Stokes v. City of Jacksonville

• Court: Florida District Court of Appeals
• Writing for the Court: RAWLS
• Citation: Stokes v. City of Jacksonville, 276 So.2d 200 (Fla. App. 1973)
• Decision Date: 29 March 1973
• Docket Number: No. Q-419,Q-419
• Parties: Harold F. STOKES, St. Johns Enterprises, Inc., a corporation, et al., Appellants, v. The CITY OF JACKSONVILLE, a municipal corporation, Appellee.

Page 200

276 So.2d 200

Harold F. STOKES, St. Johns Enterprises, Inc., a corporation, et al., Appellants, v. The CITY OF JACKSONVILLE, a municipal corporation, Appellee.

No. Q-419.

District Court of Appeal of Florida, First District.

March 29, 1973.

Rehearing Denied May 8, 1973.

Tyrie A. Boyer, Jacksonville, for appellants.

T. Edward Austin, Jr., Gen. Counsel, Thomas D. Oakley and W. E. Grissett, Jr., Asst. Gen. Counsel, for appellee.

RAWLS, Acting Chief Judge.

Appellants' primary contention in this appeal from a final judgment in favor of appellee is that the City's action in failing to rezone appellants' property from a single family residence classification to a commercial intensive classification is so arbitrary and capricious that it constitutes an unconstitutional confiscation of appellants' property.

Seven lots comprising a little more than one acre of land are involved. The aggregate lots are bounded on the north by Post Street (a four-lane highway); on the south by Astral Street; and on the west (230' frontage) by Cassat Avenue, a heavily traveled six-lane highway. The easterly ten feet of the subject property, which abuts a long-established single family residential neighborhood, was intentionally omitted from the application for rezoning for the purpose of affording a landscaped buffer strip. Lot 102 which contains 115 feet frontage on Cassat Avenue and 70 feet frontage on Post Street has always been vacant. Abutting Lot 102 to the east is Lot 103 which has 50 feet frontage on Post Street and a southerly depth of 115 feet. Lot 103 had a house situated upon it which was condemned by the City of Jacksonville and removed. This lot is now vacant. Lots 104 and 105, each fronting Post Street for a distance of 50 feet and running south 115 feet, are improved by a single family residence and are owner-occupied. Lot 9 is situated on the corner of Cassat Avenue and Astral Steet with a 115-foot frontage on Cassat Avenue (the residence is now only 10 feet from the right-of-way line) and 65-foot frontage on Astral Street. It is improved by an owner-occupied residence which is located only 10 feet away from the right-of-way line for Cassat Avenue. Lots 8 and 7 each have 63 feet frontage on Astral Street and are 115 feet deep, and each are improved with an owner-occupied residence.

At present, Cassat Avenue is the dividing line in this specific area between commercial development to the west and a residential area to the east. Cassat Avenue is predominantly an automotive oriented artery where sizable investments have been made by automobile dealers. The east-west street on the northern boundary of the subject property is Post Street (a four-lane highway) which becomes Normandy Boulevard (a six-lane thoroughfare) after crossing the western side of Cassat Avenue. A Standard Oil service station is located on the corner of Post Street and Cassat Avenue directly to the north of Lots 102 and 103. Located diagonally across Cassat Avenue from the subject property is a Shell service station and directly west across Cassat Avenue is situated an American Oil Co. service station. So, three out of the four corners of the intersection of Cassat Avenue and Normandy Boulevard-Post Street are now occupied by service stations. In addition, directly across Cassat Avenue from this acre parcel is located a 'Super Burger' restaurant; a fish market, House of Trophies business, a billiard parlor, and a cocktail lounge.

This record is replete with evidence that the subject property is not suitable for single family residential zoning. Mrs. Harrell testified that she had lived on Lot 104 for 24 years and during this period of time, a marked change in the neighborhood had occurred. Specific examples given by her were increased traffic on Post Street because of Normandy Boulevard and Normandy Shopping Center; service stations on three corners of Cassat and Normandy-Post; that she cannot sit on the porch because of the noise of the cars and fumes; and that when she moved there it was purely residential. Mrs. Johnson, who lives on Lot 105 testified that the traffic and fumes are so obnoxious that she cannot open her front door for any length of time, is not able to '. . . hear any TV', and the fumes permeate her house; all of which result in discomfort to her in living on this property. Mr. Masters testified that he had lived on the corner of Cassat Avenue and Astral Street (Lot 9) since 1946; that when he first moved there, Cassat Avenue was a two-lane highway and was subsequently widened to about a hundred feet, six-lane highway, located approximately 10 feet from his house; he has to back his car out of his garage onto Cassat which sometimes takes about 15 to 20 minutes; is forced to keep the windows and doors of his residence closed all the time; has difficulty in sleeping due to traffic noise and sirens; and that in 1952, the character of the neighborhood began changing when a service station and a hamburger place located across the street. Mr. Sapp testified that he had lived next to Mr. Masters (Lot 8 fronting Astral Street) since 1957, and that the neighborhood had substantially deteriorated; since he bought this property, Cassat Avenue had been widened and Normandy Boulevard had also been widened and '. . . made strictly a commercial area west of Cassat which is the Normandy Shopping Mall . . .. As an illustration, we had our bedroom on the northwest side of our home, and we closed this bedroom off and moved to a bedroom on the east side because of the noise and gasoline . . .. Cassat Avenue now is a truck route and these tremendous diesel trucks, and the kind of trucks that haul concrete, things of that kind, they generate a lot of smoke and gas and a lot of oil . . .. We have had rats and things of that type, not little mice, but we have had these big wharf rats. That...