CITY OF MIAMI BEACH v. LACHMAN et al., 71 So. 2d 148

PER CURIAM. Ten different property owners in Miami Beach brought separate suits to restrain the city from enforcing Zoning Ordinance 289, in so far as it affects their properties. The said properties are embraced within a narrow strip of ocean frontage about two miles long, bounded on the south by what is known locally as the Firestone Estate, on the. north by Royal York Hotel property, on the east by the Atlantic Ocean,- and on the west by Collins Avenue and Indian Creek. It is shown that all the properties are similarly affected by the ordinance and that in each case there is a common-question.

Prior to the institution of these suits, complainants applied to the Zoning Board to rezone their properties and relieve them from the requirements of Ordinance 289, but their application was denied, and on appeal to the City Council, the order of the Zoning Board was approved. Answers to the complaints were filed and the cases were consolidated and tried together. The evidence was taken by the Court and on final hearing motion of the city to dismiss was overruled and the relief prayed for was granted. One transcript has been lodged in this -Court.

It is composed of what was known under the old practice as the record proper and the bill of exceptions. It suffices for the main case. The other cases are here on the record proper. We approve this practice where more than one case is appealed. This opinion will dispose of all the appeals.

The primary question for determination is whether or riot the plaintiff sustained the burden of showirig that Zoning Ordinance 289 is unreasonable and not fairly debatable as applied to the properties of the plaintiff. - - Both sides produced an impressive array of witnesses to support their contention, that is to say, the affirmative and the negative of -this -issue. They represented eminent economists,- realtors and appraisers, municipal- and county planners, city managers, economic analysts, builders and brokers, and directors of city planning boards, each fortified with a background of broad experience.

The evidence supporting the issues was thoroughly explored.

On the evidence thus produced, the chancellor found that Ordinance 289 was enacted in 1930, since which time economic conditions in Miami Beach and the country at large have changed materially; that the property involved is a portion of 86 lots located between the Firestone Estate and the south line of.the Royal York Hotel property; that said properties are bounded on the east by the Atlantic Ocean, on the west by Collins Avenue and Indian Creek, and that while the development of Miami Beach has been phenomenal, this. strip of. 86 lots has been in a state of arrested development.

The testimony shows, said the trial court, that there are very few families in the United States of sufficient means to own and support a home of the proportions required for these properties. One witness testified dhat the taxes, insurance and upkeep of his home was $15,000 per year, that the liberties taken of his place by the public with accompanying noise became so annoying that he was compelled to move out and rent it and the most'he could secure for it was $7,-200 per year.

The Court’s conclusion was that the property may have been suitable for single family residences . wfien it was first zoned in 1930, but that under present restrictions, it is unproductive and a source of expense to the owner that will ultimately amount to confiscation. On the basis of this finding the Court ruled that said Ordinance restricting the property to single family residential use was ¡arbitrary, unreasonable, oppressive, discriminatory and confiscatory, and bore no reasonable relation to, and was not. conducive to the welfare of the public.

Accordingly, he ordered it rezoned for apartment house and hotel purposes. • The effect of the tr.ial court’s ruling was to hold that the ordinance was unreasonable and not “fairly .debatable”. In so holding did he properly appraise the evidence? In its highly controversial state did the trial court substitute his judgment for that .of the City Council, and under the circumstances was he warranted .in doing so.? The leading case in the country on the question is Village of Euclid, Ohio v.

Amber Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016, but we do not have to-leave óur own State in search-of law to settle the point. In addition to the last cited case,- appellant relies on State ex rel. Taylor v. City of Jacksonville, 101 Fla. 1241, 133 So. 114, City of Miami Beach v. Elsalto Real Estate, Inc., Fla., 63 So.2d 495, Segal v. City of Miami, Fla., 63 So.2d 496, and State ex rel. Office Realty Company v. Ehinger, Fla., 46 So.2d 601. Appellee relies on Forde v. City of Miami Beach, 146 Fla. 676; 1 So.2d 642, City of Miami Beach v.

Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364, and City of Miami Beach v. First Trust C.o., Fla., 45 So.2d 681. Village of Euclid, Ohio v. Amber Realty Company approved the authority of a municipality to promulgate' zoning regulations on the theory 'that the increase and concentration" of population has developed and will continually require more restrictions in respect to the use of private property in urban centers. This case also promulgated the doctrine of legislative classification for zoning purposes and declared that if “fairly debatable” it should be upheld.

The argument in the case at bar revolves around this doctrine. While Village of Euclid, Ohio’ v. Amber Realty Company approved the zoning and segregation of private property into residential, business, and industrial districts, it was as equally emphatic that if such zoning did not have some substantial relation to the public health, safety, ' morals, and general welfare, it would be held'to be arbitrary, unreasonable, and unconstitutional. .

There is no warrant whatever in this, or any other, case to support the thesis that zoning boards are infallible and that any kind of á zoning proposition they promulgate will be upheld- ■ In other words, zoning boards are in the same category as all other administrative boards.

Their ordinances and regulations will be given serious consideration and their judgments great weight, but where it is conclusively shown that they deprive one of his property without due process or otherwise infringe on State or Federal constitutional guarantees unreasbnably, such ordinances and regulations cannot 'be said to be reasonably debatable and will be stricken down. We Understand the doctrine of Marbury v.

Madison, 1 Cranch-137, 2 L.Ed. 60, to be applicable; “When it is clear that a statute transgresses the authority vested in the legislature by the constitution, it is the duty -of the courts to .declare the act unconstitutional because they cannot shrink from it without violating their oaths of office. This duty of the courts to maintain the. constitution as the fundamental law of the state is imperative and unceasing” and applies as imperatively when properly invoked against a zoning ordinance as it does against

an act of the legislature. In State ex rel. Taylor v. City of Jacksonville; City of Miami Beach v. Elsalto Real Estate, Inc.; Segal v. City of Miami; Forde v. City of Miami Beach; City of Miami Beach v. Ocean & Inland Co. and City of Miami Beach v. First Trust Co., supra, we called attention to this rule and in some instances invoked it. But appellant says that in City of Miami Beach v. Elsalto Real Estate, Inc., and in Segal v. City of Miami, supra, we retreated from or modified the doctrine of City of Miami Beach v. First Trust Company, bel-ter known as the Firestone case.

We do not so understand the Firestone case. In that case we were confronted with one isolated .tract of land that had served its purpose as an estate and was in the hands of the trustee for disposition. All of the land to the south between Collins Avenue and the ocean had been zoned and sold for hotel and apartment houses and in fact, was occupied for that purpose. It was shown, and the Master found, that the passage of time and changed circumstances had reduced the value of the property by three-fourths and that if it were sold for single family purposes the owner would lose more than one million dollars.

It was further shown that the zoning ordinance had been in effect fifteen years, during which time many physical, economic, and social changes in the locus had transpired. It was conclusively shown that not a single property owner in the city would be hurt by removing the zoning restrictions from the Firestone estate; yet if the restrictions were permitted to remain, they would cost the owners more than a million dollars.

It was also shown “that the zoning plan of the city [would not] be jeopardized or materially affected” by removing the zoning restrictions. [45 So.2d 688.] Under such circumstances a majority of the court concluded that the zoning plan amounted to confiscation and removed it from the Firestone lands. In the case at bar there is substantial showing that the sweeping rezoning sought for the property in question would jeopardize, or materially affect, the entire comprehensive zoning plan of the City as well as other matters which will be discussed hereafter.

When the Firestone case was before us originally and on rehearing, the main ques-tion urged was no different from that urged in this case, viz.: The zoning ordinance is presumptively valid, that if fairly debatable the action of the city in passing it should he upheld and the Court should not substitute his judgment for that of the City Council. The case was thoroughly litigated on that theory.

The majority of the Court reached the conclusion that due to changed conditions the validity of the ordinance was not fairly debatable, that it was unreasonable, arbitrary and invalid and amounted to confiscation as to the Firestone property. True, a very respectable minority of the Court had a different view and dissented from the majority. 'It may be that the minority thought the point was fairíy debatable and that the majority substituted its judgment for that of the City Council, but the majority had no such feeling. So much for the Firestone case.

Now let us examine the case at bar and see if it is in point with or in any wise controlled by the Firestone case or any other case cited herein. Instead of being concerned with a single isolated tract of land, as we were in the Firestone case, we are concerned here with ten tracts interspersed among 86 lots or tracts extending from the Firestone estate north to the Royal York Hotel property, a distance of about two miles, bounded on the east by the Atlantic Ocean and on the west by Collins Avenue and Indian Creek. It is one of the most valuable ocean front areas in the world.

So valuable, it is pointed out, that there- are only about 4500 people in the United States who are able to own enough of it on which to construct and support a home of the kind required by the ordinance account of which it is said to be in a state of arrested development. The City of Miami Beach declined the request of complainants to rezone on the general theory that Ordinance 289 was adopted pursuant to

Chapter 9837, Special Acts of 1923, after more than a year of study and advice on the part of the best zoning experts, in this country, that due to the location and configuration of the land it is ideally suited to single family estates, that it is a long narrow strip along the ocean transversed on the west by Collins Avenue, which is heavily congested and that to rezone would .seriously aggravate the traffic problem, that there is already an undue preponderance of land in the City of Miami -Beach zoned for hotel and apartment use, and at present there is no need for more, that to malee other lands available for that purpose would seriously damage, if not destroy, the values of lands and buildings now in use for that purpose on which countless millions have 'been invested in reliance on Ordinance 289, that the economic welfare of the city is almost entirely dependent on the prosperity of the hotel and apartment house business, that the economic history of that business in the 'City of Miami Beach has demonstrated that the construction of other new and modern hotels to the north would so reduce the patronage of those already in use that they would become so needless and unpopular as to raise the danger of creating a blighted area.

It is further charged that the 86 lots in question are the only lands in the City of Miami Beach that are available to the public where the view to the ocean is unobstructed, and that rezoning for hotels and apartments will result in overcrowding, the increase of fire and other hazards and would overtax the sewer, water and fire fighting facilities, thus endangering the public health and safety. There is ample evidence to support the theory of the city; on the other hand, there is much to contradict or offset it.

It is not shown, as it was in the Firestone case, that if the zoning restrictions are removed no other property owner would be hurt or that the general zoning plan would remain unaffected. The reasonable inference is that if the zoning restrictions are removed from the ten tracts interspersed among the 86 tracts, the zoning plan as to all will be materially affected, if not, in fact, destroyed. The city contends that not only is this likely to happen but also that there will be brought about the other results detailed in the preceding paragraph.

Some of the results contended for in this paragraph we do not think of consequence and could be compensated for, but some of them raise serious policy, economic and administrative questions that place it within the “fairly debatable” doctrine. An ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.

If such a deduction supports the city’s contention that to remove the present zoning restrictions would destroy the entire zoning scheme and bring about the evils contended by the city, then the Court should not substitute its judgment for that of the City Council. There is no showing here that, even as now zoned, the lands are not of great value. In fact the only deduction from the record is that they are very valuable. When the contention of the city is analyzed and viewed in the large, there are many elements in this case that were not involved in the Firestone case, or any of the other cases cited.

They make this case totally different from any other that has been brought here. The right of access of the public to the beaches, the effect on the zoning scheme, traffic regulations, economic welfare of the city, proper timing to zone for hotels and apartments, including others, are involved in this case. The amount of property involved is so- great that to change its classification would be to necessarily affect the entire general zoning plan of the city.

These are matters for the city to settle and adjust and when they enter the picture the Court should not invade the city’s authority, absent a paramount constitutional right which is not shown in this case. The fact that the properties involved are much more valuable for hotels and apartments than they are for single family residences does not conclude the point of whether or not the ordinance is “fairly debatable”. This is a factor that must be weighed against the public welfare or the effect on the community at large.

Constitutionality vel non is often present in determining the question of “fairly debatable”'' but the pattern for determining it is a more complex one when as pointed out, a large-area of many owners is involved than it is when the property of a single owner in one parcel is brought in question. There is no-showing here of confiscation. It may or may not be that some owners will suffer a reduction in price if they sell before the city in its discretion changes the zoning plan. After all, that is the matter of greatest importance, and it is a debatable question.

It cannot be solved by looking at one man’s property, but must be resolved by a contemplation of the whole picture. So considered, we find no abuse of discretion. Other questions presented have been considered but they become inconsequential or have no place in the case. Whether answered in the affirmative, or in the negative, the answer to the first question concludes the controversy. We think the first question was fairly debatable and that the decree of the chancellor should be reversed. Reversed without prejudice on the part of appellees to assert any right they may have under the city charter.

TERRELL, SEBRING, MATHEWS and DREW, JJ., concur. THOMAS, J., concurs specially. ROBERTS, €. J., and HOBSON J., concur in part and dissent in part.