Chapman v. Town of Redington Beach

• Decision Date: 25 October 2019
• Docket Number: Case No. 2D16-5263
• Citation: 282 So.3d 979
• Parties: C. Hayward CHAPMAN and Jacqueline Chapman, Appellants, v. TOWN OF REDINGTON BEACH, Florida and Douglas Backman, Appellees.
• Court: Florida District Court of Appeals

282 So.3d 979

C. Hayward CHAPMAN and Jacqueline Chapman, Appellants,
v.
TOWN OF REDINGTON BEACH, Florida and Douglas Backman, Appellees.

Case No. 2D16-5263

District Court of Appeal of Florida, Second District.

Opinion filed October 25, 2019.

Marie Tomassi and Eric S. Koenig of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., Tampa, for Appellants.

Jay Daigneault and Randy Mora of Trask Daigneault, LLP, Clearwater, for Appellee Town of Redington Beach.

Richard E. Fee, Kathleen M. Wade, Jillian L. Feltham, and Catherine F. Yant of Fee & Jeffries, P.A., Tampa, for Appellee Douglas Backman.

SALARIO, Judge.

C. Hayward Chapman and Jacqueline Chapman sued the Town of Redington Beach and their neighbor, Douglas Backman, over a series of improvements Mr. Backman made to his property that the Chapmans say violated the Town's zoning ordinances. The trial court rendered separate final summary judgments in favor of the Town and Mr. Backman. We affirm the judgment in favor of the Town without comment. But because Mr. Backman failed to show that he was entitled to summary judgment on the theory the Chapmans

282 So.3d 981

have not suffered special damages to support their standing to enforce the Town's zoning ordinances, we reverse the judgment in favor of Mr. Backman and remand for further proceedings.

I.

The Chapmans and Mr. Backman own neighboring beachfront properties. On January 18, 2016, the Chapmans filed a second amended complaint against the Town and Mr. Backman in which they describe numerous modifications that Mr. Backman has made to his property and allege that each violates a Town zoning ordinance. It also alleges that the Chapmans have suffered special damages because their property is "materially less safe and materially less valuable due to these violations." The complaint asks for declaratory judgment that the improvements violate Town ordinances and seeks supplemental and injunctive relief, including the removal of the improvements. See §§ 86.021, .061, Fla. Stat. (2015). As relevant here, the complaint identifies three violations for which the Chapmans seek relief; the complaint calls them the "accessory structure," the "safety sight triangle," and the "hedge."

The accessory structure is a former workshop which Mr. Backman has partially renovated. According to the Chapmans, Mr. Backman got a permit to add a second story to the structure, but the permit was wrongfully issued because the value of the renovations exceeded fifty percent of the original value of the structure. The complaint also alleges that the permitted renovations have been abandoned because Mr. Backman has ceased constructing them.

The safety sight triangle refers to what the complaint alleges to be a hazardous traffic situation caused by Mr. Backman's construction of a wall along the roadway to which the Chapmans' driveway connects. According to the Chapmans, this wall blocks the view of oncoming traffic from the Chapmans' driveway, thus making it dangerous to exit the driveway and posing a danger both to the Chapmans and to others driving, riding, or walking on the road. The Chapmans also allege that this wall was improperly constructed, as it exceeds the height limit imposed by Town ordinance.

The hedge is a growth of vegetation along the ocean-facing side of Mr. Backman's property. The complaint alleges that it violates a Town ordinance because it is too tall and violates their littoral rights because it obstructs their view of the ocean. It also asserts that the obstructed view negatively affects the Chapmans' property value.

Both defendants moved for summary judgment. The Town argued that it was not a proper party to the suit because (1) the Chapmans were not seeking the validation or construction of an ordinance and (2) a court decree compelling the Town to enforce its zoning ordinances would violate the doctrine of separation of powers. The trial court agreed with the separation of powers argument and granted summary judgment to the Town. Based on the arguments presented in this appeal, we find no error in that determination and affirm the summary judgment in favor of the Town.

Mr. Backman's motion for summary judgment argued that the Chapmans lacked standing to enforce the Town's zoning ordinances because they had not suffered special damages—a peculiar injury that differed in the type of harm, rather than merely the degree of harm, suffered by the community as a whole as a result of the ordinance violation. He asserted that (1) the Chapmans failed to allege any damages stemming from the accessory structure and thus failed to allege the peculiar injury required for standing; (2) by alleging that the safety sight triangle was a

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hazard to others in the community, the Chapmans failed to allege that the safety sight triangle caused any injury that was peculiar to them; and (3) the hedge did not violate the Chapmans' littoral rights because the Chapmans' property is not littoral property and the Chapmans are not entitled to an unobstructed view. Mr. Backman also raised an argument that he did not violate the ordinance provisions regulating hedge height because the vegetation blocking the Chapmans' view is not a hedge within the meaning of that ordinance.

The Chapmans filed a memorandum that described how the accessory structure, the safety sight triangle, and the hedge caused them peculiar injury by reducing the value of their property and, with respect to the safety sight triangle, creating a dangerous condition. The Chapmans also submitted an affidavit by Ms. Chapman explaining how the improvements have diminished the Chapmans' property value and an expert report describing the danger of the safety sight triangle.

The trial court granted summary judgment to Mr. Backman, reasoning that the Chapmans could not show special damages. Its order followed Mr. Backman's reasoning as to the accessory structure and the safety sight triangle. As to the hedge, the trial court reasoned that the Chapmans could not prove special damages because Ms. Chapman testified in a deposition that she did not know whether her property value changed after Mr. Backman began his improvements on his home next door. The trial court did not address Mr. Backman's arguments about whether the Chapmans enjoyed littoral rights or whether the hedge is really a hedge.¹

II.

We review an order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). Summary judgment is proper when "the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(c). The initial burden rests on the movant, who must prove that no genuine issue of material fact exists. Estate of Githens ex rel. Seaman v. Bon Secours–Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006). This proof must be affirmative and based in proper summary judgment evidence; the movant cannot merely say that the other side lacks evidence to support its case. Fields v. Devereux Found., Inc., 244 So. 3d 1193, 1195 (Fla. 2d DCA 2018) ; see also Fla. R. Civ. P. 1.510(c). If the movant satisfies this burden, the burden shifts to the nonmovant to prove that a genuine issue of material fact remains to be tried. First N. Am. Nat'l Bank v. Hummel, 825 So. 2d 502, 503 (Fla. 2d DCA 2002).

A.

The trial court granted Mr. Backman's motion for summary judgment on the theory that the Chapmans lack standing to enforce the Town's zoning ordinances.² A private citizen has standing to

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enforce a valid municipal zoning ordinance only when special damages are alleged and proven. Skaggs-Albertson's v. ABC Liquors, Inc., 363 So. 2d 1082, 1086 (Fla. 1978). In this context, special damages are any injury "peculiar to [the plaintiff] differing in kind as distinguished from damages differing in degree suffered by the community as a whole." Boucher v. Novotny, 102 So. 2d 132, 135 (Fla. 1958) ; see also City of Ft. Myers v. Splitt, 988 So. 2d 28, 31 (Fla. 2d DCA 2008). The rule serves to limit the avalanche of litigation that might otherwise result from any alleged zoning violation; one need not have a surfeit of imagination to picture the results if every member of a community bothered by a single zoning violation was authorized to bring the same suit against the same defendant alleging the same general type of harm.³ See Skaggs-Albertson's, 363 So. 2d at 1088 ; see also U.S. Steel Corp. v. Save Sand Key, Inc., 303 So. 2d 9, 12 (Fla. 1974) (quoting Askew v. Hold the Bulkhead-Save Our Bays, Inc., 269 So. 2d 696, 697 (Fla. 2d DCA 1972) ). Thus, plaintiffs in these types of cases are required to plead and prove what amounts to a harm peculiar to themselves.

Application of the special damages rule can get tricky when a plaintiff alleges that the defendant's actions have harmed both the plaintiff and others in the community. This issue arose in Boucher, the supreme court decision from which the special damages rule in Florida originates. 102 So. 2d 132. In Boucher, the court reasoned that even though the plaintiffs' allegation that their property value...