Gulf & Eastern Development Corp. v. City of Fort Lauderdale
| Decision Date | 12 January 1978 |
| Docket Number | No. 49619,49619 |
| Citation | 354 So.2d 57 |
| Court | Florida Supreme Court |
| Parties | GULF & EASTERN DEVELOPMENT CORPORATION, Petitioner, v. CITY OF FORT LAUDERDALE, a Municipal Corporation, and Calvin Howe, Director of Building and Zoning for the City of Fort Lauderdale, Respondents. |
Terrence J. Russell and Steven J. Gutter of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, for petitioner.
W. W. Caldwell, Jr. and Donald R. Hall, Fort Lauderdale, for respondents.
This matter comes before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, reported at 332 So.2d 88. It is alleged that the decision in the instant case is in direct conflict with numerous decisions of this Court and other district courts of appeal upon the issue of whether notice to an affected landowner of a hearing before a planning and zoning board to consider the rezoning of a parcel of real property is essential to the validity of an ordinance rezoning such property, subsequently enacted by a city commission, based upon the recommendation of the planning and zoning board. 1 We find such conflict to exist and, therefore, we have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.
While petitioner raises five points for our consideration, we believe the points respecting notice are dispositive of the case and will limit our discussion and decision to that issue.
On March 27, 1973, pursuant to Section 47-32.5, Fort Lauderdale Code of Ordinances, various individuals owning real property in proximity to a tract of land owned by the petitioner's predecessors in title, described as Parcel D, Harbour Beach Extension, filed an application with the Fort Lauderdale Planning and Zoning Board 2 for the rezoning of Parcel D from R-4/RM60 to R-3-A/RM25. A public hearing on the rezoning proposal was held before the Fort Lauderdale Planning and Zoning Board on April 18, 1973. After the hearing, the Planning and Zoning Board entered its recommendation to the City Commission that Parcel D be rezoned from R-4/RM60 to R-3-A/RM25.
On May 15, 1973, the Fort Lauderdale City Commission held a public hearing on Ordinance No. C-73-45; this ordinance by its terms provided for rezoning of Parcel D, Harbour Beach Extension, in conformity with the Planning and Zoning Board's recommendation. Petitioner, which had on April 6, 1973, purchased property situated within Parcel D, appeared at the City Commission hearing and objected to the fact that it had not been notified by the city of the rezoning proposal and the April 18, 1973 Planning and Zoning Board hearing thereon. 3 Notwithstanding petitioner's objection the City Commission passed Ordinance No. C-73-45 upon first reading. The ordinance was subsequently enacted by the City Commission on June 19, 1973, at the second and third readings of the ordinance.
On May 18, 1973, petitioner filed a complaint in Circuit Court for Broward County, Florida, seeking (i) to temporarily and permanently enjoin the City of Fort Lauderdale from rezoning its property, and (ii) to require respondents to issue petitioner a building permit for use of its property consistent with R-4/RM60 zoning. The trial court denied petitioner's application for a temporary injunction. After Ordinance No. C-73-45 was enacted by the City Commission, however, petitioner supplemented its complaint, seeking to have the ordinance declared invalid and to have the City of Fort Lauderdale enjoined from enforcing the ordinance. At final hearing the circuit court found that petitioner had not been notified by the city of the rezoning proposal and the April 18 Planning and Zoning Board hearing thereon, as required by Section 47-32.7, Fort Lauderdale Code of Ordinances. Therefore, the trial court entered final judgment declaring the ordinance invalid and permanently enjoining the city from enforcing the ordinance. On appeal to the District Court of Appeal, Fourth District, respondents contended that Ordinance No. C-73-45 was valid and effective notwithstanding the city's failure to notify petitioner of the rezoning proposal and the April 18 Planning and Zoning Board hearing thereon. Relying on F. P. Plaza, Inc. v. Waite, 230 Ga. 161, 196 S.E.2d 141 (1973), cert. denied 414 U.S. 825, 94 S.Ct. 129, 38 L.Ed.2d 59 (1973), the district court agreed with respondents upon the premise that the planning and zoning board was only a recommendatory authority and, so long as an affected landowner had an opportunity to be heard before the governing authority (the City Commission), the landowner was not deprived of procedural due process. Accordingly, the district court reversed and remanded with directions to enter final judgment in favor of the respondents. This petition for certiorari ensued.
We find that the function and authority of the Planning and Zoning Board pursuant to the charter and ordinances of the City of Fort Lauderdale exceeds that of a mere recommendatory body, and that the failure to notify petitioner of the meeting violates the very provisions of the city's ordinances. Consequently, we are compelled to quash the decision of the District Court of Appeal, Fourth District.
It is without question that due process requires that an affected landowner be given prior notice and an opportunity to be heard before action is taken by a zoning authority to alter the use to which the owner is permitted to put his land. See City of Ft. Lauderdale v. Gulf & Eastern Development Corporation, 332 So.2d 88 (Fla. 4th DCA 1976); Bal Harbour Village v. State ex rel. Giblin and F. P. Plaza, Inc. v. Waite, supra. Cf. Rowland v. State, 129 Fla. 662, 176 So. 545 (1937) (). The crux of the issue, however, is at what stage of the proceedings must the owner be notified and be given an opportunity to be heard.
Zoning is a legislative function which reposes ultimately in the governing authority of a municipality. See Josephson v. Autrey, et al., 96 So.2d 784, 788 (Fla.1957). However, as with most municipalities, the charter and ordinances of the City of Fort Lauderdale have delegated some portions of the zoning process to an independent board. The question is: Has a sufficient portion of the process been delegated to the board so as to necessitate notice and an opportunity to be heard before the Planning and Zoning Board, in order to meet the requirement of due process? Respondents maintain not. As authority for their position they rely upon F. P. Plaza, Inc. v. Waite, supra. We believe this position to be in error for two reasons. First, by Section 47-32.5(h), Fort Lauderdale Code of Ordinances, 4 the Fort Lauderdale Planning and Zoning Board enjoys de facto interim zoning authority. Once the Board recommends to the City Commission that the zoning on a parcel of land be changed from a less restrictive to a more restrictive use, the building department is prohibited from issuing a permit on the property for a use not permitted in the more restrictive district until the recommendation has been acted on by the City Commission. This effectively endows the Board with the power to alter the use of a particular parcel of land on an interim basis. Cf. City of Miami Beach v. State ex rel. Fontainebleau Hotel Corp., supra ().
Second, notwithstanding the authority conferred by Section 47-32.5(h), it is apparent that much if not all of the fact-finding, discussion, and consideration with respect to the merits or demerits of a zoning change are accomplished at the zoning board level. Although a record in the strict sense is not made at the zoning board hearing by which the City Commission is bound, nonetheless it is clear that those proceedings result in input which is material and substantial in the ultimate decision-making process. The importance of this part of the process has been recognized in the context of the government in the sunshine law, Section 286.011, Florida Statutes (1975). In Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), this Court recognized the essential part such consideration and discussion plays in the ultimate decision-making process by holding that a lay group of citizens, designated by the town council of the Town of Palm Beach to advise the council in the adoption of an ultimate zoning plan, was subject to the provisions of Section 286.011. Because it is apparent that the deliberations and actions of the planning and zoning board are an...
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Board of County Com'rs of Brevard County v. Snyder
...So.2d 912 (Fla.1957). Enactments of original zoning ordinances have always been considered legislative. Gulf & Eastern Dev. Corp. v. City of Fort Lauderdale, 354 So.2d 57 (Fla.1978); County of Pasco v. J. Dico, Inc., 343 So.2d 83 (Fla. 2d DCA1977). In Schauer v. City of Miami Beach, this Co......
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Friends of Everglades, Inc. v. Board of County Com'rs of Monroe County
...is taken by a zoning authority to alter the use to which the owner is permitted to put his land." Gulf & Eastern Development Corporation v. City of Fort Lauderdale, 354 So.2d 57, 59 (Fla.1978) (e.s.). Similarly, such notice and hearing is required in DRI proceedings. But, it has also been r......
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First Assembly of God v. Collier County, 91-211 Civ-FtM-10(D).
...owner may use its land is a protected property interest to which procedural due process attaches. See Gulf & Eastern Development Corporation v. Fort Lauderdale, 354 So.2d 57, 59 (Fla.1978). What Plaintiffs have not made clear, however, is that the process afforded them in the enactment of t......
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First Assembly of God of Naples, Florida, Inc. v. Collier County, Fla.
...the manner in which a property owner can use his or her land. First Assembly, 775 F.Supp. at 389; Gulf & Eastern Development Corporation v. City of Fort Lauderdale, 354 So.2d 57, 59 (Fla.1978). Thus, First Assembly has met the first prong of the procedural due process analysis. However, it ......