VALPARAISO REALTY COMPANY, APPELLANT,
v.
CITY OF VALPARAISO, FLORIDA, APPELLEE
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Valparaiso Realty Company appealed a trial court order upholding the City of Valparaiso's zoning ordinance and enjoining the company from operating a boat sales/rental business on its property. The appellate court affirmed the order, rejecting arguments based on estoppel, non-conforming use rights, and failure to join an indispensable party (the lessee).
The appellate court affirmed the trial court's order, holding that the zoning ordinance was valid and applicable, and that the injunction was proper. The court rejected the appellant's defenses regarding estoppel and non-conforming use rights as factual matters within the trial judge's province. The court also held that the non-joinder of the lessee was waived by failure to timely raise it below, as non-joinder is not a jurisdictional defect.
[1] A trial court's determination of the validity and applicability of a zoning ordinance, and its issuance of an injunction, will be affirmed on appeal absent a showing of r…
[2] Factual controversies regarding defenses such as estoppel and non-conforming use are within the province of the trial judge.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Appellant's arguments and contentions with respect to its defenses of estoppel, rights accrued under the non-conforming use provisions of the ordinance, and other matters touching upon the merits, involve largely the resolution of factual controversies, all of which lie peculiarly within the province of the trial judge.”
Establishes that factual disputes regarding estoppel and non-conforming use defenses are within the trial judge's discretion and not subject to appellate reversal absent reversible error.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceValparaiso Realty Company owned property in the City of Valparaiso that it leased to Ed Cutler (operating as Sun Sports) for a boat sales and rental b…
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PER CURIAM.
We affirm the trial court’s order of July 29, 1984, determining the validity and declaring the applicability of the City of Valparaiso’s zoning ordinance to the property of appellant Valparaiso Realty Company at issue in these proceedings, and enjoining appellant Valparaiso Realty Company from operating or conducting a business enterprise including the sale or rental of boats on the subject property. Appellant’s arguments and contentions with respect to its defenses of estoppel, rights accrued under the non-conforming use provisions of the ordinance, and other matters touching upon the merits, involve largely the resolution of factual controversies, all of which lie peculiarly within the province of the trial judge. Reversible error has not been shown.
One additional matter deserves brief mention. Appellant also contends that the order enjoining appellant from conducting the prohibited business on the property should be reversed for failure to join an indispensable party, namely, Ed Cutler (or Ed Cutler, d/b/a Sun Sports), appellant’s lessee.
We hold that this defense, even if viable (which we do not find to be the case), has been waived for failure to timely raise it below, since non-joinder of parties is not a jurisdictional defect which may be raised at any time. Engel Mortgage Company, Inc. v. Dowd, 355 So. 2d 1210 (Fla. 1st DCA 1977).
We caution, however, that insofar as the injunctive order purports to apply to Valparaiso Realty Company “and/or its lessee,” the reference to “lessee” cannot be enforceable by contempt proceedings against any person not made a party to the proceedings, and as to such third parties such reference must be considered as mere surplusage. See, Ponke v. A.A. Boca, Inc., 429 So. 2d 415 (Fla. 4th DCA 1983); Seminole Enterprises of Bonifay, Florida, Inc. v. Manuel, 464 So. 2d 1301 (Fla. 1st DCA 1985).
MILLS, SMITH and THOMPSON, JJ., concur.
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Authorities Cited
- Engel Mortg. Co., Inc. v. Dowd, 355 So. 2d 1210 (Fla. 1st DCA 1977)
- Ponke v. A.A. Boca, Inc., 429 So. 2d 415 (Fla. 4th DCA 1983)
- Seminole Enters. OF Bonifay v. Manuel, 464 So. 2d 1301 (Fla. 1st DCA 1985)