Carson v. City of Fort Lauderdale, 3532

• Decision Date: 07 August 1963
• Docket Number: No. 3532,3532
• Citation: 155 So.2d 620
• Parties: Arthur G. CARSON, Myrtis E. Carson, et al., Appellants, v. The CITY OF FORT LAUDERDALE, Florida, a municipal corporation of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 620

155 So.2d 620

Arthur G. CARSON, Myrtis E. Carson, et al., Appellants, v. The CITY OF FORT LAUDERDALE, Florida, a municipal corporation of the State of Florida, Appellee.

No. 3532.

District Court of Appeal of Florida, Second District.

Aug. 7, 1963.

Carl V. Wisner, Jr., Fort Lauderdale, for appellants.

Ronald B. Sladon, George G. Dickson and Dermott J. Doyle, Fort Lauderdale, for appellee.

WHITE, Judge.

Arthur G. Carson and wife and numerous other plaintiffs have appealed an order dismissing with prejudice their twice amended complaint for declaratory and injunctive relief against the City of Fort Lauderdale. The plaintiffs sought to restrain the defendant municipality from assessing against plaintiffs' lands the cost of installing storm sewers within certain proposed storm sewer districts pursuant to resolution.

The amended complaint sets forth specific averments of fact in support of plaintiffs' first contention that their lands cannot be benefitted directly or indirectly by the proposed sewers and that the imposition of special assessments to underwrite the cost of such installations would deprive plaintiffs of property without due process of law and deny them equal protection of the laws in contravention of Amendment XIV of the Constitution of the United States. In support of their legal position on these points the plaintiffs cite the U. S. Supreme Court decision of Myles Salt Company v. New Iberia & St. Mary Drainage District, 239 U.S. 478, 36 S.Ct. 204, 60 L.Ed. 392 hereinafter discussed.

The amended complaint includes allegations that the surface of the proposed drainage districts is high, between 12 and 20 feet above the normal water table; that the districts are residential and fully sodded; that rain does not drain from the houses to the streets but falls onto the sod; that the run-off coefficient is low; that a stratum of coarse dry sand lies between the surface and the water table; that the percolation coefficient is extremely low; and generally, that the natural drainage from plaintiffs' properties is adequate. Plaintiffs also allege that their parcels of land are remote from any of the proposed sewer lines and that the defendant's classification of these parcels in the western or 'superior heritage' on the same basis as those parcels lying to the east or 'inferior heritage' of the proposed districts is unreasonable and arbitrary and therefore an improper classification within the constitutional meaning of that term.

In Myles Salt Company v. New Iberia & St. Mary Drainage District, supra, it was held that high land which cannot be benefitted directly or indirectly by a proposed drainage system may not, consistent with due process of law, be included within a district for the purpose of levying drainage taxes. The court said:

'It is to be remembered that a drainage district has the special purpose of the improvement of particular property, and when it is so formed to include property which is not and cannot be benefitted directly or indirectly, including it only that it may pay for the benefit of other property, there is an abuse of power and an act of confiscation. * * *'

This prerequisite of benefits to valid special assessments is a general and fundamental rule. In Cosby v. Jumper Creek Drainage District, 1941, 147 Fla. 705, 3 So.2d In Consolidated Land Company v. Tyler, 1924, 88 Fla. 14, 101 So. 280, the court held that where a special improvement district attempts to include property that cannot be benefitted by the contemplated improvement, the courts will give effect to the private rights secured by the Constitution and grant such relief as the circumstances justify. See also Martha Bright Farms, Inc. v. Broward Port Authority, 1934, 117 Fla. 361, 158 So. 70, 76, appeal dismissed, 293 U.S. 531, 55 S.Ct. 209, 79 L.Ed. 640; Martin v. Dade Muck Land Company, 1928, 95 Fla. 530, 116 So. 449, 464.

356, suit was brought to foreclose delinquent assessments. The defendant's answer included an allegation that his property was not directly or indirectly benefitted by the drainage district. The chancellor struck this and other portions of the answer. The Supreme Court of Florida reversed to permit the defendant to adduce testimony in support of specific factual allegations contained in stricken portions of the answer. The court observed that it is an abuse of power to include in a drainage district property not directly or indirectly benefitted so as to make the owner pay for benefits to other property. Of course an allegation of no benefits is not sufficient when alleged by way of conclusion without accompanying allegations of ultimate fact. Ideal Farms Drainage District v. Certain Lands in Said District etc., 1943, 153 Fla. 265, 14 So.2d 416.

Is the plaintiffs' amended complaint so framed as to invoke the constitutional law enunciated in the foregoing decisions? As to this first aspect of plaintiffs' complaint--the allegation of no benefits--plaintiffs submit that they have pleaded a justiciable case by specific allegations of material fact. We agree. In our opinion the complaint offers a fact pattern which calls for responsive pleading. It follows that the defendant's motion to dismiss was improvidently granted insofar as it pertains to plaintiffs' assertion that their properties could not be benefitted by the proposed storm sewers. Although this appeal is disposable without further comment, we nevertheless advert to a limited treatment of plaintiffs' second ground for relief.

Plaintiffs' second or alternative ground for relief is that the proposed assessments would impair the defendant's obligation of contract in view of the following pleaded facts. In 1947, after disastrous floods within the defendant city, the defendant, pursuant to Fla.Stat. Section 167.431(1), F.S.A., proposed by resolution to levy a 10% public utility tax the proceeds of which would be deposited in a 'Public Improvement Fund.' This fund was designated to be expended for improvements and extensions of the city's storm...