Bertram C. ELLISON, Petitioner,
v.
CITY OF FORT LAUDERDALE, а Municipal Corporation, Respondent.
Supreme Court of Florida.
Morgan, Carratt & O'Connor, Fort Lauderdale, for petitioner.
C. Shelby Dale, James E. Edwards and William J. Lee, Fort Lauderdale, fоr respondent.
*194 DREW, Judge.
We are asked, by petition for certiorari, to take jurisdiction on the basis of allеged conflict to review a decision of the District Court of Appeal, Second District, rendered оn February 19, 1965 and reported in
Petitioner owned a tract оf land zoned R-O which he used for a kindergarten. On August 1, 1963 he placed thereon two ponies for the use of thе kindergarten: a permissible use of R-O land at that date. On August 6, 1963 the City Commission amended Ordinance § 6-6 to prohibit the keeping of horses on land zoned R-O. The amendment was passed without public notice or hearing and thrеe readings were held at the one Commission meeting. Petitioner was arrested for violation of Ordinance § 6-6, as amended, and convicted in Municipal Court.
At his hearing in Municipal Court petitioner raised the quеstion of the validity of the amendment as a zoning ordinance passed without compliance with the nоtice requirements of F.S. § 176.05, F.S.A. and § 323, Charter, City of Fort Lauderdale,[1] and its validity as to him because of his prior non-conforming use. The Municipal Court held that the challenged ordinance was not a zoning ordinance аnd it was upheld on appeal to the Circuit Court. The latter stated that the ordinance could be сonstrued either as a zoning restriction or as an exercise of the City's general police power relating to health, morals and general welfare and, therefore, petitioner had not sustained his burden of overcoming the presumption of validity which adhered to the trial court's decision.
The District Court held that it had no jurisdiction to review by common-law certiorari since this permits only an examination into the jurisdiction of courts below and the regularity of the procedural steps followed; that petitiоner's claim that the lower court deviated from the essential requirements of law by upholding a conviction for which there was no lawful authority involves an examination into the "intrinsic correctness" of the circuit court's holding.
Petitioner alleges conflict between this decision and, inter alia, our holding in Dresner v. City of Tallahassee.[2]
In Dresner, in answer to questions certified to us from the Supreme Court of the United States[3] we said:
"We have held that a circuit court affirmance of a conviction obtained in a trial court of а lower echelon is subject to review by common law certiorari if such conviction was brought about by an unconstitutional ordinance."
The decision sub judice conflicts with our decision in Dresner and we have jurisdiction.
We pointed out in Dresner that since the establishment of the Florida District Courts of Appeal thе authority to issue common-law writs of certiorari lies in these courts and the extent of their jurisdiction in this mattеr is governed by the precedents previously applicable to the Florida Supreme Court. Therefore, the District Court was in error in denying its *195 jurisdiction to issue such a writ in the instant case. We can, with the case in this posture, either remand to the District Court with directions to issue the writ or we can determine the whole matter here. However, it is the policy of this Court to avoid needless litigation and secure a final determination whenever possible.[4] In accordance with this principle we will examine the decision of the Circuit Court.
The Charter of the City of Fort Lauderdale, supra, empowers the City to make zoning regulations and defines its general powers to zone in § 319 as:
"General powers of City. For the purpose of prоmoting health, safety, morals, future development, or the general welfare of the community, the City Commissiоn of City of Fort Lauderdale is hereby empowered to regulate the use of all real estate аnd improvements in the City * * *."
Clearly the restriction imposed by the ordinance in question is a use regulation.
It is true that zoning power is justified only as an exercise of the general police power[5] but this will not permit a municipality to evade the protections thrown about the citizen's use of his property by the legislative limitations imposed on the zoning power by the device of labeling a zoning act a mere exеrcise of police power.[6] Specific grants by the legislature always limit general grants. The spеcific grant of zoning power is conditioned by the provision for notice and public hearing.[7] Since the City Commission did not comply with the notice and public hearing provisions, the ordinance under which the pеtitioner was arrested and convicted was invalid. The judgment of affirmance in the Circuit Court should be, and herеby is, quashed.
THORNAL, C.J., and O'CONNELL, CALDWELL and ERVIN, JJ., concur.
NOTES
Notes
[1] Laws of Fla., 1957, Spec. Acts, Ch. 57-1322, § 323.
[2] Fla. 1964,
[3] Dresner v. City of Tallahassee,
[4] Zirin v. Charles Pfizer & Co., Fla. 1961,
[5] 58 Am.Jur., Zoning § 18; State ex rel. Taylor v. City of Jacksonville, 1931,
[6] City of Miami Beach v. State, Fla.App. 1959,
[7] F.S. § 176.05, F.S.A. and Charter, City of Fort Lauderdale § 323.