City of Miami v. Silver, 71-133
| Decision Date | 11 January 1972 |
| Docket Number | No. 71-133,71-133 |
| Citation | 257 So.2d 563 |
| Parties | The CITY OF MIAMI, a municipal corporation, Appellant, v. Sam I. SILVER et al., Appellees. |
| Court | Florida District Court of Appeals |
Alan H. Rothstein, City Atty., Horton, Schwartz & Perse, Miami, for appellant.
Sibley, Giblin, Levenson & Ward, Miami Beach, John R. Farrell, Miami, for appellees.
John G. Immer, Miami for Coconut Grove Civic Club, amicus curiae.
Beckham & McAliley, and William Huggett, Miami, for Tigertail Ass'n, amicus curiae.
Adams, George & Wood, Miami, for Citizens League, amicus curiae.
Richard L. Lapidus, Miami, for Tropical Audubon Soc., amicus curiae.
Before PEARSON, CHARLES CARROLL and HENDRY, JJ.
The City of Miami appeals from a final judgment which holds:
property bears no relationship whatsoever between the need for zoning restriction and the public health, safety, morals or general welfare.
property said zoning restrictions are invalid and unconstitutional.
The trial judge has fully set forth the factual basis for his decision:
'The Plaintiffs are owners of a tract of unimproved bayfront property consisting of nearly five acres situate in the City of Miami. The property abuts South Bayshore Drive at the approximate foot of Kirk Street in Coconut Grove, and runs easterly from South Bayshore Drive to Biscayne Bay.
'The subject property first became zoned single family residential by the City of Miami in 1937 when, by the same comprehensive zoning ordinance, the City of Miami zoned virtually every foot of bayfront property from the Miami River to Dinner Key as single family residential (R-1).
'North of the subject property is Rockerman Canal, which runs from Biscayne Bay to South Bayshore Drive, and which, unbridged, establishes a natural line of demarcation between the single family zoning in which the subject property lies, and other, more remote single family zoning lying northeast of Rockerman Canal. Situate on the north side of Rockerman Canal is a small, single street subdivision, only half improved notwithstanding its platted presence for almost seventeen years. Nevertheless, Rockerman Road is the nearest bay-oriented single family zoned properties which have actually been built upon in recent years. There was evidence of some multiple family apartment use in fact occurring in this single family zoned area.
'Coral Reef Yacht Club, zoned waterfront recreational (W-R), less than 600 feet southwest of the subject property, likewise abuts the easterly boundary of South Bayshore Drive, and extends to the waters of the Bay. The evidence disclosed that existing W-R zoning classification upon the Coral Reef Yacht Club properties had been changed from its original 1937 R-1 single family classification and use a number of years previously. 1
'It is noted that between the subject property and Rockerman Canal on the north and Coral Reef Yacht Club to the south, lies large City tracts recently acquired by purchase, and thereafter recently rezoned by the City from single family to a P-R classification. 2
'Since approximately 1960 the City of Miami has apparently planned to acquire the subject property by condemnation or otherwise, as an integral part of a proposed expansion and extension of existing Dinner Key waterfront and marina facilities from existing locale, northerly to Rockerman Canal.
'Modern sewer facilities were installed and became operative in the immediate area of the subject property by at least April 1969.
'The evidence disclosed that as early as 1961, incident to implementation of a comprehensive overall zoning study, the City's own Planning and Zoning Board recommended that the single family residential district in which the Plaintiffs' tract is located, be rezoned to a multiple residential use classification.
The trial court found that single family residential zoning upon plaintiff's property was grossly unreasonable. The court further found that recent zoning changes had so changed the area that R-1 zoning was no longer a constitutional application of the zoning power. In addition, the court made the specific finding that the city's restrictive zoning was adhered to for the 'obvious purpose of its ultimate acquisition at as low a price as possible.' 1
The property is bounded on two sides by South Bayshore Drive and Biscayne Bay. The tracts on the other sides, although zoned R-1 at the present, are within an area designated by the city for future park and recreational use and in fact contain some areas already purchased by the city and rezoned P-R.
The City of Miami in its appellant's brief has presented a single point on appeal in which it urges that the record does not support the trial court's conclusion that the R-1 zoning classification is invalid, but on the contrary, that the ordinance in question as applied to appellees' property is fairly debatable. In its argument, the city under several subheadings urges: a) that the record fails to show a deprivation of reasonable use, b) that the record fails to show an unnecessary, and unreasonable invasion of appellees' property rights, c) that the court improperly considered the city's change of zoning of its own property because the city is not subject to zoning restrictions, and d) the record does not support the conclusion of the trial court that the motive of the City of Miami in retaining single family zoning was to procure appellees' property at a minimum cost. In addition, we have the benefit of several briefs of amicus curiae. Each of these briefs urge that the interests of the people of this area can best be served by preserving this tract for the ultimate acquisition by the city for public park purposes.
While we are not unsympathetic to the acquisition of land in our crowded cities for public park purposes, we do not think that we are privileged to bend the law or to disregard the findings of the trial judge upon the evidence before him in order to accomplish a public purpose which, if we understand the argument presented, would enable the city to acquire the subject property by payment of less than its true value.
Because appellant's point on appeal urges that the evidence is insufficient to support the findings of the trial judge it is necessary for this court to examine the entire record in the light of the briefs. This examination reveals that this case was fully tried by able counsel. The record contains several hundred pages of testimony and depositions. Because of the nature of the case a great deal of the testimony was by expert witnesses. These witnesses, whose qualifications as real estate experts were accepted by the court, in our opinion, amply support the conclusion reached by the trial judge. It would be exhausting both to the writer and to the reader to present here a witness by witness analysis of the testimony presented to the trial court. Therefore, we will not undertake that task. A brief summary of some of the evidence which we think supports the conclusion reached by the trial judge is as follows. The appellee as plaintiff presented the testimony of W. Bates Cole whose qualifications as a real estate expert were stipulated to by the city. Mr. Cole testified: 'I feel the (subject) property is entirely unsuited for R-1 construction,' and that, as R-1 zoned 'the property as a practical matter, it could not be used.' Mr. Cole also testified that his personal examination of the area disclosed considerable multiple family-apartment usage in the immediately surrounding R-1 areas, together with other indications such as a number of for-sale signs reflecting substantial transition of the area surrounding the subject property to non-single family use. In addition, Mr. Cole pointed out that the subject property lies within an area extending from Rockerman Canal on the north to Coral Reef Yacht Club on the south, all lying east of South Bayshore Drive; that, this last above described area had been zoned R-1 since 1937; that, nevertheless, no single family residential development had taken place within that area of the subject property over these several decades. He also noted that the Everglades School, located just north of Rockerman Canal on the west side of South Bayshore Drive (Together with its tennis courts, parking areas and athletic field located on the east side of South Bayshore Drive), was de facto use which is not permitted under R-1 zoning classification.
Appellees' position that the property was not usable in its present R-1 classification was also advanced by the testimony of Mr. Fred Ridolph who is also stipulated by the appellant to be qualified as an expert. Mr. Ridolph's testimony was that the property was presently unusable for single-family units and that because of the location of the property and the uses surrounding it a change to multiple-family zoning would not constitute spot-zoning. Of course the city countered with the testimony of its own expert witnesses. Ordinarily the weight to be given expert testimony is for the trier of fact, Hawkins v. Schofman, Fla.App.1967 204 So.2d 336. We are unable to say from a review of the totality of the testimony before the trial court that he applied a wrong rule of law or that he misapprehended the weight of the testimony or the significance of the physical facts concerning the subject...
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