City of Temple Terrace v. Hillsborough Ass'n for Retarded Citizens, Inc.

• Decision Date: 10 October 1975
• Docket Number: No. 75--55,75--55
• Citation: 322 So.2d 571
• Parties: CITY OF TEMPLE TERRACE, etc., et al., Appellants, v. HILLSBOROUGH ASSOCIATION FOR RETARDED CITIZENS, INC., etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 571

322 So.2d 571

CITY OF TEMPLE TERRACE, etc., et al., Appellants, v. HILLSBOROUGH ASSOCIATION FOR RETARDED CITIZENS, INC., etc., et al., Appellees.

No. 75--55.

District Court of Appeal of Florida, Second District.

Oct. 10, 1975.

Rehearings Denied Nov. 21, 1975.

Theodore C. Taub and Robert C. Gibbons of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellants.

Thomas A. Clark and Thomas J. Roehn of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellees.

GRIMES, Judge.

This is an appeal from a judgment declaring that the defendants' operation of a home for the mentally retarded was not amenable to a city zoning ordinance because their activities partook of the sovereign immunity of the State of Florida.

On May 29, 1974, the Hillsborough Association for Retarded Citizens, Inc. (Association) entered into a contract with the Division of Retardation, Department of Health and Rehabilitative Services of the State of Florida, to provide respite care facilities and services to mentally retarded citizens. On June 13, 1974, the defendant Cook, who was a member of the Board of Directors of the Association, purchased a five bedroom house in a residential area of the City of Temple Terrace which was zoned 'single family residential.' The following month, the Association took possession of the house with Mr. Cook's permission and began operating its respite care center on the premises.

The purpose of the center is to provide short-term residence and care for mentally retarded citizens, primarily children, whose parents or guardians are either ill, on a business trip or encountering marital difficulties. The average stay at the center is two weeks, and an average of eleven unrelated retarded persons are in residence at a given time. Cottage parents live at the Any retarded individual who is a client of the Division of Retardation is eligible to receive services at the respite center. The Division pays the Association a specified sum per day for each retarded person housed at the center. Neither Mr. Cook nor the Association applied to the city for a zoning variance. The testimony reflected that there were other areas in the city where the center could have been established without violating zoning ordinances.

respite center, and the center is staffed by a program director, assistants, cooks and a janitor. All of the employees at the center are employed by the Association. Some of the neighbors asserted that loud noises, screams and moans are emitted both day and night by the retarded persons staying at the center. They also stated that on occasion mentally retarded residents from the facility have wandered through the neighborhood and that the operation of the facility has generated a heavy volume of traffic on what was formerly a quiet residential street.

The City of Temple Terrace, joined by several persons who live near the center, filed suit to enjoin the operation on grounds that it was a nuisance and was in violation of the zoning ordinances of the city. After the taking of testimony, the court entered a judgment in which it found that even though the use of the premises was contrary to the city's single family residential zoning ordinance, the ordinance could not be enforced against the operation of the facility. The court reasoned that when it was performing respite care services for the retarded, the Association stood in the shoes of the State of Florida and, as such, was not subject to municipal zoning ordinances. The court further found that the plaintiffs failed to support their claim that the defendants' use of the premises constituted a nuisance.

The appellants present essentially three questions: (1) whether a state agency (the Division of Retardation of the Department of Health and Rehabilitative Services) is subject to municipal zoning; (2) whether the Association is entitled to whatever immunity the Division may have; and (3) whether the operation of the respite care center constituted a nuisance. Since the ease by which these questions may be answered is opposite to the order in which the questions are presented, we shall dispose of them in inverse order.

The question of whether the operation of the respite care center constituted a nuisance is peculiarly one best answered by the trial court. There was evidence on both sides of the question. Suffice it to say, there is ample support in the record for a finding that no nuisance exists. Likewise, we believe the evidence fairly supports the conclusion that in the operation of the respite care center the Association was properly performing services which the state is required to do under Fla.Stat. § 402.13 (1973). Most, if not all, of the admittees to the Association's home are registered with the Division of Retardation. The Division maintains supervision and inspection of the services rendered to insure the proper operation of the center. The services provided by the Association supplement those provided by the Division in its regional centers throughout the state. Once it is determined that the operation of the center properly performs a state function, the fact that the premises are owned by Mr. Cook becomes irrelevant. Traditionally, where a state agency is immune from municipal zoning, those parties contracting to do the services which would otherwise be performed by the state have also been held to be immune. Abbott House v. Village of Tarrytown, (1970), 34 A.D.2d 821, 312 N.Y.S.2d 841; Unitarian Universalist Church of Central Nassau v. Shorten, (1970), 63 Misc.2d 978, 314 N.Y.S.2d 66. Therefore, if the Division of Retardation is immune from municipal zoning, the Association is also immune in the operation of its respite care center.

The broad issue remaining in the case concerns the extent, if any, to which the When the governmental unit which seeks to circumvent a zoning ordinance is an arm of the state, the application of any of the foregoing tests has generally resulted in a judgment permitting the proposed use. This has accounted for statements of hornbook law to the effect that a state agency authorized to carry out a function of the state is not bound by local zoning regulations. 2 Anderson, American Law of Zoning § 9.06 (1968); 8 McQuillin, Municipal Corporations § 25.15 (1965).

use of land by a governmental unit is subject to applicable zoning regulations. In deciding this type of case, the courts have used varying tests. One approach utilized by a number of courts is to rule in favor of the superior sovereign. Thus, where immunity from a local zoning ordinance is claimed by an agency occupying a superior position in the governmental hierarchy, it is presumed that immunity was intended in the absence of express statutory language to the contrary. E.g., Aviation Services, Inc. v. Board of Adjustment, 1956, 20 N.J. 275, 119 A.2d 761. A second test frequently employed is to determine whether the institutional use proposed for the land is 'governmental' or 'proprietary' in nature. If the political unit is found to be performing a governmental function, it is immune from the conflicting zoning ordinance. E.g., City of Scottsdale v. Municipal Court, 1962, 90 Ariz. 393, 368 P.2d 637. On the other hand, when the use is considered proprietary, the zoning ordinance prevails. E.g., Taber v. City of Benton Harbor, 1937, 280 Mich. 522, 274 N.W. 324. Where the power of eminent domain has been granted to the governmental unit seeking immunity from local zoning, some courts have concluded that this conclusively demonstrates the unit's superiority where its proposed use conflicts with zoning regulations. E.g., Mayor of Savannah v. Collins, 1954, 211 Ga. 191, 84 S.E.2d 454. Other cases are controlled by explicit statutory provisions dealing with the question of whether the operation of a particular governmental unit is subject to local zoning. E.g., Mogilner v. Metropolitan Plan Commission, 1957, 236 Ind. 298, 140 N.E.2d 220.

Recently, however, several courts have advanced a new test for the resolution of the question of whether one governmental unit is subject to the zoning regulations of another. In Rutgers, State University v. Piluso, 1972, 60 N.J. 142, 286 A.2d 697, the court rejected the criteria often used to resolve the conflicts between governmental units and municipal ordinances as being too simplistic. Even though the dispute involved an attempt on the part of a township to impose its zoning upon an instrumentality of the state, the court adopted what it termed a 'balancing of interests' test to decide the case. Thus, the court stated:

'The rationale which runs through our cases and which we are convinced should furnish the true test of immunity in the first instance, albeit a somewhat nebulous one, is the legislative intent in this regard with respect to the particular agency or function involved. That intent, rarely specifically expressed, is to be divined from a consideration of many factors, with a value judgment reached on an overall evaluation. All possible factors cannot be abstractly catalogued. The most obvious and common ones include the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests. . . . In some instances one factor will be more influential than another or may be so significant as to completely overshadow all others. No one, such as the granting or withholding of the power of eminent domain, is to be thought of as ritualistically required or controlling. And there will undoubtedly be cases, as there have been in the past, where the broader public interest is so important that immunity See also City of Newark v. University of Delaware, Del.Ch.1973, 304 A.2d 347; Long Branch Division of United Civic and Taxpayers Organization v. Cowan, 1972, 119 N.J.Super....