Coral Ridge Golf Course, Inc. v. City of Fort Lauderdale, 70--966

• Decision Date: 05 October 1971
• Docket Number: No. 70--966,70--966
• Citation: 253 So.2d 485
• Parties: CORAL RIDGE GOLF COURSE, INC., a Florida corporation, et al., Appellants, v. The CITY OF FORT LAUDERDALE, a municipal corporation of the State of Florida, and Calvin Howe, Director of the Building Department of the City of Fort Lauderdale, Appellees.
• Court: Florida District Court of Appeals

Page 485

253 So.2d 485

CORAL RIDGE GOLF COURSE, INC., a Florida corporation, et al., Appellants, v. The CITY OF FORT LAUDERDALE, a municipal corporation of the State of Florida, and Calvin Howe, Director of the Building Department of the City of Fort Lauderdale, Appellees.

No. 70--966.

District Court of Appeal of Florida, Fourth District.

Oct. 5, 1971.

Rehearing Denied Nov. 10, 1971.

Richard W. Riddle, of Coleman, Leonard, Morrison & Riddle, Fort Lauderdale, for appellants.

Harry G. Carratt, of Morgan, Carratt & O'Connor, Raymond A. Doumar, of Allsworth, Doumar & Schuler, Mendez, Shaw, Marko & Stephany, and Dean Andrews, Ronald B. Sladon, and James J. Keough, Fort Lauderdale, for appellees.

PER CURIAM.

We have examined appellants' Coral Ridge Golf Course, petition for a mandatory injunction to require the issuance of a permit and to restrain appellee City from enforcing certain provisions of its zoning ordinance and to declare those provisions unconstitutional in their application to appellants. We affirm the dismissal of the petition.

Coral Ridge, having chosen to seek equitable relief by way of an injunction, has the burden of alleging sufficient ultimate facts as will enable the court to judge whether the injury will be irreparable. First National Bank in St. Petersburg v. Ferris, Fla.App.1963, 156 So.2d 421; Tamiami Trail Tours, Inc. v. Greyhound Lines, Inc., Southern Greyhound Lines Division, Fla.App.1968, 212 So.2d 365.

In addition, since Coral Ridge is speaking in terms of unconstitutionality, it has the burden of alleging ultimate facts which indicate a denial of due process such as a lack of any reasonable relationship to public health, morals, safety and general welfare.

The complaint filed contained the following pertinent sections:

'6. That on November 17, 1969 the Plaintiffs applied to the Planning and Zoning Board of the City of Fort Lauderdale for the construction and maintenance of said fence and on December 2, 1969 a meeting of said Board was held, at which time said Board recommended that the application for the permit be denied, a copy of the minutes of said meeting being attached hereto as Exhibit 'F'. That on December 3, 1969 the Plaintiffs applied to the City Commission for the construction of said chain link fence and on December 16, 1969 at a regularly scheduled meeting of the City Commission application of the permit was denied, a copy of the minutes of said meeting being attached hereto as Exhibit 'G'.

'7. In the event that the building permit as applied for was issued and the fence constructed, the use of the property described in Exhibit 'A' would in no way be changed, modified or altered from its present use and such use would be in compliance with the S--1 Recreational District. Further, the surrounding and abutting property to the real property described in Exhibit 'A' is zoned such as to permit the construction and erection of a chain link fence of the type applied for by the Plaintiffs.

'8. The Defendant CITY issued a permit for the construction of said fence but on November 10, 1969 said Defendant cancelled same pursuant to letter dated November 10, 1969 attached hereto as Exhibit 'H'.

'9. The Zoning Ordinances of the City of Fort Lauderdale above described are invalid in their application by the City Commission of the Defendant CITY to the Plaintiffs for the following reasons:

'a. The application of the zoning ordinance to the Plaintiffs by the City Commission has no substantial relationship to the public health, morals, safety or general welfare.

'b. The application of the zoning ordinance to your Plaintiffs by the City Commission is a deprivation of your Plaintiffs' property without due process of law and in violation of the Constitutions of the United States of America and of the State of Florida.

'c. The application of the zoning ordinance to your Plaintiffs is discriminatory and the denial of equal protection of the law as guaranteed by the Constitution of the United States of America.

'10. Pursuant to the issuance of the building permit (Exhibit 'D' attached) the Plaintiffs commenced the construction of the chain link fence and a portion of said chian (sic) link fence was in fact constructed. The Defendant CITY has notified the Plaintiffs that they are to remove the portion of the fence previously erected within twenty (20) days from February 26, 1970, per copy of letter attached hereto as Exhibit 'I'.

'11. The reason the Plaintiffs made application for the construction of the fence is to prevent further vandalism and other destruction of the golf course by persons who trespass thereon. Such vandalism and destruction to the course by such trespassers has occurred over the past several years and has been of a continuing nature and as such will continue to occur and Plaintiffs will sustain irreparable damage unless relief prayed for is granted.'

In this court's opinion the complaint alleged at the very best only naked conclusions of law and that is not sufficient under Florida law. Ellison v. City of Fort Lauderdale, Fla.1965, 175 So.2d 198. Neither the area of irreparable injury nor of unconstitutionality was adequately pled. Appellant was given ample time and opportunity to amend his complaint but it chose not to do so. We are, therefore, of the opinion that the decision to dismiss must be affirmed.

Affirmed.

WALDEN and OWEN, JJ., concur.

MAGER, J., dissents, with opinion.

MAGER, Judge (dissenting):

I must respectfully dissent for the reason that the complaint, in my opinion, states a cause of action to sufficiently withstand the test of a motion to dismiss.

Plaintiff's complaint, which is substantially set forth in the majority opinion, seeks to restrain the defendant-city from enforcing certain provisions of its zoning ordinances on the theory that such ordinances are invalid in their application to the plaintiff. There is ample authority to support the proposition that a suit in equity to enjoin the enforcement of a statute or ordinance is appropriate where it is claimed that the statute is being illegally applied or the challenged part is unconstitutional. Board of Commissioners of State Institutions. v. Tallahassee Bank and Trust Company, Fla.App.1958, 100 So.2d 67; Cone v. King, 1940, 143 Fla. 323, 196 So. 697; Snedigar v. Keefer, 1938, 131 Fla. 191, 179 So. 421; Ellison v. City of Fort Lauderdale, Fla.1965, 175 So.2d 198; Lightfoot v. State, Fla.1952, 64 So.2d 261; Setzer v. Mayo, 1942, 150 Fla. 734, 9 So.2d 280; Snedeker v. Vernmar, Ltd., Fla.1963, 151 So.2d 439; 6 Fla.Jur., Constitutional Law, § 72; Thompson v. City of Miami, Fla.1964, 167 So.2d 841; Keay v. City of Coral Gables, Fla.App.1970, 236 So.2d 133.

To the extent that the opinion of the majority recognizes equitable relief by way of an injunction, I concur. The sole determination, therefore, is whether the allegations of plaintiff's complaint set forth sufficient facts so as to state a cause of action for injunctive relief.

It is interesting to observe that the motion to dismiss was filed not by the original named defendant but rather by parties Intervening as defendants. The motion alleged the failure of plaintiff's complaint to state a cause of action 'because the plaintiffs were required to file a petition for writ of certiorari * * *'. The authorities hereinabove cited clearly indicate that a motion predicated on such basis is without merit. The trial court's order of dismissal was not limited to this sole ground, the court additionally finding that the complaint 'fails to state a cause of action against the defendants'.

What is noteworthy, however, is not the variance between the motion and the order but rather the fact that the entire cause was terminated by the action of an intervenor. Rule 1.230, FRCP, 30 F.S.A., provides in part that 'intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, Unless otherwise ordered by the court in its discretion'. The record reflects an order which merely authorized defendant intervenors 'to intervene as party-defendants in this cause'. In accordance with Rule 1.230 such intervention therefore would be in subordination to the main proceeding and would thereby preclude the intervening defendants from challenging the sufficiency of the plaintiff's complaint. The rights of an intervenor, generally, and in this specific connection, were discussed in Krouse v. Palmer, 1938, 131 Fla. 444, 179 So. 762 where the Supreme Court of Florida held, at page 763:

'The law is settled that an intervener is bound by the record made at the time he intervenes and must take the suit as he finds it. He cannot contest the plaintiff's claim against the defendant, but is limited to an assertion of his right to the res. He cannot challenge sufficiency of the pleadings or the propriety of the procedure, Nor can he move to dismiss or delay the cause without permission of the Chancellor.' (Emphasis added.)

I mention the foregoing only as a factor to be considered in the totality of the circumstances of this case.

My dissent, however, is not predicated upon this specific occurrence but rather upon those principles applicable to the sufficiency of a complaint when tested by a motion to dismiss.

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