Admiral Development Corp. v. City of Maitland

• Decision Date: 18 October 1972
• Docket Number: No. 71--642,71--642
• Citation: 267 So.2d 860
• Parties: ADMIRAL DEVELOPMENT CORPORATION, Appellant, v. CITY OF MAITLAND, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 860

267 So.2d 860

ADMIRAL DEVELOPMENT CORPORATION, Appellant, v. CITY OF MAITLAND, a political subdivision of the State of Florida, Appellee.

No. 71--642.

District Court of Appeal of Florida, Fourth District.

Oct. 18, 1972.

Rehearing Denied Nov. 14, 1972.

Stephen P. Kanar, of Fishback, Davis, Dominick & Simonet, Orlando, for appellant.

James O. Driscoll, of Driscoll, Conrad & Langston, Orlando, for appellee.

MAGER, Judge.

Admiral Development Corporation, plaintiff below, has challenged the constitutionality of Section 13--8 of the Maitland Code. The lower court's ruling in favor of the City of Maitland, defendant below, upheld the constitutionality of Section 13--8 and additionally found that the actions of the plaintiff precluded raising any objection to the constitutionality of such ordinance.

Plaintiff, a firm engaged in the business of subdividing and developing land in central Florida, owned a 24.4-acre parcel of land within the City of Maitland. A proposed plat of the tract was submitted to the defendant to secure approval so as to allow plaintiff to subdivide the land. As a prerequisite to such approval plaintiff was required to comply with the provisions of Section 13--8, pertinent parts of which are hereinafter set forth:

'Sec. 13--8. Dedication of park and recreation area--When land is subdivided within the city.

'(a) When lands are subdivided within the city, at least five per cent (5%) of the gross area of such lands shall be dedicated by the owner to the city for park and recreation purposes. The location of such park and recreation area shall be recommended by the planning and Zoning commission, to the city council for its approval.

'(b) If, in the judgment of the city council, the land to be subdivided is too small for a park or recreation area to be dedicated from such land, then the owner shall pay to the city a sum of money, equal to five per cent (5%) of the value of the gross area, which shall be held in escrow and used by the city for the purpose of acquiring parks and recreation areas and for no other purpose.' ¹

As a result of negotiations between plaintiff and defendant with respect to the area to be dedicated an agreement was reached whereby a lot containing 8.93-acres in the proposed subdivision would be dedicated for park and ercreational purposes and the payment of $1,500.00 would be made by plaintiff to defendant. ²

The plaintiff urges the unconstitutionality of Section 13--8 on basically the following grounds: (1) that the enactment of Section 13--8 is beyond the scope of the City's authority under its charter; (2) that the provisions of Section 13--8 are vague, indefinite and overbroad; (3) that in applying Section 13--8 the City exceeded the terms of its own ordinance; and (4) that to require a subdivider to subdivide land or provide money for park or recreational purposes as a condition for approval of a subdivision plat amounts to a taking of property without due process of law.

At the outset it is our view, and we so hold, that based upon the particular circumstances of this case the plaintiff is not estopped to question the validity of Section 13--8. See Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass'n, Fla.1971, 245 So.2d 625.

Directing our attention to the merits of plaintiff's first ground, we have reviewed the charter provisions of the City of Maitland (particularly Sections 33, 34, 40, 83, 85, and 87 of Chapter 59--1475, Laws of Florida) and are of the opinion that the adoption of Section 13--8 was Beyond the scope of these provisions. In 23 Fla.Jur. Municipal Corporations § 63, pp. 87--88, it is stated:

'. . . The general rule is that a municipal corporation possesses and can exercise only such powers as are granted in express words, or those necessarily or fairly implied in or incident to the powers as expressly conferred, or essential to the accomplishment of the declared objects and purposes of a corporation.

'A power may not be implied as incidental to powers expressly granted merely because it is useful or convenient. It must be indispensable to the attainment of the declared objects and purposes of the corporation. The existence of power on the part of the municipality cannot be assumed; it must be made to appear, and if doubtful, the courts will not enforce it.'

In City of Miami Beach v. Fleetwood Hotel, Inc., Fla.1972, 261 So.2d 801, the Supreme Court of Florida reaffirmed the limits of the exercise of municipal powers as follows:

'That the paramount law of a municipality is its charter, (just as the State Constitution is the charter of the State of Florida,) and gives the municipality all the powers it possesses, unless other statutes are applicable thereto, has not been altered or changed. Gontz v. Cooper City (Fla.App., 1970) 228 So.2d 913; Clark v. North Bay Village et al. (Fla.1951) 54 So.2d 240. The powers of a municipality are to be interpreted and construed in reference to the purposes of the municipality and if reasonable doubt should arise as to whether the municipality possesses a specific power, Such doubt will be resolved against the City Liberis v. Harper (1925) 89 Fla. 477, 104 So. 853. 'Municipal corporations are established for purposes of local government, and, In the absence of specific delegation of power, cannot engage in any undertakings not directed immediately to the accomplishment of those purposes. '' (Emphasis ours.)

The provisions of the City charter relied on by the defendant reflect the Absence of a grant of power that would serve as a source of authority to adopt Section 13--8; moreover the charter provisions do not contain sufficient language from which such authority can be reasonably inferred. Unquestionably, the City has the authority to enact ordinances to enforce the provisions of its charter; but nowhere in the cited sections of the charter do we find any provision expressly or impliedly authorizing the establishment of prerequisites to or condition precedents for the subdividing of lands within the city. That is Not to say that such authorization or power cannot be conferred upon the City by appropriate legislative action; But merely that the present provisions contain no such authorization. See in particular Associated Home Builders v. City of Walnut Creek, 1971, 4 Cal.3d 633, 94 Cal.Rptr. 630, 484 P.2d 606. ³

Our conclusion that the ordinance in question is beyond the scope of the City's authority comports with several recent decisions of our sister state courts which had occasion to construe ordinances Similar in purpose to Section 13--8. West Park Ave., Inc. v. Ocean Tp., 1966, 48 N.J. 122, 224 A.2d 1; Coronado Development Co. v. City of McPherson, 1962, 189 Kan. 174, 368 P.2d 51; People ex rel. Exch. Nat. Bank v. City of Lake Forest, 1968, 40 Ill.2d 281, 239 N.E.2d 819; McKain v. Toledo City Plan Commission, 1971, 26 Ohio App.2d 171, 270 N.E.2d...