Ehinger v. State ex rel. Gottesman

• Decision Date: 20 May 1941
• Citation: 147 Fla. 129,2 So.2d 357
• Parties: EHINGER, Building Inspector, et al. v. STATE ex rel. GOTTESMAN.
• Court: Florida Supreme Court

2 So.2d 357

147 Fla. 129

EHINGER, Building Inspector, et al. v. STATE ex rel. GOTTESMAN.

Florida Supreme Court

May 20, 1941

Charles Francis Coe, of Palm Beach, and E. Harris Drew and Gedney, Johnston & Lilienthal, all of West Palm Beach for plaintiffs in error.

Aronovitz &amp Goldstein and Kunkel & White, all of Miami, for defendant in error.

CHAPMAN, Justice.

The record here discloses that Alfred Gottesman, on April 19, 1937, for and in the consideration of $40,000 acquired a fee simple title to lots C, D, 3, 4 and 5 in Sunrise Avenue Addition to the Town of Palm Beach, Florida. During the year 1929, a zoning ordinance adopted by the Town of Palm Beach classified the property as residence 'A'. The ordinance restricted the use of the property for buildings to be used as dwellings for the occupancy and use of one family, schools, public libraries, court house, fire houses, police stations and private nurseries or green houses.

The property is located on the south end of Ocean Drive and has a footage thereon of approximately 165 feet, and on the north side of Sunrise Avenue a footage of approximately 268 feet. The assessed value of the property by the Town of Palm Beach is the sum of $50,000 and the ad valorem taxes annually due thereon is approximately $1,600. Property located on Sunrise Avenue, except the land supra and other land for approximately 500 feet to the west thereof, is zoned either for unrestricted business purposes or zoned as residence district 'C', which permits the erection of apartment houses and hotels.

The Town of Palm Beach, in January, 1930, adopted a reclassification ordinance #2 and by the terms thereof much of the property formerly classified as residence district 'A' was changed or reclassified as residence district 'C', which permitted the use of some of the property for hotels and apartment houses, and across the street to the south of the property here involved, the property had constructed thereon buildings used as a club house known as 'Sun and Surf Club', which was used by its members and extensively by the guests of the large hotels of the Town of Palm Beach. The original ordinance classified as residence district 'A' all the property on the south side of Sunrise Avenue from the Atlantic Ocean west to Palm Beach Avenue with a few exceptions.

Alfred Gottesman when negotiating for the property, contacted some of the councilmen of the Town of Palm Beach and pointed out that the property could not be used or profitably carried as a residential property as then classified, but that it could be owned and carried as a hotel or apartment site, and the officials admitted the public need of a hotel or an apartment on the particular site and that the zoning restrictions would be removed and a permit issued to build a hotel. Accordingly plans were provided by an architect and the property purchased. After taking title the City Council declined to reclassify the property or to issue the permit.

On July 24, 1940, an alternative writ of mandamus issued out of the Circuit Court of Palm Beach County, directed to the officials of the Town of Palm Beach commanding the issuance of a permit to Alfred Gottesman to construct an apartment hotel on the lands supra, or to show cause for refusing so to do. On September 10, 1940, a lengthy answer was filed to the alternative writ by the officials of the said town, and on the issues tendered the court heard testimony. At the conclusion thereof the court held that the plaintiff had established the material allegations of the alternative writ and had brought himself within the rule of this Court as enunciated in State ex rel. Helseth v. DuBose, 99 Fla. 812, 128 So. 4; State ex rel. Skillman v. City of Miami, 101 Fla. 585, 134 So. 541, and was therefore entitled to the relief sought. From this final judgment an appeal has been perfected to this Court.

In the record is the testimony of witnesses for the respective parties fixing the value of the locus as residential property and for an apartment hotel. The testimony as to the value of the property when used for residential purposes is from $10,000 to around $200 per front foot, and when used as a hotel apartment site the value is much higher or within the broad range of from $75,000 to $100,000. The traffic conditions about the property and surrounding area are such that it cannot be used for residential purposes. Cabanas have been erected on the water front and the noises, that come from the attendants of the Sun and Surf Club located to the South of the locus, coupled with the ad valorem tax of $1,600 per annum, and other business property surrounding the same, are some of the factors that induced the court below to hold that the plaintiff was being deprived of the constitutional enjoyment of his property.

The Town of Palm Beach is a community of homes and residences and the officials had, after the expenditure of much time, labor and money, adopted a comprehensive zoning ordinance and thereby planned for the development of every possible feature of the Town for many future years. It is unnecessary for a decision of this case to discuss the many attractive details provided for by the comprehensive zoning ordinance of said town.

The case of Ex parte Wise, 141 Fla. 222, 192 So. 872, 874, involved a zoning ordinance of the City of Sarasota. F. L. Wise applied to the City for a permit to erect a combination dwelling, fruit packing house and display foom on lots within the area affected by zoning ordinance. He first applied for an order rezoning the property so as to permit the erection of a combination house, but the application was withdrawn and the City of Sarasota issued a permit to build a residence of the same dimensions and description which had been previously refused, and after the completion of the building an application was made for a license to operate the business of packing and selling citrus fruit, but the license was refused. Near the building was a filling station, store restaurant, dance hall, curio shop, two tourist...