Dade County v. Inversiones Rafamar, S. A.

• Decision Date: 18 July 1978
• Docket Number: No. 77-439,77-439
• Citation: 360 So.2d 1130
• Parties: DADE COUNTY, Appellant, v. INVERSIONES RAFAMAR, S. A., a Panamanian Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 1130

360 So.2d 1130

DADE COUNTY, Appellant, v. INVERSIONES RAFAMAR, S. A., a Panamanian Corporation, Appellee.

No. 77-439.

District Court of Appeal of Florida,Third District.

July 18, 1978.

Stuart L. Simon, County Atty., and St. Julien P. Rosemond, Sp. Asst. County Atty., for appellant.

John G. Fletcher, South Miami, for appellee.

Before PEARSON, HUBBART and KEHOE, JJ.

PEARSON, Judge.

Dade County, the respondent in the trial court to a petition for certiorari, appeals a final judgment which rezoned appellee's property upon appellee's petition to review a denial of the rezoning by the County Commission. ¹ We reverse upon a holding that the zoning of appellee's property is a legislative matter and that the circuit court was without authority to change that zoning upon a petition for certiorari to review the action of the County Commission other than upon a record showing that the Commission had clearly departed from the essential requirements of law as they applied to appellee's property. We further hold that the attempted rezoning of appellee's property was a fairly debatable matter and that reversal is required by the holdings of City of Miami Beach v. Silver, 67 So.2d 646 (Fla.1953); and Neubauer v. Town of Surfside, 181 So.2d 707 (Fla. 3d DCA 1966). Cf. Bessemer Properties, Inc. v. Miami Shores Village, 110 So.2d 87 (Fla. 3d DCA 1959).

The appellee, Inversiones Rafamar, S.A., a Panamanian corporation, filed an application with the Building and Zoning Department making the request to change the zoning of 2.52 acres on the south side of Coral Way and S.W. 130th Avenue. The request for change was stated to be one for "district boundary change." Petitioner sought to change the existing zoning of EU-1, which permitted one unit per acre, to EU-M, which is "estate use modified" and allows 2.3 units per acre. The Building and Zoning Department director recommended the denial of the change because the EU-M zoning would be detrimental and out of character with the area and would constitute spot zoning. He further pointed out that approval would mean piecemeal change and spot zoning in the area. The Planning Department director recommended denial upon the ground that the district boundary change is premature, stating that to the date of the hearing, development has been confined to the north side of Coral Way with Coral Way being defined as a line of demarcation.

The matter came on before the County Commission and petitioner presented no evidence before the Commission other than argument of counsel. There was strong objection from neighbors who have developed their property as one acre estates to the south of petitioner's property. A review of the record shows that the entire strip on the south side of Coral Way (which is S.W. 26th Street) from S.W. 128th Avenue to S.W. 132nd Avenue is zoned EU-1 for one acre estates. The north side of Coral Way immediately across from appellant's property is zoned RU-1, agricultural interim zoning, but is occupied by a school. Some property to the north of Coral Way and east of petitioners property has been platted as single family residence lots of lesser dimensions than one acre. This property, however, is separated from Coral Way by a wall. All of the property immediately south of petitioner's property is zoned AU agricultural, but is actually platted and used as one acre estates. The appellee points out that the Dade County Master Plan calls for zoning on the subject tract and surrounding properties including the one acre estates to the south of up to five homes per acre. It is argued that the zoning requests calling for 2.3 single family homes per acre would be substantially in compliance with the Dade County Master Plan. W...