Tollius v. City of Miami

• Court: Florida Supreme Court
• Writing for the Court: THOMAS; TERRELL
• Citation: Tollius v. City of Miami, 96 So.2d 122 (Fla. 1957)
• Decision Date: 07 June 1957
• Parties: Gusto TOLLIUS, Appellant, v. CITY OF MIAMI, a municipal corporation of the State of Florida, and Brickell Hammock Civic Association, a non-profit corporation organized under the laws of the State of Florida, Appellees.

Page 122

96 So.2d 122

Gusto TOLLIUS, Appellant, v. CITY OF MIAMI, a municipal corporation of the State of Florida, and Brickell Hammock Civic Association, a non-profit corporation organized under the laws of the State of Florida, Appellees.

Supreme Court of Florida, Division A.

June 7, 1957.

Rehearing Denied July 8, 1957.

Hall, Hedrick & Dekle, Miami, for appellant.

Olavi M. Hendrickson, Miami, for City of Miami.

Pallot, Silver & Mulloy, Miami, for Brickell Hammock Civic Ass'n.

THOMAS, Justice.

In his decree the chancellor denied the relief sought by the plaintiff, that is, the re-zoning of three lots located at the southwest corner of 25th Road and Brickell Avenue so as to permit its use for buildings other than single-family dwellings. The plaintiff's effort to secure re-zoning had been rejected by the Planning Board, and the Board's decision had been sustained by the City Commission. The chancellor observed that although his 'personal opinion * * * might be such [that he] would favorably vote to re-zone the plaintiff's property administratively, nevertheless, [he was] of the opinion that the plaintiff [had] not sustained the extraordinary burden required' of him to 'overcome the principle that before a Court can grant re-zoning the case presented must show that the matter is not fairly debatable.' Miami Beach United Lutheran Church of the Epiphany v. The City of Miami Beach, Fla., 82 So.2d 880.

In order clearly to understand the prime issue in this case it seems fitting now to record a sketch showing the location of the property in question, the nature of the neighboring property and, especially, the system of streets and highways nearby.

In this sketch the numerals 1 to 9 will be used. The number '1' indicates the property involved, number '2' a motel situated diagonally across Brickell Avenue, which is also highway U. S. 1 leading from Miami to Key West, number '3' the future location of a Howard Johnson restaurant, number '4' the entrance of Rickenbacker Causeway, number '5' a four-lane street adjoining the property on the north, number '6' a four-lane street adjacent to the west side of the block in which the property is located, number '7' a five-lane street along the south side of the block, and number '8' the intersection of Brickell Avenue, highway U. S. 1, and the wide street leading to the causeway. The number '9' is used to designate tracts on which there are few, or no, improvements.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

There is extremely heavy vehicular traffic on Brickell Avenue, highway U. S. 1, and particularly at the point where it crosses 26th Road, number '7', near the entrance to Rickenbacker Causeway leading to Crandon Park, a popular recreation spot.

The plaintiff charged that the zoning regulation of 1936 placing the property in question in an area limited to use for single-family residences, designated Zone R-1, had become unconstitutional and void as applied to his parcel because of changed conditions and that the regulations should be modified to permit use of the land as a location for an apartment-motel.

The limitation fastened on the use of the tract designated number '2' was removed by a decree of the circuit court of the Eleventh Judicial Circuit 6 July 1951 in which the chancellor declared that the restriction to use for single-family residences was 'unreasonable, oppressive, unconstitutional and void.' The city appealed and the decree was affirmed. City of Miami v. Hammock Homes, Inc., Fla., 57 So.2d 459.

We repeat that this property is located at the northeast corner of the intersection of highway U. S. 1 and a street running east and west, while the property in litigation is situated at the southwest corner of the same intersection.

We are well aware of the position we have taken that lines of demarcation between zones must be placed somewhere and that there is no force to the argument that property situated on one side of a street need by proximity alone be put in the same zone with property on the other side. City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364. But we find no conditions in the present litigation calling for application of the rule because in the setting we have undertaken to depict by the sketch there is too much similarity between the parcel on which an apartment-motel now exists and the property on which the appellant proposes to build one, and between appellant's property and that which a restaurant will occupy.

The decision of this court in City of Miami v. Ross, Fla., 76 So.2d 152, casts some light on the present controversy. We state at the outset of an analysis of the opinion that it appears from the record in this court the property then involved was located about eleven blocks nearer the center of the city, but through traffic on Brickell Avenue and traffic between the center of the city and Rickenbacker Causeway are common to both and there were other circumstances in the cited case that are relevant to the present one.

The plaintiffs had assailed the zoning ordinance as a violation of their constitutional rights because it restricted their land to use for single-family dwellings, and they had prevailed. They city had admitted that the character of the area had changed...