Aiken v. E. B. Davis, Inc. , 106 Fla. 675 ( 1932 )

The Town of Boca Raton, Florida, is a municipal corporation organized and existing under and by virtue of Chapter 13922, Acts of 1929. For the purposes of this case the Circuit Judge accepted the city's contention that the charter gave the right to the city to pass a zoning ordinance, but nevertheless issues a peremptory writ of mandamus to compel the city to issue a permit to the relator for the erection of a filing station, holding in so doing, that the action of the municipality in adopting a zoning ordinance forbidding filling stations,after the alternative writ of mandamus in this case was issued, amounted to an unreasonable and arbitrary act by the city commission, which could not prevail as against the relator's rights to a permit, acquired by the pendency of his application and original mandamus proceeding when the zoning ordinance was finally passed, apparently, so the Circuit Judge held, to apply principally to defeat relator's original mandamus.

At the time application for relator's permit was made, no zoning ordinance had been put into effect, but a general plan of zoning the town had been agreed on by the Council. After relator's application for a filling station permit was made, but before his suit was instituted, an emergency ordinance was passed by the Town Council, placing relator's lot in a residence district wherein the operation of a filling station was prohibited. Subsequently thereto, and long before the final hearing of the cause was had, a zoning ordinance was finally adopted and placed into effect. The coming into effect of this zoning ordinance before issuance of a peremptory writ, is what is relied on by respondent municipality to defeat the issuance of a peremptory writ which admittedly would have been properly grantable had this "emergency" ordinance not been passed and become effective.

In discussing this action of the City Council in claiming the benefit of its "emergency" action as against the rights of relator, claim for which was set in motion by the application, before the ordinance was adopted, Judge Chillingworth in his opinion states: "I am of the opinion that, in so far as it affects relator and the particular land in question, the municipality acted unreasonably and arbitrarily. The actions of the municipality are sufficient to overcome the presumption that the ordinance — as it affects relator — was in any way prompted by consideration of public safety, health, welfare or morals, thereupon, it is ordered and adjudged that the motion for a peremptory writ be granted."

In my view of the case, the final adoption of the ordinance here involved in so far as it is attempted to apply it to therelator's already pending mandamus for a permit, and notprospectively for future operation, is in contemplation of law an attempted judicial decree by the legislative power of the city against the then existing rights of the relator, and therefore that such ordinance as applied to relator, is unreasonable and arbitrary, as held by the Circuit Judge. See Thursby vs. Stewart, 138 So. text page 752, opinion by Whitfield, J. I concur in the preceding opinion as well as the judgment of affirmance.

BUFORD, C.J., AND WHITFIELD AND BROWN, J.J., concur.