Rinker Materials Corp. v. City of North Miami, 72--505

• Decision Date: 14 February 1973
• Docket Number: No. 72--505,72--505
• Citation: 273 So.2d 436
• Parties: RINKER MATERIALS CORPORATION, a Florida corporation, Appellant, v. CITY OF NORTH MIAMI, a Florida municipal corporation, Appellee.
• Court: Florida District Court of Appeals

Page 436

273 So.2d 436

RINKER MATERIALS CORPORATION, a Florida corporation, Appellant, v. CITY OF NORTH MIAMI, a Florida municipal corporation, Appellee.

No. 72--505.

District Court of Appeal of Florida, Third District.

Feb. 14, 1973.

Rehearing Denied March 13, 1973.

Brigham & Brigham, Miami, for appellant.

Kahn & Clein and Alan J. Kan, North Miami, for appellee.

Before BARKDULL, C.J., and PEARSON and HAVERFIELD, JJ.

PER CURIAM.

The appellant was the petitioner for a writ of certiorari in the circuit court. It appeals a final order denying the petition. In the circuit court, the appellant sought to review and quash a decision of the City of North Miami's Board of Adjustment, subsequently affirmed by the City Council, which ruled that the City's Building and Zoning Department had been correct in denying a permit to the petitioner to construct a ready-mix concrete batching plant on its property in the City's industrial zone. The Board of Adjustment and the City Council reasoned that the operation of a ready-mix concrete batching plant was not a use permitted by the City's zoning ordinance. The circuit court, after reviewing the pleadings before it and the record of proceedings filed by the petitioner, found that the decision under review was in accordance with the law governing the application. The specific finding of the circuit judge was as follows:

'. . . the proposed use of the property of the Petitioner for a concrete batching plant is not within those uses permitted under Section 29--42 of the Code of Ordinances of the City of North Miami, and further finding that a concrete batching plant as proposed by the Petitioner does not come within the permitted use found in Section 29--42 (29) permitting, 'contractor's plants and/or storage yards, providing the area used is enclosed by a building or by a wall not less than six feet in height,' . . .'

Appellant's petition for certiorari alleged that the decision of the City's Boards of Adjustment, and the subsequent affirmance thereof by the City Council, are arbitary unreasonable, illegal, nugatory, void, and in excess of jurisdiction because these rulings constitute an unlawful rezoning of petitioner's property. It was specifically alleged in the petition that the use specified in petitioner's application for a building permit to construct a 'concrete batching plant' would constitute a permitted use in respondent's industrial zone. It was further alleged as follows:

'10. That the buildings, machinery, and fixtures, which Petitioner intends to construct on its said property, and its manufacture of redi-mix concrete therein and thereby, is and constitutes a 'contractor's plant and storage yard' within the meaning of the same as specified in Respondent's Zoning District 3--A, and all the evidence before Respondent's said administrative officers and bodies is conclusive to that effect, and there is none to the contrary;'

On this appeal appellant presents the same arguments presented below. The point presented is as follows:

'Is the manufacture of ready mix...