State ex rel. Zuckerman-Vernon Corp. v. City of Miramar

• Decision Date: 27 December 1974
• Docket Number: No. 73--1329,ZUCKERMAN-VERNON,73--1329
• Citation: 306 So.2d 173
• Parties: STATE of Florida ex rel.CORP., a Florida corporation, Appellant, v. CITY OF MIRAMAR, a Municipal Corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 173

306 So.2d 173

STATE of Florida ex rel. ZUCKERMAN-VERNON CORP., a Florida corporation, Appellant, v. CITY OF MIRAMAR, a Municipal Corporation, et al., Appellees.

No. 73--1329.

District Court of Appeal of Florida, Fourth District.

Dec. 27, 1974.

John S. Neely, Jr., and Frank E. Maloney, Jr., of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellant.

Jerome F. Pollock of Hulmes, Dreiling, Pollock & Webber, Davie, for appellees.

WALDEN, Judge.

The trial court denied a petition for writ of mandamus and dismissed the cause. Petitioner appeals. We affirm. We do so on a fundamentally diferent basis than was given by the trial court in reaching its decision.

Omitting essentials and background not necessary for our decision--petitioner owned property and applied to the City for approval of a proposed plat and issuance of building permits thereunder. While the application was under consideration by the Council--not ruled upon one way or the other--petitioner sought mandamus relief. The thrust was not to compel the City to make a decision, but to bypass the City, seeking a court command directing the approval of the plat and the issuance of the permits upon the merits.

After trial the appealed judgment was entered. A review indicates that the matter was tried upon the merits--a complex process. While the judgment concluded with four lines that summarily and correctly denied relief, that decision was preceded by a number of pages containing what the trial court denominated as 'conclusions.' The conclusions dealt with the merits of the contentions and controversy as if the trial court were standing in the shoes of the City Council. After a review of historical development, the trial court found the application was in order, that certain re-zoning ordinances were invalid, but that the City was estopped to assert such invalidity; but that the City was Not estopped to assert certain other invalidities and illegalities of the zoning plan.

We are not certain where the parties were left by the trial court observations. Could the City--being under no mandate--now entertain the plan and would it be bound under the law of the case or otherwise as to the validity of its ordinances and as to matters of estoppel? Because of the considerations we shall mention, it is our opinion that these matters were gratuitously addressed and hence such findings are without effect.

It is our opinion that petitioner misconceived its remedy as mandamus was an improper vehicle. Mandamus applies to legal duties of a specific imperative character as distinguished from those that are permissive or discretionary. The distinction between ministerial and judicial duties is that the duty is ministerial when the law prescribes and defines it with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Where the act to be done does involve the exercise of discretion or judgment, it is a judicial or discretionary duty. Fasenmyer v. Wainwright, 230 So.2d 129 (Fla.1969); Green v. Walter, 161 So.2d 830 (Fla.1964); State ex rel. Glynn v. McNayr, 133 So.2d 312 (Fla.1961); Coral Gables v. State, 44 So.2d 298 (Fla.1950); Somlyo v. Schott, 45 So.2d 502 (Fla.1950).

Here, clearly, the consideration of the plan involved the exercise of judgment and discretion. Did the plan meet the zoning requirements? Were the zoning requirements legal and binding? What was the effect of certain condemnation proceedings and other changes upon density requirements? Was the City estopped?

The propriety of mandamus relief was raised in the City's Motion to Quash. That motion was erroneously denied and the City has not complained by cross-assignment of error or point. Apparently, and by way of guess, the City is content with the outcome of the cause and the possibility that it is relieved--although incorrectly--of the burden of deciding whether to approve the application. Thus, because of its basic incorrectness and the likelihood that the judgment may produce yet more litigation, and because the result may encourage impatient developers to misuse the writ, thereby usurping the prerogative of the legislative branch, we have decided to...