LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Local powers, code enforcement and "non conforming uses"

In the aftermath of the Rollins v. Key West case, which established that rental status could end up a non-conforming use that couldn't be extinguished by a change in zoning, here's a case that shows the limits of that reasoning: you don't get rights to maintain a nuisance, even a legislatively defined nuisance.

In this opinion, issued last week, the 3d DCA determined that a dog owner didn't have any vested right to keep four dogs after the Town adopted an ordinance that prohibitted him from keeping more than two. The case involves a challenge to an injunction forbidding the Appellant to keep more than 2 dogs, and appears to be (but we don't get it from the opinion) founded on code enforcement actions.

The dog lover first cited a provision of the Town code that prevented the Town from making illegal anything that was legal when the code was adopted - the court cut this off by finding that the provision only applied to the original adoption of the code (circa 1947).

But here's the more important part of the case - the constitutional challenge:

Welsh argues that ordinances or laws which take away existing rights are substantive rather than procedural in nature and cannot be applied retroactively. See Serna v. Milanese, Inc., 643 So. 2d 36, 38 (Fla. 3d DCA 1994); Winston Towers Ass’n, Inc. v. Saverio, 360 So. 2d 470 (Fla. 3d DCA 1978). Although this is a correct statement of law, we conclude that it is inapplicable in the context of legislation enacted pursuant to a government’s police power for the health and welfare of the
general populace to abate a nuisance. Indeed, the cases relied upon by Welsh were not even decided in this context. See Serna v. Milanese, 643 So. 2d at 37 (considering whether section 673.4021, Florida Statutes (1993), which absolved corporate
officers from liability for signing corporate checks, could be retroactively applied), Serna v. Arde Apparel, Inc., 657 So. 2d 966 (Fla. 3d DCA 1995) (same); Winston Towers, 360 So. 2d at 470-71 (finding amendment to private condominium ssociation’s bylaws banning all pets, including any pet acquired as a replacement of a prior pet not registered as of a date one year prior to amendment, to be void as an ttempt to impose a retroactive regulation). For this reason, Welsh’s reliance upon
these decisions is misplaced.

In Knowles v. Central Allapattae Properties, the Florida Supreme Court expressly reaffirmed the principle that although constitutional rights may not be transgressed by the sovereign, the possession and enjoyment of all rights are subject to the
paramount police power of the state to do that which is necessary to
secure the comfort, health, welfare, safety, and prosperity of the people:

It is a well settled rule that all property is held subject to the right of the
State to regulate it under the police power in order to secure safety, public welfare, health, peace, public convenience and general prosperity. The rule is based upon the concept that all property is held on the implied condition or obligation that its use shall not be injurious to the equal rights of others to the use and benefits of their own property. The public interest is paramount to property rights. The right of the State to regulate a business which may become unlawful is a continuing one, and a business lawful today may, in the future, because of changed conditions, the growth of population, or other causes, become a menace to the safety and public welfare, and the continuance thereof must yield to the public good. Knowles, 198 So. at 823 (citations omitted).

While property rights hardliners will gnash their teeth at the language, it's a pretty longstanding rule of law. On the other hand, while given the special issues of dogs and the cited history of regulation of keeping them provides a substantial basis for the legislative determination in this case that keeping more than 2 dogs is a nuisance, I do worry that the court's limited inquiry into the factual basis of the determination leaves way too much potential discretion for local governments to adopt completely arbitrary regulation by simply stating that the purpose is to regulate a nuisance.


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