Wednesday, August 22, 2007

The 3d DCA Strikes a "No Trucks" Ordinance in Coral Gables - and the World Didn't End!!!

In Kuvin v. City of Coral Gables, a panel of the 3d DCA (over vigorous dissent by Judge Rothenburg) held that the City's "no truck" parking regulation went too far by prohibiting personal use trucks from parking in other than a fully enclosed garage.

In a true shocker, the majority opinion was written by Senior Judge Schwartz, whose normal view of zoning and land use issues is that any challenge is brought by a degenerate and corrupt landowner or developer. In one of the best passages I've seen in years, says:

But there is a larger issue at stake here. Absent any legitimate basis for
the ordinances, what remains is that the City Parents disapprove of a perhaps unorthodox vehicle and the possibly diverse taste and lifestyle which may be reflected by its ownership.
This is just what Judge Hurley was getting at in Proctor by characterizing an anti-truck parking ordinance as unconstitutionally contrary to protected rights of association, privacy and “personhood.” Proctor, 396 So. 2d at 773 (Hurley, J., concurring); see also Moore v. City of E. Cleveland, 431 U.S. 494 (1977)(invalidating municipal zoning limitation on
occupancy of dwelling to defined “family” as unconstitutionally restricting family choice to “nuclear” family).

For a governmental decision to be based on such considerations is more than wrong; it is frightening. Perhaps Coral Gables can require that all its houses be made of ticky-tacky and that they all look just the same, but it cannot mandate that its people are, or do. Our nation and way of life are based on a treasured diversity, but Coral Gables punishes it. Such an action may not be upheld.
(internal citations omitted, but the "ticky-tacky" comment references the Fine decision).

The concurrence focused on the distinction between commercial and non-commercial trucks.

The dissent by Judge Rothenberg took the position that pickup trucks are ugly, local governments can regulate aesthetics, the guy could park the truck in a garage (which his house didn't have), and so the ordinance is ok. Gosh, put that way, they can tell you what kind of toilet paper to use, too.

For those of you who might be sympathetic to Judge Rothenberg's position, let me show you this provision of the zoning code:

Section 4-412. Trucks, trailers, commercial vehicles, and recreational
vehicles--Parking upon streets and public places.
Except as provided for in this Division, no trucks, trailers, commercial vehicles, or recreational vehicles, shall be parked upon the streets or other public places of the City between the hours of 7:00 PM on one day and 7:00 AM of the next day. This prohibition is in addition to the total prohibition covering residential areas as provided in Section 4-411.

That's right kids: drive a pickup truck (including an Explorer Sport, Avalanche, Suburu Brat, and most SUVs), AND YOU CAN'T EVEN PARK YOUR VEHICLE IN A PUBLIC RESTAURANT'S PARKING LOT AFTER 7 PM AT NIGHT. YEP - EVEN IF YOU HAVE A GARAGE FOR YOUR TRUCK, OR LIVE OUTSIDE CORAL GABLES, YOU CAN'T PARK IN THE CITY AFTER DARK. Jeez, maybe we need a judicial decision naming rednecks and construction workers as suspect classes.

1 comment:

  1. I'm glad someone had their head on straight for this case.

    Another good case is Kearns v. City of Coral Gables where John Kearns visits his very ill father in the City at night to help him. Only problem, John drives a pick-up ruck as his own personal vehicle. City tickets him, John asks for an exception like the City gives to the college kids that come home to Coral Gables in the summertime with pick-ups. City says no and tickets him again. Then they tell him that he should park outside the City and walk to his father's house or borrow a car from a family member. WOW, how insensitive can you be?