Colen v. Sunhaven Homes, Inc.

• Decision Date: 27 November 1957
• Citation: 98 So.2d 501
• Parties: Sidney COLEN, Appellant, v. SUNHAVEN HOMES, Inc., Appellee.
• Court: Florida Supreme Court

Page 501

98 So.2d 501

Sidney COLEN, Appellant, v. SUNHAVEN HOMES, Inc., Appellee.

Supreme Court of Florida.

Nov. 27, 1957.

Harold A. Kooman and Herman W. Goldner, St. Petersburg, for appellant.

Wm. C. Kaleel, St., Petersburg, for appellee.

D. CARROLL, District Judge.

This is an appeal from a final decree of the Circuit Court of Pinellas County, Florida, granting appellee's motion to dismiss appellant's complaint.

In his complaint appellant alleges that he is a builder and developer buying tracts of land in Pinellas County and subdividing them and building homes upon them which he has sold and offered for sale to the public; that he owns considerable land lying within a certain described area in Pinellas County adjacent to but outside the limits of the City of St. Petersburg, which area is subject solely to the control of the Board of County Commissioners of that county; that on November 29, 1955, this area, being without any sewage disposal system, the Board of County Commissioners passed a resolution granting him the exclusive right to use all county streets, alleys, and public rights of way necessary to install a sanitary sewage disposal system and a water distribution system to serve the area; that appellant accepted this grant contained in the resolution and has fully complied with all its terms; that he has completed in the area a water plant and built a modern sewage disposal plant; that appellee is the owner of certain tracts of land lying within the area in which appellant has the exclusive right to install sewer and water lines, which lands appellee has been subdividing and developing; that appellee has engaged in negotiating with appellant for the furnishing of water and sewer lines but appellee has now notified appellant that it will not enter into such an agreement with him; that appellee is now itself laying sewer pipe in certain easements and streets in the area and, unless restrained, will continue to lay sewer lines and water pipes in the area; that appellant holds the exclusive right to use all county streets, alleys, and public rights of way in the area and that appellee's actions are in direct violation of the rights given appellant under the resolution by the Pinellas County Board of County Commissioners. Appellant then prayed for an injunction to restrain appellee from laying any water pipes and sewer lines in, under, or upon any of the county streets, alleys, or public rights of way within the area.

To this complaint appellee filed a motion to dismiss on the ground that the complaint failed to allege a cuase of action enforceable against it. At the hearing on the motion the Circuit Court entered a final decree granting the appellee's motion to dismiss with prejudice and finding that the resolution granting the exclusive franchise to the appellant by the Board of County Commissioners was without authority.

Appellant relies chiefly upon Chapter 29437, Laws of Florida, Special Acts of 1953, as the source of the authority to the Board of County Commissioners to grant the exclusive franchise to appellant. Section 1 of this Chapter provides in part:

'The Board of County Commissioners of Pinellas County is hereby authorized and empowered to supervise and control the methods and means of providing for disposal of drainage, sewage, refuse or waste material or for the treatment of sewage, waste or refuse by any person, group, firm, corporation, company, public or private institution, entity or community within Pinellas County and outside the corporate limits of any municipality, as said Board deems advisable; to provide for the planned development of sewers, sewage and waste material disposal or treatment within said County as said Board deems advisable; to protect the public health and general welfare of Pinellas County thereby; to cooperate with all other governmental agencies and entities towards the accomplishment of the purposes herein; to establish by proper resolution such reasonable rules, regulations and/or codes as the Board deems necessary to carry out the purposes of this Act, including, but not exclusively the issuance of permits, and conducting of inspections, the determination as to whether a nuisance does exist or reasonably may come into existence and the issuance of such orders as the Board deems necessary and proper to correct such improper conditions as are found to exist; to prescribe such requirements relative to the use, development and improvement of subdivisions and/or other property and filing of plats as are necessary to carry out the purposes of this act; and to do all other acts and things necessary and proper to carry out the purposes of this Act.'

Section 3 of the Chapter provides:

'The purposes of this Act are declared to be proper public County purposes and the provisions of this Act shall be liberally construed in order to protect the health and general welfare of Pinellas County.'

The question for determination in this appeal is the validity of the exclusive franchise purportedly granted by the resolution of the Board of County Commissioners on November 29, 1955. The answer to this question turns on whether or not Chapter 29437, Laws of Florida, Special Acts of 1953, should be construed as effectively authorizing the Pinellas County Commission to grant such an exclusive franchise.

It is well...