Thomas, J.
In the chancery court a bill was filed against the City of Miami Beach to enjoin the municipality from enforcing the provisions of a zoning ordinance against certain property, which will be described later in this opinion, and from a decree in favor of the plaintiff, the defendant appealed. The matter has been presented here by counsel for the respective parties and the Court has heard argument of
amici curiae,
two in number, representing other owners of property, similarly situated.
In the course of our discussion we will refer to the parties litigant by their titles in the original proceedings.
Just before Lincoln Road, extending eastward from Bay Biscayne, meets the sea it passes the south end of James Street, three blocks in length, and less than two hundred feet farther on crosses the important thoroughfare called Collins Avenue. The plaintiff owns two tracts of land, one at the northwest corner formed by the intersection of Lincoln. Road and Col-, lins Avenue, with James Avenue as the west boundary, and one at the southeast corner, wtih the Atlantic Ocean as the east boundary. Incidentally, the property at the southwest corner of the crossing is owned by the client of one of the
amici curiae
and that at the northeast corner by the client of the other
amicus curiae.
Ordinance numbered 289 adopted by the city commission of the City of Miami Beach, after a thorough survey of the past history and probably future growth of that extraordinary community, provided for business houses on Lincoln Road west of the lots we have described, that is, on the north side from James
Avenue westward and on the south side from Washington Avenue westward, while property abutting Lincoln Road east of these respective cross streets could be used only for hotel and apartment sites. It is sought by this litigation to have these restrictions originally imposed altered to allow the use of the property in question for business purposes the same as other lands adjoining Lincoln Road and the basis of the prayer for such relief is that the character of the surrounding property has so changed since the initial classification that there can no longer be found a “substantial relationship to public safety, welfare, morals, or health, in the continuance of the zoning restrictions now in force. . . .”
The background of the action of the legislative body in enacting the zoning ordinance and the consequent litigation is important. Growth of Miami Beach in three decades has been phenomenal, in large part, if not entirely, due to its attractiveness to those who would escape business cares, the rigors of northern winters and the ravages of disease. Situated on a narrow peninsula between the Atlantic Ocean and an arm of it known as Biscayne Bay, blessed with a warm climate and fanned by the southeast trades, it has become known as one of the earth’s principal vacation places. A preponderant number of those who live there for long or short periods have come to play. It is not primarily a business or industrial center to which residence is incidental, but on the contrary it is principally populated by those who seek pleasure or health and business is secondary.
The general zoning plan so far as it relates to the immediate territory involved in this controversy provided for the construction of superior hotels and apart
ments along the Atlantic Ocean, unquestionably one of the main assets of the community, and for business houses along Lincoln Road which runs approximately at right angles with the beach. Where these two areas of considerable length, but of little width, unite is situated the property of the plaintiff. The relief asked, and granted by the chancellor, was permission to erect business places in the region restricted to hotels and apartments at its juncture with the area where that use could be made of the property and it is insisted that the character of the property in question is precisely the same as that along the remainder of Lincoln Road from that place west. If we disregard the relative importance of the area along the beach and that along the business street this is true. If one travels along Lincoln Road eastward and does not bear in mind the restricted area along the seashore there appears no logical reason why the last two blocks next to the Atlantic Ocean should not be in the same category as those along-the remainder of the path he has just trod. By the same token if one passes along Collins Avenue, a thoroughfare from north to south through the city, there seems no sensible ground for intersecting the territory with a street devoted to trade. If the character of the city as a resort and the necessity to its well-being, of its charm for the stranger are borne in mind; if the comparative importance of store and hotel are considered when the area allocated to the one strikes the district assigned to the other and a choice must be made, the former should give way.
At the juncture of these streets property which may be devoted to business abruptly ends and that which may be used for hotels and apartments as suddenly
begins but there must be a line of demarcation between them somewhere. See State
ex rel.
Townsend v. Farrey, 133 Fla. 15, 182 So. 448; Z. a. h. n. v. Board of Public Works, 195 Cal. 497, 234 Pac. 388.
The fact that his land is situated across the street from that on which commercial enterprises may be operated was not alone enough to support plaintiff’s position that he should be given the same latitude in the use of his property. Were this the case it would be but a matter of time before alterations of the whole scheme by successively liberalizing the use of abutting property would result in disintegration and disappearance of the whole plan of zoning.
It is fundamental that one may not be deprived of his property without due process of law but it is also well established that he may be restricted in the use of it when that is necessary to the common good. So in this case we must weigh against the public weal plaintiff’s rights to enjoy unhampered property acquired since the enactment of the ordinance. Such restrictions must find their basis in the safety, health, morals or general welfare of the community. State v. City of Jacksonville, 101 Fla. 1241, 133 So. 114; Blitch v. City of Ocala, 142 Fla. 612, 195 So. 406; Zahn v. Board of Public Works,
supra.
In judging the merits of a controversy of this kind the facts peculiar to the particular case will govern (Blitch v. City of Ocala,
supra)
and the Court will not substitute its judgment for that of the legislative body of the city. Miller,
et al.,
v. Board of Public Works, 195 Ca. 477, 234 Pac. 381. In view of the,nature of Miami Beach it is not important to consider here the indispensability of the restrictions to the health, the safety, the morals of the community but
only their necessity to the general welfare. We do not comprehend how it can be successfully urged that the maintenance.
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Thomas, J.
In the chancery court a bill was filed against the City of Miami Beach to enjoin the municipality from enforcing the provisions of a zoning ordinance against certain property, which will be described later in this opinion, and from a decree in favor of the plaintiff, the defendant appealed. The matter has been presented here by counsel for the respective parties and the Court has heard argument of
amici curiae,
two in number, representing other owners of property, similarly situated.
In the course of our discussion we will refer to the parties litigant by their titles in the original proceedings.
Just before Lincoln Road, extending eastward from Bay Biscayne, meets the sea it passes the south end of James Street, three blocks in length, and less than two hundred feet farther on crosses the important thoroughfare called Collins Avenue. The plaintiff owns two tracts of land, one at the northwest corner formed by the intersection of Lincoln. Road and Col-, lins Avenue, with James Avenue as the west boundary, and one at the southeast corner, wtih the Atlantic Ocean as the east boundary. Incidentally, the property at the southwest corner of the crossing is owned by the client of one of the
amici curiae
and that at the northeast corner by the client of the other
amicus curiae.
Ordinance numbered 289 adopted by the city commission of the City of Miami Beach, after a thorough survey of the past history and probably future growth of that extraordinary community, provided for business houses on Lincoln Road west of the lots we have described, that is, on the north side from James
Avenue westward and on the south side from Washington Avenue westward, while property abutting Lincoln Road east of these respective cross streets could be used only for hotel and apartment sites. It is sought by this litigation to have these restrictions originally imposed altered to allow the use of the property in question for business purposes the same as other lands adjoining Lincoln Road and the basis of the prayer for such relief is that the character of the surrounding property has so changed since the initial classification that there can no longer be found a “substantial relationship to public safety, welfare, morals, or health, in the continuance of the zoning restrictions now in force. . . .”
The background of the action of the legislative body in enacting the zoning ordinance and the consequent litigation is important. Growth of Miami Beach in three decades has been phenomenal, in large part, if not entirely, due to its attractiveness to those who would escape business cares, the rigors of northern winters and the ravages of disease. Situated on a narrow peninsula between the Atlantic Ocean and an arm of it known as Biscayne Bay, blessed with a warm climate and fanned by the southeast trades, it has become known as one of the earth’s principal vacation places. A preponderant number of those who live there for long or short periods have come to play. It is not primarily a business or industrial center to which residence is incidental, but on the contrary it is principally populated by those who seek pleasure or health and business is secondary.
The general zoning plan so far as it relates to the immediate territory involved in this controversy provided for the construction of superior hotels and apart
ments along the Atlantic Ocean, unquestionably one of the main assets of the community, and for business houses along Lincoln Road which runs approximately at right angles with the beach. Where these two areas of considerable length, but of little width, unite is situated the property of the plaintiff. The relief asked, and granted by the chancellor, was permission to erect business places in the region restricted to hotels and apartments at its juncture with the area where that use could be made of the property and it is insisted that the character of the property in question is precisely the same as that along the remainder of Lincoln Road from that place west. If we disregard the relative importance of the area along the beach and that along the business street this is true. If one travels along Lincoln Road eastward and does not bear in mind the restricted area along the seashore there appears no logical reason why the last two blocks next to the Atlantic Ocean should not be in the same category as those along-the remainder of the path he has just trod. By the same token if one passes along Collins Avenue, a thoroughfare from north to south through the city, there seems no sensible ground for intersecting the territory with a street devoted to trade. If the character of the city as a resort and the necessity to its well-being, of its charm for the stranger are borne in mind; if the comparative importance of store and hotel are considered when the area allocated to the one strikes the district assigned to the other and a choice must be made, the former should give way.
At the juncture of these streets property which may be devoted to business abruptly ends and that which may be used for hotels and apartments as suddenly
begins but there must be a line of demarcation between them somewhere. See State
ex rel.
Townsend v. Farrey, 133 Fla. 15, 182 So. 448; Z. a. h. n. v. Board of Public Works, 195 Cal. 497, 234 Pac. 388.
The fact that his land is situated across the street from that on which commercial enterprises may be operated was not alone enough to support plaintiff’s position that he should be given the same latitude in the use of his property. Were this the case it would be but a matter of time before alterations of the whole scheme by successively liberalizing the use of abutting property would result in disintegration and disappearance of the whole plan of zoning.
It is fundamental that one may not be deprived of his property without due process of law but it is also well established that he may be restricted in the use of it when that is necessary to the common good. So in this case we must weigh against the public weal plaintiff’s rights to enjoy unhampered property acquired since the enactment of the ordinance. Such restrictions must find their basis in the safety, health, morals or general welfare of the community. State v. City of Jacksonville, 101 Fla. 1241, 133 So. 114; Blitch v. City of Ocala, 142 Fla. 612, 195 So. 406; Zahn v. Board of Public Works,
supra.
In judging the merits of a controversy of this kind the facts peculiar to the particular case will govern (Blitch v. City of Ocala,
supra)
and the Court will not substitute its judgment for that of the legislative body of the city. Miller,
et al.,
v. Board of Public Works, 195 Ca. 477, 234 Pac. 381. In view of the,nature of Miami Beach it is not important to consider here the indispensability of the restrictions to the health, the safety, the morals of the community but
only their necessity to the general welfare. We do not comprehend how it can be successfully urged that the maintenance. of safety, health or morals are involved but only whether in the circumstances in this particular case the restrictions are so unnecessary to the general welfare of the inhabitants that the curtailment of the rights of the plaintiff are unreasonable and arbitrary.
We will determine the reasonableness of the regulations as applied to the factual situation meanwhile keeping before us the accepted rules that the Court will not substitute its judgment for that of the city council; that the ordinance is presumed valid (State v. City of Jacksonville,
supra)
and that the legislative intent will be sustained if “fairly debatable.” Euclid v. Ambler Realty Co., 272 U. S. 365, 45 Sup. Ct. Rep. 114, 71 L. Ed. 303, 54 A. L. R. 1016.
In 3 McQuillin Municipal Corporations, Section 1048, appears a quotation from the Supreme Court of Wisconsin (State
ex rel.
Carter v. Harper, 182 Wis. 148, 196 NW 451) recognizing the principle that government through “the exercise of its police power may impose restrictions upon the use of property in the interest of public health, morals, and safety.” The court added that there was doubt about whether there could be regulation “in promotion of the public welfare, convenience, and general prosperity” but it seems that the Supreme Court of Florida has recognized “public welfare” as a purpose for which such restrictions could be imposed. In the Wisconsin case it is. further pointed out that aesthetic considerations have also been recognized and we think what is said in the opinion is particularly relevant to the community of Miami Beach because of its general character which
we have briefly described. It is difficult to see how the success of Miami Beach could continue if its aesthetic appeal were ignored because the beauty of the community is a distinct lure to the winter traveler.
In the Wisconsin case reference is made also to the many benefits which may spring from zoning such as the attraction to select citizenship, civic pride, the happiness and contentment of the citizens and the stabilization of the value of the property and general peace and good order. All of these elements are especially appropriate in connection with the City of Miami Beach.
It seems that if one observes the forest instead of the trees the advantages of the zoning ordinance under attack are immediately apparent and that the enforcement of the ordinance encompassing the whole plan will redound to the benefit of all without oppression or injustice to plaintiff of any one in like position.
We do not find in the ordinance meanwhile conscious of the presumption of the correct exercise of the discretion of the city council to deal with zoning within their jurisdiction, the earmarks of arbitrariness and unreasonableness which would justify judicial interference.
The limitation of the use by the plaintiff of his property seems a fair, just and reasonable contribution to the economic good, the prosperity, the welfare of the whole community and not so burdensome that it contravenes the organic inhibition against deprivation without due process.
Reversed.
Brown, C. J., concurs specially.
Whitfield, Terrell, Buford and Chapman, J. J., concur.
Adams, J:, not participating.