GERHARDUS BULLEMA, APPELLANT,
v.
HOWARD LOSEY, ESTHER M. LOSEY, ET AL., APPELLEES
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The Florida Supreme Court reversed a declaratory judgment action brought by property owners against the Village of El Portal, holding that there was no bona fide doubt regarding their rights under the zoning ordinances and therefore no jurisdictional basis for the action under Florida's declaratory judgment statute.
No. The plaintiffs lacked a jurisdictional basis for a declaratory judgment action because they failed to allege or prove any bona fide doubt regarding their rights. The 1938 ordinance's protection of non-conforming uses existing at the time of any amendment plainly protected the plaintiffs' existing non-conforming uses despite the 1953 amendment.
“Section 5 of this ordinance protected non-conforming uses "existing at the time of the passage of this ordinance or any amendment thereto"”
Establishes the operative protection for non-conforming uses under the original 1938 ordinance
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Join FLexlaw to unlock all legal intelligenceThe Village of El Portal enacted a comprehensive zoning ordinance in 1938 that protected non-conforming uses existing at the time of passage. In 1953,…
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[*716] HOBSON, Justice.
The Village of El Portal, a municipal corporation in Dade County, Florida, enacted a comprehensive zoning ordinance (Ordinance No. 8) in 1938. Section 5 of this ordinance protected non-conforming uses “existing at the time of the passage of this ordinance or any amendment thereto * * In 1953, the Village adopted Ordinance No. 63 which amended Ordinance No. 8 by zoning some twenty-one acres of land, owned by plaintiff-appellees, for hotel, apartment, bungalow court, and motel uses. Ordinance No. 63 contained the usual clause repealing all ordinances in conflict therewith.
The plaintiff property owners sued the Village and others. Gerhardus Bellema, who owns residential property within the Village, intervened as a defendant, and he is the sole appellant here.
The complaint alleged in substance that certain parts of the land owned by the plaintiffs had, at the time the lands were incorporated into the Village, been devoted to certain business uses (other than those specified in Ordinance No. 63), that the plaintiffs’ lands were wholly unsuited for residential purposes, and that the Village had passed Ordinance No. 63 wherein the Village attempted to restrict the use of plaintiffs’ lands to the construction and erection of residential buildings, regardless of the prior non-conforming uses. Plaintiffs sought a declaratory decree in effect avoiding Ordinance No. 63 and holding it ineffective as to plaintiffs’ property. The relief sought was granted, after hearing, in the final decree appealed from.
As appellant points out, the plaintiffs did not allege, nor did they prove, the existence of any bona fide doubt as to their rights. The Village alleged in its answer that “no contention is made that non-conforming uses existing at the time of the enactment of Ordinance No. 63 may not lawfully continue as such”. Moreover, it is difficult to see how a bona fide doubt could be founded upon a conflict between the two ordinances involved, since Section 5 of Ordinance No. g protects non-conforming uses “existing at the time of * * * any amendment hereto”. Inasmuch as Ordinance No. 63 amends Ordinance No. 8, and repeals only ordinances “in conflict” with itself, nonconforming uses existing at the time of the later ordinance are plainly protected. There was thus no jurisdictional basis for this action founded upon our declaratory judgment statute, and the proceedings must fall. See Bryant v. Gray, Fla., 70 So. 2d 581; Caldwell v. North, 157 Fla. 52, 24 So. 2d 806; Ready v. Safeway Rock Co., 157 Fla. 27, 24 So. 2d 808. Cf. Modernage Furniture Corporation v. Miami Rug Company, Fla., 84 So. 2d 916.
It follows that the final decree appealed from must be, and it is hereby, reversed with directions to dismiss the cause. It is so ordered.
DREW, C. J., and TERRELL and THORNAL, JJ., concur.
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Dep't OF Revenue v. E. Am. Techs. Corp., 762 So. 2d 1044 (Fla. 5th DCA 2000)…e, the application of which by the tax authority is a ministerial duty. This provides no jurisdictional basis for a declaratory judgment suit because there can be no bona fide doubt as to the respondents’ rights or obligations. See Bullema v. Losey, 84 So. 2d 715 (Fla.1956). Further, the interest and penalties through 1997 were likely incorporated in the final judgment rendered in the circuit court, following remand from the Florida Supreme Court in 1997. The time and method to have challenged those calculat…
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The Fla. Nat'l Bank OF Jacksonville v. Pugh, 88 So. 2d 284 (Fla. 1956)…e Ready v. Safeway Rock Co., 157 Fla. 27, 24 So. 2d 808; Bowden v. Seaboard Air Line R. Co., Fla. 1950, 47 So. 2d 786; Halpert v. Oleksy, Fla.1953, 65 So. 2d 762; Mountain v. National Airlines, Fla.1954, 75 So. 2d 574 and Bullema v. Losey, Fla.1956, 84 So. 2d 715. There is nothing in Bloomfield v. City of St. Petersburg Beach, Fla.1955, 82 So. 2d 364, or Modernage Furniture Corp. v. Miami Rug Co., Fla.1955, 84 So. 2d 916, that is inconsistent with these views. Accordingly the writ of certiorari is granted,…
Authorities Cited
- Ready v. Safeway Rock Co., 157 Fla. 27 (Fla. 1946)
- Bryant v. Gray, 70 So. 2d 581 (Fla. 1954)
- Millard Caldwell v. North, 157 Fla. 52 (Fla. 1946)
- Felton Y. Jernigan v. Hicks, 84 So. 2d 916 (Fla. 1955)
- Modernage Furniture Corp. v. Miami RUG Co., 84 So. 2d 916 (Fla. 1955)