Skaggs-Albertson's Properties, Inc. v. Michels Belleair Bluffs Pharmacy, Inc.

• Citation: 332 So.2d 113
• Decision Date: 12 May 1976
• Docket Number: No. 75--1050,SKAGGS-ALBERTSON,75--1050
• Court: Court of Appeal of Florida (US)
• Parties: 'S PROPERTIES, INC., Appellant, v. MICHELS BELLEAIR BLUFFS PHARMACY, INC., et al., Appellees.

Page 113

332 So.2d 113

SKAGGS-ALBERTSON'S PROPERTIES, INC., Appellant, v. MICHELS BELLEAIR BLUFFS PHARMACY, INC., et al., Appellees.

No. 75--1050.

District Court of Appeal of Florida, Second District.

May 12, 1976.

Rehearing Denied June 10, 1976.

James A. Urban and James E. Slater, of Maguire, Voorhis & Wells, P.A., Orlando, Paul R. Pizzo, of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa; and Emerson Allsworth, Fort Lauderdale, for appellant.

Allen P. Allweiss, of Allweiss & Anderson, St. Petersburg, and Jack F. White, Jr., Clearwater, for appellee, Michels Belleair Bluffs Pharmacy, Inc.

Kenneth E. Easley, of Gormin, Geoghegan, Easley, Granese & Bauman, P.A. Clearwater, and David F. Kern, Belleair Bluffs, for appellees, City of Belleair Bluffs, Florida, and C. Frank Snyder.

GRIMES, Judge.

This is an appeal from a judgment entered upon the complaint of a nearby property owner enjoining the construction of a large retail 'drugstore' for being in violation of the zoning ordinance of the City of Belleair Bluffs.

Appellant (Skaggs) is the owner of property in Belleair Bluffs on which it proposes to construct a combination grocery, drug, sundry and hardware retail store. The property is located in a C--1 zoning district which permits 'commercial development such as compact shopping areas located in the neighborhood which they serve.' Skaggs applied for a building permit. After reviewing the plans, the city engineer determined that the proposed structure and use were permitted in a C--1 zoning district and caused a building permit to be issued.

Prior to the commencement of construction, the appellee (Michels) filed with the city a written objection to the issuance of the building permit. Five days later and without waiting for further action on the part of the city, Michels filed this suit for injunction. At the trial, most of the testimony was directed toward whether Skaggs' operation would be a neighborhood type store and whether the non-storage areas of the store had been properly calculated for the purpose of determining the required amount of off-street parking. The court concluded that the construction contemplated by Skaggs violated the zoning ordinance in these aspects and also in certain other particulars. The court further held that Michels had standing to complain of the violations and that it was unnecessary for Michels to exhaust its administrative remedies before filing suit.

Skaggs argues the following points on appeal:

(1) whether the court erred in holding that exhaustion of administrative remedies was not a prerequisite to the filing of the suit;

(2) whether the court erred in finding that Michels had standing to bring the subject action;

(3) whether the court erred in finding that Skaggs' proposed use of its property would be in violation of the zoning ordinance;

(4) whether the granting of the permanent injunction was unwarranted by the facts and constituted a premature intervention by the court into the administrative process.

The City of Belleair Bluffs filed a brief in support of Skaggs' position. We have concluded that the judgment must be reversed on the first two grounds so it is not necessary for us to consider the remaining contentions.

In DeCarlo v. Town of West Miami, Fla.1950, 49 So.2d 596, the Supreme Court responded in the negative to the question of whether a party could seek injunctive relief on the ground that a zoning ordinance was invalid with respect to his property without first having exhausted the administrative remedies available under the ordinance. In support of its conclusion, the court said:

'The administrative boards usually provided for the consideration and review of zoning problems are made up of local people, having the advantage of full local information as to the reasons behind the various zoning regulations. Their findings, while not conclusive, are indeed helpful in the ultimate determination of the rights of the parties. Moreover, the inequalities of a zoning ordinance, if called to the attention of such local administrative boards, may frequently be adjusted at that level. Such boards should, at least, be given an opportunity to afford relief, or state their reasons for not doing so.'

Our court's decision in Hennessy v. City of Fort Lauderdale, Fla.App.2d, 1958, 101 So.2d 176, is more directly on point because the complaint being made against the city's interpretation of its zoning ordinance was made by parties who did not own the property in question. There the plaintiffs had successfully obtained an injunction against the construction of a mortuary as being in violation of the zoning ordinance. On appeal, this court reversed for the failure of the trial court to permit the owners to raise the defense that the plaintiffs had failed to exhaust their administrative remedies. The court held that where a challenge was being made to the action of the city's building inspector in his interpretation of the zoning ordinance as contrasted to a general attack on the validity of the ordinance, it was necessary for the plaintiffs to exhaust such administrative remedies as well available to them before going to court.

Admittedly, our sister court in Continental Con-Dev Company v. Shallberg, Fla.App.4th, 1972, 267 So.2d 40, held that the exhaustion of administrative remedies was not a prerequisite to a suit brought to enjoin the construction of a building in violation of the city's zoning code. However, just two years later in Medical Arts, Inc. v. Rohrbaugh, Fla.App.4th, 1974, 293 So.2d 366, the same court reached the opposite conclusion without citing the Continental Con-dev case. In Medical Arts the court held that it was essential for a property owner to exhaust his administrative remedies before seeking an injunction prohibiting the use of adjacent property as a parking lot in violation of the zoning code.

The zoning ordinance of the City of Belleair Bluffs provided for the Board of Adjustments to hear appeals from administrative opinions and decisions. Even if the objection filed by Michels with the city were construed to be an application for appeal, Michels did not wait for the Board of Adjustment to act. Michels' assertion that the Board of Adjustment would have rubberstamped the actions of the city engineer does not obviate the necessity of giving the Board of Adjustment an opportunity to carefully consider any objections which are made to the administrative decisions of the city employees with respect to zoning.

A reversal on the ground that Michels failed to exhaust its administrative remedies would require only that the suit be dismissed...