THE CITY OF MIAMI, A MUNICIPAL CORPORATION, APPELLANT,
v.
CLARA MAE STEGEMANN, APPELLEE
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The City of Miami appealed a decree invalidating a zoning ordinance provision limiting distances between gasoline filling stations. The lower court had relied on a prior case (City of Miami v. G. & S. Realty Corporation) as establishing the ordinance was unconstitutional, but the appellate court found that prior case addressed only as-applied challenges to specific property, not the validity of the ordinance in toto.
The prior decree in G. & S. Realty did not declare the ordinance invalid in toto but rather addressed only its application to that specific property. The ordinance itself was not attacked in either case and remains valid; an administrative body lacks authority to declare an ordinance unconstitutional. The chancellor erred in relying on the prior case to invalidate the ordinance.
“no decision is authority on any question not raised and considered although it may have been involved in the facts of the case”
Establishes that the prior G. & S. Realty decision cannot be binding authority on the question of the ordinance's facial validity since that issue was never raised or considered in that case.
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Join FLexlaw to unlock all legal intelligenceThe City of Miami's comprehensive zoning ordinance contained provisions limiting distances between gasoline filling stations and their proximity to ch…
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The City of Miami appeals from a final decree which invalidated a provision of the comprehensive zoning ordinance of the city *584relating to the distance limitations between gasoline filling stations.
The sole basis of the decree appealed was the chancellor’s conclusion that the holding in the case of City of Miami v. G. & S. Realty Corporation, Fla.App. 1962, 140 So. 2d 364, was conclusive of the controversy at bar. In the G. & S. Realty case, supra, the chancellor, after concluding that the equities were with the plaintiff-property owner, adjudicated as follows:
“That the distance limitations and prohibitions pertaining to the plaintiff’s property * * * in its proximity to churches, schools or other filling stations are hereby declared void, invalid, arbitrary, discriminatory, unreasonable and unconstitutional, and the defendant shall not enforce ordinance. * * * against said property.” [Emphasis supplied.]
It is the aforesaid language upon which the chancellor in the case at bar premised his conclusion that the prior case held the ordinances under attack to be unconstitutional in toto.
We have examined the records of this court in the case of City of Miami v. G. & S. Realty Corporation, supra, and find that the property owner-appellee in that case- — -never at any time attacked the validity of the ordinance as a whole, but consistently complained of the harshness resulting from an application of same to his property.
We do not construe the decree of the circuit court in City of Miami v. G. & S. Realty Corporation, supra, affirmed by this court, as an adjudication of the invalidity of the ordinances as a whole. The decree may be in part ambiguous, but when read in the light of all of the provisions thereof, it seems reasonably clear that the chancellor in that case was concerned only with the application of the ordinances to the specific property.
Since the validity vel non of the ordinance in question was not attacked in the case at bar, nor in the one upon which the chancellor here based his conclusion, we think it is not amiss to point out that no decision is authority on any question not raised and considered although it may have been involved in the facts of •the case. See State ex rel. Helseth v. DuBose, 99 Fla. 812, 128 So. 4, 6. The procedural posture of this case also suggests the conclusion which we reach. The complaint was in equity by the appellee in which she alleged an exhaustion of all administrative remedies before the agencies of the appellant. This was likewise the procedural position that existed in the case of City of Miami v. G. & S. Realty Corporation, supra. Both sought a variance from the ordinance requirements. We are unaware of precedent permitting a declaration of unconstitutionality of an ordinance by an administrative body subservient to the legislative body which has the sole power of enacting the ordinance attacked. The administrative agencies of the appellant would have authority to- grant variances from ordinances but not to rezone or declare unconstitutional the act of the parent body, the city commission. In seeking a variance from the requirements of an ordinance, the validity of the ordinance is generally admitted.
Under all the circumstances as enunciated here, we conclude that the able chancellor was in error when he premised his decree in the case at bar upon the assumption that the decree in the former case of City of Miami v. G. & S. Realty Corporation, supra, was a declaration of the invalidity of the zoning ordinance in toto. As to the validity vel non of the ordinance, we observe that such question appears to have been placed at rest by the Supreme Court of Florida in State ex rel. Dallas Inv. Co. v. Peace, 139 Fla. 394, 190 So. 607.
Inasmuch as the chancellor in the case at bar was of the view that the por*585tion of the ordinance attacked was “fairly debatable” and on that premise the appellant should prevail but for the decision in the former case, we reverse the decree appealed, and remand the cause with directions to enter a decree in favor of the appellant.
Reversed and remanded with directions.
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Volusia Cnty. v. Aberdeen AT Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000)…So. 2d 324 (Fla. 2d DCA 1991). This aspect of the cited cases, however, is irrelevant. It is well settled that an ordinance that is constitutional on its face may be unconstitutional as applied to a particular party. See City of Miami v. Stegemann, 158 So. 2d 583 (Fla. 3d DCA 1963). That the underlying methodology may be invalidated in other .cases does not transform the nature of Aberdeen’s claims. As previously mentioned, Aberdeen is not challenging the fundamental validity of the ordinance; it challenges…
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McKEAN v. Warburton, 919 So. 2d 341 (Fla. 2005)…Line Ltd., 859 So. 2d 1213, 1217 (Fla. 3d DCA 2003) (quoting State ex rel. Helseth v. Du Bose, 99 Fla. 812, 128 So. 4, 6 (1930)); see also Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 304 (Fla. 4th DCA 1995); City of Miami v. Stegemann, 158 So. 2d 583, 584 (Fla. 3d DCA 1963). Although the same question was not presented in Snyder, the two cases have virtually the same facts, both deal with the disposition of protected homestead property through a residuary clause of a will, but they reach comple…
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The City OF Miami v. Walker, 169 So. 2d 842 (Fla. 3d DCA 1964)…vel non of the distance provisions of ordinance #6871 was established by the Supreme Court of Florida in State ex rel. Dallas Investment Co. v. Peace, 139 Fla. 394, 190 So. 607, and followed by this court in City of Miami v. Stegemann, Fla.App.1964, 158 So. 2d 583, the only question to be decided is whether or not there was sufficient evidence before the chancellor to support his conclusion that as applied to appellees’ property the ordinance was discriminatory and unconstitutional. We agree with the appellan…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DuBose, 99 Fla. 812 (Fla. 1930)
- State ex rel. Dallas Inv. Co. v. Peace, 139 Fla. 394 (Fla. 1939)
- In re Est. of Allie M. Harvey, 140 So. 2d 364 (Fla. 1st DCA 1962)
- Jarkesy v. O'Dare's Motor Lines, Inc., 140 So. 2d 364 (Fla. 3d DCA 1962)