HARRY J. CARLSON AND MARY E. CARLSON, HIS WIFE, APPELLANTS,
v.
TOWN OF WEST MIAMI, A MUNICIPAL CORPORATION ORGANIZED AND EXISTING UNDER LAWS OF THE STATE OF FLORIDA; EDMUND P. COOPER, MAYOR, AND MATTHEW M. SLEPIN, ROBERT F. HUDSON, WILLARD H. BENDER, HARVEY H. STAHL, AND LYNNE LEVIN, COUNCILMEN OF SAID MUNICIPAL CORPORATION; AND MILDRED DORRIS, TOWN CLERK OF SAID MUNICIPAL CORPORATION, APPELLEES
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Property owners appealed the town's denial of a zoning variance but filed their judicial challenge in Circuit Court more than 30 days after the Town Council's adverse ruling. The court affirmed dismissal based on the strict 30-day statutory deadline for appealing zoning board decisions to the courts.
The court held that appellants failed to comply with § 176.16's mandatory 30-day period for filing a petition for judicial review in the Circuit Court following the Town Council's adverse decision on the variance request.
“Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board or bureau of the governing body of said municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.”
The statutory language of § 176.16 establishing the mandatory 30-day deadline for filing judicial review of zoning decisions
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Join FLexlaw to unlock all legal intelligenceAppellants owned property in the Town of West Miami and sought a variance to enlarge a non-conforming use. The Planning and Zoning Board denied the va…
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This is an appeal by the plaintiffs below, from an adverse summary final decree rendered in an equity suit in the Circuit Court in Dade County.
Appellants, desiring to make an unauthorized enlargement of a non-conforming use on property owned by them in the Town of West Miami, petitioned the town Planning and Zoning Board for a variance, which the board denied on July 9, 1958. The owners then appealed that decision to the Town Council, which also ruled adversely to them, on July 21, 1958. More than 30 days later, on September 11, 1958, appellants filed suit in the Circuit Court seeking to compel the town to grant the requested variance.
The town’s answer, as amended, pleaded non-compliance with the 30 day period allowed for suit in the Circuit Court, after such action on the matter by the town, as provided for in § 176.16, Fla.Stat., F.S.A.1 The town then moved for summary judgment, supporting its motion with a showing of the applicable zoning ordinance, and reports of the proceedings on the matter before the Town Zoning Board and the Council.
The chancellor granted summary judgment in favor of the defendant town, and dismissed the cause. The decree was based “upon the sole ground of the failure of plaintiffs to comply with Section 176.16 of the Florida Statutes.”
Under the circumstances revealed in the case the provisions of § 176.16 were applicable, and the learned chancellor was eminently correct in enforcing the 30 day period for filing a petition for review in the Circuit Court as provided for in the statute. See Cliff v. Bilett, 125 Colo. 138, 241 P.2d 437; Carbone v. Zoning Board of Appeals, 126 Conn. 602, 13 A.2d 462; Ballman v. Duffecy, 230 Ind. 220, 102 N.E. 2d 646; Bischoff v. Hennessy, Ky.1952, 251 S.W.2d 582; Maryland Clothing Mfg. v. City of Baltimore, 207 Md. 165, 113 A.2d 743; Del Grosso v. Board of Appeal of Revere, 330 Mass. 29, 110 N.E.2d 836; Schneller v. Board of County Com’rs, 91 Ohio App. 523, 108 N.E.2d 747; Blank v. Board of Adjustment, 390 Pa. 636, 136 A.2d 695; Arendale v. Rasch, 196 Tenn. 374, 268 S.W.2d 102; 101 C.J.S., Zoning, §§ 353, 360; 2 Rathkopf, The Law of Zoning & Planning, 146-159 (3d ed. 1957); 1 Yokley, Zoning Law & Practice, § 174 (2d ed. 1953). Cf. Josephson v. Autrey, Fla.1957, 96 So.2d 784, 786-787.
Affirmed.
HORTON, C. J., and PEARSON, J., concur.
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Thompson v. City OF Miami, 167 So. 2d 841 (Fla. 1964)…t controlling. There, the city charter expressly authorized review of board action by a “peti tion duly verified in the manner provided by law.” Alternatively under the statute, equity relief could be sought. Carlson v. Town of West Miami, Fla.App., 118 So. 2d 835, involved a request to compel the grant of a variance and apparently the town exercised the zoning powers granted by Chapter 176, supra. Village of Pembroke Pines v. Zitreen, et al, Fla.App., 143 So. 2d 660 supports the conclusion which we here reac…
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Vill. OF Pembroke Pines v. Zitreen, 143 So. 2d 660 (Fla. 2d DCA 1962)…the mandatory language of the statute. This contention is without merit. Fla.Stat. § 176.16, F.S.A, applies to appeals from Municipal Boards of Adjustment within an established zoning procedure. See e. g. Carlson v. Town of West Miami, Fla.App.1960, 118 So. 2d 835. The defendant Village has no special charter and no special zoning act. Furthermore the record discloses no comprehensive plan for establishing a valid zoning as specified by Fla.Stat. § 176.04 et seq., F.S.A. In any event Chapter 176, F.S.A. does…
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City OF Coral Gables v. Deschamps, 242 So. 2d 210 (Fla. 3d DCA 1970)…the Supreme Court of Florida held that an assault on the validity of a zoning ordinance may be accomplished by suit in equity rather than statutory certiorari. Cf. Sec. 176.16, Florida Statutes, F.S.A.; Carlson v. Town of West Miami, Fla.App. 1960, 118 So. 2d 835; Village of Pembroke Pines v. Zitreen, Fla.App.1962, 143 So. 2d 660. We have carefully considered the remaining points on appeal made by cross-appellants and find them to be without merit. For the foregoing reasons, the judgment of the trial court…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Norton Josephson v. Autrey, 96 So. 2d 784 (Fla. 1957)
- Warriner v. Maxine Hotel Corp., 96 So. 2d 784 (Fla. 1957)