#### HART PROPERTIES, INC., Appellant, v. METROPOLITAN DADE COUNTY, Appellee.

No. 75-1743.

District Court of Appeal of Florida, Third District.

March 8, 1977.

*1200Edith Held Cooper, Miami Beach, Hueb-ner, Shaw & Bunnell, Fort Lauderdale, for appellant.

Stuart L. Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appel-lee.

Mamber, Gopman, Epstein & Foosaner, North Miami Beach, for intervenor.

Before PEARSON, BARKDULL and HAVERFIELD, JJ.

PER CURIAM.

The appellant, Hart Properties, Inc., is an abutting property owner who objects to a zoning change made by the County Commission. The intervenors, Sam Morris and Melvin Levine, petitioned for a change of zoning from RU4, which allows apartments of 50 units to the acre, and RU4A, which allows apartments, hotels and motels of 50 to 75 units per acre, to BUI, which allows limited business use, on a parcel of property located at 16200 Collins Avenue, Dade County, Florida, which is approximately 230 feet by 137 feet. The County Commission, after a public hearing, unanimously granted the change. Appellant adjacent property owner brought a petition for certiorari in the circuit court to review the action of the County Commission. The circuit court denied certiorari on the ground that the change was fairly debatable.1

The wisdom of the County’s action is not a proper subject for discussion here. See *Clarke v. Di Dio,*226 So.2d 23 at 25 (Fla. 2d DCA 1969). The governing question is whether the circuit court committed error in concluding, from the facts of this case, that the change in zoning was a fairly debatable legislative decision. If the change was reasonably related to the public health, safety, morals and welfare, it is not arbitrary, capricious and unreasonable and must be sustained as a proper exercise of the legislative authority of the County. See *City of Miami Beach*v. *8701 Collins Avenue, 71*So.2d 428 (Fla.1954); *City of Miami v. Zorovich,*195 So.2d 31 (Fla. 3d DCA 1967); and *County of Brevard v. Woodham,*223 So.2d 344 (Fla. 4th DCA 1969).

The granting of a zoning change such as the present one is not unique or prohibited in American law:

> 

> *1201“Amendments which reclassify residen-tially zoned land to permit the construction of shopping centers have been upheld on the ground that they permit a use which is needed, and which serves the comprehensive plan for community development. Such an amendment may, of course, be disapproved if the court discerns no compensating public need for the use favored by the legislation. Approval on similar grounds has been extended to commercial uses of various kinds where the courts were convinced that the service was needed and that the new use would not be destructive of other property in the neighborhood.”

> Anderson, American Law of Zoning § 5.06 “Benefit or detriment to public,” at 248 (1968).

See the cases cited in 82 Am.Jur.2d Zoning and Planning § 76, and 101 C.J.S. Zoning § 34. See also Yokley, Zoning Law and Practice § 8-3' at 365. The' record before the County Commission shows that the property in question is surrounded by a nightclub, a fishing wharf and is closely situated to an area with restaurants and stores. There was also evidence before the County Commission that because of the development of the area by the erection of highrise apartments and numerous motels, that service stores would be in the best interest of the community. The County Commission had before it conflicting recommendations from its County Director of Building and Zoning, whose recommendation was against the change, and the Planning Director of Dade County, whose recommendation was in favor of the change upon the ground that stores are proper for the service of the residents of the area.

We, therefore, hold that error has not been shown and that the record before the trial judge substantiated his conclusion that the change in zoning was fairly debatable.

Affirmed.

1

. “The Court is governed by the well-established principles of the ‘fairly debatable’ doctrine, and cannot substitute its judgment for that of the Board of County Commissioners of Metropolitan Dade County, if the zoning question before that Board was fairly debatable. It is equally clear that the petitioner carries the heavy burden of demonstrating to this Court that the facts relied upon in support of the decision by the Board of County Commissioners of Metropolitan Dade County were baseless, insubstantial, or wholly refutable.

“This Court may well have reached a different result based upon the record before it, however, it is not the duty, nor the province of this Court to re-evaluate the probative weight to be given to the evidence presented to the Board of County Commissioners of Metropolitan Dade County, but merely to determine whether or not the findings of fact reached by the Commission are supported by competent, substantial evidence.

“It appears crystal clear that the zoning question before the Board of County Commissioner of Metropolitan Dade County in this instance was fairly debatable and that there was competent, substantial evidence presented to the Board of County Commissioners to support their decision.”

BARKDULL, Judge,

dissenting.

I respectfully dissent from the majority opinion in this cause. The impact of the opinion is to approve the creation of a new business use district in the middle of a residential area, an area devoted exclusively to motels, apartments, and single family residences. To better understand the physical characteristics of the property involved, a copy of petitioner’s Exhibit K is incorporated in this opinion, as follows:

> *1202

*1203The property involved is that shaded in black, immediately on the west side of State Road AIA. It is surrounded by a motel development on the east side of AIA; motels fronting on Atlantic Ocean on the right side on Exhibit K; on the north side by a bridge to Hibiscus Island; on the west by a waterway; across the waterway, single family homes on Atlantic Island in a RU-1 zoning classification; and on the south by a RU-4 multiple family use district. There is no commercial property on the west side of State Road AIA south of Ocean Beach Boulevard, also known as 163rd Street. The businesses along Ocean Beach Boulevard face this boulevard, and there is BU-2 zoning on the east side of AIA at the intersection of Ocean Beach Boulevard. The fishing pier referred to in the majority opinion extends easterly from an extension of Ocean Beach Boulevard; the nightclub referred to is located on Fairyland Island. There is another fishing pier at the south end of Haulover Park, to the bottom right off of Exhibit K. See: *Sunny Isles Fishing Pier, Inc.*v. *Dade County,*79 So.2d 677 (Fla.1955). The only restaurants and stores closely situated to the area are along Ocean Beach Boulevard and to the north thereof, along AIA. The one non-conforming use on the east is now a defunct drive-in. The. record is unclear as to whether or not a small parcel to the south, along the western side of AIA, is in use by a Howard Johnson ice cream shop. There is testimony in the record that there is no commercial use along the'west side of AIA from Ocean Beach Boulevard on the north to Haulover Park on the south, which appears at the bottom on Exhibit K.

The property owner acquired this property on October 8, 1974. He prepared an application for a boundary change, commencing at least by February 18, 1975, per letter attached to Application for Zoning Change; the application, in fact, is dated February 25, 1975. The property owner had previously owned this property, so there is no question but that he knew what the zoning on it was at the time he acquired it. He immediately sought to change the zoning. He applied for a use variance per the application, although the County Commission granted “A district boundary change from RU-4 (Apartment House and Hotel) and RU-4A (Hotels and Motels) to BU-1 (Neighborhood Business).”, notwithstanding the recommendation of the Zoning Director that this application be denied:

> * * * * * $

> “Application should be denied with prejudice.

> “This is a request for a spot zone in this area lying South of Sunny Isle Ocean Beach Boulevard which is almost entirely restricted to residential use contrary to the area lying North of Sunny Isle Ocean Beach Boulevard which is a combination of Motel and Business use, and the request is totally incompatible with this zoned and developed apartment house and motel area. If approved, the predominate RU-4 (Apartment Houses) and RU-4A (Apartment Houses and Motels) area, the integrity of this area would be violated and it would constitute a harmful intrusion into this multiple family residential neighborhood.

> “There is more than sufficient commercially developed property on Sunny Isle Ocean Beach Boulevard and on AIA, North of Sunny Isle Boulevard to serve this apartment house and motel area, and to approve this unneeded business at this location will promote additional requests of business zoning South of Sunny Isle Ocean Beach Boulevard. It should be pointed out that in this area South of Sunny Isle Ocean Beach Boulevard, there are several large complexes of apartment houses of great density which permit food and drug stores within the complexes, which if the demand justifies, can be installed to serve the needs of the residences South of Sunny Isles Ocean Beach Boulevard.”

If the application was for the purpose of securing a variance, it should have been denied under the following authorities. *Elwyn v. City of Miami,*113 So.2d 849 (Fla. 3rd D.C.A. 1959); *Board of Adjustment of City of Fort Lauderdale v. Kremer,*139 *1204So.2d 448 (Fla. 2nd D.C.A. 1962); *Allstate Mortgage Corporation of Florida v. City of Miami Beach,*308 So.2d 629 (Fla. 3rd D.C.A. 1975). Because there was not hardship, hardship (if any) was self-created; there was, in fact, no district boundary change as enacted by the County Commission in the resolution under attack. A district boundary change would be an alteration of an existing use district. *What, in fact, the property owner received was the creation of a completely new use district within a RU-4A zoned area.*This action on the part of the County Commissioners, which was sustained by the trial court, is a blatant example of spot zoning. It is a complete departure from the residential character of the neighborhood; it permits the development of drive-in business facilities, which are unneeded in the area. There is ample evidence that the commercial area along Ocean Beach Boulevard and north from the boulevard, along the west side of AIA, is sufficient to serve the residents of the area. The evidence indicated that the highrise developments to the southwest of the property have in-house commercial developments to serve their tenants. To permit this spot zoning or “cancer” on the west side of AIA would subject the entire area south of this property to the north boundary of Haulover Park being zoned BU-1 for commercial activity, and this court should not countenance such spot zoning. *Smith v. City of Miami Beach,*213 So.2d 281 (Fla. 3rd D.C.A. 1968); *County of Brevard v. Woodham,*223 So.2d 344 (Fla. 4th D.C.A. 1969).

Therefore, I would reverse the final judgment under review, and return the matter to the trial court with directions to quash the action of the County Commission creating this new use district.