Summary
In City of Miami Beach v. First Trust Co., Fla. 1949, 45 So.2d 681, the Court recited the fact that the appellee attempted to have the zoning ordinance modified in order that his property would become a part of a less restricted district and that the application was rejected by the Board of Adjustment. The questions of exhausting administrative remedies, or whether the Board had the authority to grant the relief were not determined.
Summary of this case from Mayflower Property v. City of FortOpinion
July 5, 1949. On Rehearing March 10, 1950. Rehearing Denied April 25, 1950.
Appeal from the Circuit Court of Dade County, Ross Williams, J.
Ben Shepard, Ward Ward, Miami, and J. Julien Southerland, Miami Beach, for appellant.
McCarthy, Lane Howell, Edward McCarthy, Jacksonville, Evans, Mershon, Sawyer, Johnston Simmons and M.L. Mershon, Miami, for appellee.
Bernard A. Frank and Sibley Davis, Miami Beach, amicus curiae.
The appellee, First Trust Company, trustee of the Firestone Estate, filed a bill of complaint October 25, 1944 against the appellant, City of Miami Beach, attacking a zoning ordinance, passed December 3, 1930, as unreasonable, arbitrary, confiscatory, and invalid, and containing a prayer that the defendant be enjoined from interfering with rental of rooms and apartments in the buildings now located on certain property or the construction upon it of hotels and apartment houses "now permitted to the property immediately adjoining it to the south * * *."
As described in the bill, the land involved is 8.13 acres in area, bounded on the east for seven hundred feet by the Atlantic Ocean and on the west by Collins Avenue. It is situated about midway between the north and south city limits. This property was bought for use as a country estate when the city was in its infancy, and there were erected on it, in pursuance of this plan, a three-story dwelling, a two-story gate lodge and garage, containing in all ten bath rooms, two kitchens, and so on, now rentable, so it was alleged, to year-round residents and seasonal visitors.
By the ordinance which is assailed the city was divided into use- and area-districts so that the lot fell in use-district described as "R-AA," and also called an "estate district," and within "Area District #3," so that it could be used only for single-family residences, and an area of 40,000 square feet would be required for each family. By the same ordinance all property existing southward fell in "`Area-District #15' and `Use-District R-E', also known as a `multiple-family district'" and consequently could be used for all residential purposes, including hotels and apartments, the requirement being only 2,800 square feet for each family unit if used for single-family homes. Continuing, the allegations were that in the intervening years the property for about three and a half miles southward, with the exception of a few plots, had been improved by the construction of apartments and hotels and that two hotels and one apartment house had been built on the property immediately adjoining that in question. It was charged that a mile and a half farther north there was also an "R-E" territory where apartments and hotels could be built. It was stated in the bill that the enactment of the ordinance by the city council (nearly fourteen years before the bill was filed) was not the "deliberated or considered" decision of that body, and it was asserted that "neither the public safety, the public health, the morals of the community, or the general welfare were * * * affected" by putting the plaintiff's property in the restricted district. The bill contained also averments of the monetary loss accruing because of inability to convert the property from use as a home site to use as a site for hotels and apartment houses.
The appellee's attempt to have the ordinance modified so that its property would become a part of the less restricted district, thereby making it adaptable as a location for hotels and apartments, was rejected by the City Zoning Board of Adjustment.
The salient allegations of the bill were denied by the city, and it was relevant to these issues that testimony was taken. The paramount question thus presented is whether the ordinance enacted in 1930 imposing restrictions on the use of appellee's property has become, under existing circumstances, such an arbitrary and unreasonable exercise of municipal authority as to make it unconstitutional. City of Miami v. Rosen, infra.
The master in his report gave a resume of the pleadings and a painstaking digest of the contentions of the parties, and expressed the opinion that the questions of law involved should be governed by the decisions of this court in Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642, City of Miami v. Rosen, 151 Fla. 677, 10 So.2d 307, and City of Miami Beach v. Ocean Inland Company, 147 Fla. 480, 3 So.2d 364. Based on the evidence which he had heard he made the terse recommendation that the court enter a final decree dismissing the bill with prejudice.
When the matter reached the chancellor on exceptions to the master's report, he had a different notion. He found that the ordinance as applied under present conditions was "arbitrary, unreasonable, oppressive, discriminatory * * *, confiscatory, * * * invalid, void and unenforceable."
At the outset the appellant challenges the propriety of the action of the chancellor in overriding the findings of the master who had heard all the testimony, there having been, so it is asserted, no showing that these findings were arbitrary or unsupported by the testimony the master chose to believe. We shall not dwell on this subject, for, despite considerable conflicting testimony on the part of witnesses who gave opinions, the fundamental basic facts on which a decision in this case will rest are clear and undisputed. As a matter of fact, the chancellor himself in his decision observed that there was "no material conflict or controversy * * * as to the facts shown by the evidence."
Parenthetically, we might point out that in a decision filed in this court April 22, 1949, Harmon v. Harmon, 40 So.2d 209, and not yet reported in State reports we passed upon the latitude which should be accorded a chancellor in overruling a master who had had the advantage over the chancellor of hearing the witnesses testify, and held, in effect, that his findings should not be disturbed unless the exceptant showed that he had clearly erred, and we thereby invoked the rule by which this court is bound in reviewing the order of a chancellor based on testimony taken in his presence.
The primary question is a mixed one of law and fact, Forde v. City of Miami Beach, supra, and the essential facts are not in dispute; so we shall proceed to determine whether chancellor or master was correct about the governing law.
As alleged in the bill, the property involved was occupied as a residence for more than a decade after the restrictions were imposed, until 1942, and meanwhile the population of the City of Miami Beach had increased six-fold. During this time, as we have said in analyzing the bill, the area adaptable to the location of hotels and apartment houses had built up almost solidly with structures of that nature. The steady march of these buildings was halted abruptly at the south line of the lot in question. Doubtless all these improvements and the vast increase in population resulted in the amount of traffic growing apace. It is argued that the changes wrought by these developments have so affected the character of the property that it, too, should now be adaptable to the construction of hotels and apartments. At a glance this position is plausible, but a careful examination of it convinces us that it does not possess the logic which would lead us to conclude that the ordinance had become unconstitutional as applied to the premises.
When the predecessor of appellee decided upon a site for his home, the property in question must have been attractive indeed, for he erected on it a residence of large proportions at great cost. Then the zoning ordinance was enacted providing that the area up to its south line should be available for the construction of hotels. Doubtless the property would not now have the same appeal as a home site, but for fourteen years, and until the bill of complaint in this case was filed, what transpired in the way of construction was only what was contemplated when the ordinance was passed and that territory declared usable as a location for hotels. The question is: Should the ordinance now be held invalid because what was expected by the city, and known by the appellee and his predecessor for that long period to be expected by it, came to pass?
Changed conditions may justify or command a revision of zoning restrictions, but it seems to us that in this case no such principle need be applied because the changes which have occurred resulted from a realization of the plan which the authorities originally adopted. The progress which is seen today must have been anticipated fifteen years before because an area which must then have appeared extensive was made available for the construction of hotels and apartments. Who is there to say that this progress has not resulted from this same ordinance but has been made in spite of it?
We do not see the force either of the argument that because of the proximity of the apartment and hotel area and the existence of two hotels and an apartment next door, the lot involved should be incorporated into that district. As we have written before in City of Miami Beach v. Ocean Inland Company, supra, a line must be drawn somewhere, and wherever it is placed it is bound to have the appearance of arbitrariness. If the argument is sound today that the ordinance should be revised because of the apartment and hotels immediately to the south and this property is allowed to be so improved, then tomorrow the same argument would be apposite as to the property immediately to the north. If this reasoning were followed, and the courts were to substitute their judgment for that of the city officials which we have held cannot be done, Forde v. City of Miami Beach, supra, then by a sort of judicial erosion a zoning ordinance would eventually be completely dissipated.
We have already recognized, in City of Miami Beach v. Ocean Inland Company, supra, the peculiar qualities of the community of Miami Beach as an attraction to visitors. That is its very raison d'etre. We said there that a case like this, affecting a city like that, does not involve a matter of public morals or of public safety or of public health. The question of general welfare obtains, and the general welfare of the city, considered in this light, is just as manifest today as it was when the residence on this property was constructed nearly a score of years ago when this fabulous city was only a small town of 6,000 inhabitants.
Summarizing, we believe, as we did when we adopted the opinion in City of Miami Beach v. Ocean Inland Company, supra, that the peculiar characteristics and qualities of the City of Miami Beach justify zoning to perpetuate its aesthetic appeal, and that this is an exercise of the police power in the protection of public welfare. In considering the facts of the instant controversy we have reviewed the rules set down in that same case for judging the soundness of the positions taken by the parties litigant — that is, that there should be no substitution by the court of its judgment for that of the city council, that a presumption exists favoring the validity of the ordinance, and that the intent of the legislative body will be supported if it be even fairly debatable. In the application of all these rules we feel little hesitancy in deciding that the master was correct in the first instance.
We see no occasion for the court to interfere with the judgment exercised by the city authorities, nor justification for the holding that the ordinance, as presently applied to the particular territory, is unconstitutional. So the decree is reversed.
In view of this conclusion, the matter is remanded to the chancellor with directions that he review the order taxing all costs against the city which did not prevail in the lower court but does prevail here.
ADAMS, C.J., and TERRELL, SEBRING and HOBSON, JJ., concur.
CHAPMAN and BARNS, JJ., dissent.
On Rehearing
The City of Miami Beach adopted an ordinance zoning the City into what it elected to term "Use Districts and Area Districts." The lands of the Firestone estate involved in this litigation fell in Use District R-AA limited to single family residences only. The lands adjacent to these lands on the South fell in Area District 15, known as a multiple family district and could be used for all family purposes, including hotels and apartment houses. The lands were purchased when the city was young, a large residence and other buildings were constructed thereon and for years it was used as a Country Estate but on account of changed condition it was no longer practical to use it for the original purpose. The owners now desire to dispose of it to the best advantage.
Appellee as trustee of the Firestone estate instituted this suit, alleging in its bill of complaint that the ordinance is unreasonable, arbitrary and confiscatory and prayed that the defendant be enjoined from interfering with the rental of rooms and apartments in the buildings now located on the property or the construction of hotel and apartment houses thereon. At final hearing on bill and answer the chancellor found the ordinance to be arbitrary, unreasonable, oppressive, discriminatory, confiscatory and void as applied to complainant. The defendant prosecuted this appeal.
The controlling question for determination is whether or not the chancellor committed error in adjudicating the ordinance to be arbitrary, unreasonable and void.
When the case was before us initially the proposition that got the ear of the Court was the insistence by appellant that the ordinance was presumptively valid, that if fairly debatable the action of the city in passing it should be upheld and the Court should not substitute its judgment for that of the City Council. An opinion based on this theory was prepared by Mr. Justice Thomas and was agreed to by a majority of the Court. I was one of those subscribing to this opinion, but on thorough review of the case on petition for rehearing, I am convinced that our judgment was erroneous. When, as here, the constitutional rights of the citizen are assaulted, I do not think the Court can in the manner shown bypass its duty to adjudicate them. Most assuredly is this true when the assault is shown to have merit.
The lands in question lie between the Atlantic Ocean and what is known locally as Collins Avenue, the main thoroughfare through the city, they are 8.13 acres in area and, as heretofore pointed out, are bounded on the South by an area zoned for hotels and apartment houses which have in fact been constructed up to and adjoining the Firestone lands. The ordinance in question was adopted in December 1930, the population of the city is now six times what it was then, and many other changes have taken place. Before the institution of this suit, the city made a finding that the general welfare did not require the lands to be used exclusively for single family residences, but on the other hand, they should be acquired by the city and developed for ocean park purposes. Both the Master and the Chancellor found that the zoning restrictions had reduced the value of the lands of complainants by three-fourths, that as zoned for the uses indicated by the ordinance, they were worth $400,000 but if permitted to be used for apartment houses and hotels, as were the lands adjoining them, they had a value of $1,750,000. The evidence shows conclusively that the lands are more valuable for hotel and apartment houses than any other purpose.
Zoning restrictions, like other phases of the law are subject to change or removal when the reason for them ceases. When they run afoul of the public welfare appears to be a good test to direct their removal. The public welfare is a concept that broadens with changing times and circumstances and it now embraces many species of regulations that the courts of yesterday would not have brought within its range. There must be a positive showing of physical, economic or social change rather than esthetic or group caprice to justify the release of zoning regulations. They will not be released at the behest of community or group pressure, if in doing so, constitutional guaranties are undermined. The ordinance in question had been in effect fourteen years, during which time numerous physical, economic and social changes in the locus had taken place. Not a single property owner in the City is shown to be hurt by removing the zoning restrictions as to the lands of appellee, yet if they are not removed they will cost appellee more than one million dollars. There is no showing that the zoning plan of the city will be jeopardized or materially affected by removal. Under such circumstances they amount to confiscation.
The chancellor's decree squares with the rule announced in the preceding paragraph. The general subject involved was discussed in Osius v. Barton, 109 Fla. 556, 147 So. 862, 88 A.L.R. 394; Ford v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642; Barton v. Moline Properties, 121 Fla. 683, 164 So. 551, 103 A.L.R. 725; Ehinger v. State ex rel. Gottesman, 147 Fla. 129, 2 So.2d 357. The decree appealed from is affirmed on authority of these cases.
Affirmed.
CHAPMAN and HOBSON, JJ., and BARNS, Associate Justice concur.
ADAMS, C.J., and THOMAS and SEBRING, JJ., dissent.
The Court's approach, as expressed in the controlling opinion, is well stated in the following extracts therefrom, viz:
"As alleged in the bill, the property involved was occupied as a residence for more than a decade after the restrictions were imposed, until 1942, and meanwhile the population of the City of Miami Beach had increased six-fold. During this time, as we have said in analyzing the bill, the area adaptable to the location of hotels and apartment houses had built up almost solidly with structures of that nature. The steady march of these buildings was halted abruptly at the south line of the lot in question. * * *
"It is argued that the changes wrought by these developments have so affected the character of the property that it, too, should now be adaptable to the construction of hotels and apartments. * * *
"Doubtless the property would not now have the same appeal as a home site, but for fourteen years, and until the bill of complaint in this case was filed, what transpired in the way of construction was only what was contemplated when the ordinance was passed and that territory declared usable as a location for hotels. The question is: Should the ordinance now be held invalid because what was expected by the city, and known by the appellee and his predecessor for that long period to be expected by it, came to pass? * * *
"Summarizing, we believe * * * that the peculiar characteristics and qualities of the City of Miami Beach justify zoning to perpetuate its aesthetic appeal, and that this is an exercise of the police power in the protection of public welfare."
The ultimate findings of fact by the Master which tend to conclusively determine the controversy were as follows:
"28.
"Said Lot A is reasonably suitable and desirable for said `RAA' Estate District use, as said use is defined by said Zoning Ordinance 289 as now amended.
"29.
"Those parts of said Zoning Ordinance No. 289 as now amended that zone or restrict said Lot A for said `RAA' Estate District use, and that placed said Lot A in said `District No. 3,' are reasonable, and are within the limits of necessity for the public or general welfare of the City of Miami Beach."
Some of the controlling evidentiary findings of fact upon which the aforesaid ultimate findings of the Master were based were as follows:
"11.
"Between December 3, 1930, the date of the adoption of said Zoning Ordinance No. 289, and the time of the hearings before the special master, a great many apartment houses and hotels were erected in that area lying between the south line of said Lot A and 30th Street, and between the Atlantic Ocean and Indian Creek Drive, as was permitted by said zoning ordinance. On August 22, 1945, the hotels and apartment houses erected on the lots of land immediately south of the south line of said Lot A are partly shown by plaintiff's exhibits 12, 13 and 15.
"At the time of the hearings before the special master, the Surrey Hotel and the Broadripple Hotel were located on a lot of land at the southwest intersection of Collins Avenue and 44th Street, which lot of land was bounded on the north by the south line of 44th Street. The Surrey Hotel faces east on Collins Avenue, and is separated from the western portion of said Lot A by 44th Street, which is 60 feet wide. The Broadripple Hotel faces west on Indian Creek Drive, and is separated from the west portion of said Lot A by 44th Street. Pictures of said Surrey Hotel were admitted in evidence as plaintiff's exhibits 15 and 16. Plaintiff's exhibit 17 is a photograph of a portion of the north side of the Broadripple Hotel. At the time of the hearings before the special master, the Sovereign Hotel was located on lots of land situate about 125 feet south of the eastern portion of said Lot A. Canvas cabanas have been erected on the land lying between the north side of the Sovereign Hotel and the south line of the eastern portion of said Lot A. A picture of the north side of the Sovereign Hotel was admitted in evidence as plaintiff's exhibit 18. The Surrey Hotel and the Sovereign Hotel are also shown by a photograph which was admitted in evidence as plaintiff's exhibit 26.
"The erection of said hotels, apartment houses and municipal family dwellings in the aforesaid area, to-wit: `That area which is bounded on the north by the south line of said Lot A and the south line of 44th Street, bounded on the east by the Atlantic Ocean, bounded on the south by 30th Street, bounded on the west by Indian Creek Drive,' during that period of time between December 3, 1930, and the time of the hearings before the special master, caused said Lot A to be less valuable and desirable for said `RAA' Estate district use than those lots in that area between the north line of said Lot A and the south line of 55th Street (if said 55th Street was extended easterly to the Atlantic Ocean), and between the Atlantic Ocean and Collins Avenue, because said hotels, apartment houses and multiple family dwellings very materially increased the traffic on 44th street and on that part of Collins Avenue which bounds said Lot A was thereby changed from vacant lots and a few buildings to one of many hotels and apartment houses, and because some of the privacy of any dwelling houses on said Lot A was destroyed by the proximity of the Surrey Hotel, the Broadripple Hotel and the Sovereign Hotel. But said erection of those hotels, apartment houses and multiple family dwellings was permitted by said Zoning Ordinance No. 289.
"14.
"According to the federal census for the year 1930, the permanent population of the City of Miami Beach in the year 1930 was 6,419. According to estimates, which the city manager of the City of Miami Beach thinks are reliable, the permanent population of the City of Miami Beach in the year 1944, was approximately 35,000.
"21.
"The 1945 City of Miami Beach taxes against said Lot A was the sum of $3,693.60; the 1945 county taxes against said Lot A was the sum of $3,685.50; the 1946 City of Miami Beach taxes against said Lot A was the sum of $3,270.80; and the 1946 county taxes against said Lot A was the sum of $5,048.08.
"23.
"On October 25, 1944, the reasonable market value of said Lot A, as zoned for said `RAA' Estate District use and as placed by said zoning ordinance in said District No. 3, was the sum of $400,000.00.
"25.
"On August 31, 1945, the reasonable market value of said Lot A together with all improvements thereon, if it was then zoned for said `RE' Multiple-Family District use (which use would permit the erection of apartment houses and hotels) was the sum of $1,750,000.00.
"26.
"On October 19, 1945, a fair annual rental value of said Lot A, as zoned for said `RAA' Estates District use, was the sum of $10,000.00."
As to the foregoing findings of the Master's Report exceptions were sustained only to the underscored words and the Chancellor made no findings inconsistent with the quoted findings of the Master except as to those numbered 28 and 29 first above quoted.
Upon final hearing the Chancellor accepted the quoted evidentiary findings of fact and in his final decree, among other things, stated and found:
"There is no material conflict or controversy, if any, as to the facts shown by the evidence. The inspection and view made by the Court fully confirms the proof of the existing physical conditions shown by the evidence (No assignment of error on this).
* * * * *
"(h) The City rezoned both sides of 41st Street west of Indian Creek into a business district followed by erection of stores, restaurants, shops, a theatre, and other business, and by the building of a bridge over Indian Creek connecting 41st Street with Collins Avenue and Indian Creek three blocks south of Lot A, and increased traffic in the vicinity of Lot A.
"11. The development of the hotel district, the erection and operation of the Broadripple Hotel, the Surrey Hotel and the ocean front Sovereign Hotel, with its bathing beach, the changes in Collins Avenue and 44th Street and increased traffic, the use of the adjoining lot as a cabana colony and bathing beach and other changes and developments, have destroyed the privacy, outlook and view, quiet and comfort of Lot A, and its suitability and usefulness, and materially impaired its value, for single family, private residence purposes.
"That, as conclusively shown by the testimony of the owners of `RAA' single family estate ocean front property north of Lot A, the approach and proximity of the hotel development and the other conditions aforesaid, have made Lot A undesirable, unsuitable and unusable for residence purposes by the type of people who are financially able to own and maintain ocean front homes."
Only these ultimate findings of fact by the Chancellor were inconsistent with the ultimate findings of the Master numbered 28 and 29 (supra), the exceptions to which latter findings had been sustained by the Chancellor.
Both the Master and the Chancellor found that the value of the property as zoned for residential purposes was $400,000, which is less than the original cost of the improvements placed on the property in 1916, at pre-World War I prices.
Should the zoning ordinance permit the property to be cut up into 100 foot strips, which would average at the valuation fixed for residential purposes slightly less than $60,000 each, said lots for apartment and hotel purposes would have an average value of $250,000.
The area south of the Firestone Estate is not encumbered with the zoning restrictions as is the Firestone Estate and it has grown and has doubtless been developed to the highest, best, and most suitable use, but such development is denied the Firestone Estate. It is restricted to that use to which it was dedicated 33 years ago.
The zoning restriction is too harsh, and to enforce the ordinance as against plaintiff-appellee's six and one-half acres is to take appellee's property without due process. The ordinance should be modified and made to fit the changed conditions. The price of progress has destroyed the original character and its natural use now is different from then.
It seems most far-fetched to hold that ocean front property on Miami Beach next to the hotels at 44th Street must be used for Estate purposes — a most unnatural and unreasonable imposition on private property, in the name of an exercise of "police power."
The Chancellor should be affirmed.
CHAPMAN, J., concurs.