Hennessy v. City of Fort Lauderdale

• Decision Date: 14 March 1958
• Docket Number: No. 154,154
• Parties: Joseph H. HENNESSY and Frances A. Hennessy, his wife, and Andrew J. Hoffman, and _____ Berry, whose Christian name is unknown, Appellants, v. The CITY OF FORT LAUDERDALE, Florida, a municipal corporation of the State of Florida, Atlantic Construction and Engineering, Inc., a Florida Corporation, Robert C. Peppler and Theresa Peppler, his wife, Marretta Wardrop, a widow, and Harry S. Kemp and Carrie A. Kemp, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 176

101 So.2d 176

Joseph H. HENNESSY and Frances A. Hennessy, his wife, and Andrew J. Hoffman, and _____ Berry, whose Christian name is unknown, Appellants, v. The CITY OF FORT LAUDERDALE, Florida, a municipal corporation of the State of Florida, Atlantic Construction and Engineering, Inc., a Florida Corporation, Robert C. Peppler and Theresa Peppler, his wife, Marretta Wardrop, a widow, and Harry S. Kemp and Carrie A. Kemp, his wife, Appellees.

No. 154.

District Court of Appeal of Florida, Second District.

March 14, 1958.

Saunders, Curtis, Ginestra & Gore, George H. Gore, Ft. Lauderdale, for appellants.

Tolar & Bethel, John N. Tolar, Frank C. Adler, Ft. Lauderdale, for appellees.

ALLEN, Judge.

This is an appeal from a Final Decree, dated July 18, 1956, entered on the pleadings in an action in chancery by Robert C. Peppler and wife, Theresa Peppler, Marretta Wardrop, a widow, and Harry S. Kemp and wife, Carrie E. Kemp against The City of Fort Lauderdale, Joseph H. Hennessy and wife, Frances A. Hennessy, Andrew J. Hoffman, the Atlantic Construction and Engineering, Inc., and _____ Berry, whose Christian name was unknown, for certain injunctive relief. The decree appealed from permanently restrained construction of a funeral home within areas zoned B-1 or higher by the defendant city zoning ordinance. The decree also precluded construction of a funeral home upon land owned by certain of the defendants. The Hennessys, Hoffman and _____ Berry appeal, the parties being referred to herein as follows:

Appellants: 'defendant owners'.

Appellees: City of Fort Lauderdale as 'defendant city'. Atlantic Construction & Engineering, Inc. as 'defendant contractor'. The Pepplers, Wardrop and the Kemps as 'plaintiffs'.

Defendant city and defendant contractor were apparently joined as appellees for failing to join in the appeal.

The plaintiffs filed a complaint to prohibit the defendant owners and defendant contractor from building a mortuary on defendant owners' land, on the grounds that such use was not specifically permitted, and therefore, was prohibited by the zoning ordinance of defendant city.

A Final Decree on the pleadings held that the use of the lands described in the complaint for construction of a mortuary was not within the intendment of the applicable zoning ordinances; that the building permit for that purpose issued by the defendant city was unlawful, void and of no effect; that defendant owners and defendant contractor were permanently enjoined from constructing on the lots owned by defendant owners, any structure for use as a mortuary; and that the City of Ft. Lauderdale was permanently enjoined, under its existing ordinances, from issuing building permits which authorized the use, for the purpose of erecting a mortuary, on any lands zoned B-1 or higher.

A supplemental order was entered nunc pro tunc as follows:

'It appears that counsel for the Defendants, Joseph H. Hennessy, Andrew J. Hoffman and _____ Berry, during the course of his argument upon Plaintiff's Motion for Final Decree on the Pleadings, orally moved the Court for leave to amend said Defendants' answer instanter, so as to charge that Plaintiffs had failed to exhaust their administrative remedies. The Court, believing that said motion was made tardily and that granting same would serve no substantial purpose but would merely operate to delay a decision on the merits to the detriment of the parties, denied said motion but neglected to include such reling in its Final Decree on the Pleadings entered on July 18, 1956. Now, therefore, the Court does enter this order supplementing said Final Decree on the Pleadings, as follows:

'It is further Ordered, Adjudged and Decreed that the oral motion of the Defendants, Joseph H. Hennessy, Andrew J. Hoffman and _____ Berry, made at the hearing upon Plaintiffs' motion for final decree, for leave to amend their answer instanter so as to charge that Plaintiffs had failed to exhaust their administrative remedies, be and the same is hereby denied.'

It appears to this Court that the Chancellor's denial of the defendants' motion to amend their answer, so as to charge that the plaintiffs had failed to exhaust their administrative remedies, was based on the opinion that it was not necessary for the plaintiffs, in the instant case, to have exhausted their administrative remedies in order to invoke the aid of a chancery court to prevent the building of a mortuary in question. We are of the opinion that the Chancellor should be reversed for denying the defendants below leave to amend their answer to raise this issue.

The zoning ordinance, Article XI, 'Board of Adjustment', Section 47-121, 'Powers of the Board', provides as follows:

'The board of adjustment shall have the following powers, and only the following powers, to-wit:

'(a) To grant temporary permits for non-conforming use of buildings or lands in the city, but such temporary permits shall expire on September 30 after their issuance, and no renewal or additional non-conforming permit shall be granted.

'(b) To modify or reverse the ruling or decision made by an administrative official in the enforcement of the zoning regulations of the city, where it is alleged there is error in any order, requirement, decision or determination made by such administrative official in the enforcement of the zoning regulations of the city.

'(c) To authorize variance and special exceptions to the terms of zoning ordinances in specific cases where such variance will not be contrary to the public interests, and where, owing to special conditions, a literal enforcement of the provisions of the zoning ordinances will result in unnecessary hardship to to the appellant.

'(d) To perform such other duties as the city commission may from time to time by ordinance delegate to such board.'

Therefore, it was within the power of the board of adjustment, under the above quoted section of the ordinance, to determine that a mortuary did not come within the purview of lands zoned B-1 or higher.

1 Florida Jurisprudence, 'Administrative Law', § 175, 'Exhaustion of Administrative Remedies', pg. 401, provides as follows:

'The doctrine of exhaustion of administrative remedies, which is related to the doctrine of primary jurisdiction, requires that where an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the courts will act. Thus, where administrative remedies were available, it has been held that resort to the courts for certiorari or injunction was premature. The Supreme Court has also held that no appeal to a court would lie, under a statute providing therefor, where the appellant had a right to take an administrative appeal, which he did not do within the time provided and this decision has been said to rest on the doctrine of exhaustion of...