Food Fair Stores, Inc. v. Zoning Bd. of Appeals of City of Pompano Beach

• Citation: 143 So.2d 58
• Decision Date: 27 June 1962
• Docket Number: No. 2871,2871
• Parties: FOOD FAIR STORES, INC., etc., et al., Appellants, v. ZONING BOARD OF APPEALS OF the CITY OF POMPANO BEACH, Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 58

143 So.2d 58

FOOD FAIR STORES, INC., etc., et al., Appellants, v. ZONING BOARD OF APPEALS OF the CITY OF POMPANO BEACH, Florida, Appellee.

No. 2871.

District Court of Appeal of Florida, Second District.

June 27, 1962.

Alfred Aronovitz, of Aronovitz, Aronovitz & Haverfield, Miami, for appellants.

Bruno DiGiulian, Pompano Beach, for appellee.

ALLEN, Acting Chief Judge.

Appellants, petitioners below, are appealing from a final judgment quashing their petition for writ of certiorari to review a decision of appellee-respondent, Zoning Board of Appeals.

Section 50.189(I)(1) of Ordinance 664 of the City of Pompano Beach provides inter alia:

'I. PRINCIPAL USES.

'(1) Filling stations for automotive vehicular service subject to the following provisions:

'(1) No filling station for automotive type service shall hereafter be constructed within seven hundred and fifty feet on a direct line measured along a street from the nearest corner of any lot, piece or parcel of land, abutting the same street, used for such purposes. * * *'

Pursuant to the provision in the Ordinance set forth above, the Chief Building Inspector of Pompano Beach refused appellants a building permit to erect a gasoline filling station. Appellants appealed to the Zoning Board of Appeals seeking a variance based on hardship which was denied.

Certiorari, attacking the constitutionality of the Ordinance, was taken to the Circuit Court and the decision of the zoning board was upheld. The Circuit Judge, in his well-reasoned opinion quashing the writ, said:

'This cause was duly presented by certiorari from the Zoning Board of Appeals of the City of Pompano Beach, Florida. Extensive testimony was taken before this Court under authority of the cases of State v. Furen, Fla., 118 So.2d 6; Josephson v. Autrey, Fla., 96 So.2d 784; and Union Trust Company v. Lucas, Fla. [App.], 125 So.2d 582. This testimony, all pleadings and exhibits, and the advice of counsel have been considered.

'Petitioners wish to erect a gasoline service station upon certain property leased by them in Pompano Beach, Florida. Their wishes were frustrated by Ordinance No. 664, § 50.189(1) of the City of Pompano Beach which provides, inter alia, that no filling station for automotive type service shall hereafter be constructed within 750 feet on a direct line measured along a street from the nearest corner of any lot, piece or parcel of land, abutting the same street, used for such purposes. The proposed station would be located at a street intersection, two corners of which are already occupied by gasoline service stations, and thus the proposal is exactly prohibited by the ordinance.

'The Chief Building Inspector denied Petitioner's request for permission to build whereupon Petitioners appealed to the Zoning Board of Appeals for a variance based on hardship. This appeal was properly denied.

'Petitioners here attack the ordinance upon the sole ground that the ordinance is unconstitutional.

'The criteria to be used by the Court in construing the validity of an ordinance is found in the case of Miami v. Kayfetz, Fla., 92 So.2d 798, where the Supreme Court promulgated these rules:

"(1) In construing the validity of the ordinance in question we must: (1) assume that a valid ordinance was intended. State ex rel. Ellis v. Tampa Water Works Co., 1908, 56 Fla. 858, 47 So. 358, 19 L.R.A.,N.S., 183; (2) construe the ordinance to be legal, if possible to do so, and strive to so construe it as to give reasonable effect to its provisions, State ex rel. Rand v. Brogden, 1922, 84 Fla. 520, 94 So. 653, Bentley-Gray Dry Goods Co. v. City of Tampa, 1939, 137 Fla. 641, 188 So. 758.

"(2) Further, the courts should be very cautious in declaring a municipal ordinance unreasonable, there being a peculiar propriety in permitting the inhabitants of a city through its proper officials to determine what rules are necessary for their own local government. State ex rel. Harkow v. McCarthy, 1936, 126 Fla. 433, 171 So. 314, City of Tacoma v. Keisel, 1912, 68 Wash. 685, 124 P. 137, 40 L.R.A.,N.S., 757.

"(3-5) Where an ordinance is within the power of the municipality to enact it is presumed to be reasonable, unless its unreasonable character appears on its face. State ex rel. Harkow v. McCarthy, supra; State ex rel. McAuley v. York, 1925, 90 Fla. 625, 106 So. 418. And when the authority to enact the ordinance does fairly appear, wide latitude is allowed in its exercise, where it does not appear that there has been, in action taken, an abuse of authority or a violation of organic or fundamental rights. State ex rel. Simpson v. Ackerly, 1915, 69 Fla. 23, 67 So. 232. If reasonable argument exists on the question of whether an ordinance is arbitrary or unreasonable, the legislative will must prevail. State ex rel. Skillman v. City of Miami, 1931, 101 Fla. 585, 134 So. 541.'

* * *

* * * 'Is the regulation in question reasonable and does it bear correct relation to the health, safety and general welfare of the citizens of Pompano Beach? This Court finds it to be proper using the mentioned criteria and under in authority of the case of State [ex rel. Dallas Inv. Co.] v. Peace, Fla. , 190 So. 607. See also, 35 Fla.Jur., Zoning Laws, § 15.

'The thrust of Petitioner's brief suggesting that the purpose of the ordinance was to limit competition finds no real basis in the record.

'It is, therefore, the opinion of this Court that the ordinance in question is constitutional and that it represents a proper exercise of the zoning and police power of the City of Pompano Beach, Florida.'

Extensive testimony was taken in this case which included testimony of a professional traffic engineer, whose summarized testimony was to the effect that it is desirable to separate pedestrian and vehicular traffic; that marginal access points upon streets create greater traffic problems; that there is a traffic problem at the intersection where the gasoline station proposed by appellants was to be located and that the investment of the public in relation to U. S. Highway No. 1, an arterial highway, would thereby be destroyed; and that the indiscriminate construction of drive-in type businesses along arterial streets and on corners has a detrimental effect on vehicular and pedestrial traffic. Also testifying was the Director of Planning for Broward County, who stated that the planners gave special consideration to gasoline stations because of problems peculiar to such businesses, including fire hazards, traffic hazards, pedestrian hazards and related problems; the necessity for complete prohibition of gasoline stations in certain areas; and the concern for certain esthetic considerations. There was also testimony concerning the location of public schools in close proximity to the intersection in question. The appellants strenuously argued that his zoning along distinct lines was done to create a monopoly, etc. in certain situations. The Circuit Judge specifically found against the appellants on this question.

As early as 1929, the Supreme Court of Florida, in Harz v. Paxton, 1929, 97 Fla. 154, 120 So. 3, in an opinion written by then Chief Justice Terrell, said:

'We have examined the record, and it appears that the city of Sanford is fully authorized to zone the city and to regulate by ordinance the issuance of building permits such as are here involved. When the ordinance in question and the action of the city officials pursuant thereto are considered with reference to the rules applicable to the exercise of the police power in the regulation of the erection of filling stations and public garages, the operation of which involves acts which are generally recognized as potential menaces to the public safety and health because of the...