Sarasota County v. Barg
| Citation | 302 So.2d 737 |
| Decision Date | 19 April 1974 |
| Docket Number | Nos. 44028--44030,s. 44028--44030 |
| Parties | SARASOTA COUNTY, Florida, et al., Appellants, v. Joseph V. BARG et al., Appellees. Robert L. SHEVIN, as Attorney General of the State of Florida, Appellant, v. Joseph V. BARG et al., Appellees. CASEY KEY PROTECTIVE ASSOCIATION et al., Appellants, v. Joseph V. BARG et al., Appellees. |
| Court | United States State Supreme Court of Florida |
Richard E. Nelson, of Nelson, Stinnett, Surfus, Payne, Hesse & Cyril, Sarasota, for Sarasota County.
Robert L. Shevin, Atty. Gen., and Kenneth F. Hoffman, Asst. Atty. Gen., for Robert L. Shevin.
H. Lawrence Hardy, Tallahassee, of Bryant, Dickens, Rumph, Franson & Miller, Jacksonville, for Casey Key Protective Ass'n, appellants.
Samuel J. Swisher, of Kreag & Swisher, Sarasota, for Furbee, Carroll, Hanson, McLeod and Wright.
Henry P. Trawick, Jr., of Millican & Trawick, Sarasota, for Manasota Lands, Inc., appellees.
On direct appeal we review a summary judgment of the Circuit Court of the Twelfth Judicial Circuit, in and for Sarasota County, which held Chapter 71--904, Laws of Florida, to be unconstitutional. Our jurisdiction vests by virtue of Florida Constitution, Article V, Section 3(b)(1), F.S.A.
Chapter 71--904 is a special act creating the Manasota Key Conservation District within Sarasota County. After establishing the District and defining the boundaries thereof, the Act contains the following provisions (quoted here in full because of the number and complexity of the constitutional challenges raised):
'Section 4. Density, uses and structures permitted within the district. No lands within the district shall be used for any purpose other than single family residential purposes. No structure shall be constructed within the district so as to exceed two (2) stories in height. Structural density within the district shall not exceed one (1) main residential building unit and one (1) guest house per fifteen thousand (15,000) square feet of lot area, together with other customary out-buildings, including boat houses, docks, and appurtenances thereto. No lands within the district shall be used for commercial or multi-family purposes. Commercial and multi-family structures shall not be constructed within the district. This section shall not render legally existing uses and structures unlawful.
'Section 5. Wildlife sanctuary. The area within the district is hereby declared to be a wildlife sanctuary, subject to protection as provided by the general laws of the State of Florida.
'Section 6. Marine life sanctuary. The area within the district is hereby declared to be a marine life sanctuary. Accordingly, no undue or unreasonable dredging, filling or disturbance of submerged bottoms shall be permitted; however, this shall not be construed to prohibit construction of boat basins and access channels when required permits are obtained. All persons within the district are encouraged to preserve and protect marine nursery and breeding areas. This section shall not be construed to prohibit sports or commercial fishing withing (sic) the district.
'Section 7. Unreasonable destruction of natural vegetation prohibited. The unreasonable destruction of natural vegetation within the district in a manner which would be harmful or significantly contribute to air and water pollution is prohibited within the district.
'Section 8. Board of appeals. In the event that any person owning real property within the district shall question the application or interpretation of this act to his lands or his intended use of same, the building of any structure, the dredging or filling of any lands or the destruction of any natural vegetation, then in that event said real property owner shall have the right and responsibility to file a petition with the governing body of Sarasota County, requesting an interpretation of this act as same applies to said property owner and his lands. The governing body of Sarasota County shall, within thirty (30) days after the filing of said petition, appoint a board of appeals consisting of not less than five (5) nor more than nine (9) owners of real property within the district who are sui juris, twenty-one (21) years of age or older and citizens of the United States of America. Said board of appeals shall convene within thirty (30) days from the date of its appointment at the Sarasota County court house in Sarasota, Florida, for the purpose of considering said petition and granting or denying the relief requested therein. The members of the board will serve without compensation.
'Upon the appointment of the members of the board of appeals, the governing body of Sarasota County shall cause a copy of said petition, together with the names and addresses of each member of the board of appeals to be furnished by 'The meetings of the board of appeals shall be open to the public and the notice of the time and place of any meeting at which the board of appeals shall consider evidence and act upon the petition of a real property owner shall be published one (1) time in a newspaper of general circulation in Sarasota County at least fifteen (15) days before the date of said meeting, and the concerned property owner shall likewise receive at least fifteen (15) days notice by certified mail of the time and place of said meeting.
certified mail to each and every real property owner within the district according to the latest tax assessment roll on file with the tax assessor of Sarasota County, Florida.
'The publication costs and the cost of providing notices by certified mail shall be paid by the petitioning property owner by depositing same with the governing body of Sarasota County at the time of the filing of his petition. Any surplus in the cost deposit shall be refunded and any deficiency shall be paid by said property owner.
'The board of appeals shall elect a chairman and other appropriate officers deemed necessary by said board for the proper conducting of its business. The board of appeals shall conduct its hearings on any petition in accordance with the requirements of chapter 120, Florida Statutes, known as the Florida administrative procedures act, as said act may from time to time be amended.
'The board of appeals shall evidence its decision on any petition by the adoption of an appropriate resolution. Should the petitioning property owner be aggrieved by the decision of the board of appeals, said property owner may, within ninety (90) days after the adoption of said resolution, seek review of the action of the board of appeals in a court of competent jurisdiction within Sarasota County.
'Upon the adoption of a resolution disposing of a property owner's petition, the duties of the board of appeals shall be deemed discharged, and said board will thereupon stand dissolved, it being the intent of this act to require the appointment and functioning of a new and separate board of appeals to act upon each and every petition of a property owner; however, nothing herein contained shall prevent the appointment of otherwise qualified real property owners within the district to serve upon successive board (sic) of appeals, and the simultaneous appointment and functioning of more than one board of appeals is hereby specifically authorized.
'Section 9. Judicial relief. Any owner of real property within the district who determines that his property rights have been adversely affected by the provisions of this act may seek relief in any court of competent jurisdiction in Sarasota County, Florida, provided said real property owner had exhausted his administrative remedy by seeking relief through the filing of a petition with the board of appeals in accordance with section 8 hereof.
'Section 10. Enforcement. Any owner of real property within the district may enforce the provisions of this act or enjoin the violation of same by appropriate civil proceedings in any court of competent jurisdiction in Sarasota County, Florida. In order to enforce the provisions of this act and to enjoin a violation of same, a real property owner need not allege or prove that the concerned violation of this act will adversely affect the property rights of said real property owner to any greater extent or different degree than it will affect any other real property owner within the district. A civil action for the enforcement of this act may include, but shall not be limited to a suit for an injunction, including temporary and mandatory forms of injunction. A real property owner who is successful in his efforts to enforce this act, or any portion of same, through civil proceedings, shall be awarded his court costs 'Section 11. Construction. This act shall not be construed as limiting or repealing the application of any law or regulations dealing with the subject of zoning, conservation and air and water pollution standards; but in the event that any of the standards of protection specified by this act shall be more restrictive that those specified in such other law or regulation, the standards specified by this act shall prevail, it being the specific intent of this act to provide for and apply such zoning, conservation and air and water pollution standards as will be the most protective of the natural beauty, marine and wildlife of the area. If any section, sentence, clause, phrase or word of this act is for any reason found or declared to be unconstitutional, inoperative or void, such holding of invalidity shall not affect the remaining portions of this act; and it shall be construed to have been the legislative intent to pass this act without such unconstitutional, invalid or inoperative part therein; and the remainder of this act, after the exclusion of such part or parts, shall be deemed and held to be valid as if such part or parts had not been included therein.
together with a reasonable attorney's feet to be assessed as a judgment against the person or persons determined by the court to have...
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