Staninger v. Jacksonville Expressway Authority, G-415

• Decision Date: 10 February 1966
• Docket Number: No. G-415,G-415
• Citation: 22 A.L.R.3d 950,182 So.2d 483
• Parties: John C. STANINGER, Louise B. Staninger, Robert H. Milford, Frances Milford, L. B. Milford and Dorothy Milford, Appellants, v. JACKSONVILLE EXPRESSWAY AUTHORITY, a corporate agency of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 483

182 So.2d 483

22 A.L.R.3d 950

John C. STANINGER, Louise B. Staninger, Robert H. Milford, Frances Milford, L. B. Milford and Dorothy Milford, Appellants, v. JACKSONVILLE EXPRESSWAY AUTHORITY, a corporate agency of the State of Florida, Appellee.

No. G-415.

District Court of Appeal of Florida, First District.

Feb. 10, 1966.

Greene, Greene & Kennelly, Jacksonville, for appellants.

Jones & Foerster, Jacksonville, for appellee.

STURGIS, Judge.

Appellant landowners bring this appeal to review a final judgment in a condemnation proceeding, complaining that the trial court erred (1) in permitting the jury to consider the effect of private covenants and restrictions upon the use of the land in arriving at the amount to be paid for appropriation thereof; (2) in refusing to allow a witness for appellants to state an opinion, based on his investigation of similar situations, as to the cost and reasonable probability of the removal of said restrictions; and (3) in admitting testimony as to the amount the landowner paid for the property approximately four years prior to the taking.

The property involved consists of Lots 1, 8, 9, 10 and 11, Block 5, of Bridgewater Subdivision, Duval County, Florida, per plat recorded July 8, 1946. Said subdivision consists of 91 residential lots, all of which are subject to a restrictive covenant imposed by the developers on July 12, 1946, limiting the use to single-family residential purposes. As of the date of appropriation appellants' five lots and two others were vacant, and the remainder were being used for the purpose as restricted.

On October 24, 1964, the Duval County Commission zoned Lots 1, 10 and 11, fronting 197.52 feet on Beach Boulevard (formerly Hogan Road and now a multilane thoroughfare) as 'Business A-1,' and zoned Lots 8 and 9 as 'Residential C.' The record does not disclose the specific uses which, absent overriding private covenants or restrictions running with the land, would be permissible under said zoning classifications. In view of our conclusions, however, such data is immaterial.

The condemning authority qualified one Richard D. Barker as an expert witness on the material issue of the amount of compensation to be paid for appropriation of the subject lots. He testified that in his opinion the value as of the date of taking was $7,475.00. In arriving at that figure he took into consideration an item of $3,000,00 as to which there is no dispute, estimated to be the reasonable expense necessary to be incurred prior to use for the restricted purpose to have the lots filled to the grade level of streets on which they front. He also took into consideration the limitation on use under said restrictive covenants, as to which he said, in effect, that he saw no way except by judicial decree for the same to be removed prior to the time specified by the developers. The basis for his valuation was the premise that the use as so restricted was the highest and best use as of the date of taking.

Appellants qualified two witnesses as experts upon said issue of value. The basis for their estimate of value was that despite said restrictive covenants, the highest and best use of the property at time of taking was for business and multiunit apartment purposes, and appellants insist that such basis alone prevails under the facts . One of appellants' witnesses valued same at $59,256.00, and the other at $81,400.00.

One of the owners, John C. Staninger, being called by appellee as an adverse witness, testified over objection of his counsel that he and his co-owners purchased said lots in 1960 or 1961 for $6,200.00 or $6,300.00 from a corporation of which he was vice president, and there is nothing to indicate that such was not an arms-length transaction.

The jury awarded $8,000.00 for the taking, thus allowing a greater value than that assigned by appellee's witness but less than that assigned by appellants' witnesses.

Turning to the effect of the restrictive covenants, the record is clear that appellants did not at any time in the course of the trial object to the introduction of the covenants in evidence; that their first objection in that behalf was by way of an exception to a charge given after the court had refused to charge the jury to the effect that it should give no consideration to the restrictive covenants placed on the use of the land by the subdivider or developer and should base its verdict upon the highest and best present use thereof, the covenants notwithstanding. The court charged, inter alia:

'The rezoning of property for use inconsistent with restrictive covenants, if any, on the property, does not by itself remove or release such restrictions. However, if it is shown by, and you find from the preponderance of the evidence, that it is reasonably probable that existing regulations or restrictive agreements prohibiting the use of the property for business purposes may be removed by agreement of the parties concerned, or by judicial decree, then the value of such property for business purposes may be considered along with all the other circumstances having reasonable relation to the value of the property.'

It is well settled that the zoning or rezoning of real property cannot in any way abolish, abrogate or enlarge lawful contractual covenants and restrictions pertaining thereto. Zoning ordinances regulate land uses through the exercise of police power in accordance with what is presumably a comprehensive plan for the entire community. As said by Rathkopf on The Law of Zoning and Planning, Chapter 74, § 1:

'it is entirely divorced in concept, creation, enforcement and administration from restrictions arising out of agreement between private parties who may, in the exercise of their constitutional right of freedom of contract, impose whatever restrictions upon the use of their lands that they desire, such covenants being enforceable only by those in whose favor they run.

'A zoning ordinance restriction which permits less restrictive uses than those to which property is limited by a covenant in a deed or private agreement is usually held not to impair the efficacy of the latter.'

To the same effect see 14 Am.Jur., Covenants, Conditions and Restrictions, §§ 299, 338.

In Stephl v. Moore, 94 Fla. 313, 114 So. 455 (1927), the Florida Supreme Court held, in effect, that the right to enforce a restrictive covenant does not depend upon whether the covenantee will be damaged by the breach; that the mere breach is sufficient ground for injunctive relief. And in Dade County v. Thompson, 146 Fla. 66, 200 So. 212 (1941), said court held, in substance, that to justify the removal of restrictive covenants, of the character involved in this suit, it must be alleged and proven that conditions and circumstances existing at the time the restrictions were placed on the land have changed to the extent that the effect of the covenants has been brought to nought; that the test to be applied is whether or not the original intent of the parties as to the restrictive covenants can be reasonably carried out or whether the changed conditions are such as to make ineffective the original purpose of the restrictions.

In Batman v. Creighton, 101 So.2d 587 (Fla.App.1958), the district court of appeal affirmed a decree refusing to eliminate a restrictive residential covenant on a busily traveled street on Tampa where commercial enterprises had sprung up. In Miami Beach United Lutheran Church of the Epiphany v. City of Miami Beach, 82 So .2d 880 (Fla.1955), the Florida Supreme Court enjoined the construction of a church in an area restricted by a comprehensive zoning ordinance to single-family dwellings, golf courses and parks. The court recognized that church activities should be 'promoted and encouraged,' but pointed out that the owner had full knowledge of the restriction when he bought the property. That condition exists in the instant case.

Holding, in line with the decisions, that such restrictions are generally enforceable between the parties even where there are changes in the surrounding areas, the question occurs as to what effect rezoning of the property might have on private restrictions and covenants where great changes have taken place in the surrounding area from that existing at the time the same were imposed. We think this question is directly answered in Wahrendorff v. Moore, 93 So.2d 720 (Fla.1957). The appellants there sought cancellation of single-family residence restrictions on a lot facing U.S. Highway No. 1, and alleged by their complaint that over the years conditions had so changed that the restrictions had become an unjustifiable burden on the use of their lot which the county zoning board had in the meantime zoned for business uses. To support the alleged changed conditions appellants cited the general development in the area, the tremendously increased traffic on U. S. Highway No. 1, and the fact that a motel had been constructed in violation of the restrictions on a part of the subdivision. The Florida Supreme Court said, inter alia:

'It is true * * * that the law favors the free use of real estate and restrictions on usage will customarily be strictly construed. Nevertheless, such restrictive covenants are valid and will be recognized and enforced when established by contract between the parties involved.'

The court below was most liberal in allowing testimony as to the change in character of the area surrounding the subject property since the imposition of the restrictive covenants. With such evidence, the jury was able to evaluate all the material facts touching upon the value of the subject property at time of taking. The compensation to be made to the landowner should be 'the fair actual market value at the time of the lawful appropriation' (Sunday v. Louisville & N. R. Co., 62 Fla. 395, 57 So. 351 [1912]), which consists of the amount that a willing purchaser, under no compulsion to buy, would pay for the property. The condemning...