Stone v. City of Maitland

446 F.2d 83, 2ERC 1851 5th Circuit Court August 4, 1971 A municipal authority may prohibit the construction of new gas stations by means of restrictive zoning ordinances where such regulations have been established in order to protect the aesthetic environment. The proper exercise of police power included not only the interests of public health, safety, morals, and general welfare but also the aesthetic appeal of the community. the City of Mailand, Florida has demonstrated that concentrations of gasoline stations tend to blight the surrounding area because they create traffic problems, fierce competition, and correspondingly increased probability of business failure resulting in abandoned stations. The decision of the court below is reversed. Counsel for the Plaintiffs L.W. Carroll, Jr. Kenneth R. Marchman Counsel for the Defendents James O. Driscoll John R. Brown, Chief Judge: The issue was the by-product of the industrial mobile complex-sought to be built is another gasoline filling station to serve the insatiable demands of a major marketer. What was sought and obtained, in the name of the Fourteenth Amendment and the Due Process Clause. Disclaiming any purpose, power, or prescience in the name of the Constitution to substitute the court for the legislative bodies having primary responsibility, to second guess their judgements on intricate matters of urban life, draw lines which distinguish between what people see and smell, the problem was committed to the Florida courts recognizing judicially, E.B. Elliott Advertising Co. v. Metropolitan Dade County that aesthetics is one of society's protectable interests. The injunction granted to Stone, for the benefit of Shell Oil Company. In 1936, Mr. Stone, the plaintiff's husband, acquired a corner lot in Commercial District C-1 of Maitland, a suburb of Orlando, Florida. The lot has frontage on U.S. Highway 17-92 and on Horatio Avenue. Prior to Mr. Stone's death in 1964 the property had been used as a retail citrus outlet. In 1965 Mrs. Stone sought permission form the Planning and Zoning Commission of Maitland to build the gas station since this was the best and most profitable use of the property. In 1965 and 1966, Mrs. Stone's request were rejected because her property did not meet all prior zoning ordinances and adopted a new comprehensive one which in addition to the distance limitation prescribed a minimum frontage (150 feet) for interior lots and a dual frontage (150 feet) for corner lots. It is this ordinance that was under constitutional attack. In October 1967 Stone filed for a variance with the Zoning Board of Adjustment. The Board denied the request. This litigation followed. I. Res Judicata At the outset, the Fifth Circuit Court disposed of the contention that a state courts disposition of this case barred it from consideration under the doctrine of res judicata or prior election of state court remedies. After the unfavorable decision of the Zoning Board, Mrs. Stone filed a writ of certiorari to the Circuit Court of the Ninth Judicial Circuit of Florida to review her case. Before the court could rule, it required that there be a filed a written order or decision of the Board. Mrs. Stone's counsel twice sought such a document, but none was ever supplied by the Board. Accordingly, the Circuit Court dismissed the petition. Under the doctrine of res judicata a prior judgement on the merits rendered by a state court of competent jurisdiction operates as a bar to subsequent adjudication of the same cause of action, in substance rather than form, between the same parties or their privies in federal court (emphasis in the original)E.B. Elliott Advertising Co. v. Metropolitan Dade County. It was obvious that in no sense did the Circuit Court render judgement on the merits. Rather, it dismissed the case on a procedural flaw, one which Mrs. Stone did all she could to remedy. Since there had been non adjudication on the merits by the Circuit Court, there is no bar for res judicata or election of remedies. II. The Due Process Clause The notion "the due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely has long been discarded. We returned to the original constitutional proposition that the courts did not substitute their social and economic belief for the judgement of legislative bodies, who are elected to pass laws." Ferguson v. Skrupa 1963 It has been a generation since the Supreme Court's due process decision cut down all national efforts towards economic recovery and endangered the role of the judiciary as a co-equal branch of government. But ten years after the court battles of the thirties, the same Court that produced the constitutional anomaly of Adkins v. Children's Hospital (1923), pondered the constitutionality of of a local zoning ordinance and wrote an opinion in a language more reminiscent of Ferguson than Adkins. It "must be said that before the [zoning] ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals, or general welfare. City of Euclid v. Ambler Realty Co 1926 Upholding the zoning code over claims that it violated the due process and equal protection clauses, the Court illustrated how such ordinance have a clear relationship to a city's effort to protect the health and security of children, to suppress disorder, to extinguish fires, regulate street traffic, prevent fires, regulate street traffic, prevent congestion, reduce the "danger of contagion," facilitate police protection, to lessen the noise level, and to provide a wholesome residential atmosphere. See Gorieb v. Fo, 1927; Nectow v. City of Cambridge, 1928; Washington ex rel. Seattle Trust Co v. Roberge, 1928; Berman c. Parker, 1954. Thus in testing the zoning ordinances before us, the sole question is whether there is a rational relationship between the ordinance and the promotion of some aspect of the City's police power. (the remaining portion was cut off during .pdf conversion) III. The 150 Foot Requirement We first considered the constitutionality of the 150 foot frontage requirement. Stone claims that it is unconstitutional because (i) it discriminates against corner lot owners in that they must have 150 feet on each of the two street sides and in favor of interior lot owners who only 150 feet on one side and (ii) even though (i) demonstrates "a reasonable relations to permissible objectives which promote the public health, safety, morals, and general welfare to satisfy the requirements of the Due Process Clause of the Fourteenth Amendment," Elliot, supra, 425 F.2d at 1151, the requirement violates the Equal Protection Clause because there is no similar footage requirement for other businesses such as drive-in groceries and restaurants which generate as much, if not more, drive-in-drive-through traffic than does a filling station. Contention (i) we can easily deal with. The evidence showed that the heavy tourist trade in the area made trucks, U-hauls and housetrailers common sights and afforded a reasonable basis for concluding that this frontage was necessary. Quite often several of these long vehicles would be parked end-to-end in a station. Combine this with the driving maneuvers created by gas pumps and service islands and we can conclude that the City of Maitland, like many other cities in the vicinity, was justified in finding this long frontage requirement was a necessity to keep the traffic flowing on the access streets. And if this traffic would otherwise accumulate on one access street it would do likewise on two. Thus a reasonable relationship to the constitutionally permissible objective of reducing traffic congestion is present. In fact the District Court did not really hold that the corner lot-interior lot distinction could not be legitimately explained. Rather, the Court based its holding on equal protection grounds espoused by Stone in contention (ii)-that is, other businesses with corner lots created similar traffic problems, but they had no 150 footage requirement for every side facing the street. It was important to recognized exactly what the Equal Protection Clause entailed. If the legislature senses an evil, it may with it. At the same time it is under no compulsion to deal with all other evils that are seen to be equally serious. "The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions; requiring different remedies. Or so the legislature may think.***Or the legislative mind.***The legislature may select one phase of one field and apply a remedy there, neglecting the others.***The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.* Williamson v. Lee Optical Company of Oklahoma, 1955, 348 U.S. 483, 75 S.Ct.461, 465,99 L.Ed. 563,573. In Mayhue, supra, the restriction that imposed a more stringent burden on those who sold liquor for consumption off the premises than those who sold it for consumption on the premises was invalidated. The supposed state interest was the promotion of tourism and the preservation of order, but all the fact the legislative body could have considered were found to have absolutely no relationship to the forwarding of these aims. So in a sense, the equal protection and due process are not different at in that [3 ELR 20446] they centered around the discovery of a rational relationship between the specific non-universal restriction and additional benefit to a public interest. Yet once that relationship was established, the Equal Protection Clause does not impose upon the state the duty to "correct all similar evils wherever they may exist in the County or none at all." Elliott, supra, 425 F.2d at 1155. Because drive-in restaurants may create traffic problems, the city is not necessarily required to use the same, or even any remedy on the the traffic problem involved. The Court found that the frontage requirements bears a rational relationship to traffic safety a gas station, and we therefore need not consider if a similar law would be equally effective in dealing with the same problems of a drive-in grocery or restaurant. This is a problem for the legislature alone to resolve. Hence §16-6(11) (a) does not fall under either the Due Process or Equal Protection Clause. IV. the 350 Yard Requirement Next addressed was the 350 yard distance requirement of §16-6(11) (b). The District Court ruled this section invalid for two basic reasons. First, there is no inverse distance requirement forbidding the building of churches, schools, hospitals and other places of public assembly within 350 yards of a gas station. Second the Court noted that other places in Maitland had been granted variances to erect gas stations even though their property failed to meet all of the ordinance requirements. the Court found that public safety was the only possible justification for the exercise of the City's police power and relying on the City of Miami v. Woolin, 5 Cir., 1968, 387 F.2d 893, decided that the 350 yard restriction had no rational relationship to the promotion near the presently existing gas station, safety would be the same with or without the ordinance, therefore, it was unconstitutional. If public safety was the sole aim of this law Woolin might have more significance. However, the city had other ends as well as safety in mind when it adopted the ordinance. Since a rational relationship to these goal was clearly present, further examination of the safety correlation was unnecessary. The record without substantial contradiction was impressive from the City's standpoint. A prime motivation in passing a new ordinance was the desire to avoid putting too many gas stations in one area. By observing the experience of other nearby cities, Maitland officials became aware of the dangers brought about by not having spacing restrictions. Absent these requirements, the probability of business failure was high. The result was abandoned stations. Abandoned station sites, which in most cases cannot be used for any other commercial purposes, become magnets for junk cars, and sometimes haven for vermin and rodents. If there are several stations of this type in one area, which there are likely to be in a commercial district, the neighborhood becomes blighted and greatly diminished in aesthetic and commercial appeal. This Court and those in Florida have recognized that the enhancement of the aesthetic appeal of a community is a proper exercise of police power. Elliott supra, City of Miami Beach v. Ocean and Inland Co., 1941, 147 Fla. 480, 3. So. 2d 364; Merrit v. Peters, Fla., 1953 65 So. 2d 861; Sunad, Inc. v. City of Sarasota, Fla., 1960, 122 So. 2d 611. For the value of scenic surroundings to tourists, prospective residents and commercial development cannot be overstated. In an age in which the preservation of the quality of our environment has become a national goal, a concern for aesthetics seems even more urgent. Cf. Zabel v. Tabb supra; Note, 12 B.C.Ind & Com.L.Rev (1971). Abandoned gas stations substantially detract from that environment, and the City was warranted in finding that the spacing requirements tend to reduce that threat. Thus the 350 yard distance requirement is constitutional. We hold that it was for the City Fathers, not the Founding Fathers, to make judgments on what Maitland needed to meet the urban menace of blight. Their judgment is confirmed, and that of the Court below is reversed. Reversed 1. the frontage on 17-92 is 192.20 feet, on Horatio Avenue 134.68 feet 2. At the time of trial the value of the property for use as a service station was $135,000 whereas it value for any other use would not exceed $75,000. 3. At that time pertinent ordinance stated: "Section 1. No gasoline station or filing station or service station shall be erected within three hundred and fifty yards (350') of any church, hospital, school or any other such type of public assembly building used by large numbers of people and within three hundred and fifty (350') yards of an existing filling station or service station or gasoline station. the method of measurement shall apply shall be the air line distance measured from the nearest boundary of the premises upon which there exists such churches, hospitals, schools, or other types of public assembly buildings or filing stations or service stations." Zoning, code of Ordinances, City of Maitland, Florida §6-7 (enacted March 24, 1961). 4. "(11) filling stations. The following regulations shall apply to the location, design, construction, operation, and maintenance of filling stations: (a) A service station lot shall be of adequate width and depth to meet all setback requirements but in no case shall a corner lot have less than one hundred and fifty feet (150') of frontage on each streetside, and an interior lot shall have a minimum width of at least one hundred fifty feet (150'). (b) There shall be a minimum airline distance of three hundred and fifty yards (350), measured from the nearest points of lot boundaries, between a proposed filling station and any existing filling station or between a proposed filling station and any lot occupied by a church, hospital, public or private school, public library, stadium, arena, or other place of public assembly. This provision shall not be construed to place in nonconforming status those filling stations in existence as of the date of enactment of this zoning code." Zoning, code of Ordinance, City of Maitland, Florida §16-6 (enacted May 1967) 5. The District Court found that the "reason for the denial was because of the size of the property and the failure to meet the distance limitations set forth in the ordinances." It was clear that the lot does not meet the 150 foot frontage requirement of Section 16-6 (11) (a), note 4, supra. We were unable to find in the record however exactly how the property fails to meet the distance requirements of Section 16-6 (11) (b). But in view of the arguments successfully advanced and the strong attack on the distance limitation by Stone, it was concluded that the 350 yard standard had likewise not been satisfied. If it was record certain that the failure to comply with each section by itself, (i) the 150 foor requirement and (ii) the 350 yard requirement was the reason for the refusal, then we would have needed only to find either (i) or (ii) constitutional to uphold the decision not to permit the erection of the station and not have needed to consider the constitutionality of the other. Because of this apparent, although most likely unreal, ambiguity, we think it good administration to examine the constitutionality of both (i) and (ii). 6. Section 16010, (page 168.29-30) of the City's Zoning Code provides: "Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board or bureau of the governing body of said municipality, may present to a circuit court a petition for issuance of a writ of certiorari, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the ground of the illegality in the manner and within the time provided by the Florida appellate rules. Upon the presentation of such petition the court my allow a writ of certiorari directed to the board of adjustment review such decision of the board of adjustment and shall prescribe therein the time within which a thereto must made and served up the relator's attorney, which shall not be less than ten days and be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, notice to the board and due cause shown, grant a restraining order. The board of adjustment shall not be required to returned the original papers acted upon it, but shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called by such writ. The return shall concisely set forth other facts as may be pertinent and material to show the grounds of the decision appealed and shall be verified. If, upon the hearing, it shall appear to the court that the testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. Costs shall not be allowed against the board unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from. All issues in any proceeding under §§ 176.14-176.20, shall have preference over all civil actions and proceedings." 7."There is nothing covert or conflicting in the recent judgments of the Court on social legislation and on legislative repressions of civil rights. The presumption of validity which attach in genreal to legislative acts is frankly reversed in the case of interferences with free speech and free assembly, and for a perfectly cogent reason. Ordinarily, legislation whose basis in economic wisdom is uncertain can be redressed by the process of the ballot box or the pressures of opinion. But when the channels or opinion and of peaceful persuasion are corrupted or clogged, these political correctives can no longer be relied on, and the democratic system is threatened at its most vital point. In that event the Court, by intervening, restores the processes of democratic government; it does disrupt." Robert Jackson, The Struggle for Judicial Supremacy at 284-85 (1940). 8. We believe this approach is the same as Florida's use of the "fairly debatable" doctrine in analyzing this issue. See, e.g., City of Boca Raton v. Tradewind Hills, Inc., Fla-App., 1968 216 So. 2d 460: City of Miami Beach v. Lachman, Fla., 1953, 71 So 2d 148. This term "fairly debatable" in fact first appeared in the City of Euclid case. 9. This was pure theory. There is no evidence that any such building had been built or that sites for them were likely to be selected within the minimum distance. Such restrictions are common in beer-alcohol area and few if any prohibit-if they could under the First Amendment-the building of a church to help men's spirits. 10. In finding this relationship we give little weight to the finding that city had granted five variances to build stations in District C-1, stations which did not meet the distance requirements. These variances were granted under the old, less comprehensive 1961 zoning law, see not 3 supra, well before Mrs. Stone's application arrived on the scene. Under the new ordinance, no variances have been permitted In Woolin, on the contrary, we found the variances to be the rule and not the exception. Practically every gas station was within the prohibited distance of another gas station and nearly one-third were in the prohibited distance of a church, hospital, or school. Furthermore, variances had be granted, almost condoned by the city demonstrated that the city was not really trying to promote public safety by this ordinance and deviation under different ordinance guidelines, means to abide by its ordinance. the factor, therefore, does not move use in the direction of Woolin. 11. For example the City introduced the evidence of 54 abandoned gas stations in the Orlando area alone. 12. They can be, and in Florida have been, a place where crime is furthered. See United States v. Kilgen, 5 Cir., 1970, 431 F.2d 627, on rehearing, 5 Cir., 1971, 445 F.2d 287. And gas stations can produce even more bizarre risks. See Clegg v. Hardware Mutual Casualty Co., 5 Cir., 1959, 265 F.2d 152