6345 COLLINS AVENUE, INC.
v.
CITY OF MIAMI BEACH, ET AL.
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Dismissal of plaintiff's action for failure to use the proper procedural remedy (certiorari rather than appeal) to challenge a city council decision on a variance request, and for failure to allege special damages distinct from other affected landowners.
A challenge to a quasi-judicial decision by a city council on a variance request must proceed by certiorari under Rule of Civil Procedure 1.640, not by appeal, and the complaint must allege special damages peculiar to the plaintiff.
[1] A challenge to a quasi-judicial decision by a city council must be brought by certiorari under Rule of Civil Procedure 1.640 within 60 days, not by appeal.
[2] A complaint challenging a city council decision on a variance must allege special damages peculiar to the plaintiff that differ in kind from those of other affected lando…
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Join FLexlaw to unlock all legal intelligence“The ground alone of failure to allege special damages peculiar to the plaintiff, which is different in kind from that of other affected landowners, is a valid ground for dismissal”
Court explaining one basis for dismissal, citing Boucher v. Novotny
Plaintiff sought to challenge a city council decision regarding a variance request affecting its property at 6345 Collins Avenue in Miami Beach.…
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This cause came on duly for hearing on defendants’ motion to dismiss, and after argument of counsel and due consideration, it is ordered that defendants’ motion to dismiss be, and the same is, hereby granted, and this cause is hereby dismissed.
*37The ground alone of failure to allege special damages peculiar to the plaintiff, which is different in kind from that of other affected landowners, is a valid ground for dismissal, Boucher v. Novotny, Fla. 1958, 102 So.2d 132, but fatal is the attempt to proceed herein by way of appeal, rather than by certiorari, as required by present Rule of Civil Procedure 1.640, to be taken within 60 days (formerly by statute) where the appeal, as here, is from a quasi-judicial body (city council). Testa v. City of Tampa, Fla. 1962, 143 So.2d 473; Carol City Util. v. Dade County, Fla. App. 3, 1962, 143 So.2d 828.
Plaintiffs case of Thompson v. City of Miami, Fla. 1964, 167 So. 2d 841, 843, is an interesting approach which might allow for a regular appeal as taken and by way of injunction as here sought, except for the fact that the predicate for that case, to allow for injunction, rather than by certiorari, is not here present. In that case there was an attack on the validity of the ordinance in question as void as to plaintiff’s property; here the attack is in the usual manner, upon the ruling itself, by the city council, on request for variance, and there appears no route to travel except by certiorari in such case.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Teston v. The City OF Tampa, 143 So. 2d 473 (Fla. 1962)
- Grover v. VAN Heusden, 102 So. 2d 132 (Fla. 1958)
- Boucher v. Novotny, 102 So. 2d 132 (Fla. 1958)
- Thompson v. City OF Miami, 167 So. 2d 841 (Fla. 1964)
- Carol City Utils., Inc. v. Dade Cnty., 143 So. 2d 828 (Fla. 3d DCA 1962)