted by the Defendant City, classifying the Plaintiffs' land R-5A is fairly debatable where such land is physically located immediately adjacent to a 21 story high-rise apartment building, 400 feet from two existing motels, directly across U.S. 1 from property presently zoned for apartment house use, and fronting on an arterial highway over which vehicles flow to and from Key Biscayne over Rickenbacker Causeway and up and down U.S. 1 between Miami and Key West.'

In the same manner, the chancellor has set forth the physical situation:

'The evidence shows that the land in question has 400 feet of frontage on U.S. 1, a four-lane, heavily trafficked main arterial highway, and a depth of approximately 600 feet to Biscayne Bay. The property is identified as 'A' on the Exhibit made a part of this opinion, and as '9' (in the lower left-hand corner) of the sketch included in the Tollius opinion. ³ The property abutting Plaintiffs' property to the Southwest also has 400 feet of frontage on U.S. 1, and is approximately the same area size. Situate on this land is a 21 story, high-rise apartment building the erection of which was permitted by the Defendant City through the granting of zoning variances from its R-5A classification.'

We have incorporated in this opinion a copy of the chancellor's Exhibit 'A' which is referred to in the portion of the opinion just quoted.

COURT'S EXHIBIT 'A'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The basic fact, with which a consideration of this appeal must begin, is that the plaintiffs entered the trial court with a zoning classification of R-5A, and the decree gives them a zoning classification of R-5. The present zoning is for multiple family use which permits high-rise apartment houses. The controlling difference between R-5A and R-5 is that under the latter the appellees may build a motel on their property. The practical effect of the decree is to order the city to change the zoning so that appellees may build a motel in an area where the legislative authority has determined that multiple family units are desirable in the development of the overall zoning plan of the city.

The bayfront area with which the court was dealing is unique in the City of Miami. The area was formerly a millionaires' residential row with the homes facing Biscayne Bay and served by Brickell Avenue. This residential section was close to downtown Miami because it was established in the early period of growth. Much of the area has remained zoned for single family residences through the years because most of it was occupied and used for that purpose. With the designation of Brickell Avenue as U.S. Highway number 1 and the construction (at the south end of the strip) of the Rickenbacker Causeway to Key Biscayne, the character of the neighborhood necessarily began to change from single family residences to more liberal uses. The City fought every step of the way. As pointed out by appellees, this final decree is the seventh in a series of final decrees ordering the City to rezone land in the eleven block strip along U.S. 1 (Brickell Avenue) north from Rickenbacker Causeway. Appellees own the fourth tract of land north of the Causeway on the east (bay) side of U.S. 1. The City's witness testified that it was the plan of the City to permit changes of the R-1 classification on the bay side of Brickell Avenue to R-5A, upon the application of the owners. A consistent R-5A classification would maintain the residential character of the area while permitting high-rise apartments.

The law applicable to this appeal was established by the Supreme Court of Florida in Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642 (1941). On that appeal, the Supreme Court reversed a decree of the chancellor dismissing a complaint seeking to enjoin the enforcement of a zoning ordinance. In reaching this holding, the Court set forth the measure by which such causes must be determined; namely:

'* * * In this State, it is no longer questioned that a municipality, acting under legislative authority, may be vested with the power to enact a valid zoning ordinance and that a general attack thereon will ordinarily fail; nor is it questioned that the right of an urban owner to the free use of his property may be regulated by a legitimate exercise of the police power, and when so asserted, fairly and impartially in the interest of the public health, safety, morals or general welfare, the courts will not substitute their judgment for that of the public officials duly authorized in the premises unless it clearly appears that their action has no just foundation in reason and necessity. On the other hand, if the application of the zoning ordinance has the effect of completely depriving an owner of the beneficial use of his property by precluding all uses or the only use, to which it is reasonably adapted, an attack upon the validity of the regulation as applied to the particular property involved, will be sustained.' Forde v. City of Miami Beach, supra, 1 So.2d at page 645.

See also Town of Bay Harbor Islands v. Burk, Fla.App.1959, 114 So.2d 225; Neubauer v. Town of Surfside, Fla.App.1966, 181 So.2d 707.

We think that two findings of the chancellor ⁴ must be considered separately. In finding number 3, the chancellor held that 'it is not debatable, but conclusive that plaintiff's property cannot be used for its highest and best use under zoning classification R-5A.' In findings number 2 and 4, the chancellor held that the present zoning classification (R-5A) is void, unconstitutional, arbitrary and unreasonable.

Finding number 3 is based upon the premise that a property owner is always entitled to the 'highest and best use' for his property. This premise is incorrect because it is contrary to the established law of Florida. A zoning ordinance is not invalid merely because it prevents the owner from using the property in the manner which is economically most advantageous. If the rule were otherwise, no zoning could ever stand. As this Court held in Neubauer v. Town of Surfside, Fla.App.1966, 181 So.2d 707, 709, in determining the sufficiency of a claim that a zoning ordinance reduced the value of the land: '* * * this of itself, is not enough to render the ordinance confiscatory.'

The appellees, as plaintiffs, did not establish that the property in question could not be used for a purpose within the R-5A classification. The substance of plaintiffs' witnesses' testimony in this regard was that the use of the property for a motel was the highest and best use from an economic point of view. The rule that the deprivation of the highest economic use of the land is not of itself a predicate for the invalidity of a zoning classification is implicit in the holding of the Supreme Court of Florida in Forde v. City of Miami Beach, which is quoted supra. The Court stated that '* * * if the application of the zoning ordinance has the effect of completely depriving an owner of the beneficial use of his property by precluding all uses or the only use, to which it is reasonably adapted * * *' an attack upon the zoning classification will be sustained. Thus, if it is necessary to show a complete deprivation of the beneficial use, it stands to reason that the deprivation of one use, even though the most economically fruitful use, will not be sufficient. See State ex rel. Townsend v. Farrey, 133 Fla. 15, 182 So. 448 (1938). See also cases cited at page 6-11, Rathkopf, The Law of Zoning and Planning, 3rd Ed., Vol. I.

Findings numbered 2 and 4 held that the present zoning classification is void, unconstitutional, arbitrary and unreasonable. The apparent ground for this...