City of Pompano Beach v. Yardarm Restaurant, Inc.

• Decision Date: 15 July 1987
• Docket Number: No. 85-2821,85-2821
• Citation: City of Pompano Beach v. Yardarm Restaurant, Inc., 509 So.2d 1295, 12 Fla. L. Weekly 1722 (Fla. App. 1987)
• Parties: 12 Fla. L. Weekly 1722 CITY OF POMPANO BEACH, Appellant, v. YARDARM RESTAURANT, INC., a Florida corporation, and Sunrise Savings & Loan Association of Florida, a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1295

509 So.2d 1295

12 Fla. L. Weekly 1722

CITY OF POMPANO BEACH, Appellant, v. YARDARM RESTAURANT, INC., a Florida corporation, and Sunrise Savings & Loan Association of Florida, a Florida corporation, Appellees.

No. 85-2821.

District Court of Appeal of Florida Fourth District.

July 15, 1987.

Donald C. Roberge, Pompano Beach, for appellant.

Stewart P. Chambers of Faircloth & Chambers, P.A., Fort Lauderdale, for appellee Yardarm Restaurant, Inc.

James E. Tribble of Blackwell, Walker, Fascell & Hoehl, Miami, for appellee Sunrise Sav. and Loan Ass'n.

HERSEY, Chief Judge.

Appellant, the City of Pompano Beach, in October 1973, enacted an ordinance granting appellee, Yardarm Restaurant, a special exception to the city's ten-story building height limitation. The proposed building was never constructed and appellee's building permit expired by operation of law in May of 1985.

In August of 1985 the city proposed the enactment of an ordinance repealing the special height exception. Shortly thereafter appellee commenced the process of obtaining a new building permit. Because of the pending zoning change the city refused to process the application. Appellee filed suit, resulting in an order permanently enjoining the city from enacting an ordinance revoking the special exception to height limitation.

Appellant makes a two-pronged attack on the injunctive order. First the city argues that, where no injury will occur until after an ordinance is passed, injunctive relief to prevent enactment of the ordinance is not appropriate. The third district has taken a somewhat contrary position, holding, in Paul's Drugs, Inc. v. Southern Bell Telephone & Telegraph Co., 175 So.2d 203 (Fla. 3d DCA 1965), that it is not necessary to show that irreparable harm has already been done but only that there is a reasonable probability that harm will occur unless the action is prevented. We agree with that position and find that the test is satisfied here by the showing that if the proposed ordinance is enacted, the project will no longer be economically feasible. Further, appellee is presently suffering harm because the city will not issue the building permit. A case from this court, Town of Palm Beach v. Palm Beach County, 332 So.2d 355 (Fla. 4th DCA 1976), relied on as standing for a different proposition, being concerned only with a temporary injunction, is inapposite.

The city's primary position is based upon the proposition that a court should not enjoin administrative action. The enactment of an ordinance by a municipality is an exercise by an agency of its legislative function. It is reasonably well established that, in the absence of fraud or a gross abuse of discretion, a court should not enjoin administrative action. Johnson v. McNeill, 151 Fla. 606, 10 So.2d 143 (1942); Hillsborough County Aviation Authority v. Taller & Cooper, Inc., 245 So.2d 100 (Fla. 2d DCA 1971). There is no suggestion of fraud on this record. The issue, then, is whether enjoining enactment of the repealing ordinance constitutes a gross abuse of discretion.

Whether enactment of a zoning ordinance is unreasonable or arbitrary depends upon the potential effect of the ordinance on the safety, health, morals, and general welfare of the community. Such factors are appropriately weighed and compared in the first instance by the legislative body governing the municipality, in this case the zoning authority of the City of Pompano Beach. See Stengel v. Crandon, 156 Fla. 592, 23 So.2d 835 (1945); Marell v. Hardy, 450 So.2d 1207 (Fla. 4th DCA 1984); Dade County v. United Resources, Inc., 374 So.2d 1046 (Fla. 3d DCA 1979). Because the city has been enjoined from conducting hearings, the validity of the proposed ordinance in this regard has never been determined. Twelve years having elapsed since the special exception was granted, it is particularly necessary and appropriate that the zoning authority be given the opportunity to consider anew the effect that continuation of...