Loading...
HomeMy WebLinkAboutSubmittal-Westlaw Document11/09/2007 10:55 GREENBERG TRPURIG 3 93058581610 NO.766 P02 Page 2 of 6 t+t(aatlavz 213 So.2d 5 213 So.2d 5 (Cite as: 213 So,2d 5) C Williams v. C.ity of North Miami, Fla.App. 1968. District Court of Appeal of Florida, Third District, E. C. WILLIAMS, Barbara Williams, his wife; Milton B. °shins, his wife; Jerome J. Palacino; Melvin E_ Harrison; Jerry J. Fuchs; on behalf of those persons having a common or general interest constituting a class impracticable to bring them before the Court, Appellants, v_ CITY OF NORTH MIAMI, Florida, a municipal corporation; and M. A. Grondin, individually and as trustee, .Appellees. No. 67-871, July 23, 1968. Action by nearby property owners attacking ordinances rezoning properly and seeking injunctive relief. The Circuit Court for Dade County, Ralph 0, Cullen, J., entered a judgment dismissing cause with prejudice and the protesting property owners appealed. The District Court of Appeal, Hendry, J. held that with respect to certain portions of parcel involved in rezoning the deviation between the ultimate rezoning and that proposed in notice was insubstantial and insufficient to upset the rezoning, but as to three lots requested to be rezoned from single family residences to parking but ultimately rezoned for multiple family residences the deviation was substantial, and the rezoning as to those lots could not be upheld. Affirmed in part and reversed in part. West Headnotes Ill Zoning and Planning 414 C=195 414 Zoning and Planning 4141I1 Modification or Amendment 414I11(B) Manner of Modifying or Amending 414k 194 Notice and Hearing 414ki95 k. Sufficiency of Notice and SUBMITTED INTO THE PUBLIC RECORD FORagei ITEMP/ ON n—q—off. Publication. Most Cited Cases Zoning change notice must adequately inform as to what changes are proposed and the actual change must conform substantially to proposed changes in notice, but there must be some realistic latitude in application of this rule. >~.S.A. § 176.05. 121 Zoning and Planning 414 €195 414 Zoning and Planning 414111 Modification or Amendment 414I11(B) Manner of Modifying or Amending 414k194 Notice and Hearing 41.4k 1.95 k. Sufficiency of Notice and Publication, Mast Cited Cases Where tract A of parcel was formerly zoned for liberal business purposes and according to notice was to be zoned partly business and partly parking While it was ultimately zoned neighborhood business, the deviation from notice was neither material nor substantial and the deviation was not a basis for upsetting rezoning ordinance. 131 Zoning and Planning 414 a195 414 Zoning and Planning 414111 Modification or Amendment 414111(B) Manner of Modifying or Amending; 414k194 Notice and Hearing 414k195 k. Sufficiency of Notice and Publication. Most Cited Cases Where lot in parcel concerned with proposed zoning notice had been zoned as single family residences and was to become a lot for parking under provisions of notice, the ultimate rezoning of lot for multiple family residences produced no change, and alleged deviation from proposed change in notice was not a basis for holding rezoning invalid. 141 Zoning and Planning 414 €195 414 Zoning and Planning 414111 Modification or Amendment C 2007 Thomson/'West. No Claim to Orig. U.S. Covt. Works. ©1-TO - : Oeu(yicVt hktp://web2.westlaw.cotn/print/printstream.aspx?svSplit&prft=1-1TMLE&fn-top&lnt=i;1... 11 /9/2007 NOV-09-2007 11:52AM From: 305 579 0717 ID:CITY CLERK Paae:002 R=94% 11/09/2007 10:55 GREENBERG TRAURIG 3 93056581610 NO.766 003 Page 3 cif 6 213 So.2d 5 213 So.2d 5 (Cite as: 213 So.2d 5) 4I41II(B) Manner of Modifying or Amending 414k194 Notice and Hearing 414k195 k- Sufficiency of Notice and Publication. Most Cited Cases Where three lots in parcel subject of a rewning notice had been zoned as single family residence properties and notice requested that change be made to a parking classification, ultimate rezoning of such Tots for multiple family residences constituted such substantial deviation from proposal in notice that rezoning as to such lots could not be upheld. "5 Byrd V. Duke, Jr., Miami, for appellants. Simon, Hays & Grundwerg, Miami, Martin D. Kahn, No. Miami, for appellees. Before PEARSON, BARKDULL and HENDRY, JJ. HENDRY, Judge. This is an appeal by the plaintiffs below from a final judgment rendered in favor of the defendants, M. A. Grondin and the City of North Miami. In March of 1966, the City of North Miami annexed certain property known as the S.L.S. Shopping Center subdivision of Dade County. The subject property was at that time and is presently owned by the defendant, M. A. Grondin, both as trustee *6 for undisclosed principals and in his individual capacity. At the time of the purchase and prior to its annexation, the property was zoned according to county regulations as follows: Tract A was zoned 1111-1A, liberal business; Lot 1 was zoned RU-3, multiple family residence; and Lets 2, 3 and 4 were zoned RU1-1, single family residence. Subsequent to the annexation of the subject property, Grondin applied to the Zoning Board of the defendant city for the adoption of zoning classifications as illustrated on the accompanying graphic representation, Under the City of North Miami's *7 zoning classification system, 2B is liberal business and P-1 is parking only. The Zoning Board having recommended adoption of the proposed classifications, notices of hearing were sent to all landowners within 500 feet of the S.L.S. Shopping Center tract, and the matter was set before the City Commission. The Commission met upon two separate occasions to consider the matter. On January 14, 1967, it unanimously passed Ordinance Page 2 No. 380.271 establishing a zoning classification of 1B1, i.e., multiple family residence, as to lots 1, 2, 3 and 4 of the subject property, Subsequently, on February 14, 1967, the Commission, again by unanimous vote, passed ordinance No. 380.272 providing for a zoning classification of 2A, i.e., neighborhood business, as to Tract A of the S.L.S. Shopping Center property. SUBMITTED INTO THE PUBLIC RECORD FC:" ITEM rz q ONui-o7 ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http,//web2.westlaw.com/print/printstream.aspx?sv=Spiit&prft=HTMLE&fn=_top&mt=F1... 11 J9/2007 NOV-09-2007 11:52AM From: 305 579 0717 ID:CITY CLERK Page:003 R=94% 11/09/2007 10:55 GREENBERG TRRURIG 93050591612 NO.766 DO4 Page 4 of 6 213 So.2d 5 Pagel 213 Sold 5 (Cite as: 213 So,2d 5) ! 3 T eacr 1'0 4.1Z ZOLILD •Pi- rQ louts) - • —5T --fed i-&ket--iei DETAIL :-Gitc.; 4", eCO' r • 42E4T ttCLO., • • A' • within S00 feet of the shopping center subdivision boundary. On February 16, 1967, these plaintiffs Appellants, who were plaintiffs below, are filed a complaint in Circuit Court seeking to have members of that class of persons owning property Ordinances No. 380.271 and 380.272 declared C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Submitted Into the public record in connection with item a Lt- pnl!'f-07 Priscilla A. Thompson - =as City Clerk http://web2.westlaw.com/print/printstream.aspx?sw-Split&prft=1-ITNILE8cfn=_top&mt--Fl... MOW NOV-09-2007 11:52AM From: 305 579 0717 ID:CITY CLERK Pa9e:004 R=94% 11/09/2207 10:55 GREENBERG TRAURIG + 93058581612 NO.766 005 Page S of b 2.13 So.2d 5 213 So.2d 5 (Cite as: 213 So.2d 5) invalid, as well as certain injunctive relief. issue was joined upon the answers of both. Grondin and the City of North Miami, and the cause ultimately came on for final hearing. Having heard the testimony and examined the evidence, the chancellor entered the order appealed which contained the following specific finding: ' ' the Court finds that the acts complained of by the Plaintiffs; to wit: the zoning by the City of North Miami of Tract A to the zoning classification of 2-A (Neighborhood business) and Lots, 1, 2, 3 and 4 to 1131 (Multiple family) all of said property being located in S.L.S. Shopping Center " • ' wore proper and within the proper authority of the City of North Miami as granted by its Charter and by the appropriate Florida Statutes' * "" From an order dismissing the cause with prejudice and taxing costs against there, plaintiffs prosecute this appeal. Appellants' initial point on appeal challenges the adequacy of the notice of hearing,Section 176.05, Fla_Stat., F_S_A., and section 29-10,5, Municipal Code of the City of North Miami, require that notice of hearing on proposed zoning classifications be given at .least fifteen days in advance of such hearing. This notice is required regardless of whether the classification is to be establish.ed initially or merely changed from one to another. There is no contention raised that the notice was not timely. Rather, appellants argue, the actions of the Commission fail to conform to the notice provision as to the action contemplated. In other words, appellants claim that the notice inform them of a proposed change from .RU-1, using the example of lots 2, 3 and 4 of the subject property, to .P-1, whereas the actions of the Commission resulted in the properly being classified 1131, which change is totally different from the one they were notified might take place. [1](2j[31 It is true that th.e notice must adequately inform as to what changes are proposed, and the actual change must conform substantially to the proposed changes in the notice.McGee v. City of Cocoa, Fla.App.1964, 168 So.2d 766. There must, however, be some realistic latitude in the application of this rule. The opinion in the McGee 2007 Thomson/West. No Claim to Orig. U.S. Govt. work s��` f�bR1l A� intothe public recor4 in connection vi,,;7 item Z yan fl -R ;0] Priscilla & Clerk Page 4 case, supra, states: `As a general rule the notice must apprise the publie of the suggested changes, and the zoning amendment must conform substantially to the proposed changes. Some deviation, however, may be immaterial where the variance is a liberalization of the proposed amendment rather than an enlarged restraint on the property involved. Sea 101 C.J.S. Zoning s 110. A change may, of course, be substantial' where an amendment makes a greater or more significant change than '"8 that requested. The instant amendment makes a lesser change than that requested and published in the notice of hearing; the plaintiffs were in attendance and, under all the circumstances, the modification was not of such substantial and material n.ature as to require a new notice. Cf. Kalvaitis v. Village of Port Chester, 1962, Sup., 235 N.Y.S.2d 44,4 So, in the case here before us, we see that Tract A of the subject property, Formerly zoned for liberal business purposes, was to be zoned partly business and partly parking under the notice of proposed changes, Tract A was ultimately zoned neighborhood business' by Ordinance No. 380.272, a deviation neither material nor substantial under the rule in McGee v. City of Cocoa, supra. Lot 1, formerly zoned for multiple family residences, was to have become parking under the provisions of the notice; lot 1 was ultimately zoned for multiple family residences, so that there was no change whatsoever. The chancellors judgment was correct, then, as to Tract A and .Lot 1, and therefore must be affirmed in this regard, [4] The same is .not true concerning Tots 2, 3 and 4. These parcels were formerly zoned as single family residence property. The notice requested that this be changed to classification P-1 parking_ These lots are now classified i131 or multiple family residence. We are of the opinion that the deviation between the zoning requested by the notice and the zoning actually granted as to lots 2, 3 and 4 cannot be regarded as inconsequential. Such a discrepancy cannot be justified under the rule of the McGee case; therefore, insofar a5 the judgment of the lower court relates to lots 2, 3 and 4, it must be and is hereby reversed. l,ttr,./Iwnlo..westlaw.Cori/?rinit/DTltltstl'Bain.aspic?sv=Sp[it&prft'HTMLE&frt= top&tat=FL., 11/9/2007 NOU-09-2007 11:52AM From: 305 579 0717 ID:CITY CLERK Pa9e:005 R=94% 11/09/2007 10:55 GREENBERG TRRURIG - 93058561610 NO.766 D06 1'agebQtb 213 So.2d 5 Page S 213 Se.2d 5 (Cite as: 213 So.2d 5) We have examined appellants' remaining contentions and find them to be without merit. Accordingly, the judgment is affirmed in pan and reversed in part. F1a.App. 196g. Williams v. City of North Miami 211 So.2d 5 END OF DOCUMENT SUBMITTED INTO THE PUBLIC RECORD FOR lTEMpz ON ® 2007 ThomsonfWest. No Claim to Orig, U.S. Govt. Works. httoliweb2.vvestiaw.camlprint/printstream.aspx?sv Spl.it&prft=HTML.E8c _top&mt=F1... 11/9120Q7 NOV-09-2007 11:53AM From: 305 579 0717 ID:CITY CLERK Page:006 R=94%