Knowles v. Central Allapattae Properties, Inc.

• Citation: 145 Fla. 123,198 So. 819
• Parties: KNOWLES v. CENTRAL ALLAPATTAE PROPERTIES, Inc., et al.
• Decision Date: 22 November 1940
• Court: United States State Supreme Court of Florida

198 So. 819

145 Fla. 123

KNOWLES v. CENTRAL ALLAPATTAE PROPERTIES, Inc., et al.

Florida Supreme Court, Division B.

November 22, 1940

Suit by the Central Allapattae Properties, Inc., and the Buckingham Investment Company against A. T. Knowles for a restraining order against the use by defendant of recently constructed buildings as a veterinary hospital, and that veterinary hospital unit of defendant be decreed a nuisance. From decree entered, the defendant appealed, and the plaintiffs filed a number of cross-assignments of error.

Decree affirmed in part, and reversed in part. Appeal from Circuit Court, Dade County; Paul D Barns, Judge.

COUNSEL

Hendricks & Hendricks, of Miami, for appellant.

Twyman Brothers and James M. McCaskill, all of Miami, for appellees.

OPINION

CHAPMAN Justice.

The record in this case discloses that A. T. Knowles in 1923 acquired a three-acre tract of land, then outside the City of Miami, but subsequently taken into the City, and began the operation of a veterinary hospital in a frame building then on the tract. The business of boarding pet animals, chiefly dogs, was maintained in connection with the hospital. The business grew and it became necessary to enlarge the buildings and work or employment was given several members of the Knowles family, and other assistance was obtained from time to time. The capacity for caring for animals prior to the enlargement of the hospital was 105 dogs and by the improvements the total capacity thereof was increased to 178 dogs in February, 1938.

The hospital of the defendant is now located between 29th and 30th Streets Northwest and faces 17th Avenue but about 135 or 140 feet west of the avenue. The defendant at one time kept on the property milk cows, ponies, cats and peafowls, and charges were preferred against him for the violation of some of the ordinances of the City of Miami in connection with these animals. The defendant maintained on the property two cemeteries in which dogs were buried and approximately 80 dogs were buried in one cemetery and 300 in the other on the three-acre tract. The graves of these buried dogs are marked with upright crosses.

Adjacent to and north of the hospital tract is a ten-acre tract in the form of a square and in the year 1937 plaintiffs acquired title thereto. The prior owner had subdivided the property into residential lots, except those fronting on 17th Avenue which were designated as business lots. The property was re-subdivided into residential lots and building restrictions adopted to the effect that each lot should contain a single family dwelling, and shortly thereafter began the construction of homes on the lots. There is a sharp conflict in the testimony as to the number of homes within a radius of 1,000 feet of the hospital in 1923. Some of the witnesses place the number at some seven or eight, while another places them at between 25 and 50. Apartments and residences at the present time are fixed at the definite number of 83.

The capacity of the hospital was increased by enlargement thereof, without a lawful permit, so it is contended, and the property is now being used contrary to the following ordinance provisions:

'Section 5514. (8-2-03-01) Veterinary Hospital Location. It shall be unlawful for any person to keep within the City of Miami within 1,000 feet of any building used for human occupancy, any dogs for treatment by a veterinarian or for detention in any public kennel. Such location shall comply with the requirements of the Zoning Code of the City of Miami.'

'Section 6219--Section 2--Prohibited Uses--R-4 Districts: Nothing shall be allowable on premises that shall in any way be offensive or noxious by reason of the emission of odors, gases, dust, smoke, vibration or noise. Nor shall anything be constructed or maintained that would in any way constitute an eyesore or nuisance to adjacent property owners, residents or to the community.'

'Section 6229--Non-Conforming Uses--The lawful use existing at the time this Ordinance takes effect may be continued, even though it does not conform with the provisions hereof. Any building existing at the time this Ordinance takes effect may be altered or reconstructed, providing such alteration does not cost to exceed its assessed valuation, and providing also that it is not enlarged beyond ten (10) per cent. of the size of such building on the effective date of this Ordinance, unless changed to a conforming use. Also providing all other regulations governing the new uses are complied with.

'Any non-conforming building damaged more than seventy-five (75) per cent of its then fair market value above the foundations at the time of damage by fire, flood, explosion, earthquake, wind, war, riot, or Act of God or Man shall not be reconstructed and used as before such calamity, but if less than seventy-five (5) per cent damaged, it may be reconstructed or used, provided that it be done within six (6) months of such calamity.'

The special permit under which defendant enlarged his hospital is Resolution No. 13932, viz.:

'A resolution to grant the application of Dr. A. T. Knowles for a permit to erect an additional Building at No. 2936 N.W. 17th Avenue, be, and the same is hereby granted.'

The authority for the adoption of the Resolution is Section 6238 of the Code for the City of Miami and is viz.:

'That the City Commission of the City of Miami shall, from and after the passage of this Ordinance, be and it is hereby declared a Board of Adjustment so that where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this Ordinance, the Board of Adjustment shall have power in specific cases, after due notice, and investigation, to determine and vary any such provisions in harmony with the general purpose and intent of the Zoning Ordinance so that the public health, safety and general welfare may be secure and substantial justice done and said Board may among other matters:

'(a) Hear and decide appeals from any order, requirements, decision or determination of an administrative officer in the enforcement of this Ordinance.

'(b) Hear and decide special exceptions to the terms of this Ordinance and the authority of which is conferred upon said Board of Adjustment by this Ordinance.

'(c) Authorize upon appeal, in specific cases, such variance as will not be contrary to the public interest, when, owing to special conditions, a literal enforcement of the provisions of the Ordinance will result in unnecessary hardships, and so that the spirit of this Ordinance shall be observed and substantial justice done.'

On June 8, 1938, plaintiffs below exhibited their amended bill of complaint in the Circuit Court of Dade County, Florida, praying for a restraining order against the use of the recently constructed buildings as a veterinary hospital and that the veterinary hospital unit be decreed a nuisance. An answer was filed and testimony taken and several exhibits offered in evidence by the respective parties. The Special Master made findings as to law and facts and exceptions thereto were filed by counsel for the parties. On final hearing the lower court entered a decree which is in part viz.:

'It is further ordered, adjudged and decreed that the defendant, A. T. Knowles, his agents and employees, be and they are hereby permanently enjoined from maintaining on said premises any peafowls, and that the said defendant be further enjoined from maintaining or treating on said premises any dogs outside the building now occupying said premises and as now constructed.

'It is further ordered, adjudged and decreed that the prayer for a permanent injunction against the above named defendant enjoining the use of said building for the housing or treatment of dogs within the building upon said premises be temporarily denied and without prejudice, with leave to present said cause again after the expiration of six months, with leave after such time to procure an order of reference to a master to take such further evidence upon the issues as the parties may adduce.'

From the aforesaid final decree an appeal has been perfected to this court and numerous reasons urged for a reversal thereof. Counsel for plaintiffs below (appellees here) have filed a number of cross-assignments of error. These assignments are predicated largely on questions of fact settled by the chancellor in the final decree. There is no provision in the final decree appealed from as to the granting or denial of a restraining order against the maintenance and continued operation by the defendant of the dog cemetery located on the three-acre tract.

Counsel for plaintiffs below contended that the barking, yelping, scratching and growling of some sixty or sixty-five dogs at different hours, day and night, while kenneled on the three-acre tract of the defendant and the maintenance of a cemetery for the burial of dogs prevented sleep and otherwise disturbed the rest of the numerous owners and their families recently acquiring homes located within 1,000 feet of the hospital; that the loss of sleep caused by the noise of the dogs affected their health and otherwise interfered with, annoyed and disturbed them in the free use, possession and enjoyment of their property; and that the maintenance of the hospital is a nuisance per se. In the case of Mercer v. Keynton, 121 Fla. 87, 163 So. 411, 413, this court said:

'An owner or occupant of property must use it in a way that will not be a nuisance to other owners and occupants in the same community. Anything which annoys or disturbs one in the free use, possession, or enjoyment of his property or which renders its ordinary use or occupation physically uncomfortable may become a nuisance...