Can a Special Exception Be Exempt from Nuisance Laws?
by Madeline Gutherie
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?
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.
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