City of Miami v. Romer

• Decision Date: 18 June 1954
• Citation: 73 So.2d 285
• Parties: CITY OF MIAMI v. ROMERet al.
• Court: Florida Supreme Court

Page 285

73 So.2d 285

CITY OF MIAMI v. ROMERet al.

Supreme Court of Florida, Division A.

June 18, 1954.

J. W. Watson, Jr., Olavi M. Hendrickson and Edward J. Fitzpatrick, Miami, for petitioner.

Chertkof & Kalish and Anderson & Nadeau, Miami, for respondents.

ROBERTS, Chief Justice.

This is the second appearance of this case before this court. See City of Miami v. Romer, Fla., 58 So.2d 849, for a complete report of the proceedings had in the trial court prior to its first appearance here.

Briefly stated, the facts are that the appellee, Romer, sued the appellant, City of Miami, to recover compensation for a ten-foot strip of land on a lot owned by him, which strip he was prevented from building upon by the provisions of Ordinance 3179 of the City of Miami, adopted in 1946. This ordinance provided that no building shall be erected on certain streets in the City of Miami closer than 25 feet to the center line of the street. Romer alleged in his complaint in the first case that 'said ordinance was adopted as a street widening ordinance and that the purpose of the said ordinance was to provide the City with a method of acquiring additional property for street widening purposes,' and that the City had since the enactment of the ordinance 'actually taken said ten feet and caused the same to be used as a public sidewalk and public street and has caused the same to be paved and the said north ten feet of the plaintiffs' property have been taken and confiscated by the City of Miami for public purposes.'

In the first suit, the cause went to trial upon the issues formed by the complaint and the answer filed by the City, in which the City denied the above quoted allegations and alleged that five of the ten feet involved had been paved by Romer himself for a sidewalk and that the other five feet had been paved by the City merely as a gratuity at the request of the Little River Business Men's Association because of a serious drainage problem and traffic hazard caused by its unpaved condition, and that the public was using the ten feet through the license of Romer.

The lower court's decree holding that the City had taken the entire ten feet, without compensation, was interpreted by this Court as a ruling that the provisions of the ordinance requiring a setback line constituted, as a matter of law, a 'taking' of property for which compensation must be made, since the evidence showed, without contradiction, that Romer had himself constructed the sidewalk for his own convenience and that of the customers in his store.

We held upon the authority of Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228, 53 A.L.R. 1210, that ordinances establishing setback lines or building lines are a valid exercise by a municipality of the police power--although, of course, such ordinances must conform to the principles of reasonableness and uniformity required of all such ordinances enacted in the exercise of the police power.

We pointed out in our opinion, however, that if the Chancellor had decreed only that there had been a taking by the City of the five feet paved for street purposes, an entirely different question would have been presented. But we declined to affirm an opinion which, in effect, held that as a matter of law the entire ordinance constituted a taking of property without compensation.

After the mandate of this court went down, the Chancellor allowed the appellee, Romer, to file an amended complaint. The City filed a motion to dismiss the amended complaint on the ground that the relief sought had been previously adjudicated adversely to the contentions of Romer. We here review, on certiorari, the order of the lower court denying the City's motion to dismiss.

The amended complaint...