JAMES A. KNOWLES ET AL., APPELLANTS,
v.
TOWN OF KENNETH CITY, FLORIDA, A MUNICIPALITY CREATED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, ET AL., APPELLEES
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Knowles sought mandamus to compel Kenneth City to issue a building permit based on a 2019 rezoning (Ordinance 113) that was adopted without a required public hearing. The district court affirmed the trial court's decision quashing the writ, holding that Ordinance 113 was invalid because it violated Florida's statutory requirement for public hearings before zoning changes become effective.
Mandamus will not lie because Ordinance 113 is invalid, having been adopted in violation of § 176.05 Fla.Stat., which requires a public hearing with at least fifteen days' notice before any zoning regulation or boundary change becomes effective. A court cannot issue a writ of mandamus to compel an illegal act.
[1] A municipal ordinance rezoning property is invalid if adopted without a public hearing as required by statute.
[2] Mandamus will not lie to compel a municipality to perform an illegal act, such as issuing a building permit based on an invalid ordinance.
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Join FLexlaw to unlock all legal intelligence“no such regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days' notice of the time and place of such hearing shall be published in a newspaper of general circulation”
Establishes the mandatory statutory requirement for public hearings before zoning changes become effective
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Join FLexlaw to unlock all legal intelligenceAppellants purchased land in Kenneth City in March 1969 to construct apartments. On April 2, 1969, the land was rezoned via Ordinance 113 to allow mul…
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Appellants, petitioners below, seek review of a final judgment quashing an alternative writ of mandamus.
On March 7, 1969, appellants completed their purchase of a certain tract of land located in Kenneth City, Florida, for the purpose of constructing apartments thereon. The land was rezoned from single-family dwelling units on April 2, 1969, to allow for the construction of multiple-family dwelling units by Ordinance No. 113. Said ordinance was adopted by having all three readings of the ordinance at the one meeting and passing same without a public hearing.
On April 10, 1970, an application for a building permit was filed by appellants with the Town of Kenneth City. On April 22, 1970, appellants were advised by the appellees that it would be necessary for the appellants to submit an “Application for a Zoning Approval” in addition to their building permit application and appellants complied with this request on the same date. On April 10, 1970, Ordinance 136 was passed on its first reading, rezoning the subject property to single-family residence. Said ordinance was passed on second and third readings on April 30, 1970.
Demand was made before and after Ordinance 136 was passed but appellees failed to issue the requested building permit. *749Upon appellant’s petition, the Circuit Court issued an alternative writ of mandamus commanding the respondents to issue petitioners a building permit or to show cause for not doing so. After proceedings were had on issues made, the Circuit Court found, among other things, that Ordinance 113 was in derogation of § 176.05 Fla.Stat., F.S.A., and therefore invalid. The writ was quashed and the respondents were discharged from the operation of the writ. Petitioners then appealed.
It is unrefuted that Ordinance 113 was adopted at one meeting without a public hearing in derogation of § 176.05 Fla.Stat., F.S.A., which provides:
“176.05 Municipality to provide procedure; regulation, restriction or boundary not effective until after public hearing thereon; publication of notice of hearing required. — The governing body of the said municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed. However, no such regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days’ notice of the time and place of such hearing shall be published in a newspaper of general circulation in said municipality and if there be no newspaper published within the municipality then three notices shall be published in at least three conspicuous places within the municipality including the city or town hall as the case may be.” (emphasis ours)
Therefore Ordinance 113 is invalid and mandamus will not lie to require an illegal act to be done. Nelson v. Lindsey, 1942, 151 Fla. 596,10 So.2d 131.
Affirmed.
LILES, A. C. J., and MANN, J., concur.
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Renard v. Dade Cnty., 261 So. 2d 832 (Fla. 1972)…hasis supplied.) . City of Miami v. Hollis, 77 So. 2d 834 (Fla.1959) ; City of Jacksonville v. Imler, 235 So. 2d 526 (Fla.App.1st 1970). . See e. g., Rhodes v. City of Homestead, 248 So. 2d 674 (Fla.App.3rd 1971) ; Knowles v. Town of Kenneth City, 247 So. 2d 748 (Fla.App.2d 1971).…
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BAL Harbour Vill. v. State of Fla. ex rel. V. E. Giblin, 299 So. 2d 611 (Fla. 3d DCA 1974)…wspaper published within the municipality then three notices shall be published in at least conspi-cious places within the municipality including the city or town hall as the case may be.’ “In the case of Knowles v. Town of Kenneth City, [Fla.App., 247 So. 2d 748] supra, and in the case of Town of Hillsboro Beach v. Weaver, [Fla., 77 So. 2d 463] supra, the Charters of those two municipalities contained a similar provision with reference to exercising the powers granted by general law as that contained in and…
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Kelner v. The City OF Miami Beach, 252 So. 2d 870 (Fla. 3d DCA 1971)…ilure of the city to give notice required by its charter, as alleged here. Rhodes v. City of Homestead, Fla.App.1971, 248 So. 2d 674 and cases cited; Renard v. Dade County, Fla.App.1971, 249 So. 2d 500; Knowles v. Town of Kenneth City, Fla.App.1971, 247 So. 2d 748. Reversed and remanded.…
Authorities Cited
- Forrest E. Nelson v. Lindsey, 151 Fla. 596 (Fla. 1942)
- Brown v. State, 151 Fla. 585 (Fla. 1942)