Fox v. Town of Bay Harbor Islands

• Citation: 450 So.2d 559
• Decision Date: 08 May 1984
• Docket Number: No. 83-826,83-826
• Parties: Steven FOX, Appellant, v. TOWN OF BAY HARBOR ISLANDS, a municipal corporation and a political subdivision of the State of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 559

450 So.2d 559

Steven FOX, Appellant, v. TOWN OF BAY HARBOR ISLANDS, a municipal corporation and a political subdivision of the State of Florida, Appellee.

No. 83-826.

District Court of Appeal of Florida Third District.

May 8, 1984.

Rehearing Denied June 11, 1984.

Becker, Poliakoff & Streitfeld and Robert J. Manne, Fort Lauderdale, for appellant.

Lewis Horwitz, Bay Harbor Islands, for appellee.

Before SCHWARTZ, C.J., ^* and NESBITT and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

Fox appeals from an order dismissing his complaint with prejudice after the trial court determined that a zoning ordinance of the Town of Bay Harbor Islands, a portion of which was attacked by Fox as being facially unconstitutional, was a valid exercise of the Town's police power.

The ordinance in question, Section 23-11(B)(10) of the Code of the Town of Bay Harbor Islands, provides:

"If a building is raised to the minimum height necessary to provide one or more levels of vehicular parking, utilities, and other services under the building area, and provided that no living quarters exist in any part of this parking, utility, and service area, other than as specified hereafter, one (1) level of said parking, utility, and service area shall not be counted as a story. For example, if there are two (2) levels of vehicular parking, utilities, and other services, then one (1) such level would not be counted as a story, and a maximum of five (5) stories of living space are permitted over the other two (2) levels. All levels referred to are above ground. There is no limitation to number of levels under ground level. However, one (1) apartment may exist in such area as living quarters for one (1) family, the head of which shall be in charge of maintenance and superintendent duties exclusively for that building. The apartment shall not exceed eight hundred (800) square feet of floor area and shall not be counted as an apartment for parking space requirements of any ordinance."

(emphasis supplied).

We reverse upon a holding that the emphasized portion of the ordinance restricting the occupancy of the apartment to a family headed by a person in charge of maintenance and superintendent duties is unconstitutional and remand the cause with directions to the trial court to grant Fox's prayer that the Town be enjoined from prohibiting Fox from occupying the apartment. ¹

In 1969, a five-story apartment building was constructed in conformity with the ordinance: The upper four stories of the building contained twenty-four apartments; the ground level contained parking spaces and, as the ordinance permitted, one apartment not exceeding eight hundred square feet. In 1979, the apartment building was converted to condominium ownership with the declaration of condominium providing for twenty-five residential units including the ground floor unit. The Town then informed Fox that he could not occupy his apartment, since his occupancy would offend against the ordinance. Unsuccessful in obtaining a variance from the Town, Fox brought suit.

The applicable legal principles are clear. Zoning ordinances, like all legislative acts, are presumptively valid. Town of Indialantic v. McNulty, 400 So.2d 1227 (Fla. 5th DCA 1981). The burden of overcoming this presumption of validity is on the challenger. Id. at 1230. That burden is satisfied when it is shown that the ordinance in question does not bear a substantial relation to the public health, safety, morals or general welfare. See Burritt v. Harris, 172 So.2d 820 (Fla.1965); City of Miami Beach v. 8701 Collins Avenue, Inc., 77 So.2d 428 (Fla.1954); Davis v. Sails, 318 So.2d 214 (Fla. 1st DCA 1975); Fogg v. City of South Miami, 183 So.2d 219 (Fla. 3d DCA 1966). See also 101 C.J.S. Zoning § 16 (1958).

Most assuredly, and Fox does not contend otherwise, an ordinance, as here, to the extent that it reasonably regulates the setback requirements of buildings, ² is a valid exercise of the police power. ³ See Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228 (1926); City of Miami v. Romer, 58 So.2d 849 (Fla.1952), clarified, 73 So.2d 285 (Fla.1954). Fox's claim, however, is not that the Town cannot limit living quarters among parking facilities on the ground floor to a small apartment and exempt such floor from being counted as such in determining setback requirements. His claim is, instead, that insofar as the ordinance requires that the ground floor apartment be occupied only by a person, and his or her family, who is in charge of maintenance and superintendent duties of the building, it bears no real or substantial relationship to, is not reasonably necessary for the protection of, and in no way advances or promotes the public health, safety, morals or general welfare. Fox therefore contends that his constitutional right to reside in his dwelling unit has been unlawfully abrogated under the guise of the police power. See Burritt v. Harris, 172 So.2d 820.

Particularly pertinent here is the principle that "zoning ordinances are much less suspect...