Conrad v. Jackson

• Decision Date: 03 December 1958
• Citation: 107 So.2d 369
• Parties: Gordon D. CONRAD, and the City of Pensacola, a Municipal Corporation, Appellants, v. Terry Joe JACKSON and Alma Alyne Jackson, husband and wife, Appellees.
• Court: Florida Supreme Court

Page 369

107 So.2d 369

Gordon D. CONRAD, and the City of Pensacola, a Municipal Corporation, Appellants, v. Terry Joe JACKSON and Alma Alyne Jackson, husband and wife, Appellees.

Supreme Court of Florida.

Dec. 3, 1958.

Rehearing Denied Jan. 8, 1959.

Robinson & Roark, Pensacola, for appellants.

Coe & Coe, Pensacola, for appellees.

THORNAL, Justice.

Appellants Conrad and City of Pensacola, who were defendants below, seek reversal of a final decree directing the removal of a partially constructed building allegedly erected in violation of a municipal zoning ordinance.

We are called upon to determine whether the construction of the building violated the ordinance and, if so, whether the plaintiffs below failed to pursue available administrative remedies prior to filing suit.

The final decree was entered April 17, 1956. The notice of appeal was filed June 8, 1956. The cause was pending in this court on July 1, 1957, when Amended Article V, Florida Constitution, F.S.A., became effective. Numerous extensions for filing the record were granted below. We have retained jurisdiction in accord with the provisions of Article V, Section 26(6), Florida Constitution.

Appellant Conrad owns a home situated on a corner lot in Pensacola. His house faces west. Therefore, his front lot line is his west lot line. Appellees Jackson own a home immediately to the east of the Conrad property. The front of their house faces north. Consequently, the back lot line or east line of the Conrad property constitutes the side lot line or west line of the Jackson property. At the time of the adoption of the Pensacola zoning ordinance in 1947 there were attached to the rear of the Conrad dwelling a porch and carport. In 1955 the porch and carport had deteriorated to the extent that Conrad desired to demolish it and replace it with a two-car garage or carport. After various negotiations with the City Building Inspector, but without benefit of a building permit, Conrad undertook to construct a garage which extended across the rear of his dwelling house. The east side of the garage, which had been constructed when the suit started, consisted of a solid masonry wall some 16 feet high running the entire width of the rear lot line of the Conrad property. This wall was located less than 1 foot west of the west line of the Jackson property and was within 5 feet of the west side of the Jackson home. Apparently this wall was a requirement of the City Building Department. On the west side of the Jackson dwelling were located a bedroom and bath.

After the construction of the Conrad garage had been under way about a week, the Jacksons instituted this suit in equity. They claimed that the building was constructed in violation of the municipal zonin ordinance, and that the structure in and of itself constituted a nuisance. They alleged special damages to themselves in that the 16-foot masonry wall blocked the entire west side of their house, thereby greatly reducing the circulation of air and completely excluding the sunlight. The Chancellor, after hearing the evidence, concluded that the Conrad garage had been constructed in violation of the zoning ordinance and also that it constituted a nuisance. He directed its elimination. Under the circumstances he authorized the appellant Conrad to construct a structure which would not occupy more of the rear yard of his property than did the original porch and carport. Objection to this decree Conrad and the City have appealed.

It is the contention of the appellants that the Chancellor erroneously construed the zoning ordinance; that the appellees, who were plaintiffs below, failed to exhaust available administrative remedies before instituting suit, and, that by permitting the appellant Conrad to proceed with the construction for a period of one week before filing suit, the appellees were estopped to obtain relief.

To support the decree, the appellees contend that the building was constructed in direct violation of the zoning ordinance; that independently of the ordinance, it constitutes a nuisance which should be abated and further that the ordinance did not provide any administrative proceeding which they could have pursued preliminary to instituting suit.

We mention at the outset that in order to obtain relief against a violation of an ordinance of this nature, a property owner must demonstrate that he suffers peculiar injury and damage different in kind from that suffered by the community at large, as distinguished from a mere difference in degree of injury. Boucher v. Novotny, Fla.1958, 102 So.2d 132. On this point we think the appellees by their complaint and supporting evidence have brought themselves within the rule of Fortunato v. City of Coral Gables, Fla.1950, 47 So.2d 321. They have alleged and proved that the construction of the 16-foot wall impedes the circulation of air on the west side of their property. For all practical purposes it absolutely excludes the sunlight. Here the injury suffered is certainly different in kind from that which would be suffered by the remainder of the community. For an illustrative distinction in the application of the rule see Boucher v. Novotny, supra.

It is necessary that we point...