Burritt v. Harris

• Decision Date: 02 July 1964
• Docket Number: No. E-310,E-310
• Citation: 166 So.2d 168
• Parties: R. H. BURRITT, Appellant, v. Bob HARRIS, Ray Greene, Lem Merritt, Julian Warren, and Fletcher Morgan, as and Constituting the Board of County Commissioners of Duval County, Florida, and John H. Crosby, as Zoning Director of Duval County, Florida, Appellees.
• Court: Florida District Court of Appeals

Page 168

166 So.2d 168

R. H. BURRITT, Appellant, v. Bob HARRIS, Ray Greene, Lem Merritt, Julian Warren, and Fletcher Morgan, as and Constituting the Board of County Commissioners of Duval County, Florida, and John H. Crosby, as Zoning Director of Duval County, Florida, Appellees.

No. E-310.

District Court of Appeal of Florida, First District.

July 2, 1964.

Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, for appellant.

J. Henry Blount and Thomas D. Oakley, Jacksonville, for appellees.

MASON, Associate Judge.

This is the second appeal of this case. The first was an interlocutory appeal brought by the appellees herein from an interlocutory order of the chancellor refusing to dismiss this suit on appellees' motion. Appellees (defendants below) sought to dismiss the complaint on the ground that an original suit did not lie in equity to review a decision of a county zoning board, but that the same could only be reviewed by certiorari. We affirmed the chancellor under authority of Harris at el. v. Goff et al., Fla.App., 151 So.2d 642, and held that the actions of a county zoning board were legislative in character and not quasi-judicial. Harris et al. v. Burritt, Fla., 151 So.2d 645. Thereupon a final hearing was held upon the complaint and answer of the appellees herein and testimony taken, and decree was entered by the chancellor dismissing the complaint with prejudice.

The sole question to be determined is whether appellees abused their authority in refusing to rezone appellant's land from residential to industrial use. It is the position of appellant that the record upon which the chancellor's order of dismissal with prejudice is based does not reflect such substantial and reasonable relationship between the public health, morals, safety and welfare of the citizens of Duval County and a residential-use zoning as to justify and sustain the refusal of the County Zoning Board (appellees herein) to rezone so as to permit him to use his land for industrial purposes. He assigns as error the chancellor's order of dismissal, the effect of which order is to uphold the action of the Zoning Board.

The record herein discloses that pursuant to statutory authority the appellees constituting the Board of County Commissioners of Duval County adopted a zoning resolution for the unincorporated areas of Duval County including the property now owned by appellant. This resolution was adopted prior to appellant's purchase of the property in 1957, and zoned the property in question as 'Residence 'A". Property zoned as 'Residence 'A" has its use thereby restricted exclusively to residences, publicly owned and operated recreational facilities, churches and schools, and non-commercial boat piers or slips for docking private watercraft, and accessory buildings. After purchasing the property appellant tried unsuccessfully several times to have the appellees rezone his property from 'Residence 'A" use to permit industrial use of it. Each time he was turned down by the appellees. His last application was a request to have the zoning of his property changed from 'Residence 'A" to 'Industrial 'A". This suit is one to have the Court declare the 'Residence 'A" zoning classification void as unreasonable, arbitrary, and confiscatory of appellant's property, and to enjoin appellees from enforcing as against appellant's property any zoning restrictions more stringent than 'Industrial 'A".

Property zoned 'Industrial 'A" by the zoning regulations may be used for light to medium manufacturing and industry, including sawmills and machine shops, for certain commercial uses, and for retail establishments. Testimony before the chancellor establishes that appellant paid $23,500 for his property zoned 'Residence 'A", and that its value so zoned at the time of final hearing was $32,500. If the zoning classification were changed to 'Industrial 'A" its value would approximate $65,000.

Appellant's property on its between boundary abuts and is contiguous to the eastern boundary of Imeson Municipal Airport, the commercial airport serving the City of Jacksonville and owned and operated by that city. A portion of the Airport also borders upon the southern boundary of appellant's property, so that his property is bounded on the south and the west by the Airport. To the east and north of appellant's property lies other residentially-zoned property which borders upon the Broward River. Thus appellant's property is bounded on the north and east by other residentially-zoned property, and upon the south and west by the Airport. Appellant's property has no water frontage. The Airport is not under the jurisdiction of county zoning. Therefore, the City as owner does not have to conform to any regulations of the County. The Airport has an east-west runway, the easternmost end of which lies approximately 700 feet south of the south line of appellant's property. There is a north-east south-west runway, the north end of which lies to the west of plaintiff's property. However, the City of Jacksonville has secured aviation easements over the area which lies between said northern terminus of said runway and the Broward River to the north. The easternmost boundary of this easement is within 1000 feet of the northwest corner of appellant's property. The only way of ingress and egress to appellant's property is a county owned and maintained road known as Cedar Bay Road which begins at Main Street Road to the west of appellant's property and runs easterly north of appellant's property, turning south at the northeast corner thereof and dead-ending at a point east of the southeast corner of his said property. Main Street Road is a thoroughfare running generally north and south to the west of and parallel to the Airport, and parallel to the residential property which lies north of said Cedar Bay Road. There are residences scattered along this Cedar Bay Road in an area zoned 'Residence 'A". Aircraft using the north-east south-west runway approach and leave this runway over the easement adjacent to and across said Cedar Bay Road. Jet aircraft, including F 102 jets operated by the Air National Guard, use this runway for take-off and landing. At the time of the final hearing the Airport had a combined total of 608 scheduled commercial flights daily in and out of said airport. Six commercial air lines use the Airport and operate 18 daily jet flights from it. There was testimony that numerous complaints had been made to the City of Jacksonville by the residents along Cedar Bay Road concerning the noise made by jets taking off from the Airport from this north-east south-west runway. The City Commissioner in charge of the Airport testified that these complaints, along with the opinion of the Federal Aviation Agency that the area around the Airport was too crowded, has caused the City to consider building a new airport for the City of Jacksonville.

Appellant produced testimony that his property is of the same type, i. e., rolling sand hills, scrub oaks and pine, as that of adjacent properties lying to the south-east and south of him and which are zoned for industrial use, and which are now being used by various oil companies as oil terminals. Two real estate appraisers testified that appellant's property is unsuitable for residential purposes due to its proximity to the airport and that the highest and best use to which it could be put is industrial use. These witnesses testified that the Veterans Administration and Federal Housing Administration would not approve mortgage loans for residences upon this property because of its airport proximity. St. Regis Paper Company operates a paper mill on the other side of Broward River from appellant's property and the real estate experts testified that the odors from the mill were detrimental to residental use of appellant's property.

The Zoning Director of Duval County testified that adjacent properties zoned for industrial use by appellees were so zoned because they had river frontage; that 'Industrial 'A" zoning requested by appellant, if granted, would permit light (and under certain conditions, heavy) industries and manufacturing which could have smokestacks that could produce smoke. This, in the judgment of appellees, would be detrimental to aircraft taking off and landing upon the north-east south-west runway used mostly by jet aircraft, both because of the possible height of the stacks and smoke emanating therefrom. The City Commissioner of Jacksonville in charge of the Airport also testified that industrial smoke emanating from existing industry has created a hazard to aircraft using the Airport. The Zoning Director also testified that a change in zoning of appellant's property to industrial use would be detrimental to the owners of residences in the residential area adjacent to appellant's property. Thus, the refusal to rezone appellant's property was based upon two factors, viz.: safety and anticipated damage and injury to adjacent residents. The Zoning Director also stated that the Zoning Board considered as premature a change of this property to industrial use at the time of its last refusal, in view of the uncertainty of the future use of Imeson Airport.

Two of the conditions which appellant claims makes his property undesirable for residential purposes, viz.: proximity to the Airport and proximity to the St. Regis Paper Mill, existed at the time appellant purchased his property. Also, at the time of his purchase, the property was zoned for residential use only.

There are certain principles pertinent to the disposition of this appeal. First, the ritht of an owner to devote his land to any legitimate use is property within the terms of both the Federal and State Constitutions, and zoning authorities may not, under the guise of the police power, impose unnecessary or unreasonable restrictions upon such use. Blitch v. City of Ocala, 142 Fla. 612, 195 So. 406; State of Washington ex rel. Seattle Title Trust Company v....