R. F. COOK, AS DIRECTOR OF DADE COUNTY PLANNING, ZONING AND BUILDING DEPARTMENTS, THE HONORABLE JOSEPH A. BOYD, JR., BEN MCGAHEY, R. A. FOSSEY, CHARLES F. HALL, A. C. KITTEL, JR., ARTHUR H. PATTEN, JR., FARRIS N. COWART, ALEXANDER GORDON, JOHN B. MCLEOD, WALTER WEISS, MILTON THOMPSON AND ROBERT M. HAVERFIELD, AS MEMBERS OF AND COMPRISING THE BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA; AND DADE COUNTY, FLORIDA, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLANTS,
v.
PHILIP J. DI DOMENICO, APPELLEE
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A property owner is not required to exhaust administrative remedies when such remedies would be futile, especially when faced with indefinite deprivation of property use.
Relator sought a permit to construct a service station, but the county required him to waive compensation for improvements if the property was later t…
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This appeal is from a judgment in mandamus, entered in favor of the relator on his motion for peremptory writ notwithstanding the return. The writ compels issuance of a permit to construct a gasoline service station without the owner being compelled to waive his right to compensation for- such improvements in event of a later taking for highway purposes.
The alternative writ alleged that in 1951 the county had listed the abutting street with many others for prospective highway construction, then passed a resolution preventing improvements within the bounds of the contemplated highway areas except upon such a waiver, first imposed by resolution then by an ordinance, yet had not proceeded and had no definite plans or schedule to do so, though nine years had elapsed. While not having controverted those facts, the county contended the relator could not maintain a mandamus action because he had not exhausted administrative remedies by applying for a variance. The uses for which the property was zoned permitted a service station. The owner did not need to seek a variance, and it would have been futile to apply. Even the restrictive resolution and ordinance did not prohibit the desired construction. His request could only have been one to the county to vacate or disregard, as to his property, the said provision for waiving compensation.
“The law does not require one to pursue administrative remedies before resorting to the courts where such remedy would be of no avail. 42 Am. Jur., Public Administrative Law, Sec. 200. 1 Fla.Jur., Administrative Law, Sec. 176.” City of Holly Hill v. State ex rel. Gem Enterprises, Inc., Fla.App. 1961, 132 So.2d 29, 31.
Surely there is a limit to the period one can be deprived of lawful use of his property unless he shall agree to waive compensation for new improvements if and when taken for a highway. Here nine years had elapsed and no end of the inaction was in sight. Compare Mayer v. Dade County, Fla. 1955, 82 So.2d 513. Under the circumstances presented the able trial judge committed no error in granting the writ.
Affirmed.
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Metro. Dade Cnty. v. Fontainebleau GAS & Wash, Inc., 570 So. 2d 1006 (Fla. 3d DCA 1990)…the gas station’s construction. Therefore, the futility of requiring any further administrative action is apparent. See City of Miami Beach v. Sunset Islands 3 & 4 Property Owners Ass’n, Inc., 216 So. 2d 509 (Fla. 3d DCA 1968); Cook v. Di Domenico, 135 So. 2d 245 (Fla. 3d DCA 1961). Owners are deemed to purchase property with constructive knowledge of applicable land use regulations. Namon v. Dept. of Environmental Regulation, 558 So. 2d 504, 505 (Fla. 3d DCA 1990), review denied, 564 So. 2d 1086 (Fla.1990)…
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City OF Miami Beach v. Sunset Islands 3 & 4 Prop. Owners Ass'n, Inc., 216 So. 2d 509 (Fla. 3d DCA 1968)…d under the clear wording of either a statute or an ordinance designating him as the authoritative person to respond thereunder. City of Miami Beach v. State ex rel. Parkway Company, Inc., 128 Fla. 118, 174 So. 443; Cook v. DiDomenico, Fla.App.1961, 135 So. 2d 245. As to the second point, the record brought to us [which was presented to the trial court] was certainly ample to support his decision. The comprehensive zoning ordinance of the City of Miami Beach recognized that certain property could be used for…
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Monroe Cnty. v. Florentino Gonzalez, 593 So. 2d 1143 (Fla. 3d DCA 1992)…ve remedy prior to going to court to seek relief from the confiscatory regulation. Deseret Ranches of Florida, Inc. v. State Dept. of Agriculture & Consumer Services, Div. of Animal Industry, 392 So. 2d 1016 (Fla. 5th DCA 1981); Cook v. Di Domenico, 135 So. 2d 245 (Fla. 3d DCA 1961); City of Holly Hill v. State ex rel. Gem Enterprises, Inc., 132 So. 2d 29, 31 (Fla. 1st DCA 1961); Mayflower Property, Inc. v. City of Fort Lauderdale, 137 So. 2d 849 (Fla. 2d DCA 1962). The partial final judgment as to liability…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mayer v. Dade Cnty., 82 So. 2d 513 (Fla. 1955)
- City OF Holly Hill v. State of Fla. ex rel. GEM Enters., Inc., 132 So. 2d 29 (Fla. 1st DCA 1961)