The City of Miami Beach v. Ocean Inland Co.

As one of the early residents of Miami Beach, I take pleasure in concurring in all the good things which Mr. Justice THOMAS has to say in the foregoing able opinion about that marvelously beautiful and attractive city by the sea; which, by the way, it is not denied, has always been a well-governed city. When I first saw the property involved in this case, in the spring of 1915, the year in which the town was incorporated and which was about three years before I moved over from Miami and became a resident, I only recall one house in that immediate section, and that was the home of the Beach's great developer, Mr. Carl G. Fisher (who had theretofore been interested in Miami and Miami Beach by Mr. J.N. Lummus, Sr., the first mayor and pioneer developer of the southern portion of Miami Beach, and by the present and oftentimes mayor, Hon. John H. Levi) which home was then in course of construction. This home was being built on the northern portion of Block 55 of "Fisher's First Subdivision of Alton Beach," the plat of which was placed on record in 1914. Block 55 is bounded on the north by Lincoln Road, on the west by Collins Avenue, and on the east by the Atlantic Ocean. The plaintiff in this case owns Lots 7, 8, 9, 10, 11, and 12 of Block 55, being the northern six lots of that block, upon which the Fisher home was built. Not very long thereafter another beautiful home was built across the street on the north side of Lincoln Road, in the southern part of Block 29. My recollection is that this residence was built by Mr. John Hannon, the shoe manufacturer, who later sold it to Mr. Seiberling, the auto tire manufacturer, who still later sold it to Mr. Horlick, of "malted milk" fame. It appears from the record in this case that the lots upon which this residence was built now belong to the Horlick estate. I recall passing on the title to this property for Mr. Horlick some seventeen or eighteen years ago when I was practicing law in Miami. It was not very long after the Fisher home was built before this entire section near the ocean front was studded with beautiful homes surrounded by spacious grounds. Both of these old home sites, fronting the ocean at the eastern end of Lincoln Road, are zoned for hotel and apartment uses. The weight of the evidence is to the effect that these properties are splendidly adapted to the uses for which they are zoned, and no sufficient reason, in my opinion, is shown to set aside the zoning restrictions as to these lots. The old Hannon homesite, now the property of the Horlick estate, is not directly involved in this case, but I think it is indirectly involved, the situation and the zoning restrictions being the same.

Plaintiff also owns Lots 1, 2, and 3, in Block 30. These are the south three lots of Block 30 and are bounded on the south by Lincoln Road, on the east by Collins Avenue and on the west by James Street. All of these lots, and those in the immediate vicinity, were restricted by the original subdivider to private residential use. But in the course of years the character of the neighborhood changed, and these restrictions were removed, in the first instance by court proceedings. See Osius v. Barton, 109 Fla. 556, 147 So. 862 (a decision in which the writer did not participate) and Osius, et al., v. Barton,129 Fla. 184, 176 So. 65. The Osius property was located in the northern part of Block 54, across Collins Avenue from the Fisher home, and extended along the south side of Lincoln Road westward to Washington Avenue. A client of one of the amici curiae in this case owns several of these lots, running from Collins Avenue westwardly along Lincoln Road. In the early days of Miami Beach this Fisher's First Subdivision, east of Washington Avenue, contained the highest class residential property in the city and I never dreamed at that time that it would be used for any other purpose. But times have changed and due to the rapid growth of Miami Beach, conditions have changed with them. In his able master's report in this case, Judge John C. Gramling, who, as I recall, was one of a group who were associated with Mr. J.N. Lummus, Sr., either as an attorney for or as a stockholder in the Lummus Company, in the development of the southern portion of Miami Beach, which this great pioneer developer, Mr. Lummus, began in 1912, has this to say of Lincoln Road as it is today:

"More distinctive and individual than any other street of said city is the cross street known as 'Lincoln Road,' which is between 16th Street and 17th Street. This street was early designated as a business use street and has with the growth of Miami Beach been developed as such. Great progress has been made in the development of this street as a high class shopping district, where shops known throughout the United States are located."

The 1930 zoning ordinance of the City of Miami Beach, adopted only after careful study and many public hearings, designates most of Lincoln Road as a high class and restricted business district, extending from a point west of Alton Road, and not very far from Biscayne Bay, eastward for about a mile to the corner of James Street on the north side of Lincoln Road and to Washington Avenue on the south side, thus affording a high class business district of considerable proportions. James Street is a short street three blocks long, running from 19th Street on the north to Lincoln Road on the south. So we have Lincoln Road opened up for business for a distance eastward one block further on the north than on the south. Thus lots 1 to 6 inclusive of Block 31 on the north side of Lincoln Road can be and are being used for business purposes, whereas lots just across the street, being Lots 11, 12, 13, 14, 15 and 16 of Block 54, are restricted to multiple family uses. A number of the city's own witnesses in this case testified that the business district on the south side of Lincoln Road should be extended eastward to a point opposite the foot of James Street on the north side, so as to make the permitted usage of the property the same on both sides of the street. In the light of the evidence in this case, I think this contention is reasonable and well founded. Indeed, the evidence indicates to my mind that ultimately, and perhaps quite soon, the growth of Miami Beach will require that the high-class-business-use portion of Lincoln Road be extended by the city's governing body all the way eastward to Collins Avenue, or to within about 100 feet of said avenue, and that the city authorities will probably take such action of their own accord. But, on the evidence in this record, the question as to whether or not this should have been done as to the property east of James Street, shortly before or at this time this case was tried in the circuit court, was and is a debatable question.

The city introduced in evidence a number of communications which had been addressed to the Lincoln Road Association and to the city council with reference to the petition of certain property owners involved in this case for the modification of the zoning ordinance so as to permit the eastward extension of the business use of Lincoln Road so as to embrace their properties in the business district. I was very much impressed with one or two paragraphs in one of these letters. It is true this letter was written about a year and a half ago but it reflects some of the many factors which the city council had to consider in arriving at their decision on these petitions.

It reads in part as follows:

"As a year round resident and property owner, I am interested in the progress of Miami Beach, and feel that my reaction to a change in the zoning restrictions on Lincoln Road might be similar to that of the average thoughtful citizen.

"Lincoln Road as it is today did not just happen; it is the answer to the best thought of many conscientious and capable city councilmen, in addition to many smart, versatile and experienced merchants.

"It is a recognized fact, that expansion that is too rapid has caused the depreciation or destruction of innumerable communities and businesses.

"If possible, this should be avoided on Lincoln Road, which, in recent months, has greatly exceeded conservative growth.

"The future high standard and prosperity of Lincoln Road will certainly be seriously affected by any change in the zoning restrictions, at this time. The welfare of the community should not be jeopardized or sacrificed for the personal profit of a few individuals."

The city council referred this matter of changing zoning restrictions on Lincoln Road to the Zoning Board of Adjustment, from whose report to the city council we quote the two concluding paragraphs:

"Accordingly a hearing was called for three P. M. January 10 pursuant to notices having been sent to all property owners within three hundred and seventy-five feet of this property. During the course of the hearing a number of people presented their views relative to the proposed change and relative to certain further extensions of the Lincoln Road business district and also of an extension southward on Washington Avenue. In the aggregate during the course of the hearing, owners of twenty-eight hundred and forty-two front feet of property which is now classified in the "Re" district requested that the Board also consider recommending changing their property so that it would be available for business uses. Requests involved all of the property fronting on Lincoln Road from Washington Avenue to the ocean, and on Washington Avenue from Lincoln Road to Sixteenth Street.

"After giving careful consideration to the evidence adduced at the hearing and having examined carefully the conditions now existing generally in this territory, and particularly having investigated the store vacancies on Lincoln Road and the vacant property on that thoroughfare still available for business, it is the opinion of the board that any extension of business property at this time in that territory would in the final analysis be detrimental to the present owners of business property and probably would not be beneficial to the owners of the property who now seek to change their holdings from "Re" to business classification, and that any such change at this time would contribute nothing to the general welfare of the city, but would on the other hand in the aggregate be detrimental to all property on and near Lincoln Road. We therefore recommend that no change be made in the present use classification of Lincoln Road property."

This report and recommendation was made on January 17 of last year. It will be noted that they recommended that no changes be made "at this time" in the "present use classification" of Lincoln Road. Thus the Board itself recognized that changes in conditions might sooner or later require some changes in the "use classification," and evidently had in mind the principle expressed by this Court in the recent case of Forde v. City of Miami Beach, 146 Fla. 676, 1 So. 2d 642, wherein it was said:

"The object of all use zoning, in a measure at least attainable, should be to put the land to the use or uses to which it is best adapted, and the result will normally be to increase values. That the governing body of the City of Miami Beach had his principle in mind when the zoning ordinance was adopted ten years ago is indicated by the marvelous growth of this municipality. Such a zoning plan should be sufficiently stable to protect those who comply with the law, but at the same time, it should be susceptible to change, so that it can be altered to meet changing conditions not adequately recognized or not possible to foresee when the ordinance was adopted."

In the case of Cawthon v. Town of DeFuniak Springs, 88 Fla. 324, 102 So. 250, this Court, speaking through Mr. Justice WHITFIELD, said:

"The Legislature can legally authorize the exercise of the police power only for proper purposes and only to the extent that is necessary to conserve the public welfare in the premises."

And in State ex rel. McAuley v. York, 90 Fla. 625,106 So. 418, this Court held that:

"When an ordinance is within the grant of power to the municipality, the presumption is that it is reasonable, unless its unreasonable character appears on its face, and the person attacking it as unreasonable or unjustly discriminatory must assume the burden of affirmatively showing that, as applied to him, it is unreasonable, or unfair and oppressive."

The evidence in this case is extremely interesting, consisting as it does of the testimony of quite a number of well known citizens of Miami Beach, including former Mayor Snedigar, as well as that of two expert students of zoning — Mr. Harland Bartholomew of St. Louis, Mo., and Mr. E.D. Keefer of Miami Beach, and the testimony shows quite a variety of viewpoints and opinions. Many factors necessarily entered into the consideration of the matter by the city council in arriving at its decision, made some months ago, to let the zoning restrictions stand as they were at that time.

When it comes to a mere matter of opinion, the writer would not place his own personal opinion against that of the city council of Miami Beach, for whose members he has high respect, nor, for that matter, against that of the circuit judge who tried this case in the court below and who reached a different conclusion from that of the city authorities. However, the general statement that the courts should not substitute their judgment for that of the city's legislative body, in any case, is a bit too broad. Taking that statement literally, the courts could never set aside any ordinance. When it comes to the protection and enforcement of the basic constitutional rights of personal liberty and private property, and as to how far these rights must be modified by the imperative requirements of the general welfare, as expressed in the exercise of the police powers, the courts are compelled to weigh the evidence for themselves and to construe and protect those rights in the light of the facts which they find to be proven by the weight of the evidence. That, I am sure, is what the learned circuit judge endeavored to do in this case, and what the members of this Court are endeavoring to do in reviewing his very persuasive opinion and judgment. I think that the rule on his subject was correctly stated by the Supreme Court of the United States in the leading case of Euclid v. Ambler Realty Company, 228 U.S. 365, 71 L. Ed. 303,47 S.C. 114, 54 A. L. R. 1016, wherein, speaking through Mr. Justice SUTHERLAND, it said:

"If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control."

Giving due operation and effect to this rule, I agree with the majority of the Court that on the evidence in this case the zoning restrictions here involved should have been left undisturbed by the trial court. As to a question indirectly involved here, my own view is, as above stated, that the city's own action in extending the business district of Lincoln Road eastward to James Street on the north side of Lincoln Road is such strong evidence that such district should also be extended a corresponding distance on the south side of Lincoln Road as to leave that question, when considered in connection with the testimony as a whole, no longer "fairly debatable," and would require appropriate action, either by the city council or by the courts, if properly invoked, to bring this about, the effect of which would be to open up for business uses (of the character already in force to the west of there) Lots 11, 12, 13, 14, 15 and 16 of Block 54, fronting on Lincoln Road, and running west to Washington Avenue. But I agree with the majority of the Court that the question as to whether the business use of Lincoln Road should be still further extended, so as to remove the present zoning restrictions from plaintiff's three lots at the N.W. corner of Lincoln Road and Collins Avenue, is such a debatable question on the evidence in this case, that the zoning ordinance should be left undisturbed as to those lots.

As indicated above, I also agree with the other members of the Court that the present zoning restrictions on plaintiff's property on Lincoln Road between Collins Avenue and the ocean should be left as they are. While there was some conflict in the testimony, I think the weight of the evidence supports the reasonableness of such zoning restrictions.

I therefore concur in the judgment of reversal.