Florida Tallow Corp. v. Bryan

• Decision Date: 09 June 1970
• Docket Number: No. 69--493,69--493
• Citation: 237 So.2d 308
• Parties: FLORIDA TALLOW CORPORATION and Petroleum Products Corporation, Appellants, v. Phill BRYAN, J. W. Moffitt, Jr., Charles Feighan, John P. Curci and William A. Foster, as Town Commissioners of the Town of Pembroke Park, Florida, and the Town of Pembroke Park, Florida, a municipal corporation, Appellees.
• Court: Florida District Court of Appeals

Page 308

237 So.2d 308

FLORIDA TALLOW CORPORATION and Petroleum Products Corporation, Appellants, v. Phill BRYAN, J. W. Moffitt, Jr., Charles Feighan, John P. Curci and William A. Foster, as Town Commissioners of the Town of Pembroke Park, Florida, and the Town of Pembroke Park, Florida, a municipal corporation, Appellees.

No. 69--493.

District Court of Appeal of Florida, Fourth District.

June 9, 1970.

Rehearing Denied Aug. 6, 1970.

James E. Tribble, of Blackwell, Walker & Gray, Miami, for appellans.

A. J. Ryan, Jr., and George A. Shahood, Dania, for appellees.

DRIVER, B.J., Associate Judge.

Appellants, Florida Tallow Corporation and Petroleum Products Corporation, appeal a final judgment entered against them and in favor of appellees, Town of Pembroke Park and its Town Commissioners.

Appellants own land having an industrial zoning classification in the Town of Pembroke Park. They operate heavy industry on the premises. Contiguous to appellants' land is land known as the Delia Clark Tract. The Town at the instigation of Mr. Clark, an owner of the Delia Clark Tract, passed its Ordinance No. 9--63--6 rezoning the Delia Clark Tract from industrial use to trailer park use. It is appellants' contention here, as it was in the trial court, that the rezoning injured them, amounted to improper zoning and that Ordinance No. 9--63--6 effecting the change was not legally adopted.

The zoning authority of the Town of Pembroke Park is derived solely from its Ordinance No. 5--63--1, adopted as a comprehensive zoning plan. Section 13 of this Ordinance provides:

'No change of any nature shall be made in the official zoning map or matters shown thereon except in conformity with the procedures set forth in this ordinance.'

Procedures and methods for making zoning changes are found in Section 19(b), which requires:

'Any proposed amendment, supplement, change, modification, or repeal shall first be submitted to the Zoning Commission for its recommendations and report, which Commission may at its option hold a public hearing before making its recommendation or report.'

Ordinance No. 9--63--6 changing the zoning of the Delia Clark Tract was adopted by the Town Commissioners, but without first submitting it to the Zoning Commission as required by Section 19(b), supra. It is upon this failure to refer to the Zoning Commission the proposed change that appellants base their attack on the validity of the Ordinance.

The word 'shall' when used in a statute or ordinance has, according to its normal usage, a mandatory connotation. Neal v. Bryant, Fla.1962, 149 So.2d 529; Headley v. State ex rel. Bethune, Fla.App.1964, 166 So.2d 479.

Sovereign fiat is not an attribute of the municipal corporations of this state. They have no inherent right to restrict the use of land through zoning, but such right is limited by the statute or ordinance creating the same. The Town is as bound by Ordinance No. 5--63--1, its Comprehensive Zoning Ordinance, as are the property owners and lands within its purview.

The pivotal issue to be decided then, is: did the failure to first submit the proposed zoning change to the Zoning Commission invalidate Ordinance No. 9--63--6?

Research fails to turn up any Florida cases directly in point. There is, however, in other jurisdictions a considerable depository of law treating with the question. Armourdale State Bank v. City of Kansas City, 1930, 131 Kan. 419, 292 P. 745; City of Somerset v. Weise, Ky.App.1954, 263 S.W.2d 921; State ex rel. Luechtefeld v. Arnold, Mo.App.1941, 149 S.W.2d 384; Welch v. City of Niagara Falls, 1924, 210 App.Div. 170, 205 N.Y.S. 454; Vito v. City of Garfield Heights, 1962, C. P. Cuyahoga Co. Ohio, Ohio Com.Pl., 94 Abst. 21, 31 Ohio 2d 530, 200 N.E.2d 501; Smart v. Lloyd, Tex.Civ.App.1963, 370 S.W.2d 245; Standard Oil Co. of New Jersey v. City of Charlottesville, 4 Cir.1930, 42 F.2d 88; Lauterbach v. Centralia, 1956, 49 Wash.2d 550, 304 P.2d 656; Shepard's Ordinance Law Annotations, Vol. 5, page 683.

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