What can you do if you live in a residential neighborhood and your neighbor is running a McDonald’s or a retirement home out of his house? If you live in a single-family home in a residential neighborhood, your zoning ordinance, no doubt, prohibits the “commercial use of single-family homes.” (But see Airbnb.) But what if the city does not enforce the ordinance? If you sue the city for an injunction ordering the city to enforce the ordinance, you will probably lose.

When I was a code enforcement prosecutor for the City of Miami Beach, long before the invention of Airbnb, the City prosecuted owners of luxury homes on ritzy streets who were renting out their homes for use in music videos. The charge was “commercial use of single-family homes.” The zoning ordinance prohibited “short-term rentals”—terms less than six months. It turns out the neighbors—regular owners who lived in their homes—did not appreciate the noise or having 50 vehicles blocking their street and driveways. Nowadays we have Airbnb, but not every neighborhood allows such short-term rentals, and operating a group home out of a house in the middle of a residential neighborhood might get noticed.

In City of W. Palm Beach, Inc. v. Haver, 330 So. 3d 860 (Fla. 2021), the Florida Supreme Court considered the availability of an injunction compelling a city to enforce a zoning ordinance against a third party. The facts of the case were these:

Peter and Galina Haver live in a City of West Palm Beach neighborhood zoned as single-family, low density residential. The Havers are convinced that their across-the-street neighbor, Miriam Galan, is running a group home in violation of a city zoning ordinance. They say that Galan provides room and board to three unrelated residents—two elderly women and a man in his forties. The Havers accuse the male resident of routinely engaging in “unruly conduct” on Galan’s front porch, including shouting into his phone and disparaging the Havers with catcalls and other “verbal provocations.” And they contend that this behavior, together with increased noise and increased vehicle and foot traffic, has caused them direct harm.

The Havers twice wrote the City’s code compliance division to complain about Galan’s alleged zoning violation. A month after the Havers’ second communication, a city code enforcement officer informed the Havers by e-mail that he had visited Galan’s residence to investigate. The Havers’ complaint in this case acknowledges that the officer’s “report of that visit did not refer to any evidence supporting [the Havers’] allegations that [Galan] provided at her residence room and board to a minimum of two individuals unrelated to her, other than that [the officer] observed at the residence an individual calling himself ‘Fernando,’ who claimed to live rent-free at the residence.”

The officer told the Havers that he would contact them after consulting with his colleagues in the zoning department “to determine what is allowable and/or permitted.” But the Havers did not hear back from him. The Havers’ complaint says that they have “no knowledge of whether or not [city officials] have decided” if Galan has violated the city’s zoning ordinance.

Eventually the Havers filed a five-count lawsuit naming as defendants the City, two city zoning officials, and Galan. This review proceeding only involves claims against the City. Two counts in the complaint sought injunctive relief requiring the City to investigate and, if necessary, take enforcement action against Galan’s alleged zoning violation. One count sought a declaratory judgment that the City violated its ordinance by refusing to take enforcement action against Galan. One count sought a writ of mandamus requiring the City to determine whether Galan had violated the zoning ordinance and then to take enforcement action. And one count sought a writ of certiorari “to quash any quasi-judicial decisions or acts taken by the City … in connection with their refusal to enforce” the zoning ordinance against Galan.

Id. at 862. The trial court dismissed all the Havers’ claims against the City. It did not explain its reasoning but it cited the Third District’s decision in Detournay v. City of Coral Gables, 127 So. 3d 869 (Fla. 3d DCA 2013). Over a dissent, the Detournay majority had held: “Under the doctrine of separation of powers, [a city’s] discretion to file, prosecute, abate, settle, or voluntarily dismiss a building and zoning enforcement action is a purely executive function that cannot be supervised by the courts, absent the violation of a specific constitutional provision or law.” 127 So. 3d at 870-71.

On appeal, the Fourth District affirmed the trial court’s dismissal of the Havers’ mandamus and certiorari claims. Haver v. City of West Palm Beach, Inc., 298 So. 3d 647 (Fla. 4th DCA 2020). But the district court reversed as to the claims for injunctive and declaratory relief.

On appeal, the Florida Supreme Court focused on the district court’s reinstatement of the Havers’ claims for injunctive relief. The Fourth District first determined that the trial court was right to follow Detournay, a district court decision directly on point and the only such decision. But the Fourth District then went on to conclude that the Third District itself had “failed to apply binding precedent from the Florida Supreme Court.” Id. at 648. According to the Fourth District, the Havers’ injunctive claims “were specifically permitted by” the Florida Supreme Court’s decision in Boucher v. Novotny, 102 So. 2d 132 (Fla. 1958). 298 So. 3d at 653. The district court therefore remanded those claims, with instructions for the trial court to determine “whether the Havers have adequately pleaded special injuries as required by” Boucher. Id.

Along with its resolution of the Havers’ appeal, the Fourth District certified conflict with Detournay and with the Second District’s decision in Chapman v. Town of Redington Beach, 282 So. 3d 979 (Fla. 2d DCA 2019). The Florida Supreme Court granted the City’s petition for discretionary review.

The Havers’ complaint sought an injunction requiring the City to enforce its zoning ordinance against Galan. Specifically, the complaint asked the court to force the City (1) to further investigate and determine whether Galan was in violation of the ordinance and (2) to take enforcement measures against any violation. Under the zoning ordinance itself, those measures could include ordering Galan to comply with the ordinance and, if necessary, the “commence[ment of] appropriate legal action” by the City.  West Palm Beach, Fla., Code of Ordinances § 94-34 (b)(2)(2003).

The Fourth District in the decision under review deemed an injunction of this nature “specifically permitted” by Boucher. Haver, 298 So. 3d at 653. Betraying some skepticism about this result, the district court issued repeated disclaimers about a lower court’s duty to follow Florida Supreme Court precedents and said that it was up to the Florida Supreme Court whether to “overrule Boucher.” Id. at 648, 653-54. The Havers’ defense of the Fourth District’s decision echoed the stare decisis theme—minus the skepticism—and urged the Florida Supreme Court not to “recede from” Boucher.

The City argued that the Fourth District and the Havers had misconstrued Boucher and that the district court erred by reinstating the Havers’ claims for injunctive relief.

The court discussed Boucher. The plaintiffs in Boucher were property owners in the City of Clearwater who lived across the street from a newly built motel. Boucher, 102 So. 2d at 133. They alleged that the motel building violated the setback requirements of a city zoning ordinance and that the violation had been evident in the plans for the motel. Id. When the city first issued a building permit for the motel, the plaintiffs objected, and the city revoked the permit. Id. But the city later reinstated the permit, allegedly “without public notice as required by the zoning ordinance.” Id. at 134. Although the City of Clearwater and a city building inspector were among the defendants in Boucher, the court’s opinion does not say what relief the plaintiffs sought against the government defendants in the case.

Instead, the court’s description of the requested remedy focused on the other defendants—the owners of the motel. The court characterized the lawsuit as one “instituted by appellants Boucher to obtain mandatory injunctive relief to compel [the motel owners] to remove the allegedly illegal encroachments which they claim were constructed in violation of the setback requirements of the zoning ordinance.” Boucher, 102 So. 2d at 134. And the court framed the “determining point” as “whether the [plaintiffs] sufficiently alleged damages peculiar to themselves to enable them to maintain a cause of action.” Id. at 133.

To put in context the court’s description of the case, said the court, it is important to understand that the cause of action in Boucher was not new:

Comprehensive zoning laws originated in the United States in the early twentieth century. Within a few decades courts around the country had recognized a cause of action allowing a private party to obtain an injunction against another private party’s violation of a municipal zoning ordinance. This passage from the Connecticut Supreme Court in 1927 captures the prevailing rationale underlying those court decisions: “The primary duty of enforcing these regulations rested upon the zoning commission. The right to enforce them by injunction, where their violation had resulted, is now resulting, or will result in special damage to one’s property, exists in the one injured, and is not dependent upon his having requested the public authorities in charge to enforce the violation and their refusal or failure to perform their duty.” Fitzgerald v. Merard Holding Co., 106 Conn. 475, 138 A. 483, 486 (1927).

As to standing to maintain such an action, the majority rule required the plaintiff to show special damages—that is, “damages differing in kind rather than in degree from the damages suffered by the people as a whole.” Boucher, 102 So. 2d at 135. But relying on cases from a handful of states, the plaintiffs in Boucher asked the court to reject the majority rule and to hold instead that “the mere violation of a zoning ordinance, regardless of special damage, produces a right of action in favor of a complaining citizen the use of whose property has been restricted by the same ordinance.” Id.

The Florida Supreme Court chose to adhere to the majority rule. The court explained that a special damages requirement was consistent with the court’s precedents involving “the abatement of alleged nuisances resulting from threatened or consummated municipal conduct.” Id. And the court further reasoned that such a requirement was supported both by “the numerical weight of authority” and by “the better reasoned cases.” 102 So. 2d at 135.

After establishing the applicable standing requirement, the court went on to measure the Bouchers’ complaint against that standard, and the court concluded that the plaintiffs’ allegations were insufficient.  The court therefore affirmed the trial court’s dismissal of the Bouchers’ complaint. Boucher, 102 So. 2d at 137. There was no injunction for the court to review. Nor was there occasion for the court to determine whether the government defendants had violated the law and, if so, what remedies might have been available against them.

The Fourth District, said the the Florida Supreme Court, appeared to have focused not on the holding in Boucher, but on the opinion’s background discussion setting the stage for the court’s resolution of the standing issue. In the run-up to the Florida Supreme Court’s adoption of the special damages requirement, the court said:

We have on a number of occasions held that where municipal officials threaten or commit a violation of municipal ordinances which produces an injury to a particular citizen which is different in kind from the injury suffered by the people of the community as a whole then such injured individual is entitled to injunctive relief in the absence of an adequate legal remedy. With equal consistency, however, we have likewise held that in order to sustain a complaint for relief against threatened or consummated municipal action such as the creation of a nuisance or the blocking of a street the injury suffered by the complaining individual must be special and peculiar to himself and not merely different in degree from that suffered by the remainder of the community.

Id. at 134-35.

The district court concluded if the plaintiff can establish special damages from a zoning violation, injunctive relief is available against a city without regard to its alleged role in the violation or the content of the injunction being sought. In its decision, the Fourth District explicitly agreed with the Havers’ argument that “Boucher provides a remedy for zoning laws in the form of a claim for declaratory and injunctive relief against a municipality and a violator.” Haver, 298 So. 3d at 650 (emphasis added).

The Florida Supreme Court concluded the Fourth District had misread Boucher. For one thing, Boucher referred to precedents where a municipality had violated its own ordinance. In Boucher itself, for example, the plaintiffs alleged that the city had issued a permit illegally. In Haver, the Havers’ complaint goes to great lengths to establish Galan’s (the neighbor’s) violation, but it does not allege that the City itself violated the ordinance. Nowhere, said the Florida Supreme Court, does Boucher say or imply that a third party’s violation of the ordinance, without more, would justify an injunction requiring the City to enforce the ordinance against the third party.

Moreover, said the court, to the extent the Boucher Court broadly discussed precedents involving a municipality’s “violation” of an ordinance, it would be a mistake to divorce those comments from the body of case law the court was discussing. None of the precedents cited in Boucher involved a municipal ordinance “violation” that consisted of a city’s failure to take enforcement action against a third party. Before Haver, the Florida Supreme Court had never addressed such a “violation.” The court had not considered what type of judicial relief, if any, might be available in that circumstance. It would be wrong, said the court, to simply assume, based on Boucher, that all ordinance violations by a municipality are equally remediable through injunctive relief.

The Havers also maintained that, after Boucher, the court “reconfirmed” their broad understanding of a “Boucher cause of action.” The two decisions they cited to support this argument were Renard v. Dade County, 261 So. 2d 832 (Fla. 1972), and Skaggs-Albertson’s v. ABC Liquors, Inc., 363 So. 2d 1082 (Fla. 1978). The Florida Supreme Court concluded the Havers misread those cases.

Both Renard and Skaggs-Albertson’s, said the court, centered on standing issues. Renard involved a challenge to a county’s decision to rezone a parcel of property. Renard, 261 So. 2d at 834. Skaggs involved a challenge to a county’s decision to issue an alcoholic beverage permit. Skaggs, 363 So. 2d at 1086. In neither case did the plaintiff seek injunctive relief to compel a government defendant to take enforcement action against a third party’s alleged violation of a zoning ordinance. While those opinions discussed Boucher and its special damages holding, neither, said the court, said anything that would support the cause of action and remedy at issue in Haver.

Boucher, said the court, assumed the availability of injunctive relief against a city in some circumstances where the city violates its own zoning ordinance. The Havers alleged no such violation. Neither Boucher, nor any other case argued by the parties, said the court, authorized a claim for injunctive relief against a city in the circumstances presented.

The question remained: should the court now approve such a remedy? The court held the answer was no. The court explained its rationale:

As we explained, the Havers in this proceeding have limited their arguments to a stare decisis-based defense of an erroneous interpretation of Boucher. They have not given us arguments from first principles to justify their desired cause of action and remedy.

We decline to endorse a judicially created remedy that would so exceed current limits on the exercise of the judicial power. The Havers invite judicial interference with administrative enforcement decisions of a kind that traditionally have been considered discretionary and that embody value-laden judgments about the proper allocation of scarce governmental resources. Cf. Heckler v. Chaney, 470 U.S. 821, 831-33, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). And they ask us to subject these decisions to judicial review even in the absence of allegations that the government itself has acted illegally. If judicial oversight of such matters is to be expanded, that innovation must be authorized by the Legislature or by a city’s own ordinance.

The majority in Detournay, the principal conflict case, did not discuss Boucher. The Fourth District certified conflict based on its own interpretation of Boucher and its view that the result in Detournay was inconsistent with that case. For the reasons explained, the Florida Supreme Court disagreed with the Fourth District’s interpretation of Boucher. The court saw “no disharmony between the holding of Boucher and the result in Detournay.”

Detournay involved a homeowners’ association lawsuit to force the City of Coral Gables to pursue enforcement actions against a private party in a zoning violation case. 127 So. 3d at 871. The Detournay majority invoked the doctrine of separation of powers in rejecting the association’s claims against the city. The Third District also based its decision on principles announced in Trianon Park Condominium Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912 (Fla. 1985), a case about sovereign immunity in the tort damages context. The Fourth District itself called the Detournay majority’s reasoning “compelling.” Haver, 298 So. 3d at 648.

This area of the law is complicated. Things have not been helped by the poor writing of many Florida appellate courts, including the Florida Supreme Court:

The parties and the amici have staked out various positions on whether the Detournay court was right to invoke the constitutional separation of powers doctrine in a case involving a municipal (as opposed to a state-level) defendant. They also dispute the applicability of tort-based sovereign immunity concepts in a case that involves neither tort-based duties nor monetary relief. Given our clarification of Boucher, we need not address these potentially complicated issues now. See generally Douglas Laycock & Richard L. Hasen, Modern American Remedies 488 (5th ed. 2019) (“The law of remedies against governments and government officials is a vast and complex body of doctrine, full of technical distinctions, fictional explanations, and contested compromises.”).

Trianon Park, as two dissents explained, is itself a questionable 1980s-style opinion. The legislature waived sovereign immunity by statute. The majority in Trianon Park found a way (private people don’t perform building inspections or issue permits so no duty was owed, or something like that) to say that the government’s operational actions in performing a building inspection were not actionable in negligence, even though performing building inspections and issuing permits is carrying out government policy, not making it. The law as classically understood is that one cannot sue the government for its political or policy decisions (e.g., where to put a stop sign; whether to have a traffic light or stop sign; how many police officers to hire), but one can sue the government for negligent implementation of policy (e.g., failing to keep the bushes trimmed so that the stop sign became hidden by bushes, leading to a traffic accident; police officer negligently shooting a person).

A discussion of how Airbnb has been allowed to be so huge will be the subject of a future article.