Monthly Archives: August 2007

I live in one of the most regulated communities in the USA, the city of Coral Gables, Florida. It is one of the original planned communities, and it sports rules about everything — especially about houses and yards. You need a permit to get more than $100 worth of work done on your home. You need the city's approval of the color you plan to paint the exterior of your house, and of any interior piece that might be visible from outside. And the acceptable color palate is limited.

The “City Beautiful,” as it modestly styles itself, provides fine services, its employees are polite and proud, and even the cops are model citizens (by local community standards). Property values may not skyrocket like some neighborhoods, but the city's restrictive zoning and building policies have protected values in downturns. Mostly, it's a nice place to live, even if the Building Dept. has made my life hell for more than two years by repeatedly rejecting my applications for the final permit I need to finish a long-running expansion of my house. (The process of protecting me from having an inadequate railing on my staircase has resulted in my having no railing for almost two years. Don't ask.)

Yesterday, however, a court struck down one of the city's most notorious rules. In order to maintain the tone, Coral Gables prohibits any trucks from being parked in front of homes overnight. If you can fit your truck in your garage that's fine, and all homes except some of the oldest ones are required to have garages, but no trucks on the street at night. The Gables has its own little fleet of code enforcement police who drive around and ticket people for putting out their trash too soon, letting vegetation obstruct your (required) house number, or parking the dreaded truck in the dark.

Looks like they will have one less ticket to write. In Kuvin v. City of Coral Gables the 3rd DCA overturned the lower court and held that Coral Gables's application of its truck ban to a resident's pickup truck (a Ford F-150), who happened to live in a house without a garage, violated his federal Constitutional liberty rights — at least as applied to the facts of his truck.

Personally, I have no particular view on the merits of parking pickups. But as a legal matter, it's an interesting opinion, in which the Court strikes down the rule as an impermissible infringement on the liberty of Coral Gables citizens.

First, the Court says the ban can't be justified as an attempt to preserve the residential character of the neighborhood because this pickup wasn't a commercial vehicle. In fact, however, the majority of F-150 on the road probably are used as commercial vehicles — a subject on which the court does not appear to have taken evidence. It's unclear to me that the Constitution requires the City to differentiate in the manner the court assumes is necessary.

Second, and more plausibly, the court rejects the alternate justification that there is a rational relationship between the rule and its purported aesthetic objectives:

The argument that the ordinances may be supported on aesthetic grounds is just as unacceptable. Apart from pure matters of taste, concerning which government cannot be involved, Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 510 (1981), there is nothing to distinguish Kuvin’s truck or others like it from what some might think are even more aesthetically displeasing cars or, even more plainly, from one of whatever make or model which is in obvious disrepair or just plain dirty

I'd note, though, that dirty houses or yards excite the code police…

But all that isn't really what drives this opinion. Most of it is about trucks. Or rather about truck owners. Or, rather, what the Court thinks Coral Gables thinks about truck owners.

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.

In any case, this is odd on several levels. As the dissent noted, “Kuvin does not assert … that he is a member of a suspect class. Rather, he asserts that he is an owner of a personal use pickup truck and that the ordinances impinge on his fundamental right of freedom of association. He, therefore, claims that because the ordinances infringe upon a fundamental right, the trial court erred in failing to perform a strict scrutiny analysis in determining its constitutionality.”

And that's a pretty weak argument anyway.

Nevertheless, having imputed a class-based motive to the City, the court majority then climbs on its high horse and sings folk songs:

For a governmental decision to be based on such considerations is more wrong; it is frightening. Perhaps Coral Gables can require that all its houses made of ticky-tacky and that they all look just the same,10 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.

The concurrence emphasizes the distinction between a permissible ban on commercial vehicles, and one based on aesthetics. In other words, if the ban had been on working trucks, it could have reached other Ford F-150s but not this one; I suspect that enforcing such a rule might be difficult.

Even so, however, the concurring judge was very much on board for the main point:

As applied to this case, the city ordinances prohibit anyone driving a personal use light truck from parking in the private driveway of a Coral Gables property owner. Similarly, an owner of a Ford F-150 vehicle is also prohibited from parking in a Coral Gables metered-parking space or other public area of the City during the evening and overnight hours of every single day. Thus, under the subject ordinances, anyone wishing to dine in Coral Gables may not park his/her personal use light truck in any public area of the City or any residential driveway.

The dissent appears to agree that there is a legally significant difference between regulations aimed at a personal use vehicle and those aimed at commercial or recreational vehicles. However, the dissent dispenses with this critical distinction and would uphold the ordinances on the ground that appellant’s personal use light truck “looks commercial.” Presumably, the same reasoning could be used to uphold a prohibition against the intrusion of Hummers within city limits because they are “military looking.” Like Judge Schwartz, I find this distinction to be frightening. It would allow government to regulate the types of personal use vehicles its citizens drive simply based on their outward appearance.

In a world where we're being spied on by government satellites, you gotta love the next part,

Such a holding embraces George Orwell’s dystopia, where personal rights are subverted by the government.

So there you have it — Coral Gables: liberated at last — the fundamental right to park a pickup truck has been vindicated!

Were it not for the difficulty of getting this sort of issue before the state Supreme Court, I'd think this is an opinion was a good candidate for appeal. As the dissent puts it:

The majority concludes that the ordinances are unconstitutional as applied to Kuvin because, while an ordinance may constitutionally preserve the residential character of a neighborhood by restricting commercial vehicles, restricting personal use trucks is unconstitutional, and ordinances enacted for purely “aesthetic grounds is just as unacceptable.” While Judge Cortiñas in his concurring opinion acknowledges clear precedent in this state holding aesthetic considerations to be a valid exercise of the City’s police power, he, however, concludes that the ordinances in question are unconstitutional as applied to Kuvin’s personal use pickup truck because, in his mind, the regulation of this particular pickup truck, a 1993 Ford F-150 pickup truck, which he refers to as a “light truck,” is not rationally related to aesthetics. In other words, Judge Cortiñas is of the view that this particular model of pickup truck is more aesthetically acceptable than all other open bed pickup trucks.