Friedland v. City of Hollywood, s. 2015

• Decision Date: 24 May 1961
• Docket Number: 2020,Nos. 2015,s. 2015
• Parties: George FRIEDLAND, Samuel Friedland, and Louis Stein, Appellants, v. CITY OF HOLLYWOOD, a municipal corporation organized under the laws of the State of Florida, Edward P. Naus, and Harry Friedberg, on their behalf and on behalf of parties similarly situated, Appellees. CITY OF HOLLYWOOD, etc., Appellant, v. George FRIEDLAND, Samuel Friedland, and Louis Stein, Edward P. Naus and Harry Friedberg, etc., Appellees.
• Court: Florida District Court of Appeals

Page 306

130 So.2d 306

George FRIEDLAND, Samuel Friedland, and Louis Stein, Appellants, v. CITY OF HOLLYWOOD, a municipal corporation organized under the laws of the State of Florida, Edward P. Naus, and Harry Friedberg, on their behalf and on behalf of parties similarly situated, Appellees.

CITY OF HOLLYWOOD, etc., Appellant, v. George FRIEDLAND, Samuel Friedland, and Louis Stein, Edward P. Naus and Harry Friedberg, etc., Appellees.

Nos. 2015, 2020.

District Court of Appeal of Florida, Second District.

May 24, 1961.

Judson A. Samuels, Hollywood, for appellants Friedland and Stein.

August C. Paoli, City Atty., Hollywood, for appellant City of Hollywood.

Ella Jo Stollberg, Hollywood, for appellees Naus and Friedberg.

SPOTO, I. C., Associate Judge.

This is an appeal to review a final decree which declared an ordinance granting a variance from existing zoning in the city of Hollywood to be null and void, and which enjoined the appellants Friedman and Stein from constructing a service station on the property pursuant to the variance. The ordinance was passed by the city commission of the appellant City of Hollywood on behalf of property owned by appellants Friedman and Stein, hereinafter called 'owners'. The appellees, plaintiffs below, are residents, texpayers and property owners of the City of Hollywood, whose property is in the vicinity of the owners' property herein involved and alleged damage to their property as a result of the granting of the variance. Appellants, defendants below, took separate appeals from this decree, which appeals are here considered together.

In 1956 the owners purchased the property in question, Lots 1 and 2 of Block 16, Beverly Beach Subdivision, subject to the zoning as it then stood. In 1958, the owners petitioned the Zoning and Planning Board of the City of Hollywood to change the zoning in question or grant a variance authorizing construction of a service station for vehicular and marina traffic. This board, after a public hearing, denied these requests and the owners appealed this decision to the City Commission of the City of Hollywood. The city commission then enacted the ordinance in dispute, granting the owners a variance authorizing the construction of the service station. The appellees then filed a chancery suit to have the ordinance declared null and void and to enjoin the construction of the service station and after a hearing the Court entered the decree appealed from.

The appellants submit four points for our consideration. First, the appellant, City of Hollywood, maintains that by its charter, it has the power to grant such variances. Second, both appellants contend that the ordinance is valid because it was properly passed by the city commission and the evidence adduced at the final hearing does not support a finding that the ordinance was null and void. Third, the appellants contend that the appellees have not sustained special injury and damage to permit them to maintain these proceedings, and finally, the appellant-owners contend that the appellees are estopped from maintaining these proceedings by their conduct in waiting until the commencement of construction before filing their injunction suit.

As to the contention of the City of Hollywood that it has the power to grant such variances, the appellees do not question that power and nothing appearing in the record to the contrary, we must assume that the city commission does have such authority.

On their second point, the appellants' main contention is that in granting the variance, the city commission acted properly after a full public hearing and that under the 'fairly debatable' rule, the decree of the trial court amounts to a substitution of its judgment for that of the municipal legislative body which possesses the power and is charged with the duty of enacting zoning legislation. With this contention we cannot agree. Zoning boards are in the same category as all other administrative boards and their ordinances and regulations will be given serious consideration and their judgments great weight, but where it is conclusively shown that they deprive one of his property without due process or otherwise infringe on state or federal constitutional guarantees unreasonably, such ordinances and regulations cannot be said to be fairly debatable and will be stricken down. The property in dispute was zoned B A A in 1951. There is no showing of any material change in the property or the neighborhood since it was zoned. A city cannot, by a so-called 'variance', change the basic-use zoning classification by permitting the erection and operation of a business that is otherwise prohibited by such zoning. The appellants purchased the property in 1956 subject to the existing zoning and they cannot now come into court and claim a hardship. Equity will not grant relief from a 'self-created' hardship. See Elwyn v. City of Miami, Fla.App.1959, 113 So.2d 849; Josephson v. Autrey, Fla.1957, 96 So.2d 784, and the cases therein cited. The B A A classification authorizes numerous...