Dade County v. Jason, 73--45

• Citation: 278 So.2d 311
• Decision Date: 05 June 1973
• Docket Number: No. 73--45,73--45
• Parties: DADE COUNTY, a political subdivision of the State of Florida, Appellant, Cross-Appellee, v. Doran A. JASON et al., Appellees, Cross-Appellants.
• Court: Florida District Court of Appeals

Page 311

278 So.2d 311

DADE COUNTY, a political subdivision of the State of Florida, Appellant, Cross-Appellee, v. Doran A. JASON et al., Appellees, Cross-Appellants.

No. 73--45.

District Court of Appeal of Florida, Third District.

June 5, 1973.

Stuart Simon, County Atty., and John G. Fletcher, Asst. County Atty., for appellant, cross-appellee.

Shutts & Bowen, Miami, and Karl V. Hart, Coral Gables, for appellees, cross-appellants.

Millican & Trawick, Sarasota, for South Florida Chapter of the Associated General Contractors of America, Engineering Contractors Association of South Florida, Inc., Miami Builders' Exchange and Gas Institute of Greater Miami, amicus curiae.

Samuel F. Schoninger, Miami, for Builders Association of South Florida, amicus curiae.

Before BARKDULL, C.J., and PEARSON and HENDRY, JJ.

PER CURIAM.

Early in 1972, the appellees commenced the proper proceedings to obtain a building permit for the erection of a multi-family building on Key Biscayne, in the unincorporated area of Dade County, Florida. They made formal application after preliminary discussions with Dade County authorities in early March, 1972, to secure a permit to permit such construction. Thereafter, on March 14, 1972, as a result of an initiative petition, the voters of Dade County approved a referendum authorizing the County Manager (in certain circumstances) to declare a building moratorium in the unincorporated areas of the County. During March the appellees were continually attempting to secure their permit and, on March 29, 1972, were finally notified that they were entitled to pick up their permit upon the deposit of the necessary fees. They immediately presented the necessary funds and the execution of the necessary documents in the Building Department of Metropolitan Dade County and it was stipulated that, as of 11:30 A.M. that morning, their plans as submitted entitled them to a building permit under the then existing Metropolitan Zoning and Building Regulations which would have permitted a density of 85 units per acre. Notwithstanding the admitted compliance with all the requirements entitling them to the issuance of a permit, same was withheld by a clerk until subsequent to noon on March 29th, whereupon they were informed that no permit would be issued because the County Manager had declared a building moratorium in an area which encompassed the appellees' property effective at 12:00 Noon that day.

The appellees, as plaintiffs, instituted an action in the trial court, seeking to require the issuance of a permit. Following final hearing, the chancellor directed the issuance of a permit, permitting the construction of an improvement which met the Dade County code as it existed as of 11:30 A.M. on March 29, 1972, and rejected the appellees' argument that the moratorium ordinance was unconstitutional. The County instituted an appeal, contending that the chancellor erred in directing the issuance of a permit and further erred in not limiting the permit to a reduced density pursuant to the use classification in effect at the time of the entry of the final judgment (the zoning ordinance as to density, during the moratorium, having been amended), citing City of Boynton Beach v. Carroll, Fla.App.1973, 272 So.2d 171. The property owners filed a cross-appeal, alleging error in the trial court's failure to declare the moratorium ordinance unconstitutional.

We affirm the action of the chancellor in directing the issuance of the permit. He found that the County had 'delayed' the issuance of the permit in an obvious attempt to permit the County Manager to issue a moratorium. It is apparent that the landowners had completed all the necessary prerequisites entitling them to a permit as of 11:30 A.M. on the date in question, and the County should be estopped, under the circumstances, to deny the issuance of the permit. Aiken v. E. B. Davis, Inc., 106 Fla. 675, 143 So. 658; Harris v. State ex rel. Wester, 159 Fla. 195, 31 So.2d 264; Texas Co. v. Town of Miami Springs, Fla.1950, 44 So.2d 808; Bregar v. Britton, Fla.1954, 75 So.2d 753; City of Hollywood v. Pettersen, Fla.App.1965, 178 So.2d 919; Hough v. Amato, Fla.App.1968, 212 So.2d 662; City of Miami Beach v. Jonathon Corporation, Fla.App.1970, 238 So.2d 516; Munns v. Stenman, 152 Cal.App.2d 543, 314 P.2d 67; Dubow v. Ross, 175 Misc. 219, 22 N.Y.S.2d 610; Harris v. Coffey, 14 Misc.2d 916, 179 N.Y.S.2d 8; Vine v. Zabriskie, 122 N.J.L. 4, 3 A.2d 886; Sgromolo v. City of Asbury Park, 134 N.J.L. 195, 46 A.2d 661; Gibson v. City of Oberlin, 171 Ohio St. 1, 167 N.E.2d 651; Planning Commission of City of Falls Church v. Berman, 211 Va. 774, 180 S.E.2d 670. We find the case of City of Boynton Beach v. Carroll, supra, not to be applicable in the instant case, because of the obvious conclusion by the chancellor that the County had acted in Bad faith in delaying the issuance of the permit and, therefore, the applicant should have...