Moviematic Industries Corp. v. Board of County Com'rs of Metropolitan Dade County, 76-983

• Decision Date: 09 August 1977
• Docket Number: No. 76-983,76-983
• Citation: 349 So.2d 667
• Parties: 8 Envtl. L. Rep. 20,035 MOVIEMATIC INDUSTRIES CORP., a Florida Corporation, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF METROPOLITAN DADE COUNTY and Metropolitan Dade County, a political subdivision of the State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 667

349 So.2d 667

8 Envtl. L. Rep. 20,035

MOVIEMATIC INDUSTRIES CORP., a Florida Corporation, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF METROPOLITAN DADE COUNTY and Metropolitan Dade County, a political subdivision of the State of Florida, Appellees.

No. 76-983.

District Court of Appeal of Florida, Third District.

Aug. 9, 1977.

Rehearing Denied Sept. 14, 1977.

Williams, Salomon, Kanner & Damian and Gary S. Brooks, Miami, for appellant.

Stuart L. Simon, County Atty., and Stanley B. Price and Robert A. Ginsburg, Asst. County Attys., for appellees.

Before PEARSON, HAVERFIELD and HUBBART, JJ.

HAVERFIELD, Judge.

Appellant seeks review of an order denying its petition for writ of certiorari, and upholding the validity of Dade County resolution Z-115-75 rezoning petitioner's property from IU-2 to GU.

Over ten years ago Moviematic Industries Corporation purchased 1,200 acres of undeveloped real property located in a remote area of unincorporated west Dade County zoned for heavy industrial use (IU-2) with a special exception for business airport uses. The property overlies the Biscayne Aquifer which serves as a major source of the drinking water in the county. On March 19, 1974 the county commission imposed a building moratorium ¹ on an area consisting of approximately 323 square miles of west Dade County, including petitioner's property, for the express purpose of conducting and preparing a comprehensive study directed to the protection of the fresh water supply and the natural ecosystems which function in this part of the county. Following the study, on April 23, 1975 the county building and zoning department and the planning department jointly recommended to the commission that (1) petitioner's property be rezoned from IU-2 to GU (interim classification which permits single family residential use on minimum five acre lots), and (2) the previously approved special permit for business airport uses be terminated. At a public hearing on this matter, the commission heard expert testimony in support of the recommended GU zoning classification and petitioner's evidence in opposition thereto. At the conclusion of the hearing, the commissioners adopted resolution Z-115-75 which rezoned the subject property from IU-2 to GU and terminated the special permit for business airport uses. Petitioner by way of certiorari sought review of the zoning resolution in the circuit court and after a hearing, the court entered its order of denial.

Appellant basically argues that zoning resolution Z-115-75 is invalid because it bears no reasonable relationship to the public health, safety, morals and welfare and constitutes such an unreasonable restriction on petitioner's right to the beneficial use of its property that the resolution amounts to a taking of real property without compensation in violation of the United States and Florida Constitutions. We cannot agree.

A threshold question to a consideration of this appeal is whether preservation of an adequate drinking water supply and ecological system in a particular area are legitimate objectives of zoning resolutions and ordinances.

Zoning regulations which are reasonably related to the adequacy of governmental services fall within the established purpose of the public health, safety and welfare; water supply relates clearly to the public health. Therefore, zoning ordinances have been sustained because of their tendency to insure that such essential governmental services as water supply will be provided. See Anderson, R.M., American Law of Zoning § 7.26 (2d ed 1968). It is clear that the county commission is empowered under Article 1, Section 1.01(A)(9) and (12) of the Home Rule Charter of Metropolitan Dade County to enact zoning ordinances and resolutions to assure an adequate water supply for the protection of the public. See also Section 2-116.3 et seq. Code of Metropolitan Dade County, Section 23A-1, Code of Metropolitan Dade County.

With respect to the objective of preserving the ecological systems, zoning regulations which tend to preserve the residential or historical character of a neighborhood and/to enhance the aesthetic appeal of a community are considered valid exercises of the public power as relating to the general welfare of the community. See City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941); Merritt v. Peters, 65 So.2d 861 (Fla.1953); Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960); William Murray, Inc. v. Jacksonville, 254 So.2d 364 (Fla. 1st DCA 1971); City of Boca Raton v. Tradewind Hills, Inc., 216 So.2d 460 (Fla. 4th DCA 1968); County of Brevard v. Woodham, 223 So.2d 344 (Fla. 4th DCA 1969); Watson v. Mayflower Property, Inc., 223 So.2d 368 (Fla 4th DCA 1969); City of Coral Gables v. Wood, 305 So.2d 261 (Fla. 3d DCA 1974) and E. B. Elliot Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970); Stone v. City of Maitland, 446 F.2d 83 (5th Cir. 1971); Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975). The above being legitimate concerns within the category of the general welfare, then certainly the irreversible effect on the area's ecological balance as the result of urban development can be and should be considered and reflected in zoning codes. We find the inclusion of ecological considerations as a legitimate objective of zoning ordinances and resolutions is long overdue and hold that preservation of the ecological balance of a particular area is a valid exercise of the police power as it relates to the general welfare. We are not alone in this determination as courts in other jurisdictions have recognized the importance of considering the ecological objectives in zoning matters. See Nattin Realty, Inc. v. Ludewig, 67 Misc.2d 828, 324 N.Y.S.2d 668 (Sup.Ct.1971) and Steel Hill Development, Inc. v. Town of Sanbornton, 469 F.2d 956 (1st Cir. 1972). In Nattin Realty, Inc., supra, 67 Misc.2d 828, 324 N.Y.S.2d at 672, the court summarized this issue most appropriately as follows:

"Respecting ecology as a new factor, it appears that the time has come if, indeed, it has not already irretrievably passed for the courts, as it were, to take 'ecological notice' in zoning matters.

"(5) . . . the municipality has here presented sufficient evidence to warrant the rezoning of the petitioner's property, for it was prompted to do so by ecological considerations based not upon whim or fancy but upon scientific findings. The definition of 'public health, safety and welfare' surely must now be broadened to include and to provide for these belatedly recognized threats and hazards to the public weal. The Town's decision to forego what, undoubtedly, would be substantial additional tax revenue would appear to constitute a recognition that it as well as an owner must subordinate immediate to long-term interests.

"The Court is not unmindful that zoning changes prompted by such environmental considerations may appreciably limit the uses and profitability of land; yet if both factors were to be placed upon the scales, the pro bono publico considerations must prevail. If there is substantial evidence sustaining the municipality's determination to rezone because of ecology, the court should not void such legislative determination."

In view of our determination that ecological considerations are legitimate objectives of a zoning ordinance or resolution, the following summation of evidence presented to the commission substantiates the county's position that resolution Z-115-75 is reasonably related to the public health and welfare and will confer a public benefit upon the citizens of the county:

"The subject property area overlies one of the most permeable aquifers in the world, the Biscayne Aquifer. This aquifer serves as the source of virtually all drinking water in Dade County and must be protected from contamination. Due to the unique area hydrology and geology, the Biscayne Aquifer, the inland drainage canals, and the conservation area in West Dade County are all directly interconnected. As a result of this interconnection, the bodies must be considered as component parts of the same water supply system.

"The composition of the Biscayne Aquifer is mostly limestone and sand. The generally high porosity of the sand and the many passages through the...