Georgianna Hill Stone, Plaintiff-appellee, v. City of Maitland, Defendant-appellant, 446 F.2d 83 (5th Cir. 1971)

Once again this Court must face ecology, Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, cert. denied, 1971, 401 U.S. 910, 91 S. Ct. 873, 27 L. Ed. 2d 808. This time it is not the air to breathe or the water to drink or the maintenance of some of God's smaller creatures. Here it is primarily what one is to see. That this too is the by-product of our industrial mobile complex is the fact that the thing sought to be built is another corner gasoline filling station to serve the insatiable demands of a major marketer. What was sought was obtained, and obtained in the name no less than the Fourteenth Amendment and the Due Process Clause. Disclaiming any purpose, power or prescience in the high name of the Constitution to substitute ourselves for the legislative bodies having statutory responsibility, to second guess their judgments on matters as intricate as urban life, or to draw lines which distinguish between what men smell and see, we commit the problem — save in the most rare instances — to Florida and its courts, recognizing judicially, as do we, E. B. Elliott Advertising Co. v. Metropolitan Dade County, 5 Cir., 1970, 425 F.2d 1141, that aesthetics is one of man's protectible interests. We accordingly reverse the injunction granted to Stone, the voice of Esau, for the benefit of Shell Oil Company, the hand of Jacob.

We are called upon here to examine the constitutional validity of municipal ordinances which operate to forbid the building of a filling station on Stone's property. The District Court found that the ordinances were violative of the Due Process and the Equal Protection Clauses of the Fourteenth Amendment and granted injunctive relief against their enforcement.

In 1936 Mr. Stone, the plaintiff's husband, acquired a corner lot in Commercial District C-1 of Maitland, a suburb of Orlando, Florida. The lot has a frontage on U. S. Highway 17-92 and on Horatio Avenue.¹  Prior to Mr. Stone's death in 1964 the property had been used as a retail citrus outlet. In 1965 Mrs. Stone sought permission from the Planning and Zoning Commission of Maitland to erect the gas station on the premises since this was the property use that would accrue Mrs. Stone the greatest financial benefit.²  In 1965 and also in 1966, Mrs. Stone's requests were rejected because her property did not meet the standards of the then extant zoning laws prescribing solely a distance limitation.³  Then in May 1967 the City revoked all prior zoning ordinances and adopted a new comprehensive one which in addition to the distance limitation prescribed a minimum frontage (150 feet) for interior lots and a dual frontage (150 feet) for corner lots. It is this ordinance that is here under constitutional attack.⁴ 

In October 1967 Stone filed for a variance with the Zoning Board of Adjustment. The Board denied the request.⁵  This litigation followed.

At the outset we can dispose of the contention that a state court disposition of this case bars it from our consideration under the doctrine of res judicata or prior election of state court remedies. After the unfavorable decision of the Zoning Board, Mrs. Stone filed a writ of certiorari to the Circuit Court of the Ninth Judicial Circuit of Florida to review her case.⁶  Apparently before that Court could rule, it required that there be filed a written order or decision of the Board. Mrs. Stone's counsel twice sought such a document, but one was never supplied by the Board. Accordingly, the Circuit Court dismissed the petition.

"Under the doctrine of res judicata a prior judgment on the merits rendered by a state court of competent jurisdiction operates as a bar to a subsequent adjudication of the same cause of action, in substance rather than form, between the same parties or their privies in federal court * * *" (emphasis in the original). E. B. Elliott Advertising Co. v. Metropolitan Dade County, 5 Cir., 1970, 425 F.2d 1141, 1148.

It is obvious that in no sense did the Circuit Court render a judgment on the merits. Rather it dismissed the case on a procedural flaw, one which Mrs. Stone did all that she could to remedy. And since there has been no adjudication on the merits by the Circuit Court, there is thus no bar of res judicata or election of remedies.

The notion "that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic belief for the judgment of legislative bodies, who are elected to pass laws." Ferguson v. Skrupa, 1963, 372 U.S. 726, 730, 83 S.Ct 1028, 1031, 10 L. Ed. 2d 93, 97.⁷ 

It has now been a generation since the Supreme Court's due process scythe cut down all national efforts towards economic recovery and endangered the role of the judiciary as a co-equal branch of government. But, oddly enough, ten years before the great Court battle of the thirties, the same Court that produced the now famous constitutional anomaly of Adkins v. Children's Hospital, 1923, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785 pondered the constitutionality of a local zoning ordinance and wrote an opinion in language far more reminiscent of Ferguson than of Adkins. It "must be said before the [zoning] ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." City of Euclid v. Ambler Realty Co., 1926, 272 U.S. 365, 395, 47 S. Ct. 114, 121, 71 L. Ed. 303, 314.

Upholding the zoning code over claims that it violated the due process and equal protection clauses, the Court illustrated how such ordinances have a clear relationship to a city's efforts to protect the health and security of children, to suppress disorder, to extinguish fires, to regulate street traffic, to prevent congestion, to reduce the "danger of contagion," to facilitate police protection, to lessen the noise level and to provide a wholesome residential atmosphere to its citizens. See also Gorieb v. Fox, 1927, 274 U.S. 603, 47 S. Ct. 675, 71 L. Ed. 1228; Nectow v. City of Cambridge, 1928, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842; Washington ex rel. Seattle Title Trust Co. v. Roberge, 1928, 278 U.S. 116, 49 S. Ct. 50, 73 L. Ed. 210; Berman v. Parker, 1954, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27. Thus in testing the zoning ordinances before us here the sole question is whether there is a rational relationship between the ordinance and the promotion of some aspect of the City's police power — a label which describes the full range of legitimate public interests. Mayhue v. City of Plantation, Florida, 5 Cir., 1967, 375 F.2d 447, 449.

We first consider the constitutionality of the 150 foot frontage requirement. Stone claims that it is unconstitutional because (i) it discriminates against corner lot owners in that they must have 150 feet on each of two street sides and in favor of interior lot owners who only need 150 feet on one side and (ii) even though (i) demonstrates "a reasonable relation to permissible objectives which promote the public health, safety, morals and general welfare so as to satisfy the requirements of the Due Process Clause of the Fourteenth Amendment,"⁸  Elliott, supra, 425 F.2d at 1151, the requirement violates the Equal Protection Clause because there is no similar footage requirement for other businesses such as drive-in groceries and restaurants which generate as much, if not more, drive-in-drive-through traffic than does a filling station.

Contention (i) we can easily deal with. The evidence showed that the heavy tourist trade in the area made trucks, U-hauls and housetrailers common sights and afforded a reasonable basis for concluding that this frontage was a necessity. Quite often several of these long vehicles would be parked end-to-end in a station. Combine this with the driving maneuvers created by gas pumps and service islands and we can only conclude that the City of Maitland, like many other cities in the vicinity, was justified in finding that this long frontage requirement was a necessity to keep the traffic flowing on the access streets. And if this traffic would otherwise accumulate on one access street it would do likewise on two. Thus a reasonable relationship to the constitutionally permissible objective of reducing traffic congestion is present. In fact the District Court did not really hold that the corner lot-interior lot distinction could not be legitimately explained. Rather that Court based its holding on equal protection grounds espoused by Stone in contention (ii) — that is, other businesses with corner lots created similar traffic problems, but they had no 150 footage requirement for every side facing the street.

It is important to recognize exactly what the Equal Protection Clause entails. If the legislature senses an evil, it may deal with it. At the same time it is under no compulsion to deal with all other evils that are seen to be equally serious.

"The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. * * * Or the reform may take one step at the time, addressing itself to the phase of the problem which seems most acute to the legislative mind. * * * The legislature may select one phase of one field and apply a remedy there, neglecting the others. * * * The prohibition of the Equal Protection Clause goes no further than the invidious discrimination."

Williamson v. Lee Optical Company of Oklahoma, 1955, 348 U.S. 483, 489, 75 S. Ct. 461, 465, 99 L. Ed. 563, 573.

In Mayhue, supra, we invalidated a restriction that imposed a more stringent burden on those who sold liquor for consumption off the premises than those who sold it for consumption on the premises. The supposed state interest was the promotion of tourism and the preservation of order, but on all the facts the legislative body could have considered we found that the additional restrictions bore absolutely no relationship to the forwarding of these aims. So in a sense equal protection and due process are not different concepts at all in that they both center around the discovery of a rational relationship between the specific non-universal restriction and additional benefit to a public interest.

Yet once that relationship is established, the Equal Protection Clause does not impose upon the state the duty to "correct all similar evils wherever they may exist in the County or none at all." Elliott, supra, 425 F.2d at 1155. Because drive-in restaurants may create traffic problems, the city is not necessarily required to use the same, or even any, remedy on the traffic problems involved.

We have found that the frontage requirement bears a rational relationship to traffic safety at a gas station, and we therefore need not consider if a similar law would be equally effective in dealing with the problems of a drive-in grocery or restaurant. This is a problem for the legislature alone to resolve. Hence § 16-6(11) (a) does not fall under either the Due Process or the Equal Protection Clause.

We next come to the 350 yard distance requirement of § 16-6(11) (b). The District Court ruled this section invalid for two basic reasons. First, there is no inverse distance requirement forbidding the building of churches, schools, hospitals and other places of public assembly within 350 yards of a gas station.⁹  Second, the Court noted that others in Maitland had been granted variances to erect gas stations even though their property failed to meet all of the ordinance requirements. The Court found that public safety was the only possible justification for the exercise of the City's police power and relying on City of Miami v. Woolin, 5 Cir., 1968, 387 F.2d 893, decided that the 350 yard restriction bore no rational relationship to the promotion of public safety. Since deviations were granted and since places of public assembly could be built without restriction near the presently existing gas station, safety would be the same with or without the ordinance; therefore, it was unconstitutional.

If public safety were the sole aim of this law, Woolin might have more significance. But we find the city had other ends as well as safety in mind when it adopted the ordinance. Since a rational relationship to these goals is clearly present, we find it unnecessary to delve further into the safety correlation question.¹⁰ 

The record without substantial contradiction is very impressive from the City's standpoint. A prime motivation in passing a new ordinance was the desire to avoid putting too many gas stations in one area. By observing the experience of other nearby cities, Maitland officials became painfully aware of the dangers brought about by not having spacing restrictions. Absent these requirements, the probability of business failure in this highly competitive area is high. The result is abandoned stations.¹¹ 

The abandoned station sites, which in most instances cannot be used for any other commercial purpose, become magnets for junk cars and sometimes havens for mice, rats and insects.¹²  If there are several stations of this kind in one area, which there are likely to be in a commercial district, the neighborhood soon becomes a blighted eyesore and one greatly diminished in aesthetic and commercial appeal.

This Court and those in Florida have recognized that the enhancement of the aesthetic appeal of a community is a proper exercise of police power. Elliott, supra; City of Miami Beach v. Ocean & Inland Co., 1941, 147 Fla. 480, 3 So. 2d 364; Merritt v. Peters, Fla., 1953, 65 So. 2d 861; Sunad, Inc. v. City of Sarasota, Fla., 1960, 122 So. 2d 611. For the value of scenic surroundings to tourists, prospective residents and commercial development cannot be overstated. But in an age in which the preservation of the quality of our environment has become such a national goal, a concern for aesthetics seems even more urgent. Cf. Zabel v. Tabb, supra; Note, 12 B.C.Ind. & Com.L.Rev. 674 (1971). Abandoned gas stations substantially detract from that environment, and the City was warranted in finding that the spacing requirements tend to reduce that threat. Thus the 350 yard distance requirement is constitutional.

We hold that it was for the City Fathers, not the Founding Fathers, to make the judgments on what Maitland needed to meet the urban menace of blight. Their judgment is confirmed, and that of the Court below reversed.

Reversed.