Kies v. Hollub, 82-2569
| Decision Date | 17 April 1984 |
| Docket Number | No. 82-2569,82-2569 |
| Court | Florida District Court of Appeals |
| Parties | Conrad A. KIES and Janet Kies, Appellants, v. Marvin A. HOLLUB, R.A. Davenport, Sr., & James Stoker, d/b/a Architectural Control Committee, and Pine Bay South Association, Inc., Appellees. |
Roger A. Bridges, Coral Gables, for appellants.
Schultz & Hollander and Howard Hollander and Robert A. Solove, Miami, for appellees.
Before SCHWARTZ, C.J., and HUBBART and FERGUSON, JJ.
ON MOTION FOR REHEARING
Appellants purchased a lot and constructed a $700,000 residence in a subdivision of luxurious custom designed homes. The neighborhood is quiet and secluded with no common recreational facilities. The subdivision is also subject to a Declaration of Restrictions which is recorded in the county's Official Records. 1 Appellants' plans for construction of the home included a tennis court which was approved by the Architectural Control Committee of the subdivision. The plans did not include the erection of lights for the tennis court. Subsequently, appellants applied for and received from the County Commission a variance for construction of tennis court lights based on a plan indicating four 16-foot high light poles with two lamps each. After obtaining the variance appellants erected eight 20-foot light poles which violated the County Commission's variance permit, and as appellees contend, violated the Declaration of Restrictions as well.
The Architectural Control Committee ordered appellants to remove the light poles. Appellants refused and instead sought another variance for the 20-foot poles, which was approved by a zoning official but overturned by the Zoning Appeals Board.
Appellees, members of the Architectural Control Committee, brought this action for injunctive relief seeking to prohibit the "intended lighting facilities" on appellants' tennis court. Appellees alleged that the facilities were being constructed without their approval after appellants were reminded of the requirement for such approval under the Declaration of Restrictions. After a hearing on the merits, which included testimony of expert witnesses and a video taped view of appellants' lights and the surrounding area, the trial court entered a final judgment ordering appellants to remove the light poles within thirty days, finding in part that:
III. ... The Plaintiffs have not acted in bad faith and do not appear to have been arbitrary or unreasonable.... The comprehensive nature of the restrictions obviously reflects the desire to see that the subdivision remains a high class residential area. [cites omitted].
We dispense with a preliminary question, i.e., whether appellants should have first submitted the plan for lighting to the Committee. It was agreed at oral argument that even if appellants had submitted plans for a tennis court which included lighting, the plan would have been rejected forthwith. Furthermore, as appellees contend, the appellants proceeded at their own risk in constructing the lighting facilities without the approval of the Committee.
The principal issue is whether the installation of lights on an approved tennis court is, within a reasonable reading of the Declaration of Restrictions, a structural improvement 2 which required prior approval of the Architectural Control Committee, 3 and even if so, whether the Committee's refusal to approve of the lighting after learning of appellants' intent to construct the facilities was arbitrary or unreasonable.
The primary reasons given by the Architectural Control Committee for opposing the appellants' tennis court lighting were: (1) to protect the community from nuisances; and (2) to maintain the aesthetic quality of the homes.
Appellees called as a witness Professor Ralph Warburton, who is an architect, engineer, city planner and professor. On cross-examination his testimony in pertinent part was:
Q. Let me ask you to assume that there are scattered throughout Gables Estates [another community of luxurious homes] tennis court lots in the backyards of people's homes which are very similar to these Mr. and Mrs. Kies are installing. Would that in any way change your opinion as to whether in this area of Pine Bay Estates South, which is a well-to-do neighborhood, these tennis court lights should not be permitted?
A. I would have to review the situation to know on its merits. I would have to consider the size of the lots, whether the lots were on an historic highway, what kind of landscaping was provided on the lots to perhaps screen any lighting from the streets or adjacent lots. I would have to consider a number of those kinds of factors before I could reach that decision.
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Q. I am asking you to assume that through landscaping or through any other means less than one-third of a foot candle 4 of light would be permitted to spill over from Mr. and Mrs. Kies' lot to any adjoining lot. I am asking you to assume it. Now, based on that assumption, does that in any way then change your opinion as to whether such tennis court lights should be permitted?
A. Not greatly on two counts. One, it does not handle the problem of daylight, the daylight view of the court.
The second is that we are dealing with the light source itself, the brightness of the light source as compared with the dark sky. And we are not dealing with the illumination of the grass, we are dealing with the appearance of the neighborhood, the brightness of the light source against the sky. And if that could be reduced, say the brightness of the light source against the sky was a ratio of only one to ten, one to three, you know, relatively the same grayness or blackness as the sky, then we would handle the nighttime problem.
Q. You mean above the light or below?
A. No, in the light, looking at the light.
For example, the contrast between the light and the ceiling, in order for it not to affect the neighborhood at night, this would have to be relatively no difference. There would be too much---
Q. How about a one-third foot candle vertical escape at night? Would that be sufficient in your opinion?
A. Again, escape from what?
Q. Escape from the lot, from above the lights. One-third foot candle vertical escape, would that in any way change your opinion?
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A. No, I don't believe so.
Q. Let us talk about these daylight problems that you have. What color would you change these bulbs to to make them aesthetically acceptable?
A. I am not sure they could be made in this environment aesthetically acceptable. I am not sure they could be screened. I am not sure there is a space to do that between the present tennis court and the street.
To effectively do that in terms of colors, you would want them to of course blend as nearly as possible with the background in which they are going to be seen.
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Q. Professor, is there any color that Mr. and Mrs. Kies could paint these poles which would satisfy your objection as to the aesthetics of the color of the poles and, if so, please tell me what it is?
A. Probably not. There are colors that would help but no colors that would satisfy.
Q. Is it then your opinion that any tennis court light in any neighborhood could not be made a color which would be acceptable to your aesthetics in terms of your urban planning?
A. No.
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Q. In terms of the height, how high should these tennis court lights be to satisfy your aesthetics?
A. You have the question of the size of the lot, you know. If this was a lot that was three times the size and the nice trees around it and it was screened from Old Cutler Road and from the neighbors and there was no visible or essentially no visible protrusion of this facility into the public and adjacent land, then I think maybe it would not matter what color they would be, what shape they were.
Appellants called three expert witnesses at trial. Chris Fergis, architect for the appellants, testified that in his opinion, the poles and lights as built were not aesthetically objectionable. Paul Powell, an engineer and licensed contractor, testified that the fixtures installed at appellants' home were known in the trade as a cut-off fixture developed to avoid light spillage onto adjacent property; that in his testing he found that light spillage onto the closest adjoining lot line was only 2/10th of a foot candle, which is even less than what is acceptable by county standards. Gene Gracer, a licensed real estate appraiser with over thirty years experience, testified that other even more expensive residential neighborhoods in Dade County have lighted tennis courts, and that the proper place for lighted tennis courts is affluent neighborhoods. It was his opinion that tennis court lights have no detrimental effect upon the value and desirability of other lots in the subdivision and "might even add a touch of prestigiousness to the neighborhood."
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