| [1] |
COURT OF APPEAL OF FLORIDA,
SECOND DISTRICT |
| [2] |
Case No. 91-03978 |
| [3] |
1993.FL.41967; 613 So. 2d 1376;
18 Fla. Law W. D 538 |
| [4] |
filed: February 19, 1993. |
| [5] |
EDGAR A. BALDWIN, JR.,
APPELLANT,
v.
NATURE'S HIDEAWAY, PHASE I-B HOMEOWNERS ASSOCIATION, INC., A
FLORIDA NONPROFIT ORGANIZATION, APPELLEE. |
| [6] |
Appeal from the Circuit Court
for Pasco County; W. Lowell Bray, Jr., Judge. |
| [7] |
Rebecca Henson Hudoba of
Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A., Tampa,
for Appellant. |
| [8] |
Bruce E. Przepis of Bruce E.
Przepis, P.A., New Port Richey, for Appellee. |
| [9] |
Danahy, Parker, Altenbernd |
| [10] |
Author: Danahy |
| [11] |
DANAHY, Acting Chief Judge. |
| [12] |
The appellant challenges a
final summary judgment finding that the appellant is in
violation of deed restrictions regarding the use of his house
because the person renting the house has allowed three unrelated
elderly persons to live there pursuant to a license from HRS
referring to such a use as "adult foster care." For
the reasons set forth below, we reverse. |
| [13] |
The appellant owns a house in
a subdivision in Pasco County known as Nature's Hideaway, Phase
I-B. The appellant rents the house to Ms. Marion I. Shipman. Ms.
Shipman, three of her children, and three unrelated elderly
persons live in the house. Each of the three elderly persons
pays Ms. Shipman monthly room and board, and Ms. Shipman pays
the appellant monthly rent for the home. Ms. Shipman has a
license from HRS to have no more than three elderly adults
residing in the house, which is referred to as "adult
foster care." Ms. Shipman has no occupational license and
her home is not classified as an adult congregate living
facility. |
| [14] |
The appellee is the
homeowner's association for Nature's Hideaway, Phase I-B. It
brought this suit to obtain an injunction prohibiting the
appellant from allowing his house to be used as a residence for
three elderly persons unrelated to the appellant's tenant, Ms.
Shipman, on the ground that this use is in violation of the deed
restrictions applicable to homes in the Nature's Hideaway, Phase
I-B subdivision. |
| [15] |
We first put aside the
appellant's reliance on section
419.001(2
), Florida Statutes (1991). That section is part of a chapter
governing "community residential homes." A community
residential home is defined as a dwelling unit licensed to serve
clients of HRS. Section
419.001(2
) provides that homes of six or fewer residents which otherwise
meet the definition of a community residential home shall be
deemed a single family unit and a noncommercial, residential use
for the purpose of local laws and ordinances. We agree with the
appellee that section
419.001(2
) by its express terms does not apply to private deed
restrictions, nor does it or chapter 419 express a public policy
of the State of Florida which overrides private deed
restrictions. |
| [16] |
The deed restrictions at issue
here are contained in Article VIII of "Declaration of
Restrictions, Limitations, Conditions and Agreements of Nature's
Hideaway Phase I-B." The pertinent provisions are as
follows: |
| [17] |
SECTION 5. Nuisances. Nothing
shall be done or permitted to be done or maintained, or failed
to be done, on any Lot which may be or become an annoyance or
nuisance to the neighborhood, including, without limitation, the
following: |
| [18] |
2. Trades. No manufacturing,
trade, business, commerce, industry, profession or any other
occupation whatsoever shall be conducted or carried on or upon
any Lot or any part thereof or in any building or other
structure erected thereon, except for the business of the
Developer while the Developer still owns any Lot in the
subdivision. Furthermore, no hobby, game or sport shall be
engaged in by the owner, his invitees or guests which shall
result in loud, obnoxious or offensive noises. |
| [19] |
The trial court in its final
summary judgment concluded that Ms. Shipman's allowing three
unrelated elderly boarders to live in her home constituted an
occupation within the definition of the restrictions and granted
the appellee a permanent injunction on that basis. |
| [20] |
It is wholly within our scope
of review to read these restrictions and come to our own
conclusion as to their proper interpretation. See CH2M Hill
Southeast, Inc. v. Pinellas County,
598 So.2d 85
(Fla. 2d DCA 1992). The carrying on of an occupation is
mentioned in subparagraph 2 of Section 5 and is subject to the
umbrella words of that section. Section 5 refers to nuisances
and prohibits the doing of anything on any lot in the
subdivision which may be or become an annoyance or nuisance to
the neighborhood, including those activities described in
subparagraph 2. We conclude that merely engaging in an
"occupation," without more, is not a violation of the
deed restrictions. There must be a showing that the occupation
in question is or may become an annoyance or nuisance to the
neighborhood. For these reasons, we reject the appellee's
argument that subparagraph 2 of section 5 stands alone and is
self-executing. |
| [21] |
In support of its motion for
summary judgment, the appellee filed an affidavit of its
president alleging that the "business" conducted by
the appellant's tenant has created unbearable traffic congestion
with emergency vehicles and police vehicles parking in front on
numerous occasions and that on one occasion an elderly gentleman
was "wandering aimlessly." The appellant filed Ms.
Shipman's affidavit in opposition to the motion for summary
judgment in which she stated that she has not allowed any
persons living with her to be a nuisance, that she did not
create traffic congestion in the neighborhood, and that the
elderly gentleman referred to in the appellant's affidavit did
not live in her home. |
| [22] |
Having concluded that the use
of the appellant's home in Nature's Hideaway is not in violation
of the deed restrictions unless that use may be or become an
annoyance or nuisance to the neighborhood, we further find that
there is a genuine issue of material fact as to whether the
presence of Ms. Shipman's three elderly boarders is or may
become an annoyance or nuisance to the neighborhood. If the
record of the case reflects the existence of any genuine issue,
of material fast, or the possibility of any issue, or if the
record raises even the slightest doubt that an issue might
exist, summary judgment is improper. Byrd v. FDIC,
598 So.2d 212
(Fla. 2d DCA 1992). |
| [23] |
Reversed and remanded for
further proceedings. |
| [24] |
PARKER, J., Concurs. |
| [25] |
ALTENBERND, J., Concurs
specially with opinion. |
| [26] |
Disposition |
| [27] |
Reversed and remanded for
further proceedings. |
| [28] |
ALTENBERND, Judge, Concurring
specially. |
| [29] |
I concur in the result in this
case, and I agree with most of the reasoning. The majority
opinion, however, states that chapter
419,
Florida Statutes, does not express a public policy that
overrides private deed restrictions. I do not believe it is
necessary for this court to reach that issue. I am inclined to
believe, however, that private deed restrictions should not be
judicially enforced to exclude shared residential facilities
which the legislature has expressly protected from local zoning
ordinances. |
| [30] |
A substantial percentage of
Pasco County's population is elderly. As a result of gradual
changes in our traditional family structure, many elderly people
have no supporting family when their spouses die. These elderly
people need a pleasant place to live. A shared residential home
for six or fewer people is an ideal solution. The county, as a
whole, needs the power to place such facilities throughout its
territory. Individual neighborhoods should not be allowed to
decide that a small home, occupied by elderly or disabled
residents, is a locally undesirable land use, and override state
law by writing a deed restriction that would be unenforceable as
a zoning ordinance. I am not prepared to rule that trial courts
lack the authority to refuse to honor such dubious restrictions
under the public policies expressed in chapter
419,
Florida Statutes. |
|
