Manilow v. City of Miami Beach

• Court: Florida District Court of Appeals
• Writing for the Court: Before CHARLES CARROLL; PER CURIAM
• Citation: Manilow v. City of Miami Beach, 213 So.2d 589 (Fla. App. 1968)
• Decision Date: 06 August 1968
• Docket Number: No. 67--566,67--566
• Parties: Nathan MANILOW and Samuel J. Kanner, as Trustee, Appellants, v. CITY OF MIAMI BEACH, a Florida municipal corporation, Appellee.

Page 589

213 So.2d 589

Nathan MANILOW and Samuel J. Kanner, as Trustee, Appellants, v. CITY OF MIAMI BEACH, a Florida municipal corporation, Appellee.

No. 67--566.

District Court of Appeal of Florida, Third District.

Aug. 6, 1968.

Rehearing Denied Sept. 16, 1968.

Brigham & Brigham and Sidney J. Berger, Miami, for appellants.

Joseph A. Wanick, City Atty., for appellee.

Before CHARLES CARROLL, C.J., and HENDRY and SWANN, JJ.

PER CURIAM.

Appellants are the legal and beneficial owners of certain real property located in Miami Beach, Florida. It consists of Lots 1, 2, 3, and 4; Flamingo Bay Subdivision, Plat Book 6, Page 101, Public Records of Dade County, Florida, and occupies the northeast corner of the intersection of Arthur Godfrey Road and Pine Tree Drive; lying against Indian Creek on the east; and a single family residence on the north. The lots all have approximately 100 ft. frontage on Pine Tree Drive and Lot One has a frontage of approximately 385 feet on Arthur Godfrey Road. The property has been zoned for single family residence use since 1930, 38 years, under the Miami Beach Zoning Ordinance. In 1951, Gimbel, then owner of Lot One, attempted to obtain relief from the single family zoning restriction on the use of the property in the Circuit Court of Dade County. The relief was denied.

In January 1967, the present owners filed the instant action seeking, inter alia, a court decree that the city zoning ordinance was void, arbitrary and unconstitutional as it applied to their property. The defendant, City of Miami Beach, answered with general denials and pled various affirmative defenses, including a plea of res judicata. After extensive hearings and argument, the trial court denied plaintiff the relief sought and also ruled that the city had failed to prove its plea of res judicata. The owners have appealed and the city has cross assigned as error the denial of its plea of res judicata. A copy of the plat of the subject property is shown as 'Exhibit A.'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Exhibit 'A' An aerial photograph of the subject property and intersection is reflected in plaintiff's Exhibit Five.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiffs' Exhibit 5

The record on appeal reflects that immediately south of this property and across Arthur Godfrey Road is a four story motel, the Moulin Rouge, with its parking lot and entrance directly across from the subject property. Immediately south of the motel is a large, attractive church building. Its parking lot lies next to property which is zoned and used for single family residences. A comparison of the exhibits submitted in the Gimbels' suit in 1951 with those showing the present situation indicates that single family residences had to be demolished for the construction of the motel and church. The city in 1950 changed the single family zoning on the motel and church property to RE multiple family zoning. This change to RE permits high rise apartments, motels and churches to be constructed immediately south of plaintiff's property. For a discussion of the difference involved in motel vs. high rise apartment houses see City of Miami v. Zorovich, Fla.App.1967, 195 So.2d 31.

On the southwest corner of the intersection of Arthur Godfrey Road and Pine Tree Drive there is a large A & P grocery store. The city passed two ordinances which changed and liberalized this zoning to permit a grocery store use. A large parking lot lies south of and adjacent to the grocery store.

On the northwest corner of the intersection is the Jefferson National Bank. In 1955, the city changed the zoning on this corner from RE multiple family to permit banks in that particular use zone. Recently the bank was granted permission to add three additional stories to its present building. City of Miami Beach v. Courshon, Fla.App.1968, 21 So.2d 828.

In 1966, the City changed the commercial zoning on the property adjoining the bank on the west to permit the construction of the nine story Midtown Medical Center office building. It is fully occupied today and its ground floor is occupied by a large modern drug store and stock brokerage office. Parking for the bank is through a driveway directly west of plaintiff's property.

In December 1959, the Julia Tuttle Causeway was officially opened to traffic. It is now the primary traffic artery from the Miami International Airport to Miami Beach and was not in existence in 1951 when the Gimbels' suit was filed. The bridge across Indian Creek was then a narrow two lane bridge but is now a modern five lane bridge accommodating large amounts of traffic both day and night. There was testimony that the traffic flow passing plaintiff's property had increased 100% Since the opening of the cuseway. Thus, plaintiff's property on the northeast corner of the intersection is zoned for single family residences. On the southeast corner is a large motel; on the southwest corner is a large super market; on the northwest corner is a large modern bank; and all of these commercial establishments have their attendant driveways, parking areas, and traffic problems for their commercial clients. Plaintiff's property on the south faces on one of the major traffic arteries between...