Call v. City of West Jordan
| Decision Date | 26 December 1979 |
| Docket Number | No. 15908,15908 |
| Citation | 606 P.2d 217 |
| Parties | John CALL and Clark Jenkins, Plaintiffs and Appellants, v. CITY OF WEST JORDAN, Utah, Defendant and Respondent. |
| Court | Utah Supreme Court |
Robert J. DeBry and Valden P. Livingston, Salt Lake City, for appellant.
Nick J. Colessides, Salt Lake City, for respondent.
Plaintiffs John Call and Clark Jenkins, subdividers, brought this action in which they challenge the validity of an ordinance adopted by the defendant City which requires that subdividers dedicate 7 percent of the land to the city, or pay the equivalent of that value in cash, to be used for flood control and/or parks and recreation facilities. The district court upheld the validity of the ordinance and denied plaintiffs' request for injunctive relief and damages. The latter appeal.
Plaintiffs contend that the ordinance is invalid because: (1) it is not within the City's granted powers; (2) the land or the money required is not for the benefit of the subdivision, but rather the City as a whole; (3) that the City is attempting to exercise the power of eminent domain without following the requirements thereof and paying just compensation; and (4) it unlawfully imposes a tax.
On January 21, 1975, the City amended an existing ordinance (No. 33) relating to subdivisions by adding the following:
Section 9-C-8(a). In addition to all the other requirements prescribed under this ordinance The subdivider shall be required to dedicate seven percent (7.0%) of the land area of the proposed subdivision to the public use for the benefit and use of the citizens of the City of West Jordan . . . Or in the alternative at the option of the governing body of the City, The City may accept the equivalent value of the land in cash if it deems advisable.
Sections 9-C-8(b) and (d) further provide that the money received "shall be used by the City for its flood control and/or parks and recreational facilities" and that if the City elects to receive money in lieu of land, payment shall be made "by the subdivider on or before final approval of the plat is given by the City Council."
On May 2, 1977, the plaintiffs presented to the City two plats and maps for a proposed "Wescall subdivision" which, if approved, would result in the future development of 92 lots on about 30 acres of land located in the City. When the City exercised its option to accept money in lieu of land, plaintiff Clark Jenkins paid, under protest, $16,576.00, representing about 7 percent of the value of his land. The City Council then approved the subdivision and the plats were recorded. The City refused plaintiffs' demand to refund the money and this action resulted.
In rejecting plaintiffs' attack upon the ordinance, the trial court stated in its memorandum decision:
As it affects the plaintiffs, it is the opinion of this Court that the City of West Jordan, Utah's ordinance 33, as amended January 21, 1975, is valid and constitutional. It is further the Court's opinion that there has been no taking of the plaintiff's property by the defendant without just compensation nor has the defendant levied an invalid tax upon the plaintiffs. See Secs. 10-9-1 through 10-9-30, U.C.A. 1953. (Citing cases.)
It is not questioned that cities have no inherent sovereign power, but only those granted by the legislature. 1 But it must be realized that it is impractical for statutes to spell out to the last detail all of the things city governments must do to perform the functions imposed upon them by law. This Court has in numerous cases recognized this and has held that cities have those powers which are expressly granted and also those necessarily implied to carry out such responsibilities. 2
There are a series of statutes through which the City derives its authority to enact ordinances of the character here in question. Sec. 10-8-84, U.C.A. 1953, grants to cities the authority and the duty
. . . to preserve the Health, safety and good order of the city and its inhabitants.
This idea is carried forward and echoed in Section 10-9-1, U.C.A. 1953, which provides that:
For the purpose of promoting Health, safety, morals And the general welfare of the community The legislative body of cities and towns is empowered to regulate and restrict . . . The location and Use of buildings, structures and Land for trade, industry, residence or other purposes.
Further dealing with that subject and more specific as to the establishment of parks, Section 10-9-3 states that such regulations
. . . shall be made in accordance with a comprehensive plan designed to . . . Facilitate adequate provision for transportation, water, sewage, schools, Parks and other public requirements.
The Municipal Planning Enabling Act 3 empowers a city to have a planning commission which may "adopt and certify to the legislative body, a master plan for the physical development of the municipality." 4
Section 10-9-22 states that the planning commission "shall have such powers as may be necessary to enable it to perform its functions and promote municipal planning."
Significantly, Section 10-9-25 then provides:
In exercising the powers granted to it by the act, The planning commission shall prepare regulations governing the subdivision of land within the municipality. A public hearing thereon shall be held by the legislative body, after which The legislative body may adopt said regulations for the municipality.
(all emphasis herein added.)
If the above statutes are viewed together, and in accordance with their intent and purpose, as they should be, it seems plain enough that the ordinance in question is within the scope of authority and responsibility of the city government in the promotion of the "health, safety, morals and general welfare" of the community. 5
Just how essential and desirable it is that cities have such authority in planning their growth is brought into sharp focus by reflecting, on the one hand, upon the conditions in the slum and ghetto areas of various cities, where there are none, or inadequate, parks and playgrounds and, on the other, upon the enrichment of life which has been conferred on other cities where there are parks, plazas, recreational and cultural areas (some of which are very famous) for the use of the public.
In modern times of ever-increasing population and congestion, real estate developers buy land at high prices. From the combined pressures of competition and desire for gain, they often squeeze every lot they can into some labyrinthian plan, with only the barest minimum for tortious and circuitous streets, without any arterial ways through such subdivisions, and with little or no provision for parks, recreation areas, or even for reasonable "elbow room." The need for some general planning and control is apparent, and makes manifest the wisdom underlying the delegation of powers to the cities, as is done in the statutes above referred to.
As undeveloped land is improved, it is also important that some provision for flood control be made. To the extent that the establishment of subdivisions increases the need for flood control measures or recreational facilities, it is both fair and essential that subdividers be required to contribute to the costs of providing those facilities.
In their point No. (2), the plaintiffs attack the ordinance on the ground that the land dedicated (or the money in lieu thereof) is not to be used solely and exclusively for the benefit of the created subdivision. They point to the provision that the land is received "for the benefit and use of the citizens of the City of West Jordan" and the money is used for "its (West Jordan's) flood control and/or parks and recreation facilities."
We agree that the dedication should have some reasonable relationship to the needs created by the subdivision. 6 But in the planning for the expansion of a city, it is obvious that no particular percentage of each subdivision, or of each lot, could be used as a park or playground in that particular subdivision; and likewise, that it could not be so used for flood control. But it is so plain as to hardly require expression that if the purpose of the ordinance is properly carried out, it will redound to the benefit of the subdivision as well as to the general welfare of the whole community. The fact that it does so, rather than solely benefiting the individual subdivision, does not impair the validity of the ordinance. 7
These observations are also pertinent: Although the money which was collected from the plaintiffs in this case was deposited in the City's general fund, it should not be assumed that the money thus becomes usable for other purposes by the City and is of no special benefit to the area sought to be subdivided. On the contrary, that it will be used for its stated purpose is assured, first, by the integrity and good faith of the public officials charged with that responsibility; and second, by the fact that the recognized principle is that if money is collected from the public for a specific purpose, it becomes a trust fund committed to the carrying out of that purpose. 8
There is an obvious fallacy in the plaintiffs' argument that the City has not followed the proper procedure for taking plaintiffs' property under eminent domain. This is not a proceeding initiated by the City to acquire property. 9 It has indicated no desire to compel the plaintiff to subdivide their property, nor to dedicate any part of it. The plaintiffs are the moving parties, and as a prerequisite for permitting the creation of the subdivision, the City, under the powers conferred upon it as hereinabove discussed, can and does impose reasonable regulations. 10
Plaintiffs urge that the requirements of the ordinance in question are but a revenue-raising scheme for the purpose of meeting the financial needs of the City, and thus constitute an...
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