City of South Miami v. Hillbauer

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: City of South Miami v. Hillbauer, 312 So.2d 241 (Fla. App. 1975)
• Decision Date: 06 May 1975
• Docket Number: No. 74--1072,74--1072
• Parties: CITY OF SOUTH MIAMI, Appellant, v. William C. HILLBAUER, Jr., Appellee.

Page 241

312 So.2d 241

CITY OF SOUTH MIAMI, Appellant, v. William C. HILLBAUER, Jr., Appellee.

No. 74--1072.

District Court of Appeal of Florida, Third District.

May 6, 1975.

Moore, Kessler, Sheradsky, Roth & Beckerman, Miami, for appellant.

John R. Farrell, Miami, for appellee.

Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

The City of South Miami appeals an adverse judgment directing it to rezone certain property to a more liberal classification.

William C. Hillbauer, Jr., made application to the Planning Board and City Council of the City of South Miami for a zoning change on his property located on the northwest corner of S.W. 57th Avenue (Red Road) and 80th Street from single family residential, RS, to residential-office RO, to permit construction of a professional office building. The property was zoned RS in the City's master zoning plan adopted in 1971. Prior to and at the time of the adoption, Hillbauer sought rezoning but was refused. At a hearing on March 27, 1973, the City of South Mimai Planning Board voted unanimously to deny Hillbauer's request, and at a subsequent hearing before the City Council of South Miami, the Mayor's resolution to deny the zoning change was also unanimously passed. Hillbauer then filed a complaint in the circuit court seeking to enjoin the city from enforcing any zoning classification more restrictive than RO against his property, or in the alternative praying that the court treat it as a petition for certiorari. A non-jury trial was held. There was a stipulation that the record to be considered by the court would consist of the transcripts of testimony and exhibits presented before the Planning Board and City Council.

The record discloses that the property has dimensions of approximately 200 feet on S.W. 57th Avenue (Red Road) and 180 feet on 80th Street, fronting on the west side of Red Road, which is zoned for uses more liberal than single family dwelling the entire way from the lot next to Hillbauer's up to U.S. 1. The property fronting on the east side of Red Road north of S.W. 80th Street is zoned multiple family dwelling and is so used, and the property adjacent to Hillbauer's on the north is zoned residential office and is so used. Hillbauer's is the sole remaining property north of S.W. 80th Street fronting on the west side of Red Road which is limited to single family residential use. The transcripts of testimony from the City Council and Planning Board hearings contain abundant expert opinion as to the unsuitability and unreasonableness of the zoning ordinance. The trial court...