Your Neighbor Is Violating A City Ordinance, But The City Disagrees. Can You Sue The City? No. Can You Sue The Neighbor? Maybe, Says A Florida Appellate Court.

It is not difficult to imagine a scenario in which a property owner dislikes a neighbor’s new fence, wall or hedge.  But what if the new fence, wall or hedge violates a local ordinance and the city refuses to file an enforcement action?  Can the aggrieved property owner sue the city for failing to enforce its ordinance or sue the neighbor for violating the ordinance?  Florida’s Second District Court of Appeal has ruled that such a property owner lacks standing to sue the city, but may be able to sue the neighbor.  See Chapman v. Town of Redington Beach, 282 So.3d 979 (Fla. 2d DCA 2019).

In Chapman, the trial court granted summary judgment in favor of both the city and the neighbor.  The appellate court affirmed, without any detailed explanation, the trial court’s decision regarding the claim against the city on the basis that a court may not compel a city to pursue an enforcement action without violating the separation of powers doctrine.  The appellate court reversed the trial court’s grant of summary judgment in favor of the neighbor, however, because the property owner had sufficiently showed “special damages” as required by applicable law.  The Second District Court of Appeal explained, in relevant part:

The Chapmans and Mr. Backman own neighboring beachfront properties. On January 18, 2016, the Chapmans filed a second amended complaint against the Town and Mr. Backman in which they describe numerous modifications that Mr. Backman has made to his property and allege that each violates a Town zoning ordinance. It also alleges that the Chapmans have suffered special damages because their property is “materially less safe and materially less valuable due to these violations.” The complaint asks for declaratory judgment that the improvements violate Town ordinances and seeks supplemental and injunctive relief, including the removal of the improvements. See §§ 86.021, .061, Fla. Stat. (2015). As relevant here, the complaint identifies three violations for which the Chapmans seek relief; the complaint calls them the “accessory structure,” the “safety sight triangle,” and the “hedge.”

The accessory structure is a former workshop which Mr. Backman has partially renovated. According to the Chapmans, Mr. Backman got a permit to add a second story to the structure, but the permit was wrongfully issued because the value of the renovations exceeded fifty percent of the original value of the structure. The complaint also alleges that the permitted renovations have been abandoned because Mr. Backman has ceased constructing them.

The safety sight triangle refers to what the complaint alleges to be a hazardous traffic situation caused by Mr. Backman’s construction of a wall along the roadway to which the Chapmans’ driveway connects. According to the Chapmans, this wall blocks the view of oncoming traffic from the Chapmans’ driveway, thus making it dangerous to exit the driveway and posing a danger both to the Chapmans and to others driving, riding, or walking on the road. The Chapmans also allege that this wall was improperly constructed, as it exceeds the height limit imposed by Town ordinance.

The hedge is a growth of vegetation along the ocean-facing side of Mr. Backman’s property. The complaint alleges that it violates a Town ordinance because it is too tall and violates their littoral rights because it obstructs their view of the ocean. It also asserts that the obstructed view negatively affects the Chapmans’ property value.

The trial court granted Mr. Backman’s motion for summary judgment on the theory that the Chapmans lack standing to enforce the Town’s zoning ordinances. A private citizen has standing to enforce a valid municipal zoning ordinance only when special damages are alleged and proven. Skaggs-Albertson’s v. ABC Liquors, Inc., 363 So. 2d 1082, 1086 (Fla. 1978). In this context, special damages are any injury “peculiar to [the plaintiff] differing in kind as distinguished from damages differing in degree suffered by the community as a whole.” Boucher v. Novotny, 102 So. 2d 132, 135 (Fla. 1958); see also City of Ft. Myers v. Splitt, 988 So. 2d 28, 31 (Fla. 2d DCA 2008). The rule serves to limit the avalanche of litigation that might otherwise result from any alleged zoning violation; one need not have a surfeit of imagination to picture the results if every member of a community bothered by a single zoning violation was authorized to bring the same suit against the same defendant alleging the same general type of harm. See Skaggs-Albertson’s, 363 So. 2d at 1088; see also U.S. Steel Corp. v. Save Sand Key, Inc., 303 So. 2d 9, 12 (Fla. 1974) (quoting Askew v. Hold the Bulkhead-Save Our Bays, Inc., 269 So. 2d 696, 697 (Fla. 2d DCA 1972)). Thus, plaintiffs in these types of cases are required to plead and prove what amounts to a harm peculiar to themselves.

What emerges from these cases—and we think it correct—is a recognition that an owner of property which is adjacent to or nearby land upon which there is a zoning ordinance violation may, by virtue of proximity, be peculiarly affected by the violation, even if his or her injuries might at some level of generality be described as similar to those of other community members. As a thought experiment, imagine a small community of homes arrayed in a W-shape facing the water with two lots at the top-center of the W and the water beyond it. Now imagine that the owner of a lot at the top-center of the W closest to the water builds a house much higher and wider than the community’s zoning ordinances allow. All members of this community might have their water views impaired—wherever they are, some part of the new house will likely block some of their views—but the owner of the lot directly behind the new house will by virtue of the magnitude of the new construction have his or her water view totally occluded.

Applying a lenient construction of the special damages rule, opinions like Carroll, Kagan, and Gardner would correctly regard the owner of the lot behind the house as having standing to enforce the zoning ordinance against the offending landowner. Why? Because although there might be some similarity about the injuries suffered by all community members (impairment of a view), only the landowner immediately behind the new house has had his view blocked entirely. The difference is so significant as to make any similarity to the injury suffered by other landowners immaterial; it amounts to a difference in kind, and it is directly related to proximity and position with regard to the land on which the zoning violation occurred.

The second amended complaint sufficiently alleges a theory that the Chapmans have suffered special damages in the form of a diminution in their property value and a reduction in their safety as a consequence of Mr. Backman’s alleged zoning violations. It asserts that the Chapmans own the property adjacent to Mr. Backman’s property and that the property on the other three sides is public land. It alleges that Mr. Backman began a second-story addition to the accessory structure, constructed a wall that created a “hazardous traffic situation for the [Chapmans],” and erected a hedge in lieu of another wall that obstructed the Chapmans’ water views, thereby reducing their property’s value. It says that all of Mr. Backman’s actions on the property are part of his publicly stated “goal of building a secured compound with high walls and privacy even though this particular site has … strict Gulf front visibility protections, setbacks, and height restriction.” And it ultimately alleges that all of Mr. Backman’s alleged zoning violations have caused the Chapmans “adjacent property [to be] specially damaged because it is materially less safe and materially less valuable due to these violations.”

These are not, as the trial court concluded and Mr. Backman urges here, merely “bald allegation[s]” of special damages. Boucher, 102 So. 2d at 136. They are instead articulable, ultimate facts that set forth a theory of special damage that makes legal sense under the precedents we have discussed above—namely, that the Chapmans as adjoining landowners are uniquely injured by Mr. Backman’s alleged zoning violations because those violations uniquely diminish the value of the property and uniquely affect their safety. The facts they have alleged sufficiently distinguish the harms they have suffered from any harms suffered by the community at-large. Whether the evidence will bear the Chapmans’ pleaded theories of special damages out with respect to each of the zoning ordinance violations the Chapmans allege is, no doubt, an open question. But the Chapmans have alleged special damages “with sufficient clearness to enable the court to determine whether [they are] entitled to maintain the suit.” Boucher, 102 So. 2d at 136; see also Carroll, 276 So. 2d at 493.

Chapman, 282 So.3d at 980-986 (footnotes omitted).

Thus, if your neighbor’s new construction or landscaping project violates a local ordinance in Florida and the city ignores your request for help, you probably cannot successfully sue the city, but you may be able to sue your neighbor if you are able to show that you have uniquely suffered an injury and special damages.

Copyright 2020

Matthew J. Meyer, Esq.

Ansa Assuncao LLP