Rott v. City of Miami Beach

• Decision Date: 13 March 1957
• Citation: 94 So.2d 168
• Parties: David ROTT and Harry Rott, Appellants, v. CITY OF MIAMI BEACH, a Florida municipal corporation, Appellee.
• Court: Florida Supreme Court

Page 168

94 So.2d 168

David ROTT and Harry Rott, Appellants, v. CITY OF MIAMI BEACH, a Florida municipal corporation, Appellee.

Supreme Court of Florida, En Banc.

March 13, 1957.

Rehearing Denied April 24, 1957.

Copeland, Therrel & Baisden, Miami Beach, for appellants.

Ben Shepard, Miami, and Joseph A. Wanick, Miami Beach, for appellee.

DREW, Justice.

This controversy between David Rott and Harry Rott and the City of Miami Beach commenced about April 6, 1955 when the attorney for the Rotts appeared before the City Council and requested that a notice be advertised that a public hearing would be conducted on an application to permit the construction of a multiple level parking garage at the corner of 27th Street and Collins Avenue, on Lots 5, 6, 7 and 8 of Block 7, of the ocean front property of the Miami Beach Improvement Company, according to the plat thereof recorded in Plat Book 5 at pages 7 and 8 of the public records of Dade County. The advertisement requested was run in the local newspaper and hearing was held thereon on the 20th of April following, at which time the attorney for the Rotts again appeared and was heard by the Council. The Council took no action on the application but postponed a decision thereon until further study and consideration could be given the proposal. The following July 6th the attorney again appeared before the City Council on behalf of the Rotts and extended discussions took place between the members of the Council, the attorney for the applicants for the permit, city attorney and others. From an examination of these proceedings it appears that what the Messrs. Rott desired to do was to construct a multiple level parking garage on the subject property according to certain plans which were apparently exhibited to the Council in connection with the application for a building permit. These plans called for the construction of the multiple level parking garage on the subject area and revealed that a considerable number of mercantile stores were to be located on the street level for the purpose of financing the project, it appearing from the disclosures of the proceeding that a successful financial venture could not be undertaken in the absence of the revenue that would be derived from the rent from such mercantile establishments. The subject property had been zoned as 'RE' Multiple-family District from 1930 to about 1950 when the zoning was liberalized to the extent of allowing in said district the construction of multiple level parking garages without store fronts on the street and with certain other qualifications and limitations. [The full regulations are set forth in Parking Facilities, Inc., v. City of Miami Beach, Fla. 1956, 88 So.2d 141]. We glean from the record that in other areas of the city, notably in business districts, such multiple level parking garages were allowed with stores on the street level and facing the street. It was around this controversy that the argument revolved.

The Council finally concluded that it would not grant a permit for the construction of the multiple level garage with the stores along the street as it was contrary to the ordinance so far as it related to multiple level parking garages in 'REE' Multiple-family Districts. Final action was taken rejecting the permit at the meeting of July 6th.

Inasmuch as the chronological events occurring subsequent to that time have a significant and material bearing upon the conclusions which we reach in this litigation we find it expedient to note: (1) the events in chronological order arising in the eminent domain proceedings instituted by the City of Miami to acquire this property for public parking area (the suit with which we are primarily dealing in this opinion) and (2) the events in chronological order arising out of the action in equity seeking to declare the subject ordinance restricting the use of the plaintiffs' property as above noted to be unreasonable, arbitrary, confiscatory and unconstitutional; enjoining and restraining the City from enforcing said zoning ordinance against the property of the Rotts insofar as the construction of a structure as shown by the plans and elevations attached to the complaint or a structure of similar utility including multiple level parking garage (the structure referred to was one for multiple level parking of automobiles with stores along the street); enjoining and restraining the prosecution of the condemnation proceedings pending the determination of the equitable action and for general relief. In chronological order these events are:

1. July 6, 1955, application for permit to construct the multiple level parking garage with stores on the ground floor rejected by the Council.

2. October 26, 1955, petition for condemnation of the land in controversy filed by the City of Miami Beach in the Circuit Court of Dade County.

3. November 15, 1955, answer filed in condemnation suit by defendants Rott.

4. March 21, 1956, complaint for injunction filed by the Rotts against City of Miami Beach to enjoin enforcement of zoning ordinance as to subject property and to allow construction of multiple level parking garage with stores along the street.

5. June 6, 1956, notice was served on Rotts' attorneys of application for trial of condemnation suit on July 5, 1956.

6. June 22, 1956, answer of the City of Miami Beach to injunction complaint.

7. June 29, 1956, order denying temporary injunction to restrain condemnation suit. ¹

8. July 2, 1956, motion of Rotts' attorney for continuance of condemnation suit. ²

9. July 5, 1956, order denying motion for continuance of condemnation suit. ³

July 5, 1956, order determining that the City had the right to condemn the lands and that the condemnation thereof is necessary and proper in the condemnation suit.

10. July 10, 1956, verdict of the jury fixing award of compensation in the condemnation suit.

11. July 12, 1956, final judgment of the court ⁴ in the condemnation suit.

12. August 20, 1956, order denying motion of City of Miami Beach for summary final decree ⁵ in the injunction suit.

The condemnation case is now before us on an appeal from the final judgment and the Rotts present three questions for determination, viz.:

1. Did the trial court err in denying the motion for continuance pending the determination of the issues on the equity suit?

2. Did the trial court err in finding in favor of the City on the question of the necessity of taking and the good faith of the City?

3. Did the trial court err in admitting certain evidence of expert witnesses concerning a lease and in refusing to allow defendants' witness McCune to give certain testimony relating to leases on comparable property as a basis for establishing market value?

Before entering upon a discussion of the three principal issues in this case and as a preliminary thereto, this Court in the case of Parking Facilities, Inc., v. City of Miami Beach, supra, upheld the reasonableness and constitutionality of the very ordinance we are dealing with in this case as it related to certain other property in the City of Miami Beach. The question raised in that case was the identical question raised before the City Council at its meeting on July 6 hereinabove alluded to, and that was that it was unreasonable, arbitrary, capricious and confiscatory to allow the construction of a multiple level parking garage in hotel and apartment districts but at the same time and in the same ordinance prohibit the use of the ground floor for mercantile establishments of a defined and restricted character. While the decision in that case was filed January 8, 1956, it was not officially released until rehearing was denied September 13, 1956, about two months after the entry of the final judgment in the condemnation suit and nearly a month after the entry of the order of the trial court denying the motion for summary decree in the chancery case. In Parking Facilities, Inc., v. City of Miami Beach, supra , we had this to say with reference to the...