Boucher v. Novotny

• Decision Date: 16 April 1958
• Citation: 102 So.2d 132
• Parties: Daniel BOUCHER and Catherine Boucher, his wife, individually and as representatives of a class of persons similarly situated, Appellants, v. James A. NOVOTNY et al., O. H. Anderson, as Building Inspector of the City ofClearwater, the City of Clearwater, et al., Appellees.
• Court: Florida Supreme Court

Page 132

102 So.2d 132

Daniel BOUCHER and Catherine Boucher, his wife, individually and as representatives of a class of persons similarly situated, Appellants, v. James A. NOVOTNY et al., O. H. Anderson, as Building Inspector of the City ofClearwater, the City of Clearwater, et al., Appellees.

Supreme Court of Florida.

April 16, 1958.

Thompson & Cooper, Clearwater, for appellants.

Bussey & Simmons, St. Petersburg, for James A. Novotny and others.

Ben Krentzman, Clearwater, for O. H. Anderson, as Building Inspector of the City of Clearwater and the City of Clearwater and others, appellees.

THORNAL, Justice.

Appellants Boucher, who were plaintiffs below, seek reversal of a decree of the Chancellor dismissing with prejudice their amended complaint in an action to enjoin alleged violations of setback requirements of a municipal zoning ordinance.

The determining point is whether the appellants sufficiently alleged special damages peculiar to themselves to enable them to sustain a cause of action.

The property of appellants Boucher is located on the northwest corner of the intersection of Third Street and Coronado Drive in the City of Clearwater. The property of appellees Novotny is located on the northeast corner of the intersection. The two parcels are separated by Coronado Drive, a street 60 feet wide, running north and south. Third Street runs east and west. Both parcels are situated in an area zoned R-4 by the municipal zoning ordinance. By the provisions of the ordinance there is a requirement that buildings located on plots in the stated zone be set back 10 feet from the side lot line and 20 feet from the front lot line. If applied to the property of appellees Novotny this would mean that any building constructed on their land should be set back 20 feet from Coronado Drive and 10 feet from Third Street. Apparently the Novotnys obtained from the municipal building official a permit to construct a motel, the plans for which indicated that certain projections of the building to be used as access ways, porches, sundecks and flower planters would extend beyond the building setback line of Coronado Drive a total of 20 feet and beyond the setback line of Third Street a distance of 8 feet. The complaint alleges that appellants Boucher registered their objections when they noticed the scaffolding which had been set up as a part of the building project. Thereupon the original building permit was revoked by the building official but at a subsequent meeting of the City Council the permit was reinstated. Allegedly this reinstatement was brought about without public notice as required by the zoning ordinance. Subsequently the building was completed in accordance with the original plans. This proceeding was instituted by appellants Boucher to obtain mandatory injunctive relief to compel appellees Novotny to remove the allegedly illegal encroachments which they claim were constructed in violation of the setback provisions of the zoning ordinance. A motion to dismiss the complaint was sustained apparently on the theory that the Bouchers had failed to allege sufficiently damages peculiar to themselves as distinguished from the public generally. They amended their complaint to meet this objection by adding the following:

'* * * The erection of said overhang in violation of the zoning ordinance aforesaid has caused the plaintiffs special damage by reason of its proximity to their property. Its continued existence in notorious violation of the zoning ordinance is a legal nuisance which depreciates the value of plaintiffs' property in that its continued existence destroys the protection of the zoning ordinance on the faith of which plaintiffs and others have purchased and improved their properties located within the limits of the zone's area.'

Both the City and the Novotnys assaulted the amended complaint by a motion to dismiss included in their answers in which they contended that the complaint failed to allege grounds for equitable relief and that the plaintiffs Boucher failed to show affirmatively that they had suffered or would suffer irreparable damage peculiar to themselves sufficient to entitle them to a mandatory injunction.

The Chancellor agreed with the appellees-defendants and dismissed with prejudice the complaint as amended. Reversal of his order is now sought.

It is the contention of the appellants that the mere violation of a zoning ordinance is sufficient to support a claim for relief in equity brought by one whose property is similarly zoned. Appellants further contend that if special damage is required, their complaint adequately meets the requirement.

The appellees contend that one assaulting alleged violations of a zoning ordinance must show that he suffered damages different in kind from that suffered by the community generally and that the appellants have failed to bring themselves within the required rule. Appellees concede that appellants proceeded with dispatch and have not been guilty of laches.

At the outset we point out that the zoning powers of the City of Clearwater apparently are exercised pursuant to the city charter which has been provided by local act, Section 79, Chapter 9710, Laws of Florida 1923, and Chapter 15671, Laws of 1931. We are not here concerned with the provisions of Chapter 176, Florida Statutes, nor with the application of decisions dealing with restrictive covenants in deeds or subdivision plats. Consequently, cases dealing with the latter subjects are not here applicable.

We have on a number of occasions held that where municipal officials threaten or commit a violation of municipal ordinances which produces an injury to a particular citizen which is different in kind from the injury suffered by the people of the community as a whole then such injured individual is entitled to injunctive relief in the absence of an adequate legal remedy. With equal consistency, however, we have likewise held that in order to sustain a complaint for relief against threatened or consummated municipal action such as the creation of a nuisance or the blocking of a street the injury suffered by the complaining individual must be special and peculiar to himself and not merely different in degree from that suffered by the remainder of the community. In other words, the complaining citizen along with all other people in the community might suffer some injury and it may be that the extent of the injury suffered by the one complaining is greater in degree than that suffered by many other citizens. Nevertheless, the complaining citizen is without redress in equity unless he can allege and prove special damages peculiar to himself and differing in kind rather than in degree from the damages suffered by the people as a whole. Brown v. Florida Chautauqua Ass'n, 59 Fla. 447, 52 So. 802; Henry L. Doherty & Co. v. Joachim, 146 Fla. 50, 200 So. 238; Richard v. Gulf Theatres, 155 Fla. 626, 21 So.2d 715.

The appellants appear to concede that this has been the rule in such matters as the abatement of nuisances and the obstruction of public highways. However, they assert that we have never announced this to be the rule in the case of a violation of a zoning ordinance. Indeed, it is their contention that the rule should not apply to zoning...