Cook v. Di Domenico
| Decision Date | 04 December 1961 |
| Docket Number | No. 61-132,61-132 |
| Citation | 135 So.2d 245 |
| Parties | R. F. COOK, as Director of Dade County Planning, Zoning and Building Departments, the Honorable Joseph A. Boyd, Jr., Ben McGahey, R. A. Fossey, Charles F. Hall, A. C. Kittel, Jr., Arthur H. Patten, Jr., Farris N. Cowart, Alexander Gordon, John B. McLeod, Walter Weiss, Milton Thompson and Robert M. Haverfield, as Members of and Comprising the Board of County Commissioners of Dade County, Florida; and Dade County, Florida, a Political Subdivision of the State of Florida, Appellants, v. Phillip J. DI DOMENICO, Appellee. |
| Court | Florida District Court of Appeals |
Darrey A. Davis, County Atty., and St. Julien P. Rosemond, Asst. County Atty., Miami, for appellants.
John D. Marsh and Robert King High, Miami, for appellee.
Before PEARSON, TILLMAN, C. J., and CARROLL and BARKDULL, JJ.
This appeal is from a judgment in mandamus, entered in favor of the relator on his motion for peremptory writ notwithstanding the return. The writ compels issuance of a permit to construct a gasoline service station without the owner being compelled to waive his right to compensation for such improvements in event of a later taking for highway purposes.
The alternative writ alleged that in 1951 the county had listed the abutting street with many others for prospective highway construction, then passed a resolution preventing improvements within the bounds of the contemplated highway areas except upon such a waiver, first imposed by resolution then by an ordinance, yet had not proceeded and had no definite plans or schedule to do so, though nine years had elapsed. While not having controverted those facts, the county contended the relator could not maintain a mandamus action because he had not exhausted administrative remedies by applying for a variance. The uses for which the property was zoned permitted a service station. The owner did not need to seek a variance, and it would have been futile to apply. Even the restrictive resolution and ordinance did not prohibit the desired construction. His request could only have been one to the county to vacate or disregard, as to his property, the said provision for waiving compensation.
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Davis v. Barr, 42791
...not require one to pursue administrative remedies before resorting to court when the remedy would be of no avail. See Cook v. Di Domenico, 135 So.2d 245 (Fla.App.1961); The Crown Life Insurance Company v. Falla De Falla, 137 So.2d 849 (Fla.App.1962); City of Holly Hill v. State, 132 So.2d 2......
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Metropolitan Dade County v. Fontainebleau Gas & Wash, Inc.
...See City of Miami Beach v. Sunset Islands 3 & 4 Property Owners Ass'n, Inc., 216 So.2d 509 (Fla. 3d DCA 1968); Cook v. Di Domenico, 135 So.2d 245 (Fla. 3d DCA 1961). Owners are deemed to purchase property with constructive knowledge of applicable land use regulations. Namon v. Dept. of Envi......
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City of Miami v. Miranda, 98-1588
...Beach, 423 So.2d 404 (Fla. 4th DCA 1982); City of Miami Beach v. Jonathon Corp., 238 So.2d 516 (Fla. 3d DCA 1970); Cook v. Di Domenico, 135 So.2d 245 (Fla. 3d DCA 1961). The facts in this case reveal that the further pursuit of administrative remedies before the Board would have been futile......
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City of Miami Beach v. Sunset Islands 3 & 4 Property Owners Ass'n
...person to respond thereunder. City of Miami Beach v. State ex rel. Parkway Company, Inc., 128 Fla. 118, 174 So. 443; Cook v. DiDomenico, Fla.App.1961, 135 So.2d 245. As to the second point, the record brought to us (which was presented to the trial court) was certainly ample to support his ......