Tower Forty-One Ass'n v. Zoning Board of Adjustment

19 Fla. Supp. 2d 161
CourtCircuit Court for the Judicial Circuits of Florida
DecidedSeptember 18, 1986
DocketCase No. 85-256-AP
StatusPublished

This text of 19 Fla. Supp. 2d 161 (Tower Forty-One Ass'n v. Zoning Board of Adjustment) is published on Counsel Stack Legal Research, covering Circuit Court for the Judicial Circuits of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tower Forty-One Ass'n v. Zoning Board of Adjustment, 19 Fla. Supp. 2d 161 (Fla. Super. Ct. 1986).

Opinion

[162]*162OPINION OF THE COURT

STEVEN D. ROBINSON, Judge.

This case is before this Court on Petition for Certiorari to review the granting of five variances by the Miami Beach Zoning Board of Adjustment. The scope of review is limited to a determination, based on the agency record, as to whether the agency afforded procedural due process, whether the essential requirements of law were complied with and whether substantial competent evidence supports the final agency action. Fort Lauderdale Board of Adjustment v. Nash, 425 So.2d 578 (Fla. 4th DCA 1982). The existence of procedural due process is not being questioned.

Town of Indialantic v. Nance, 400 So.2d 37 (Fla. 5th DCA 1981), aff'd, 419 So.2d 1041 (Fla. 1982), holds that this Court must assess whether the authority had before it competent evidence to support its findings. This process of review insures that “the authority’s determination must stand.” 400 So.2d at 40.1

This Court has searched the record at the public hearing, the materials in the City’s original and supplemental appendixes and finds a lack of evidence to support its Order of August 2, 1985, the subject of this petition. The Order allowed “waiving all the required 11 feet north side yard setback at ground level; waiving all of the required 10 feet north side yard setback at lower level; waiving requirement prohibiting any structure in a comer; [and] waiving 75 parking spaces of 456”.

The subject property is located at 280 Arthur Godfrey Road, Miami Beach, Florida, across Arthur Godfrey Road from the Petitioner, Tower Forty One Association, Inc.

To support the variances the Board made findings as follows:

That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district, to wit:
That granting the variance requested will not confer on the applicant any special privilege that is denied by this Ordinance to other lands, buildings, or stmctures in the same zoning district;
[163]*163The literal interpretation of the provisions of this Ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of this Ordinance and would work unnecessary and undue hardship on the applicant;
That the variance granted is the minimum variance that will make possible the reasonable use of the land, building or structure;
That the granting of the variance will be in harmony with the general intent and purposes of this Ordinance and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare.
Specific factual findings are not stated. Instead findings are made in conclusionary language, disapproved in Harrington Glen, Inc. v. Municipal Board of Adjustment, 52 N.J. 22, 243 A.2d 233, 236 (1968). At times this Court has had to speculate on possible factual substantiations.
Argument has been made that the subject property is irregularly shaped and narrow so that a variance would be justified under City of Coral Gables v. Geary, 383 So.2d 1127 (Fla. 4th DCA 1980). Yet no evidence was presented why this condition justified any of the variances, and no evidence shows why a special and unique design was necessary. The hardship letter of March 15, 1985, only alleges that the design is required for an “appropriate use of the property”. No amplification was offered at the public hearing. There was no showing that a smaller building would necessitate the variances. In fact at an earlier hearing before the City Commission granting the C-4 zoning classification, the owner proposed a plan that did not require major variances.2
The Court realizes that there is only a ninety-one foot wide lot. No evidence was presented at the hearing as to why it was necessary to eliminate the north setback other than the point made in the March 15, 1985 letter. According to testimony at the hearing this building will be the second largest office building on Miami Beach. Other buildings therefore, logically, have been built with economic viability with smaller dimensions on larger lots. In fairness, there may be some hardships not apparent to this Court, but this Court cannot assume their existence. On this record the applicant has not established a hardship entitling it to a variance as to setbacks. The applicant was not shown to have a hardship exceptional and unique [164]*164to the individual landowner and not shared by property owners in the area. Fort Lauderdale Board of Adjustment v. Nash, 425 So.2d at 579; Elwyn v. City of Miami, 113 So.2d 849 (Fla. 3d DCA 1959), cert. den., 116 So.2d 773 (1959).
As to the parking space requirement, the hardship letter only states: “it would be uneconomic for the developers to attempt to include more parking within the design and would put them at a competitive disadvantage to other business and office properties in the vicinity who are utilizing the public parking which has been provided.” However, economic disadvantage does not constitute a hardship sufficient to warrant the granting of a variance. Burger King Corporation v. Metropolitan Dade County, 349 So.2d 210 (Fla. 3d DCA 1977); Elwyn v. City of Miami, 113 So.2d at 849.
As to the variance for a structural column at the comer of Pine Tree Drive and Arthur Godfrey Road, there is no justification in the record except that the column alleviates the hardship of building a smaller structure, an invalid hardship under the cases previously cited.
The applicants did not show that there was not any reasonable use of the property without granting of the variances as required by Thompson v. Planning Commission of the City of Jacksonville, 464 So.2d 1231 (Fla. 1st DCA 1985). Applicant’s attorney, asserted that there was a severe limitation on the use of the valuable property (T-56), not an inability to use it under the zoning classification.
The specific findings of the Zoning Board , of Adjustment require individual discussion.
1. There is insufficient evidence that the special conditions and circumstances justifying the variance do not result from the action of the applicant. (T-56-57) The property was purchased with zoning and in fact consists of only part of two lots originally designed for residential use. The lots were adequate for that use. In fact the Moulin Rouge Motel was on the property at purchase. The applicant chose to rezone and therefore created any hardship in the use himself. “Variances may not be sustained in the absence of a non-self created . . . hardship . . . which renders it virtually impossible to use the land.” Hemisphere Equity Realty Co. v. Key Biscayne Taxpayers Assoc., 369 So.2d 996, 1001 (Fla. 3d DCA 1979); 464 So.2d at 1231. In Thompson, the owner-applicant was prohibited from designing a building too large for the lot because he was aware • of the size of the lot before purchasing it. This contrasts with City of Coral Gables v. Geary, 383 So.

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Related

City of Coral Gables v. Geary
383 So. 2d 1127 (District Court of Appeal of Florida, 1980)
Hemisphere Equity Realty Co. v. KEY BISCAYNE, ETC.
369 So. 2d 996 (District Court of Appeal of Florida, 1979)
De Groot v. Sheffield
95 So. 2d 912 (Supreme Court of Florida, 1957)
Smith v. City of Miami Beach
213 So. 2d 281 (District Court of Appeal of Florida, 1968)
Dade County v. United Resources, Inc.
374 So. 2d 1046 (District Court of Appeal of Florida, 1979)
Taylor Creek Village Ass'n, Inc. v. Houghton
349 So. 2d 1219 (District Court of Appeal of Florida, 1977)
Burger King Corp. v. METROPOLITAN DADE CTY.
349 So. 2d 210 (District Court of Appeal of Florida, 1977)
Thompson v. PLANNING COM'N
464 So. 2d 1231 (District Court of Appeal of Florida, 1985)
Town of Indialantic v. Nance
400 So. 2d 37 (District Court of Appeal of Florida, 1981)
Bay View Investments, Inc. v. Grigsby
219 So. 2d 760 (District Court of Appeal of Florida, 1969)
BROWARD CTY. v. Capeletti Bros., Inc.
375 So. 2d 313 (District Court of Appeal of Florida, 1979)
Metropolitan Dade County v. Mingo
339 So. 2d 302 (District Court of Appeal of Florida, 1976)
City of Miami v. Elwyn
116 So. 2d 773 (Supreme Court of Florida, 1959)
Elwyn v. City of Miami
113 So. 2d 849 (District Court of Appeal of Florida, 1959)
Nance v. Town of Indialantic
419 So. 2d 1041 (Supreme Court of Florida, 1982)
Harrington Glen, Inc. v. Municipal Board of Adjustment
243 A.2d 233 (Supreme Court of New Jersey, 1968)
Fort Lauderdale Board of Adjustment v. Nash
425 So. 2d 578 (District Court of Appeal of Florida, 1982)

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Bluebook (online)
19 Fla. Supp. 2d 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tower-forty-one-assn-v-zoning-board-of-adjustment-flacirct-1986.