On November 5, 1942, appellants acquired two lots in Miami Shores and at the time this property was acquired it was limited to one-family residences, by Ordinance 92, Article 1, as adopted December 12, 1939.
On October 3, 1944, appellants applied for a permit to build an apartment house on the said premises. This permit was refused and, on the same date, appellants applied to the Board of Adjustments (hereafter called the Board) for a variance permit. On October 6, 1944, this appeal was heard and the Board unanimously agreed that the permit should issue.
The building was constructed but the use for other than one-family residential purposes was enjoined by final decree, which was appealed.
The question raised is whether the Board acted within the authority granted it.
In Tau Alpha Holding Corporation v. Board of Adjustments of Gainesville, 126 Fla. 858, 171 So. 819 (1937) it was held, under the facts of that case, that the power given to the Board to grant variances was not an unconstitutional delegation of legislative power, thus overcoming a major objection.
We have held that:
"Zoning, generally. Lawful zoning is the exercise of the police power and must be based upon and have substantial relation to either public health, safety, morals, comfort, convenience, or general welfare, and must not be unreasonably discriminatory.
"Zoning regulations usually must relate to the nature of the structure or the nature of the use. The purpose of regulations in respect to the quality of a structure will likely be quite different from the purpose of regulations respecting its use. The public purpose to be served in each instance will likely be different.
"A permit for the building of a structure would not of necessity be a permit determining the right to its use. Zoning *Page 832 problems usually relate to nonconforming use of a nonconforming building, or both.
"Non-conforming use or building. A problem is created when an area is zoned and there is already within such area property being used in such a manner as not to conform to the zoning regulations. Usually such use is allowed to continue subject to certain conditions. This is done in an effort to secure a reasonable exercise of the police power for the interest of the community against the interest of private owner so as not to interfere with existing conditions more than necessary for the public welfare.
"Variance. Experience has established that often after an over-all zoning ordinance has been enacted, it develops that its application would result in practical difficulties and unnecessary hardships. To avoid this, such ordinances often provide for exceptions or departures from the general provision, when such prescribed standards for a variance have been established before the proper board or commission. This is often referred to as "spot-zoning." — State v. Danner,159 Fla. 874, 33 So.2d 45, 47.
The statutory law authorizing variance from a municipal zoning ordinance is as follows:
"176.08 Board of Adjustment
"The governing body of the said municipality may provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted pursuant to the authority of this chapter may provide that the said board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained." — Sec. 176.08, F.S. 1941, F.S.A.
The Board of Adjustment for Miami Shores as authorized by Ordinance 92, Article 14,1 as set forth in appellants' *Page 833 answer, adopted in pursuance of Chapter 176, F.S. 1941, F.S.A., provides in part:
". . . so that where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of the ordinance, the Board of Adjustments shall have power in specific cases, after due notice, and investigation, to determine and vary such provisions in harmony with the general purpose and intent of the zoning ordinance."
Section 176.13, F.S. 1941, F.S.A., provides:
"The board of adjustment shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well asdue notice to the parties in interest, and decide the same within a reasonable time . . ."
In comparing the ordinance with the general law, it is apparent that the notice required by the ordinance is insufficient to meet the requirements prescribed by Section 176.13, supra. An ordinance adopted under statutory authority should follow the statute. There has been no effectual hearing before the Board. *Page 834
In this case, there was no notice of any kind given and about the only point on which the Board met the requirements of the statute was in deciding the appeal within a reasonable time.
168 A.L.R. 13 contains an elaborate annotation on "Zoning" and at page 107 thereof will be found a brief discussion of the requirement of notice on appeals before the Board. Statutes concerned with notice should be substantially complied with.
The decree appealed is affirmed and petition for rehearing is denied.
HOBSON, J., concurs.
1 Miami Shores Village Ordinance No. 92, Article XIV, provides:
That the Planning Board of Miami Shores Village shall, from and after the passage of this Ordinance, be and it is hereby declared a Board of Adjustment so that where there are practical difficulties of unnecessary hardships in the way of carrying out the strict letter of the provisions of this Ordinance, the Board of Adjustment shall have power in specific cases, after due notice, and investigation to determine and vary such provisions in harmony with the general purpose and intent of the Zoning Ordinance so that public health, safety and general welfare may be secure and substantial justice done and the said Board may among other matters:
(a) Hear and decide appeals from any order, requirements, decision or determination of an administrative officer in the enforcement of this Ordinance.
(b) Hear and decide special exceptions to the terms of this Ordinance and the authority of which is conferred upon said Board of Adjustment by this Ordinance.
(c) Authorize upon appeal, in specific cases, such variances as will not be contrary to the public interest, when, owing to special conditions, a literal enforcement of the provisions of this Ordinance will result in unnecessary hardships, and so that the spirit of this Ordinance shall be observed and substantial justice done.
(d) That nothing in this article, or in this Ordinance shall in any wise take from nor deprive the Planning Board of Miami Shores Village of authority, duties, responsibilities and jurisdiction as the same has been constituted, maintained and operated prior to the adoption of this Ordinance, the powers, duties and jurisdiction granted in this article and this Ordinance to the Planning Board being supplementary to and cumulative of functions thereof heretofore exercised by said Board.