Rose v. Town of Hillsboro Beach

• Citation: 216 So.2d 258
• Decision Date: 10 December 1968
• Docket Number: No. 1923,1923
• Parties: Carl A. ROSE and Eileen Rose, and Rose Construction Company, a Florida corporation, Appellants, v. TOWN OF HILLSBORO BEACH, a municipal corporation, Appellee.
• Court: Florida District Court of Appeals

Page 258

216 So.2d 258

Carl A. ROSE and Eileen Rose, and Rose Construction Company, a Florida corporation, Appellants, v. TOWN OF HILLSBORO BEACH, a municipal corporation, Appellee.

No. 1923.

District Court of Appeal of Florida, Fourth District.

Dec. 10, 1968.

James J. Linus, of McCune, Hiaasen, Crum & Ferris, Fort Lauderdale, for appellants.

Russell B. Clarke, of Clarke & O'Brien, Pompano Beach, for appellee.

WALDEN, Chief Judge.

This is an appeal from a declaratory judgment which construed ordinance No. 68 of defendant, Town of Hillsboro Beach. The portion construed, Article 6, Section 3, is entitled 'Height Regulations' and provides in part:

'* * * No building shall exceed ten (10) stories in height. This provision shall not apply to necessary service and mechanical appurtenances or their appropriate housing.'

As a point of beginning, the Town's ordinance did not define 'necessary service and mechanical appurtenances or their appropriate housing.' It did not specify where such items were to be located in the building; nor did it provide any specific size, area or space limitation or criteria for the establishment of the same. For as much as the ordinance provides, service and mechanical appurtenances and housing could be located anywhere in the building and occupy as much space as necessary.

A 'story' is defined by this ordinance as: 'That portion of a building * * * included between the surface of any floor and the surface of the floor next above it or, if there be no floor above it, then the space between the floor and the ceiling next above it.'

Omitting historical background, plaintiffs had been granted a building permit for erection of a building consisting of eleven stories in height under the above definition. This building is in the advanced stages of construction. The bottom or ground floor contains and consists of a parking area, mechanical appurtenances, and a service apartment. The top, or eleventh story, consists of a penthouse which occupies something less than one-quarter of the area of the floor below it.

While the building was under construction, plaintiffs applied to defendant for permission to add a second penthouse to the eleventh floor. The total area of both penthouses, plus the elevator housing also located atop the structure, was estimated at forty-one percent of the area of the floor below.

When defendant refused to issue the permit, plaintiffs asked the circuit court for a declaratory decree. The court adjudged:

'* * *.

'2. That although the ground floor of an apartment building may be devoted to service and the parking of automobiles, this does not entitle the builder to exclude the parking and service floor in determining the height of the building as contemplated by the height limitations of Article 6, Section 3, of Ordinance No. 68.

'3. The Court further finds that the last sentence of Section 3, Article 6, of Ordinance No. 68 applies only 'to necessary service and mechanical appurtenances or their appropriate housing' From the tenth floor up.' (Emphasis added.)

On petition for rehearing, it was further found:

'* * *.

'2. That the Court herein modifies the final judgment to include a finding, supported by the weight of the evidence, that the ground floor of the apartment building was used only for a service apartment, service parking area, and mechanical appurtenances.'

It was concluded that defendant was correct in denying plaintiff's application for permission to erect the second penthouse on the eleventh floor. We reverse.

As we read and paraphrase, the trial court agreed that the ground or first floor of the building was indeed used for a service apartment, service parking area, and mechanical appurtenances. We would conclude that this comes within the ordinance's exception to the effect that the height...