Hall v. Korth

• Court: Florida District Court of Appeals
• Writing for the Court: Before PEARSON; PER CURIAM
• Citation: Hall v. Korth, 244 So.2d 766 (Fla. App. 1971)
• Decision Date: 02 March 1971
• Docket Number: No. 70-608,70-608
• Parties: Chuck HALL, et al., Appellants, v. Howard J. KORTH, Appellee.

Page 766

244 So.2d 766

Chuck HALL, et al., Appellants, v. Howard J. KORTH, Appellee.

No. 70-608.

District Court of Appeal of Florida, Third District.

March 2, 1971.

Thomas C. Britton, County Atty., and St. Julien P. Rosemond, Asst. County Atty., for appellants.

Sibley, Giblin, Levenson & Ward, Miami Beach, Shalle Stephen Fine, Miami, for appellee.

Leonard Selkowitz, Miami, as amicus curiae.

Before PEARSON, C. J., and HENDRY and SWANN, JJ.

PER CURIAM.

This appeal is by the Dade County Commission from a final judgment of the circuit court on appellee's petition for writ of certiorari. The final judgment quashed the action of the County Commission in denying appellee's application for zoning changes upon a parcel of land 73 acres in area which is located in Dade County, Florida. On this appeal the County urges that there was no substantial competent evidence before the circuit court that the County Commissioners' denial of the application for zoning change was improper.

The appellee applied to the appropriate authority of Dade County for changes in the zoning of his tract of land from basic agriculture to that which would permit a planned unit development thereon. The Metropolitan Dade County Planning Department recommended the approval of appellee's application. The Dade County Building and Zoning Department also approved the proposed plan of development. The application for approval of the plan was brought before the Zoning Appeals Board which also approved the plan. An appeal was taken to the appellant, Commission, by an objector and the appeal came on for hearing before the Commission where the Commission by a four-three vote reversed the Zoning Appeals Board and denied appellee's application. Appellee then filed a petition for writ of certiorari in the circuit court of Dade County. After a full review of the record of the evidence presented to the Dade County Commission and upon which the reversal of the action of the Zoning Appeals Board was based, the circuit court found:

'6. The Court finds that the objections raised to the granting of plaintiff's application are, in fact, simply assertions of the objectors which are totally unsupported and, in fact, are contradicted by the record. An inspection of the record discloses no evidence or testimony other than bald assertion in behalf of the objectors to support their position or to contradict the record as reflected in the Court's findings above set out. The perimeter land in the proposed development would carry the exact zoning of the adjoining lands outside of the development. This clearly protects the adjoining property owners.

'7. The question to be determined then is whether the county commission's denial of plaintiff's application based upon the record as adduced, is a departure from the essential requirements of the law. The Court is of the opinion that the county commission in exercising its discretion with respect to a zoning application is not free to act out of whim or caprice but to the contrary is required to exercise a sound discretion based upon the record as adduced before it. There is no question that this application came to the county commission bearing the approval and recommendations of the public agencies such as the Planning Board which are required to consider the application and pass thereon from a technical point of view. The application further received the approval of the Zoning Appeals Board in the first instance. The application is consistent with and in conformity with the requirements of the general land use Master Plan adopted by the county authorities to govern the pattern of development of Dade County. The specific objections raised to the approval of the plan are not supported by and, in fact, are contradicted by the record.

'8. The right to zone is an infringement upon the right of a property holder to use his property for any lawful purpose he wishes. The right to zone is justified and supported under the police power of the state to regulate the use of property for the betterment of the public health, safety and welfare as part of a comprehensive plan for the use and development of property within the zoning authority's jurisdiction. The zoning authority has laid down guide lines for the development of Dade County in the general land use Master Plan. It has further established technical agencies to pass...