High Flying Farmers Prevail Against County on Alleged Zoning Code Violation

Farmers, Mr. and Mrs. Nipper (the “Nippers”), successfully appealed a judgment enjoining them from operating a sky diving business on their farm in Walton County. The Nippers owned and operated a 290 acre farm and twice sought permission from the Walton County Planning Department to supplement their income by operating a sky diving operation on their property. Their requests were denied and, when the Nippers continued operating their business, the county initiated a code enforcement action before the Walton County Code Enforcement Board (“CEB”). After holding a full hearing, the CEB found that the business did not violate the county’s Zoning code and the county did not appeal. Before the CEB rendered its decision, however, the Nippers filed an action in circuit court seeking a declaration that they could run their business pursuant to a state law exempting agritourism from local land use regulations. The county filed a crossclaim in that action for a permanent injunction to stop the sky diving business. After the CEB had ruled in favor of The Nippers, the circuit court denied the Nippers’ state law claim and granted an injunction prohibiting the sky diving business based upon the planning director’s view that the business violated the zoning code.

The Nippers appealed the injunction to the Florida appellate court. The appellate court observed that in order to obtain an injunction against someone who is violating a zoning code, a county must show “(1) a clear legal right to the relief, (2) inadequacy of a legal remedy and (3) irreparable injury if the relief isn’t granted.” In order to show a clear legal right to injunctive relief, the county had to show that the opposing party had violated a law, a code, or ordinance. The appellate court observed that the County’s Code Enforcement Board, which has jurisdiction to hear and decide alleged violations of all codes and ordinances, including the land development code, found that that sky diving operation did not do so. During the code enforcement hearing, the parties fully debated the Nippers’ case and the CEB found that the county failed to prove alleged zoning violations. The appellate court held that the decision by the CEB in favor of the Nippers undermined the county’s claim of a “clear legal right” to enjoin the Nippers’ business.

The appellate court went on to observe that it found nothing in the zoning code clearly prohibiting sky diving operations. In fact, the County’s Comprehensive Plan specifically allowed a number of nonagricultural uses on agricultural land, including “outdoor recreational activities such as hunting or fishing camps, bait and tackle shops, shooting ranges, and golf courses” along with other outdoor recreational uses. Because sky diving is an outdoor recreational outdoor activity, the appellate court found nothing compelling in the text of the applicable code that supported the county’s claim of a “clear legal right” to enjoin the sky diving business. It therefore reversed the circuit court’s judgment granting injunctive relief. Presumably, the Nippers have gone back to jumping out of perfectly good airplanes.

Nipper v. Walton County, FL, 42 Fla. L. Weekly 171-72 (Jan. 1st DCA Jan. 17, 2017).

About the Author:
Joel C. Zwemer is an attorney and Shareholder in Dean Mead’s Fort Pierce office. He concentrates his practice in the areas of commercial business and real estate litigation, creditors’ rights and bankruptcy. He has successfully litigated a wide range of cases in federal and state courts and regularly represents financial institutions in business and bankruptcy cases and litigation in Fort Pierce and Port Saint Lucie. He may be reached at (772)464-7700 or jzwemer@www.deanmead.com.

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