#### Helen S. WEBER, Appellant, v. The ZONING BOARD OF APPEALS OF the CITY OF WEST PALM BEACH, Florida, Carl Ulmer and Frederick R. Aluisy, Appellees.

No. 1541.

District Court of Appeal of Florida. Fourth District.

Jan. 25, 1968.

*259Harry Lee Anstead, of Simpson & An-stead, West Palm Beach, for appellant.

John H. Evans and Bruce J. Daniels, West Palm Beach, for appellees Zoning Board of Appeals and City of West Palm Beach.

Edward D. Lewis, of Paty, Downey, Lewis & Daves, Palm Beach, for appellees Ulmer and Aluisy.

REED, Judge.

Appellees, Carl Ulmer and Frederick R. Aluisy, applied to the Zoning Board of Appeals of the City of West Palm Beach (hereafter called “zoning board”) for a variance from a zoning ordinance. The appellant, Helen S. Weber, opposed the application, but the variance was granted on 4 May 1967. Thereafter, the appellant filed in the Circuit Court for Palm Beach County a petition for a writ of certiorari. The petition named the zoning board, Carl Ul-mer, and Frederick R. Aluisy as respondents. The petition was served on Ulmer and Aluisy by the sheriff of Palm Beach County. On 1 June 1967 it was also served by the said sheriff on Robert L. Smith as chairman of the zoning board.

On 6 June 1967 the circuit court entered an order directed to all respondents (ap-pellees here) requiring them to file an answer to the petition within ten days after the date of the service of the order and directing the respondent, zoning board, to file with the circuit court at the time of filing its return a complete record of the proceedings held in connection with the application for the variance from the zoning ordinance. This order was served by the sheriff on Ulmer and Aluisy and Robert L. Smith as chairman of the zoning board. Service on Robert L. Smith was effected on 8 June 1967.

Although the City of West Palm Beach was not named as a respondent in the petition for the writ of certiorari, on 12 June 1967 the City of West Palm Beach through its attorney filed a special appearance in the circuit court and moved to dismiss the certiorari proceeding on the ground that the court lacked jurisdiction over the City of West Palm Beach and the zoning board. This motion was granted by the circuit court’s order of 19 June 1967 from which this interlocutory appeal is taken. The order recites that the circuit court does not have jurisdiction of the zoning board, except Robert L. Smith as chairman. The order also quashes the court’s earlier order of 6 June 1967 by which the zoning board was required to send its record to the circuit court for review.

The zoning board was created under the enabling legislation found in Chapter 176, Florida Statutes 1965, F.S.A., and particularly section 176.08 thereof which provides for a board of adjustment empowered to grant special exceptions to the terms of zoning ordinances.

There are only two questions of substance presented by the briefs and record *260in this case.1 One is whether the appellant was' required to name the City of West Palm Beach, Florida, as a respondent in the petition for the writ of certiorari. The other is whether service on Robert L. Smith as chairman of the zoning board was sufficient to empower the circuit court to order the transmission of the record of the zoning board and to rule on the issues made by the petition for certiorari. It is apparent from the court’s order of 19 June dismissing the petition and quashing its prior order of 6 June that it answered the latter question in the negative.

Section 176.16, F.S. 1965, F.S.A., provides that any person aggrieved by a decision of the “board of adjustment” (a generic term including within its scope the zoning board) may present to a circuit court a petition for a writ of certiorari on the ground that such decision is illegal in whole or in part. The statute provides that the petition shall be presented to the court “in the manner and within the time provided by the Florida appellate rules”. Section 176.17, F.S. 1965, F.S.A. provides that upon the presentation of such a petition, the circuit court may allow a writ of certiorari *directed to the board of adjustment*to review the decision of the board. It was on the basis of these two sections that the petition for certiorari was filed by the appellant. Section 176.17, F.S. 1965, F.S.A. does not require that the city for which the board serves be made a party respondent to the petition. It is our opinion that such a requirement cannot be raised by judicial construction.2

The function of a writ of certiorari in the type of case before the court is to procure the transmission to a reviewing court of the record made in the administrative agency which in this case is the zoning board, Great American Insurance Co. v. Peters, 1932, 105 Fla. 380, 141 So. 322, 325, 327. This function can be adequately performed without the joinder of the City of West Palm Beach.

It is our conclusion that the city was not required to be named as a respondent in the petition for the writ of certiorari, was not required to be served with the petition or the order issued thereon dated 6 June 1967, and had no standing to file the motion to dismiss which ultimately led to the order of dismissal dated 19 June 1967.

Under Section 176.16, F.S. 1965, F.S.A. the Florida Appellate Rules govern the certiorari proceeding thereby authorized. F.A.R. 4.5(c) (2) provides that a copy of the petition shall be served on the respondent or his attorney.3 The narrow issue here is whether the service of the petition on the *261chairman of the zoning board, as distinguished from service on each member thereof individually, is sufficient to comply with the service requirement of F.A.R. 4.5(c) (2), as that rule applies to a certiorari proceeding authorized by Sections, 176.16 and 176.17, F.S. 1965, F.S.A. At the time service of the petition was made in the described manner the zoning board was not represented by an attorney of record. We believe that such service was sufficient because it was appropriate to afford notice to the zoning board that its record or a certified copy thereof should be sent to the circuit court for review and to provide the zoning board an opportunity for participation in the hearing before the circuit court.

None of the parties have cited to this court a Florida case squarely on point and we have found none. Dictum from the Florida Supreme Court is, therefore, entitled to persuasive weight on the question of the adequacy of the service, Milligan v. State, Fla.App. 1965, 177 So.2d 75, 76.

In Great American Insurance Co. v. Peters, supra, the court had before it the question of the sufficiency of a writ of certiorari issued by the Florida Supreme Court to the clerk of a circuit court directing the clerk to forward a record for review. An objection was made to the writ by one who had been a party to the action in the lower court. A dismissal of the writ was sought by the objecting party on the ground that she was not made a party to the writ and was not served with process requiring her to appear before the reviewing court. The Supreme Court held that the record indicated that the party filing the objection, although not served with process, was adequately apprised of the writ and given an opportunity to be heard with respect thereto by virtue of delivery of a copy of the writ and the petition therefor to her attorney. In dictum at page 325 of its opinion the court says:

> “In 11 C.J. 168, it is said that service of the writ must be made before the return day by delivery of the original writ to the person to whom it is directed, although it has been held that service in any manner, whereby such person may reasonably be made aware of its requirements, will be sufficient, and that, where the writ is directed to a board having more than one member, the writ may be served on the chairman of such board. ‡ *ifc** *»*

Based upon the foregoing authority we hold: (a) the City of West Palm Beach, Florida, was not a necessary party to the petition for the writ of certiorari and was not required to be served with the petition or the order of 6 June 1967 issued pursuant to the petition, and (b) the service of the petition on the chairman of the zoning board in his capacity as such was sufficient service under F.A.R. 4.5(c) (2) to support the order of 6 June 1967 requiring the appropriate records of the zoning board to be transmitted to the circuit court for review by certiorari under Sections 176.16 and 176.-17, F.S. 1965, F.S.A. Accordingly, the order of 19 June 1967 is quashed. On remand the circuit court’s order of 6 June 1967 should be reinstated with an appropriate extension of time to permit compliance therewith.

WALDEN, C. J., concurs.

CROSS, J., dissents.

1

. The appellees, Ulmer and Aluisy, filed a brief herein presenting no argument but pointing out a deficiency in the record brought up by the appellant. If a deficiency existed, we believe the same was corrected by the appellant’s reply brief and the appendix thereto. See F.A.R. 4.2(d) and 3.7(h), 1962 Revision, 32 F.S.A.

2

. Headley v. Lasseter, Fla.App.1962, 147 So.2d 154, 156 cited by the zoning board and the City of West Palm Beach as support for their contention that the city was a necessary party, by the express language of the opinion therein, applies to a situation in which there is *no controlling*statute; therefore, it is not persuasive authority in the present case.

3

. Neither the motion to dismiss filed by the City of West Palm Beach in the circuit court nor the brief filed herein by the city and zoning board objects to the service of the petition on the ground that it was filed with the clerk the day before such service occurred. Also no objection is made by either of said appel-lees that the petition was unaccompanied by a brief or certified copy of the transcript. In this particular case where ap-pellees have not objected to these points and the statute under which the petition was filed expressly provided for an order to the zoning board requiring it to transmit its record to the court, we believe that the record reflects substantial compliance by the appellant with the requirements of F.A.R. 4.5(c) (1) and 4.5(c) (2) as to the time of service and the accompaniment of the petition with a certified transcript and brief.

CROSS, Judge

(dissenting) :

I respectfully dissent. The majority’s opinion relies upon the dictum stated in the case of Great American Insurance Co. v. Peters, 1932, 105 Fla. 380, 141 So. 322, to substantiate their position that the city was not required to be named a respondent to the petition for a writ of certiorari. I am of the opinion the majority has misinterpreted and used dictum therein for a purpose contrary to the actual holding of the case. The dictum as stated in Great American Insurance Co. v. Peters, supra, was simply to explain the function of a writ of *262certiorari. The dictum does not in any manner pertain to the question of whether or not a city is a necessary and proper party to a petition for writ of certiorari.

What we are concerned with here is whether or not a city is a necessary and proper party and should have been so named as a respondent in the petition for the writ of certiorari seeking review of an order denying a variance from a zoning ordinance. I do not question service of the writ on the board and that service thereof may be made on a chairman of a board where that board has more than one member. My position in this dissent is that the city is a necessary and proper party to the proceedings and should have been so named a party respondent. My dissent is bottomed upon basic consideration of the nature and scope of zoning.

Zoning laws in their usual form are an exercise of the police power in a particular field to secure the public health, safety and welfare of the community. 8 McQuillan Mun. Corp. (3d ed.) at 37. In keeping with its over-all purpose to secure the public health, safety, and welfare of the community, the administration of the zoning laws *may be delegated by a municipal legislative body*or other legislative body to commissions, boards, and officials.

The board of adjustment, or board of appeals as it is frequently called, is an indispensable element in a properly functioning zoning machinery. It is the function of this board to give the requisite flexibility to the zoning ordinance by granting exceptions or variances as they are more commonly called to such ordinances.

Resort to the city ordinance for each proposed variation would be unsatisfactory, or the delegation of power to a single official such as a building inspector to grant variances would also be unwise. By establishing a board of appeals a municipality furnishes a forum where an applicant can be heard who thinks he should be allowed some amelioration of the strict letter of the law.

The board of appeals is an administrative agency, one which exercises quasi-legislative and quasi-judicial powers over persons and property and as such is subject to the general restrictions of administrative law that applies to such discretionary activities.

A Florida municipality has an option to establish a five-man board of appeals (Sections 176.07 to 176.09, F.S.1965, F.S.A.) but it is not mandatory that such a board be created. State ex rel. Henry v. City of Miami, 1934, 117 Fla. 594, 158 So. 82. A general enabling act confers upon the board power to hear and decide appeals when administrative error is alleged, to grant such exceptions and to authorize variances when they *will not be contrary to public interest*and when literal enforcement of the zoning ordinance will result in “unnecessary hardship”. Section 176.14, F.S.1965, F.S.A.

The City of West Palm Beach has adopted an ordinance in accordance with the provisions of Chapter 24981 of the Laws of Florida, Special Acts 1947 (City Charter), and Chapter 176 of Florida Statutes 1965, F.S.A., such zoning regulation to be a part of and known as Chapter 53 of the City Code 1962. Section 53-20, Zoning Board of Appeals Procedure, establishes for the City of West Palm Beach a zoning board of appeals.

In dealing with the problem at hand, we must logically consider the function of a board of appeals. The board is created at the option of the municipality as an arm of the municipality. It is not an entity in and of itself, but it is part and parcel of its creator, i. e., the municipality.

The most famous formulation made by an American court of the rules governing indispensable and necessary parties is that found in Shields v. Barrow, 1854, 58 U.S. (17 How.) 130, 15 L.Ed. 158, decided by the Supreme Court of the United States in 1854. Under this test parties are indispensable who not only have an interest in the controversy but an interest of such a nature that a final decree cannot be made *263without either affecting that interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. *Necessary parties are those having an interest in the controversy*and who ought to be made parties in order that the court may act on that rule which requires it to decide on and finally determine the entire controversy and do complete justice by adjusting all the rights involved in it.

With reference to the need to join necessary or indispensable parties, the Supreme Court of Florida in the case of Robinson v. Howe, 1895, 35 Fla. 73, 17 So. 368, set forth that “ ‘it is a general rule in equity * * * that all persons materially interested, either legally or beneficially, in the subject matter of a suit, are to be made parties to it, either as plaintiffs or as defendants, however numerous they may be, so that there may be a complete decree, which shall bind them all. By this means, the court is enabled to make a complete decree between the parties, to prevent future litigation by taking away the necessity of a multiplicity of suits, and to make it perfectly certain that no injustice is done, either to the parties before it, or to others, who are interested in the subject-matter, by a decree which might otherwise be grounded upon a partial view only of the real merits. When all the parties are before the court, the whole case may be seen; but it may not where all the conflicting interests are not brought out upon the pleadings by the original parties thereto.’ * * * ”

It certainly cannot be denied that the City of West Palm Beach is an interested party to any action taken by or against its board of appeals, since such action would necessarily entail in some manner the health, welfare, and public safety of the community itself. Logic illustrates that the real party in interest in actions taken by or against the zoning board of appeals is the city. Actions taken by or against the board directly affect the wellbeing of the public, and the public represented by the city should be a party.

It has been held that a municipality is a necessary party to an action in which its zoning ordinance is sought to be invalidated. Many jurisdictions consider the municipality to be both a necessary and indispensable party to such an action. See Mayer v. Board of Adjustment of the Town of Montclair, 1959, 56 N.J.Super. 296, 152 A.2d 860. Cobble Close Farm v. Board of Adjustment of Middleton Tp., 1952, 10 N.J. 442, 445, 92 A.2d 4. I see no logic in an argument that would state that the city would have a less interest in the granting or denial of a variance since this is no less important to the health, welfare, and safety of the general public as would be the validity of a zoning ordinance.

I am not unmindful that Section 176.17, F.S.1965, F.S.A. provides that upon the presentation of such a petition the circuit court may allow a writ of certiorari *directed to the hoard of adjustment to review the decision of the hoard.*I feel that section 176.17 must be read in pari materia with section 176.08, which states “The governing body of the said municipality may provide for the appointment of a board of adjustment * *

Further, Section 176.17, F.S.1965, F.S.A., appears to be remedial in nature and should be construed liberally. A statute relating to procedure is normally remedial in nature in that it gives a remedy and tends to abridge some defect or superfluities of the common law.

I think that an interpretation of Section 176.17, F.S.1965, F.S.A., in keeping with the intent of the legislature must necessarily be liberal.

In conclusion, it is my opinion that the interest of the city is so great in protecting its citizens by making sure that their health, their safety, and their welfare is maintained that any action against the board of appeals necessarily entails an action against a city. Therefore, the city, to protect the interest of the public, must be made a party to this suit, and there was no jurisdiction *264over the board of adjustment itself without naming the city as a respondent in the petition for writ of certiorari. I would affirm the order of the trial court.