DADE COUNTY, Appellant,
v.
INVERSIONES RAFAMAR, S.A., a Panamanian Corporation, Appellee.
District Court of Appeal of Florida, Third District.
*1131 Stuart L. Simon, County Atty., and St. Julien P. Rosemond, Sp. Asst. County Atty., for appellant.
John G. Fletcher, South Miami, for appellee.
Before PEARSON, HUBBART and KEHOE, JJ.
PEARSON, Judge.
Dade Cоunty, the respondent in the trial court to a petition for certiorari, appeals a final judgment which rezoned aрpellee's property upon appellee's petition to review a denial of the rezoning by the County Commission.[1] We reverse upon a holding that the zoning of appellee's property is a legislative matter and that the cirсuit court was without authority to change that zoning upon a petition for certiorari to review the action of the Cоunty Commission other than upon a record showing that the Commission had clearly departed from *1132 the essential requirements of law as they applied to appellee's property. We further hold that the attempted rezoning of appellee's property was a fairly debatable matter and that reversal is required by the holdings of City of Miami Beach v. Silver,
The appellee, Inversiones Rafamar, S.A., a Panamanian corporation, filed an application with the Building and Zoning Department making the request to change the zoning of 2.52 acres on the south side of Coral Way and S.W. 130th Avenue. The request for change was stated to be one for "district boundary change." Petitioner sought to change the existing zoning of EU-1, which permitted one unit per acre, to EU-M, which is "estate use modified" and allows 2.3 units per acre. The Building and Zoning Department director recommended the denial of the change because the EU-M zoning would be detrimental and out of character with the area and would constitute spot zoning. He further pointed out that approval would mean piecemeal change and spot zoning in the area. The Planning Department director recommended denial upon the ground that the district boundary change is premature, stating that to the date of the hearing, development has been confined to the north side of Coral Way with Coral Way being defined as a line of demarcation.
The matter came on before the County Commission and petitiоner presented no evidence before the Commission other than argument of counsel. There was strong objection from neighbors who have developed their property as one acre estates to the south of petitionеr's property. A review of the record shows that the entire strip on the south side of Coral Way (which is S.W. 26th Street) from S.W. 128th Avenue to S.W. 132nd Avenue is zoned EU-1 for one acre estates. The north side of Coral Way immediately across from appellant's property is zoned RU-1, agricultural interim zoning, but is occupied by a school. Some property to the north of Coral Way and east of petitioners property has been platted as single family residence lots of lesser dimensions than one аcre. This property, however, is separated from Coral Way by a wall. All of the property immediately south of pеtitioner's property is zoned AU agricultural, but is actually platted and used as one acre estates. The appеllee points out that the Dade County Master Plan calls for zoning on the subject tract and surrounding properties including the оne acre estates to the south of up to five homes per acre. It is argued that the zoning requests calling for 2.3 single fаmily homes per acre would be substantially in compliance with the Dade County Master Plan. We think this is true as far as the Master Plan goes except that it must be recognized that the plan, by calling for use of from one to five homes per acre, leaves discretion to the County Commission as to whether development in the area substantiates one unit per aсre or a greater density. Appellee further argues that under the decision in Davis v. Sails,
As for appellee's contention that the court is merely chаnging a boundary line as he requested before the County Commission, we should point out that the decision of the trial judge does nоt change the boundary, which is Coral Way, but simply makes an indentation into the line for appellee's benefit. It is a well-established zoning rule that there must be a dividing line drawn, sometimes arbitrarily. When that line must be drawn, it is to be drawn by the zoning authority and in the absence of showing that the location of the line is one which deprives the owner of the beneficial use of his property, it should not be changed by the judiciary. Cf. City of Miami Beach v. Lachman,
Thereupon, the final judgment granting certiorari is reversed and the cause remanded with direсtions to deny the writ and dismiss the petition.
Reversed and remanded.
NOTES
Notes
[1] The circuit court judge peremptorily stated:
"Dade County shall, within thirty days from the date hereof, rezone the property which is the subject matter of this litigation to the EU-M zoning category of Dade County as it existed as of June 22, 1976, the date of the hearing before the Dade County Commission."