Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, SARASOTA-MANATEE

• Decision Date: 17 April 1959
• Docket Number: SARASOTA-MANATEE
• Citation: 111 So.2d 439
• Parties: HARRELL'S CANDY KITCHEN, INC., a Florida corporation, Augustin N. Thierry and Virginia B. Thierry, husband and wife, and Paul F. Thielen and Jeanette B. Thielen, husband and wife, Appellants, v.AIRPORT AUTHORITY, Appellee.
• Court: Florida Supreme Court

Page 439

111 So.2d 439

HARRELL'S CANDY KITCHEN, INC., a Florida corporation, Augustin N. Thierry and Virginia B. Thierry, husband and wife, and Paul F. Thielen and Jeanette B. Thielen, husband and wife, Appellants, v. SARASOTA-MANATEE AIRPORT AUTHORITY, Appellee.

Supreme Court of Florida.

April 17, 1959.

Cody Fowler (of Fowler, White, Gillen, Yancey & Humkey), Miami, and Richard D. Bailey, Sarasota, for appellants.

Williams, Parker, Harrison & Dietz and W. T. Harrison, Jr., Sarasota, Keen, O'Kelley & Spitz, J. Velma Keen and Chas. H. Spitz, Tallahassee, for appellee.

James F. Eckhart, Miami, for Dade County Port Authority.

John G. Baker (of Baker, Berson, Lilley & Baker), Orlando, for the City of Orlando.

William E. Thompson, Tampa, for Hillsborough County Aviation Authority, amicus curiae.

DREW, Justice.

This case arose out of the imposition of vertical zoning regulations on appellants' land under the authority of Chapter 333, Florida Statutes, F.S.A.

The complaint in the cause was filed by the appellee, Sarasota-Manatee Airport Authority, a body politic created by Chapter 31263, Laws of Florida, Special Acts 1955, to enjoin the erection of a pyramid or superstructure atop a building under construction near the runway to a height in excess of that allowed by the regulations adopted by the Airport Zoning Board of Sarasota and Manatee Counties pursuant to the provisions of Chapter 333, Florida Statutes, F.S.A. ¹ A temporary injunction was issued, the trial court declined to dissolve it, whereupon the defendant property owners, appellants in this Court, answered attacking the validity of the regulation and asserting among other things as a 'second, separate and complete defense' the invalidity of Chapter 333, supra, because said statute 'constitutes a deprivation of the property of these defendants without due process of law; constitutes an unlawful taking of the property of these defendants without just compensation; constitutes an unlawful exercise of the police power of the State of Florida in that the subject matter of said Chapter bears no relationship to the public or general welfare as regards these defendants and their property; and constitutes a law too vague and uncertain to be enforceable.'

Extensive testimony was taken by the respective parties and, upon consideration of the matter on final hearing, the trial court held that the airport regulations had been adopted pursuant to the provisions of F.S. Chapter 333, F.S.A.; 'that the declaration of the Legislature of the State of Florida in enacting the enabling act pursuant to which the airport zoning regulations in question were adopted is an entirely reasonable and correct statement of public policy;' that said regulations were valid, bore a substantial relation to the general welfare, and were duly and lawfully promulgated; and required by mandatory injunction that the defendants remove the excess height from their building.

The jurisdiction of this Court to entertain this appeal rests upon the constitutional provision for direct review of 'final judgments or decrees directly passing upon the validity of a state statute * * *.' ² The court below, in making its ruling, did not explicitly rule upon the validity of the act, or refer to those objections interposed by appellants which go to the validity or constitutionality of the controlling law, but, as previously pointed out in this connection, 'this fact does not alter the effect of the decree as a negative disposition of all pertinent questions properly raised.' ³ Upon both reason and authority the record itself must establish the nature and limits of the issues presented in a given cause, independent of the language of the decree or statement of the court.

Under this doctrine of inherency, however, those assertions which are merely colorable (as for instance where the question has already been decided), lacking in substance, indefinite, or unrelated to the facts at bar, are insufficient as a predicate for finding that a decree, though silent or ambiguous in its expressions on the point, necessarily decides an issue essential to constitutional jurisdiction in this court. ⁴ Apparently in recognition that the objections raised in their answer, quoted above, were of this character, the appellants, so far as can be determined, abandoned those contentions, and on this appeal have confined their jurisdictional argument to an assertion, not referred to in the record of the proceedings below, that the statute in question, F.S. Chapter 333, F.S.A., violates the provisions of Article III, Section 27, Florida Constitution, ⁵ requiring election or gubernatorial appointment of state and county officers. In this connection, a certificate of the trial court has been filed in this court, certifying that the latter issue was in fact argued by the parties, presented for determination, and passed upon by the court. While we are of the view that the latter statement amounts only to a conclusion which could not be conclusive of the jurisdictional issue under the Constitution, or be effective to make the decree one which 'directly passes on the validity' of a statute in the absence of a record basis for this conclusion, it nevertheless appears that the certificate of the court is in terms an effort to make the record speak the truth, and to enable this Court to determine whether it has jurisdiction of this cause; under the prevailing liberal rules in this respect it should be regarded as effective for this purpose. ⁶

Under the principles governing this constitutional concept, then, we are of the opinion that a decision on the validity of the act was necessary to a determination of this cause, and that, therefore, such a finding was inherent in the opinion and judgment of the court. The regulations upheld, provided by the appellee Authority through the zoning board created pursuant to Chapter 333, were dependent upon that law for their validity and authority.

The statute must, upon thorough consideration, be sustained against the attack upon it. The action of the trial court, in rejecting the appellants' contention in this respect, is hereby affirmed upon the merits. While the point is not so well settled as to reduce appellants' argument to a merely colorable assertion, ⁷ earlier opinions of this Court clearly indicate that, because of their limited area of activity, administrative authorities such as those provided for under the act in question are not within the purview of Section 27, Article III, supra. ⁸

Paragraph 8 of the final decree reads, inter alia: '* * * it appears to the court that the defendants have failed to avail themselves of, much less exhaust, the administrative remedies which were prescribed for them by the airport zoning regulations and for this reason the defendants have no standing in this court to question the reasonableness of the height limits prescribed by the airport zoning regulation.' The case was not decided on this point alone. Nevertheless the Airport Authority argues that the trial court was correct in its view of the matter above quoted and that this alone requires that this appeal be disposed of adversely to the contentions of the appellants. ⁹

There is substance to the argument of the Airport Authority that the rule which requires the exhaustion of administrative remedies is equally persuasive whether the issue is raised by the defending or the moving party. ¹⁰ It is unnecessary, however, for us to now decide whether this court will align itself with this view. The Airport Authority might well have proceeded in this litigation upon the theory that the appellants had not exhausted their administrative remedies in applying for a modification of the regulation ¹¹ as it related to this building and might have prayed for an order enjoining the construction of said building until the appellants had proceeded with and exhausted such remedies. The Airport Authority, however, did not pursue this course but chose to place squarely in issue the question of the validity and reasonableness of the regulations established by it. Having chosen this course, the authority will not now be permitted to urge the proposition. ¹² To that extent, therefore, we must disapprove the quoted portion of paragraph 8 of the final decree.

There is no longer any question concerning the power of the Legislature to authorize agencies of the government to adopt and enforce zoning regulations. We can think of no situation which more clearly authorizes the exercise of this phase of the police power than that involved here. ¹³ Such regulations not only promote the general welfare of the state and community served but contribute to the proper and orderly development of land areas in the vicinity of airports. Such regulations stabilize values and provide safety to those who use the airport facilities in taking off and landing as well as those living in the vicinity thereof. In many cases this Court has upheld the exercise of the police power by counties and municipalities in the enactment of zoning regulations restricting height, number of stories, size of buildings and other structures, percentage of lots that may be occupied, the size of courts and other spaces, the density of population and the location of buildings and structures and land and water for trade, industry and other purposes. There has been much litigation in the field of zoning, particularly in Florida, and the jurisprudence in that field has been extensively developed. These well settled principles now so firmly established with reference to municipal and county zoning apply equally to airport zoning.

Zoning regulations duly enacted pursuant to lawful authority are presumptively valid and the burden is upon him who attacks such regulation to carry the extraordinary burden of both alleging and proving that it is unreasonable and bears no substantial relation to the public health, safety, morals or general welfare. ¹⁴ Courts will not...