Opinion
January 21, 1955.
Appeal from the Circuit Court, Broward County, Lamar Warren, J. (first suit), and George W. Tedder, J. (second suit).
McCune, Hiaasen Kelley, Ft. Lauderdale, for appellants.
Ross Williams, Ft. Lauderdale, for appellees George W. Weaver and others.
Blackwell, Walker Gray, Miami, for appellee Florence M. Barnes, a widow.
These are appeals from two final decrees of the circuit court, each holding Ordinance No. 27 of the Town of Hillsboro Beach to be void and of no effect because of (1) unreasonableness and (2) certain irregularities surrounding its adoption by the town's governing body. The ordinance in question purported to change the zoning classification of a tract in the center of the town from "Residence B", which permits the erection of multiple dwellings, to "Residence A", which permits only single family residences. None of the persons who signed petitions requesting the rezoning of this area own land therein, and all appellees here are landowners in this area.
The ordinance was first challenged in the Weaver suit, which was referred to a master and concluded in favor of plaintiff-appellees, the trial court accepting the master's findings and recommendations. A final decree in the companion Barnes case, raising the same issues, was entered by stipulation and the cases were consolidated for this appeal.
It would serve no useful purpose to detail the facts of these cases. We have perused the record carefully and are convinced that no reversible error has been made to appear. The procedural defects preceding the adoption of Ordinance No. 27 come within the rule of City of Hollywood v. Rix, Fla., 52 So.2d 135, for we agree with appellees that a proper construction of F.S. § 176.05, F.S.A., requires the hearing contemplated therein to be provided by the governing body of the town rather than by the Zoning Board, which was created merely as an advisory body, without legislative power.
Affirmed.
MATHEWS, C.J., and TERRELL, THOMAS, SEBRING and ROBERTS, JJ., concur.
DREW, J., dissents.
When all the chaff is blown away, the sole question for decision is whether 2,800 feet of ocean front land in the Town of Hillsboro Beach, all of which is vacant and unimproved except one small parcel, should be zoned for single-family or multiple-family residences. For many years it had been zoned for multiple-family use. In 1952 the Town called in zoning experts to study their zoning problems. These experts, after making a study of the entire area within the Town, stated with reference to this 2,800 feet:
"Serious consideration was given to the removal of the present `B' zone near the center of the Town since this had not been improved with multiple dwelling uses and instead contains only a single-family structure. From many standpoints this would be in the best interest of the community particularly from the standpoint of protecting single-family character and values. However, the present regulations have not been in effect a sufficient period to prove conclusively that the area is not well suited for a rental type of residence and further, property values and assessments have undoubtedly been based on present zoning and inequities might occur if the area was changed. Thus, unless the present owners are willing to have the area placed in an `A' district, it is recommended that the present property zone be continued."
The foregoing recommendation was made in February, 1953. The following October, after a series of hearings, which in my judgment so far as the appellees are concerned, complied with the requirements of the law with respect to notice, the Town Council adopted an amendment to the zoning ordinance changing the classification of the 2,800 feet from multiple-family to single-family uses.
The law has vested in the elected officials of the Town of Hillsboro Beach the power to adopt zoning ordinances. The enactment of such ordinances requires a knowledge of local conditions and involve the exercise of legislative power. If that power is exercised within constitutional and statutory limits, the courts have no right to interfere with it. At best, it involves an exercise of judgment and discretion as to whether this land should be classified for multiple-family or single-family uses. The property owners were required to establish a showing both of an unlawful exercise of authority and a substantial injury to them. City of Miami v. Rosen, 151 Fla. 677, 10 So.2d 307. Upon the record presented they have failed completely in each respect. Moreover, this Court, in City of Miami Beach v. Hogan, Fla., 63 So.2d 493, 495, said:
"If the Courts adopt the policy of substituting their judgments for that of city officials, simply because of their refusal to rezone the property in accordance with the wishes of the landowner to increase the value of the land, they will eventually become the zoning boards for every county and municipality in the State."
I think that was a wise and salutary holding. The records in these cases are such that an affirmance of the judgment of the lower court will amount to no more than substituting our judgments for that of the city officials on the classification to be given a substantial portion of the property in the Town. I think the decree of the lower court should be reversed in both cases.