COURTDECISIONS
PICK-UP TRUCK PARKING IN ASSOCIATION?
VILLAS OF BONAVENTURE AT BONAVENTURE 23 CONDOMINIUM ASSOCIATION, INC.
vs.
IRENE PASQUEL f/k/a
IRENE PASQUEL WEITZNER
IN THE COUNTY COURT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO. 2000-7647-80
JUDGE:    STEVEN G. SHUTTER
VILLAS OF BONAVENTURE AT
BONAVENTURE 23 CONDOMINIUM
ASSOCIATION, INC.

              Plaintiffs, 

VS. 

IRENE PASQUEL f/k/a
IRENE PASQUEL WEITZNER

              Defendants.
_______________________________

                                                   FINAL JUDGMENT
  
THIS CAUSE was heard on March 19, 2001.  The Court having heard the testimony of the witnesses, reviewed the exhibits and heard the arguments of counsel for each party finds that:
1.      The Court has subject matter jurisdiction over this issue to wit: a request by the Plaintiff for
         injunctive relief against Defendant to prohibit the parking of a pick-up truck on their
         property.
2.      The Plaintiff is a condominium association duly organized under the laws of the State of 
         Florida.
3.     The Defendant is a unit owner in such condominium.
4.      Article 2.13 of the Declaration of Restrictions of the Plaintiff
         states:

Trucks and Trailers: In order to maintain the high standards of the Land with respect to vehicles or house or boat trailer shall be permitted to be parked or stored on the Land, except during periods of approved construction.  This parking of truck and commercial vehicles used for pick-up, delivery and the furnishing of commercial services.
5.      From June, 2000 the Defendant and/or her agent parked a 2000 GMC Silverado pick-up
         truck on the condominium property.  The vehicle is a full size pick-up-weighing about 4400
         pounds.
6.     This vehicle is a personal use pick-up with no commercial markings or evidence of any
        commercial use.
7.     The Plaintiff demanded removal of the vehicle in accordance with the association
         restrictions which are similar to the deed restrictions that runs with the land.  The
        Defendant refused to comply.
8.     This pick-up is aesthetically equal to many new passenger cars and superior to many older
        vehicles presently parked at the condominium.
9.     Virtually all Sport Utility Vehicles (SUV) are truck-based and almost all are larger than this
        pick-up.  In fact an Excursion weighs over 7000 pounds.  Even the Chrysler PT Cruiser is
        considered a "truck" under certain federal government guidelines.  The Pontiac Aztec could
        be called a car, van, truck or a confused mess of a design, depending upon who you ask.
10.  In the past decade the most popular vehicle sold in the United States is a pick-up truck
        (Ford F-150).
11.  Therefore, it is clear that the distinction among passenger cars, trucks, SUV'S and vans has
        drastically changed since this restriction was enacted decades ago.
12.  The rules and restrictions imposed by a condominium association to provide the aethetics
        of their property will be enforced by the Courts unless they are found to be unreasonable.

Based on the foregoing the Court finds:

13.   The Plaintiff's restriction as to trucks are applied in this case is unreasonable, will not be
         enforced and the injunction is denied.
14.   The parking of a personal use pick-up truck used solely for personal use bearing no
         commercial marking or modification could not be said to be aesthetically negative. Such
         vehicles along with their cousins the SUV's, have become a staple of our society and to
         prohibit them would unreasonably interfere with the owners right to use and enjoy their
         property. Cultural perception evolve and change. Personal use pick-up trucks do not carry
         the negative implication they might have 25 years ago.  In no way could the parking of
         these vehicles interfere with the quiet enjoyment or the property values of the condominium
         residents.
15.   This ruling does not apply to heavy duty commercial Pick-ups such as Ford F-250 and 
         F-350 or a pick-up with commercial markings or commercial modifications or pick-ups
         used for commercial purposes.
16.   The Court reserves jurisdiction to award appropriate attorneys fees and costs.

         DONE AND ORDERED this  19   day of April, 2001 at Plantation,
Broward County, Florida.

                                                                                             ______SIGNATURE_________
                                                                                                   STEVEN G. SHUTTER
                                                                                                  COUNTY COURT JUDGE

CC: David Schottenfeld, Esq.
        Lee Glassman, Esq.


 

 
 

VILLAS OF BONAVENTURE
AT BONAVENTURE 23
CONDOMINIUM ASSOCIATION, INC.
               Appellant,

v.
IRENE PASQUEL f/k/a
IRENE PASQUEL, WEITZNER
          
               Appellee
_____________________________/

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

JUDGE PATTI ENGLANDER HENNING

Case No. 01 - 9937 (03)
Re: 00 - 7647 (80)

                                                                         OPINION

     The Appellant condominium association seeks reversal of a final judgment of the County Court refusing to enforce a prohibition against parking trucks on the association property. Since the truck prohibition appears in the Declaration of Restrictions, it is presumptively valid and a court can only review it to determine if it is wholly arbitrary or in violation of public policy or constitutional rights. The Pines of Boca Barwood Condo. Assoc., Inc. v. Cavouti, 605 So.2d 984 (Fla. 4th DCA 1992). The fact that trucks no longer project the same image that they did 20 years ago does not meet that criteria.

Further, there is precedent for the enforcement of truck restrictions. High Point of Delray West Condo.  Assoc.  Section 3. Inc. v Nielsen, 594 So..2d 828 (Fla. 4th DCA 1992) (man with hip replacement not allowed to park truck that. was easier for him to get into because he failed to prove medical necessity) and Zerguera v. Centennial Homeowners' Assoc., 721 So. 2d 751 (Fla. 3rd DCA 1998) (homeowner enjoined from parking truck on his own property although he was using it for house repair project and had to  built fence to park it behind). Therefore, the trial court erred to the extent that the final judgment is based on the unreasonableness of the restriction in question.

However, the court in Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979), explained: "Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it."  Therefore, the Applegate court affirmed the trial court's decision" could well be supported by evidence adduced at trial but not stated in the judge's order or otherwise apparent in the incomplete record on appeal.

The affirmative defenses raised below were selective enforcement and waiver, based on other trucks being allowed to park on premises, despite the restriction in the declaration. The final judgment does not address either of these issues. However, no trial transcript, or substitute therefore, has been provided to allow appellate review of whether the decision of the trial court based on those theories is supportable.

Therefore the Appellant has not borne its burden to demonstrate that the court erred in its decision, as well as its reasoning. Accordingly, the order of the trial court is AFFIRMED.
Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979), 

The Appellee's Motion for Appellate Attorneys Fees is Granted as to entitlement.

The case is remanded to the trial court to determine the amount of the Appellee's reasonable and necessary attorneys fees.

        DONE AND ORDERED in Chambers, Broward County Courthouse, 201 S.E. 6th Street, Fort Lauderdale Broward County, Florida 33301, this   8   day of Jan. 2002.
 

                                                                                             ______SIGNATURE_________
                                                                                              PATTI ENGLANDER HENNING
                                                                                                  CIRCUIT COURT JUDGE

Copies furnished:

The Honorable Steven G. Shutter
100 N. Pine Island Rd.
Plantation, FL 33324

David J.Schottenfeld, Esq.
7520 Nw.  5th. Street
# 203
Plantation, FL, 33317

Lee D., Glassman, Esq.
8000 Peters Rd.
Ste.  A-200
Plantation,- FL 33324

Nancy Little Hoffman, Esq.
440 E. Sample Rd.
Ste. 200
Pompano Beach, FL 33064

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