State ex rel. Gardner v. Sailboat Key, Inc., s. 74--8
| Decision Date | 07 May 1974 |
| Docket Number | Nos. 74--8,74--9,s. 74--8 |
| Citation | 295 So.2d 658 |
| Parties | STATE of Florida ex rel. Frank C. GARDNER et al., Appellants, v. SAILBOAT KEY, INC., et al., Appellees. |
| Court | Florida District Court of Appeals |
Paul & Thomson and Joseph Z. Fleming, William Huggett, Miami, for appellants.
Sams, Anderson, Alper, Spencer & Post, Sam Daniels, Horton & Perse, Miami, John S. Lloyd, City Atty., for appellees.
Robert L. Shevin, Atty. Gen., for amicus curiae.
Before PEARSON, CARROLL and HENDRY, JJ.
The plaintiffs below filed an appeal (No. 74--8) and an interlocutory appeal (No. 74--9) from an order entered on motion of defendants to dismiss the plaintiffs' four-count complaint for declaratory judgment, and for supplemental injunctive relief.
In the order appealed from the court dismissed the complaint as to the first count with leave to amend (pursuant to which an amended first count later was filed), and dismissed the complaint as to the second, third and fourth counts with prejudice. On appeal the plaintiffs contend the court committed error in dismissing the complaint as to the second, third and fourth counts.
The complaint as amended was directed to harm which it was anticipated would befall the residential area on the mainland as a result of the city having zoned Fair Isle The second count alleged that in applying for the zoning the defendant landowner was guilty of misrepresentations, and of deceptive trade practices violative of the Florida Unfair Trade Practices and Consumer Protection Act, § 817.76 et seq., Fla.Stat., F.S.A. (Ch. 73--124). We find no error in the dismissal of that count. The alleged misrepresentations would not give rise to an action by the plaintiffs. The same is true as to violations of the Consumer Protection Act, if such occurred.
(an undeveloped island in Biscayne Bay lying several hundred feet off shore from a residential section of Miami just north of Coconut Grove), to a classification permitting construction thereon of four high rise residential buildings (two of forty stories and two of thirty-six stories) to house some three thousand persons, with social clubs, nightclubs, marina, etc., said island being connected by a bridge accessible from South Bayshore Drive by a street passing through the existing residential area.
The third count presented an application to enjoin the threatened public nuisance alleging that the construction and use of the property for the purpose for which it had been so zoned would result in construction and maintenance of a place which would tend to annoy the community, as provided for by §§ 60.05(1) and 823.05 Fla.Stat., F.S.A. Numerous factors and results which would constitute such an annoyance to the community were alleged in that count. In the brief of the appellees, with reference thereto, it was stated: 'In Counts III and IV, plaintiffs allege that even if Fair Isle is developed and operated in strict accord with all zoning and building laws as authorized by the appellee City of Miami, it will be both a private and a public nuisance.'
The order dismissing the complaint as to the third count did not contain a statement of the reason or grounds therefor. The appellees contend it was proper for two reasons. First, appellees argue that the plaintiffs were without standing to sue to enjoin a public nuisance, in absence of allegation and showing they had sustained or would sustain special damages or injury different in kind from that to the public at large. Secondly, they argue that a construction upon and use of property which has been authorized by the zoning thereof would not constitute a public nuisance.
The first of those grounds is without merit. An action to abate a public nuisance 1 may be brought by a citizen of the county in the name of the state (§ 60.05(1) Fla.Stat., F.S.A.), without the necessity of prior application to the state's attorney to bring the suit (Pompano Horse Club v. State ex rel. Bryan, 93 Fla. 415, 111 So. 801, 52 A.L.R. 51) and without necessity for the citizen relator to show he has sustained or will sustain special damages or injury different in kind from injury to the public at large. Pompano Horse Club v. State ex rel. Bryan, supra; Kathleen Citrus Land Co. v. City of Lakeland, 124 Fla. 659, 169 So. 356; National Container Corporation v. State ex rel. Stockton, 138 Fla. 32, 189 So. 4, 122 A.L.R. 1000; Demetree v. State ex rel. Marsh, Fla.1956, 89 So.2d 498, 502; State ex rel. Brown v. Sussman, Fla.App.1970, 235 So.2d 46. 2
However, having standing to so proceed is not sufficient in this instance. This is so, because construction which is permitted by the zoning and use of the property for the purpose zoned, and thereby authorized through such legislative action of the municipality, would not be a nuisance per se. In National Container Corporation v. State ex rel. Stockton, supra, 138 Fla. 32, 189 So. 4, 122 A.L.R. 1000, an action was filed by citizens of Duval County, in the name of the state, seeking to enjoin the defendants from erecting and operating a wood pulp mill, upon a certain site, on the ground that it would constitute a public nuisance. The project sought to be restrained had been expressly authorized by an act of the legislature, notwithstanding common knowledge of the offensive character thereof. The Supreme Court recognized the standing of the relator-plaintiffs to maintain such action, but held that because of the legislative authority for the construction and operation of the wood pulp mill, it would not be a nuisance per se and not be subject to abatement as such.
Here it was municipal legislation which authorized the use of the property in a manner which the plaintiffs contended would be a public nuisance. In theory, municipal legislative authority for a certain use of property should have the same effect as state legislative authority therefor. The weight of authority gives municipal legislation (such as by a zoning ordinance) the effect of immunizing the authorized use from being held to be a public nuisance. See 166 A.L.R. 659, 662--663.
It is indeed a harsh rule, by which a use of property that otherwise would constitute a public nuisance abatable at suit of a citizen in the name of the state, can be held to be immunized from abatement because it was authorized by legislative action--in this case by a city commission by...
To continue reading
Request your trial
-
Florida Wildlife Federation v. State Dept. of Environmental Regulation, 58135
...absolute, however, and exceptions to it have been carved out by both this Court and the legislature. See State ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 3d DCA 1974) (individual may bring action, in name of state, to abate public nuisance without necessity of showing specia......
-
Sailboat Key, Inc. v. Gardner
...complaint, which this court specifically found to state a cause of action. State v. Sailboat Key, Inc., supra; State v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 3d DCA 1974). The statements were absolutely Therefore, the summary judgment under review be and the same is hereby affirmed. Affir......
-
United States v. County Bd. of Arlington County
...of park maintenance distasteful to adjacent residents was an insufficient basis to create a nuisance. Florida ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla.App.1974) relied on by the Government to support their theory of esthetic nuisance, states only that a building could be a ......
-
Cowan v. People ex rel. Florida Dental Ass'n, Inc.
...well recognized, however, that an activity may be a nuisance despite its compliance with state or local law. State ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 3d DCA), cert. denied, 304 So.2d 453 (Fla.), cert. denied, 308 So.2d 111 (Fla.1974). Determination of a nuisance is n......