DOROTHY K. SCHOENITH ET AL., APPELLANTS,
v.
CITY OF SOUTH MIAMI, A MUNICIPALITY CREATED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, APPELLEE
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Property owners appealed a trial court's decision that rezoned their property from single-family to duplex use after invalidating the original single-family zoning ordinance. The appellate court held that courts lack authority to rezone property and must instead direct zoning authorities to determine appropriate less-restrictive classifications.
A court lacks the authority to rezone property. When a court determines that a zoning regulation is improperly restrictive, it must remand the matter to the appropriate zoning authorities to determine the proper classification rather than imposing its own zoning classification.
“If the court, on a final hearing, should determine that the zoning regulation as to the particular property of the plaintiffs was too restrictive, then the court should direct the zoning authorities to rezone the particular property for a use less restrictive than the uses permitted under the present zoning acts.”
Establishes the proper procedure when a court finds zoning ordinances improperly restrictive—it must direct zoning authorities rather than impose its own zoning classification.
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Join FLexlaw to unlock all legal intelligenceThe appellants owned property in South Miami that was zoned for single-family residential use only. They sought injunctive relief and requested that t…
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Plaintiffs below appeal from a final decree in which the chancellor decreed that certain zoning ordinances adopted by the ap-pellee city were void and had no effect insofar as they limited the use of the appellants’ property to single family purposes. The decree further declared that the appellants were entitled to use their property in such a manner as would permit the construction of either duplexes or single family residences. By their complaint for injunctive and other equitable relief, the appellants prayed that their property be rezoned from single family to the highest type commercial.
That portion of the decree determining the existing ordinances to be void has not been questioned by the appellants, nor has the appellee filed any cross assignments of error directed to this point. Accordingly, that portion of the decree is affirmed.
The appellants contend that the chancellor erred in entering the decree rezoning their property from single family residences to duplex use rather than rezoning it for business use as prayed for in their complaint. By this contention, the appellants claim that there was not sufficient evidence from which the chancellor could rezone their property to the classification decreed. It will not be necessary for us to determine this question since we conclude that rezoning of property is not a proper function of a court, but is the function of appropriate zoning authorities. In City of Punta Gorda v. Morningstar, Fla.App. 1959, 110 So.2d 449, 454, the Second District Court of Appeal said:
“If the court, on a final hearing, should determine that the zoning regulation as to the particular property of the plaintiffs was too restrictive, then the court should direct the zoning au*811thorities to rezone the particular property for a use less restrictive than the uses permitted under the present zoning acts.
“The Supreme Court of Florida in several opinions has stated that it is not the function of a court to zone property, that having determined that a particular piece of property is improperly zoned, the matter should be resubmitted to the zoning authorities to determine the proper classification of the property for zoning purposes.”
See City of Tampa v. Consolidated Box Company, Fla.App.1959, 110 So.2d 446.
Accordingly, the cause is remanded to the court below with directions to modify the decree to require the City of South Miami to rezone the appellants’ property to a classification less restrictive than that classification which was held invalid.
Affirmed in part and remanded with directions.
PEARSON and CARROLL, CHAS., JJ., concur.
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City OF Miami Beach v. Weiss, 217 So. 2d 836 (Fla. 1969)…y of Punta Gorda v. Morningstar, Fla.App.1959, 110 So. 2d 449, 454. While not in conflict in a constitutional sense, the subject decision is also inconsistent with the holding of the same District Court in Schoenith v. City of South Miami, Fla.1960, 121 So. 2d 810. In Burritt v. Harris, Fla.1965, 172 So. 2d 820, this Court upheld a trial court judgment enjoining the defendant municipality from the enforcement of any zoning regulation more restrictive than “Industrial A” against the property of the complainin…
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Vill. OF Pembroke Pines v. Zitreen, 143 So. 2d 660 (Fla. 2d DCA 1962)…ordinance arbitrary and invalid, it has no power to rezone the-land, that being the function of the zoning-authorities. See Wood v. Twin Lakes Mobile Homes Village, Inc., Fla.App.1960, 123 So. 2d 738; Schoenith v. City of South Miami, Fla.App.1960, 121 So. 2d 810; City of Punta Gorda v. Morningstar, Fla.App.1959, 110 So. 2d 449; Tampa v. Consolidated Box Co., Fla.App.1959, 110 So. 2d 446; Quattrocchi v. MacVicar, Fla.1955, 82 So. 2d 873. In Wood v. Twin Lakes Mobile Homes Village, Inc., supra, this court sa…
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Burritt v. Harris, 166 So. 2d 168 (Fla. 1st DCA 1964)…f’s property. This it failed to do. This case is not controlled by that class of cases which have held that rezoning property is not a function of the court but is a function of the appropriate zoning authorities, [Schoenith v. City of South Miami, 121 So. 2d 810 (Fla.App.3d, 1960); City of Tampa v. Consolidated Box Co., 110 So. 2d 446 (Fla.App.2d, 1959); City of Miami Beach v. Wiesen, 86 So. 2d 442 (Fla.1956)] for here the plaintiff does not ask the courts to rezone his property but he is seeking in one sui…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Tampa v. Consol. BOX Co., Inc., 110 So. 2d 446 (Fla. 2d DCA 1959)
- City OF Punta Gorda v. Morningstar, 110 So. 2d 449 (Fla. 2d DCA 1959)