Town of Longboat Key v. Kirstein

352 So. 2d 924

• Court: District Court of Appeal of Florida
• Decided: November 30, 1977
• Docket: 77-135
• Status: Published

Opinion

352 So.2d 924 (1977)

TOWN OF LONGBOAT KEY, Appellant,
v.
Paul H. KIRSTEIN and Philip P. Kirstein, Appellees.

No. 77-135.

District Court of Appeal of Florida, Second District.

November 30, 1977. Rehearing Denied January 5, 1978.

Robert J. Elkins and Isaac Welch Whitesell, Jr. of Wood, Whitesell & Karp, Sarasota, for appellant.

Johnson S. Savary of Kirk, Pinkerton, McClelland, Savary & Carr, Sarasota, for appellees.

HOBSON, Judge.

Appellant appeals a final judgment entered wherein the trial court ordered

"... [A]nd the TOWN OF LONGBOAT KEY is directed to change the zoning of the above described real estate from R-2 to C-1 commercial use and the TOWN OF LONGBOAT KEY is enjoined from prohibiting the Plaintiffs from using their property under an appropriate C-1 use as established within the zoning ordinance."

Appellant contends, and we agree, that the final judgment violates the separation of powers in that it orders appellant to change the zoning from R-2 to C-1 and the injunction portion of the order is tantamount to ordering the appellant to change the zoning from R-2 to C-1. City of Tampa v. Consolidated Box Company, 110 So.2d 446 (Fla.2d DCA 1959); City of Miami Beach v. Weiss, 217 So.2d 836 (Fla. 1969).

For the foregoing reason the final judgment appealed is reversed and the cause remanded for entry of a final judgment in favor of the appellant.

BOARDMAN, C.J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.