Can a Special Exception Be Exempt from Nuisance Laws?

by Madeline Gutherie
(Deland, Florida)

I bought a historical home in a historical subdivision.

Five years after I moved in I began to hear sounds of children screaming only to discover that a one-room house of worship had received a special exception to operate a parochial school and was approved as an "expansion of their daycare." In fact, the church portion of the building is now being used as a classroom.

I knew that a church use was there, and I was told by the county planning department that the school was only allowed to exist if it did not change the character of the neighborhood and installed a buffer of trees. That buffer of trees happened to be in my back yard and that too was removed and without any public hearing they changed this area into a playground.

This area also holds their drainfield, which is abutting my lot line. The distance of the drainfield has me worried as well. The septic tank itself is at my side yard and only eight feet away from my lot line.

The noise is so horrific that neighbors have moved that are located on the other end of the block from the school. The school receives state funding for children with learning disabilities and behavior issues.

What makes this really an issue, I have a diagnosis of MST Military Sexual Trauma, and although not particularly noise sensitive, this noise of screaming from over 200 kids has truly exacerbated my condition.

When I call the sheriff department they state that because the school was allowed to operate on residential zoned property as a school, they cannot tackle the issue. They state that the noise is common for a school use.

Does the special exception allow the school to make as much noise as they desire? I watch the teachers who are not actually teachers, but daycare workers, allow the kids to scream without any effort to modify their behavior. Who is responsible for enforcing the noise levels of the school, and does the special exception allow the school to operate without being a good neighbor?

Editors' Reply:

First of all, this sounds like a very bad situation for you, and we hope you will take good care of yourself.

The first thing we would recommend in all neighbor disputes is direct conversation. If you haven't talked with the people who run this school, do so right away. If you think that will be a difficult conversation, or you have tried before and failed, you might see if you can find a professional mediator that you would have to pay or if the local college can supply one.

Aside from that, there are many common community issues here. Apparently your county has taken an action, called a special exception (similar to what some other jurisdictions might call a special use or special use permit) to allow this school and day care, or what they might call a pre-school. So on that grounds, they are solid legally and you don't have any recourse unless you want to sue.

However, there are some other avenues to explore. Ask your county for a copy of the exact ordinance or ruling by which this special exception was granted, if you haven't already. If certain conditions that they have to meet are listed in the ordinance, or are listed in the underlying zoning ordinance that allows special exceptions to be granted, make sure the faith-based organization is abiding by every one of them.

If not, you have every reason to go to the county planning commission and complain in the open public meeting.

If a buffer was required in writing and not just verbally, the use given the special exception is required to maintain that buffer. Call this to the attention of not only the planning department staff, but also the planning commission and county commission.

Another area that might give some relief would be asking your county health department to investigate their septic system. In most terrains, three to five acres are required to support an individual septic system. We know it's flat in Florida, but the health department there should be able to tell right away if their system is in compliance with local and state laws. Eight feet from the property line sounds pretty close, especially for a state such as yours that has fairly strict environmental laws.

Next, check to see if your county has a noise ordinance. It might be part of any unified development code that is in place there, or it could be a separate stand-alone type of nuisance ordinance. If they do, then insist that the relevant officials, probably someone from code enforcement, check the noise level (called the decibel level) at the edge of your property on multiple occasions when the children are likely to be outdoors.

All of these options offer some potential for relief. So make sure that the special exception, zoning ordinance, septic system health regulations, and noise ordinance are being applied.

However, lastly, we must point out that local governments are rightly somewhat afraid of limiting religious land uses. Since 2000 and even before, a federal law and the courts have in fact given a broad directive to local governments that they should be very careful in applying their land use and nuisance regulations to any religious organization, since violation of religious freedom might occur.

We would go first directly to the property owner to try to get immediate relief about the noise issue, as perhaps smaller groups of children could be allowed outdoors at the same time, or behavioral limits can be set.

Secondly, you have cited that the planning department has said that the special exception was granted if it did not change the character of the neighborhood.

It does seem as though a large number of behavior disorder children allowed to run wild would be changing the character of a historic neighborhood. There is a legal land use doctrine in this country called "quiet enjoyment," which in essence says you are entitled to quiet enjoyment of your property. It doesn't sound as if that's happening. But again, invoking a right to "quiet enjoyment" probably entails going to court.

Join together with your neighbors (in the entire "historical subdivision") to apply maximum political pressure to your county commission and planning commission to enforce this character of the neighborhood issue. If you are ignored, you do have some basis for a legal case, but because of the religious angle, we can't assure you that you would win a costly and possibly lengthy court battle. Try politics and talking first.

Comments for Can a Special Exception Be Exempt from Nuisance Laws?

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Determination of buffers for private schools
by: Anonymous

Dear Editor;
In your response to the question "Is a Special Exception Exempt from a Nuisance Claim"
I see you answered with a comment related to the "use" allowed by special exception possibly having buffer requirements.

If the underlying zoning is R3 (Residential in a low to medium intensity future use) then would the specific buffer requirements be those for an R3 use or a school use, which is governed by commercial building codes.

The school which has purchased a home in our subdivision for office use, has begun school use on the property. Will the buffer requirements then be the same as any school abutting residential? A small forest of about 19 old growth trees were removed from the lot behind my home and now the kids want to play there. I got a playground in place of a buffer of trees. The planner then had the school put in a landscape buffer of only 15', but that has not thrived, and I am going to the county planning department to have the correct buffers put in.

Editors' Comment:

Any buffer that would be required would be governed by either (a) an underlying buffer requirement for the zoning district, if there is one, which would be uncommon in a residential district; or (b) a buffer requirement that could have been imposed as part of the terms of a special exception, which is what we were understanding originally.

Certainly at this point your best bet is to talk with your county planning officials, as the question has become too specific to deal with at a distance. We certainly thank you for asking though. Others are interested in your situation.

Peace of Mind Regarding School Playground and Noise
by: Anonymous

I cannot thank you enough, both responses gave me direction and peace of mind. I have contacted the zoning department to find the exact ordinance that allows special exceptions, but have not had any response.

I did go to the "release of information" office only to find that the school was told that the kids could not play in the rear of my property only 15' from my lotline. I also found out that the chief plans examiner explained in the open hearing that there needed to be a "masonry" wall between any playground activities and any residential homes.

I was finally granted a variance for the wall height necessary, but the cost of masonary is very expensive for my 0.8 acre of land and they border me on 2 sides, rear and N side.

I am working with a mediator and am very frustrated as even with this information presented the agent for the school insists on putting the kids in my rear lot and expect me to pay all but $5000.00 for the necessary wall, leaving me with about $50,000.00 to pay myself. I made complaints to code enforcement 2 years ago. Following those complaints, the zoning director put in an amendment to change the placement of parking that made a reasonable use of the non conforming lot directly to the rear of my home (and I am in the county.) This placement of parking, I discovered after listening to the audio of the hearing in 1998, was done to prevent the use of the area as a playground and the playground was sited on the plan 200ft from my home. I feel this should not have been entered as the complaints were already on file with code violation as they never moved back their fence or did any acoustic measures. We are at a stale mate.

I am looking into finding an attorney who can sort out the social welfare issues under Florida Statutes 415.101, Adult Protective Services Act. It has been so hard for me because I also discovered the school is owned and directed by a member of my Growth Management Dept. which enforces the setbacks etc for this school. The school did begin as non-conforming, and you were right about that.

It is hard to imagine a non conforming church use would grow into an instututional use. The noise levels for any institutional use should be the same as the residential use, but that is NOT happening and I am unable to sell my home due to the magnitude of the noise interference. I had hoped to eventually and slowly foster the perfect place to leave behind as a Bed and Breakfast or some use where the historical home could be saved. If the noise were under control, and it should be controllable, then I would be so happy to remain in the home I have spent my life's savings. I sold 3 Orlando homes to buy and renovate this home. A very sad period of my life has come upon me and I hope to be free soon as I am getting very worn and ill. Thank you all so much, you are wonderful to help.

Duty of Government to Respond to Citizen Welfare
by: Anonymous

Ms Guthrie,

I must agree with the Editor, the situation seems to have created a negative environmental impact for your health, and this should concern the county. I do hope you let them know of your health issues. One of the major conditions of any special use permit prevents such impacts as spill-over noise.

My question is, how many acres are we talking about as normally a house of worship refers to a much smaller community church? The term originated with house to house meetings among neighbors of faith. If the history of the church is rooted in a non conforming use, then the school portion would have been an accessory use. If the church is no longer used as the principal use, the school portion may not be in line with the future land use map or allowed to continue. Go to your county clerk's office for the records pertaining to the special permit's conditions for continuance.

For the record, the Supreme Court has ruled that schools are not protected as a right of religious practice. If the school has grown beyond the original allowed growth in size, the special exception may be revoked.

I do hope you find a resolution to your plight soon. Living in an environment that has potential to cause health risk factors is dangerous. Your township's charter will provide information on citizen welfare. Urban planning is the future for growth and public welfare at the core. Be sure to demand your due process and let the commisioners know you need their asssitance in follow-through by planning, code enforcement, law enforcement, etc.

I work in a capacity under Federal Housing, and recall a case where a disabled veteran was not protected from nuisance noise that resulted in his being hospitalized for severe depression relating to the nuisance. You may want to talk to an attorney about something called Substantive Due Process, which involves the danger-creation theory. Noise can cause physiological changes in someone with past trauma. Please take care of yourself.

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