Josephson v. Autrey

• Decision Date: 26 June 1957
• Citation: 96 So.2d 784
• Parties: Norton JOSEPHSON, a Taxpayer of the City of Daytona Beach, Florida, on behalf of himself and all other persons similarly situated, Appellant, v. Henry AUTREY, Anthony J. Grezik, J. Kermit Coble, Hayward B. Brown, and E. W. Korb, as and constituting the Zoning Board of Appeals of the City of Daytona Beach, Florida; Carl Wetherell, as the duly qualified Building Inspector of the City of Daytona Beach, Florida; The City of Daytona Beach, Florida, a Municipality organized and existing under the laws of the State of Florida; and Ucal W. Cunningham and Minna L. Cunningham, his wife, Appellees.
• Court: Florida Supreme Court

Page 784

96 So.2d 784

Norton JOSEPHSON, a Taxpayer of the City of Daytona Beach, Florida, on behalf of himself and all other persons similarly situated, Appellant, v. Henry AUTREY, Anthony J. Grezik, J. Kermit Coble, Hayward B. Brown, and E. W. Korb, as and constituting the Zoning Board of Appeals of the City of Daytona Beach, Florida; Carl Wetherell, as the duly qualified Building Inspector of the City of Daytona Beach, Florida; The City of Daytona Beach, Florida, a Municipality organized and existing under the laws of the State of Florida; and Ucal W. Cunningham and Minna L. Cunningham, his wife, Appellees.

Supreme Court of Florida, En Banc.

June 26, 1957.

Rehearing Denied Sept. 21, 1957.

Norton Josephson, in pro. per., for appellant.

Raymond, Wilson & Karl, Daytona Beach, for Ucal W. Cunningham and Minna L. Cunningham.

W. W. Judge, Daytona Beach, for City of Daytona Beach and Carl W. Wetherell, Building Inspector. Anthony J. Grezik, Daytona Beach, for Board of Zoning Appeals of Daytona Beach.

THORNAL, Justice.

Appellant Josephson, plaintiff below, seeks reversal of a final decree dismissing his complaint in a proceeding attacking the validity of the action of a zoning board of appeals purporting to grant a use variance to the appellees Cunningham.

Two points are involved, to wit: (1) under authority to grant a variance, may a zoning board of appeals permit a use prohibited by the zoning ordinance; and (2) the effect of a zoning restriction existing when property is acquired on the claim of the property owner that a hardship exists by virtue of such zoning restriction.

The appellees Conningham purchased a parcel of land in Daytona Beach. They acquired the land from one Jarrett, paying him $42,500 therefor. Shortly prior thereto Jarrett had acquired the land at a price of $31,500. When the contract to purchase was executed, the property apparently was zoned for residential use. When the deal was closed and the purchase money paid, the municipal zoning ordinance had been amended and the property was placed in a so-called T-1 district which zoned it for motels and tourist accommodations, a less restrictive use. Shortly after acquiring the property, Cunningham applied to the appelle building inspector for a permit to construct a filling station. The permit was denied on the ground that gasoline service stations were not permitted in T-1 districts although they were permitted in T-2 districts. Thereupon Cunningham appealed to the zoning board of appeals. In his application to the appeals board he set out that filling stations were prohibited in T-1 districts; that his property would suffer depreciation in value if he were compelled to use it for purposes authorized in T-1 districts; that this depreciation in value and related potentially reduced income produced a hardship which justified the exercise of the power of the appeals board to grant a variance which would authorize the construction of a filling station on the land.

A hearing was held by the board pursuant to notice. Appellant Josephson whose home is located within 363 feet of the proposed filling station in a residence zone appeared and strenuously objected. After a complete hearing the appeals board was of the view that the authorization of construction of a filling station would not seriously affect surrounding property, that the land of Mr. Cunningham was worth a great deal more for filling station purposes than purposes authorized by the ordinance and that the differences in the value of his land considered in the light of the different uses resulted in a unique hardship that would justify the exercise of variance granting powers. The appeals board authorized the variance and directed the building inspector to issue to Mr. Cunningham a permit to construct a filling station on the land involved.

Appellant Josephson thereupon filed a complaint in the Circuit Court alleging the illegality of the action of the appeals board and contending that the board had no power to grant the variance. He also applied for a temporary injunction. After a hearing on the application for the injunction and the taking of further testimony, the trial judge was of the view that the zoning board of appeals acted within its authority and that its actions should be sustained. The restraining order was denied and the complaint dismissed with prejudice. Reversal of this order is now sought.

It is the contention of the appellant that a zoning board of appeals has no authority to 'amend' the basic zoning ordinance under its variance powers by permitting a completely unauthorized use in a zoning district. He further contends that appellees Cunningham failed to establish the existence of a unique hardship sufficient to motivate the exercise of the power of the appeals board.

The appellees contend that the proceeding brought by appellant Josephson was not authorized under the applicable statute. On the merits they contend that the action of the appeals board was supported by the evidence and that the granting of the variance was justified.

At the outset we must dispose of the procedural question. By their briefs, the parties appear to be in accord on the proposition that the municipality had proceeded under Chapter 176, Florida Statutes, F.S.A., which is the general municipal zoning act. The appellees Cunningham point to Section 176.16, Florida Statutes, F.S.A., which provides in substance that any person aggrieved by a decision of a zoning board of adjustment or any taxpayer may present to a court of recrod his verified petition setting forth the alleged illegal decision of the board and specifying the grounds of illegality. Appellees then emphasize that under Section 176.17, Florida Statutes, F.S.A., the court to whom a petition is presented may allow a writ of certiorari directed to the board to review its decision.

While it is true that the appellant here styled his pleading a 'complaint,' we cannot find that he failed substantially to comply with the requirements of the applicable statute. We reach this conclusion for the reason that the procedure outlined by the statute is certainly not the orthodox or traditional proceeding by way of certiorari. On the contrary it is in the nature of an original proceeding de novo. The trial court is not limited to a consideration of the record before the appeals board. The judge is authorized to take evidence and make an independent original determination of the correctness of the order of the appeals board. By Section 176.19, Florida Statutes, F.S.A., the judge has the authority to reverse or affirm or modify the decision brought up for review on the basis of the evidence presented to him pursuant to the petition. By section 176.17, Florida Statutes, F.S.A., the court is authorized to grant a restraining order, pendente lite. We therefore, find that in the instant case the appellant moved in substantial accord with the requirements of the applicable statute.

We have on numerous occasions held that persons adversely affected by zoning ordinances or the action of zoning agencies have a status as parties sufficient to entitle them to proceed in court to seek relief. Hartnett v. Austin, Fla.1956, 93 So.2d 86.

We now proceed to the merits. The ordinance which established the zoning board of appeals endowed the board with the following power, to wit:

'To authorize upon appeal in specific cases such variance from the terms of this ordinance as will not be contrary to the public interest, where, owing to special conditions a literal enforcement of the provisions hereof would result in unnecessary hardship, and so justice done.'

Our problem is to determine whether the appeals board has the power to permit a completely nonconforming use under its authority to allow a 'variance.' While admittedly there are some authorities which appear to the contrary, it is our view that the numerical weight as well as the better-reasoned decisions adhere to the rule that a zoning board of appeals does not have the power to effectuate a pro tanto amendment of the basic zoning ordinance by authorizing a nonconforming use in a zoning district where such use is unauthorized.

Yokley in his Zoning Law and Practice, 2nd ed., Vol. 1, Sec. 140, states the rule to be:

'It is fundamental in construing the powers and duties of a board of appeals that it is limited by its properly delegated powers and that it cannot exercise legislative functions so as by the guise of a variance to really change the law regulating the character and use of certain zones.'

We ourselves have in effect so held. Wheeler v. Lautz, 160 Fla. 826, 36 So.2d 915.

There is reason to the rule. The power to restrict the use of private property by the adoption of a zoning ordinance involves an exercise of the police power. It has been sustained on the theory that the individual property owner may be required to suffer reasonable restrictions in the use of his property in the interest of the...