CITY OF MIAMI BEACH, APPELLANT,
v.
DR. JOSEPH BURNS AND CHARLOTTE BURNS, HIS WIFE, APPELLEES
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The City of Miami Beach appeals a circuit court decision that granted a writ of certiorari and ordered the Zoning Board of Adjustment to issue a variance allowing Dr. Burns to convert his residence into a medical office. The appellate court reversed, holding that the same hardship previously relied upon to grant a variance in 1961 cannot be used to obtain another variance in 1964 for the same property.
No. The court held that once a variance is granted based on a showing of exceptional and undue hardship unique to the property, that same hardship cannot be used to support a subsequent variance application. Any hardship that existed was cured by the grant of the first variance in 1961.
“Thus some exceptional and undue hardship to the individual land owner, unique to that parcel of property and not shared by property owners in the area, is an essential prerequisite to the granting of such a variance.”
Establishes the legal standard for granting a variance—there must be exceptional hardship that is unique to the specific parcel.
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Join FLexlaw to unlock all legal intelligenceDr. Joseph Burns and his wife owned property in Miami Beach zoned as a Multiple Family Use District, which prohibited medical offices. In October 1961…
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The appellant, City of Miami Beach, seeks review of a judgment entered by the Circuit Court of Dade County granting a writ of certiorari directed to the City’s Zoning Board of Adjustment. The judgment quashed the Board’s order denying ap-pellee’s application for a variance which would enable him to remodel the first floor of his residence into a medical office, and directed the City to issue the variance requested.
The appellees are a doctor and his wife who own Lot 4, Block 22, Golf Course Subdivision, in Miami Beach, Florida, within an “RE” zoning classification. A zoning ordinance of the City of Miami Beach prohibits medical offices in an “RE” Multiple Family Use District.
On October 27, 1961 appellees were granted, by the Zoning Board of Adjustment, a variance to permit them to remodel and use an adjacent two-story garage and apartment on this property as a medical office by one physician only, alleging as a “hardship” that the appellee was unable to- retain separate office facilities outside his residence due to poor health and that the neighborhood had so changed in character that the prohibition of the variance would be an unreasonable hardship. The áppellees never took any affirmative action under this variance.
On March 31, 1964 the appellees filed an application for a hearing before the Board for a variance seeking permission to remodel the residence, on the same lot, as the garage, for which a variance had previously been granted, so that the first floor of the residence might be used as a medical office and the second floor as a residence by one physician only. The hardship alleged was essentially the same as that set forth in the previous petition for a variance in 1961.
The Board of Adjustment denied a request for a public hearing on the variance and the appellees filed a writ of certiorari in the Circuit Court. The court granted certiorari, quashing the denial of the March 31, 1964 application and ordering the Board to grant the variance. The City of Miami Beach has properly appealed this order.
The order granting certiorari is reversed on the grounds that the same hardship alleged in the 1961 application for variance which was granted cannot properly be used as a hardship in an application for a variance on the same property in 1964.
In Elwyn v. City of Miami, Fla.App.1959, 113 So.2d 849, 851, cert. denied, Fla.1959, 116 So.2d 773, the court, in referring to hardship, stated:
“ * * *. Thus some exceptional and undue hardship to the individual land owner, unique to that parcel of property and not shared by property owners in the area, is an essential prerequisite to the granting of such a variance. 58 Am.Jur., Zoning, §§ 203— *382204; 101 C.J.S. Zoning §§ 290-294; 8 McQuillin, Municipal Corporations, §§ 25.166-25.169 (3d ed. rev. 1957); 1 Yokley, Zoning Law and Practice, .§§ 138-139 (2d ed. 1953).”
A hardship was found to have existed in 1961 and a variance was granted ■on that basis. We are unable to determine why the appellees did not act under that variance, but they cannot now be heard to claim essentially the same “hardship” in 1964, for another variance on the same lot. If any hardship existed, it was cured by the variance granted in 1961.
The decision and order of the lower court is therefore
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Elwyn v. City OF Miami, 113 So. 2d 849 (Fla. 3d DCA 1959)
- Reid v. Reid, 116 So. 2d 773 (Fla. 1959)
- Lowry of Fla., Inc. v. Dekle, 116 So. 2d 773 (Fla. 1959)