Hollywood, Inc. v. Broward County, No. 81-700

CourtCourt of Appeal of Florida (US)
Writing for the CourtHURLEY
Citation431 So.2d 606
PartiesHOLLYWOOD, INC., Appellant, v. BROWARD COUNTY, Florida, a political subdivision of the State of Florida, Appellee.
Decision Date23 March 1983
Docket NumberNo. 81-700

Page 606

431 So.2d 606
HOLLYWOOD, INC., Appellant,
v.
BROWARD COUNTY, Florida, a political subdivision of the
State of Florida, Appellee.
No. 81-700.
District Court of Appeal of Florida,
Fourth District.
March 23, 1983.
Rehearing Denied June 13, 1983.

Page 607

Ellis, Spencer, Butler & Kisslan, Ross P. Beckerman, Hollywood, and Davis W. Duke, Jr. of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appellant.

Harry A. Stewart, Gen. Counsel to the Bd. of County Com'rs, Fort Lauderdale, Fred P. Bosselman, Edward F. Ryan and Joel F. Bonder of Ross, Hardies, O'Keefe, Babcock & Parsons, Sp. Counsel to the Bd. of County Com'rs, Chicago, Ill., and F. Craig Richardson, Jr. of Ross, Hardies, O'Keefe, Babcock & Parsons, Sp. Counsel to the Bd. of County Com'rs, Boca Raton, for appellee.

HURLEY, Judge.

This appeal concerns the validity of a Broward County ordinance that requires a developer/subdivider, as a condition of plat approval, to dedicate land or pay a fee to be used in expanding a county level park system sufficiently to accommodate the new residents of the platted development. The appellant has asserted that Broward County lacks legal authority to adopt this type of ordinance. We do not agree and, thus, we affirm the trial court's conclusion that the ordinance is valid.

The appellant is a real estate development corporation that paid a fee under the ordinance and later commenced this action seeking declaratory and injunctive relief as well as a refund of the fee. The appellant has challenged the part of the ordinance that requires, as a condition of plat approval, the dedication of land or the payment of a fee for use by the county in acquiring and developing county level parks. 1

The ordinance has three alternate provisions: (1) the developer can dedicate three

Page 608

acres for every one thousand residents of the proposed subdivision, (2) the developer can pay an amount of money equal to the value of land that would have been dedicated, or (3) the developer can pay an impact fee according to a schedule in the ordinance. The developer in this case chose option two and paid an amount equal to the value of the land that would have been dedicated. At trial, the county introduced evidence that the ordinance seeks to impose fees only for those capital acquisition costs that the county will incur because of the new subdivision residents and that the money collected will be used for the substantial benefit of those residents. The trial court concluded that the ordinance is a valid and constitutional exercise of the county's legislative powers.

We discern two principal thrusts in appellant's overall attack on the ordinance: (1) the appellant asserts that the Broward County Commission lacks authority under the Broward County Charter to enact this type of ordinance and (2) the appellant asserts that no Florida court has countenanced the imposition of land or fee requirements for use by a county in expanding its county level parks. Included in these attacks are allegations that the ordinance violates fundamental constitutional rights including due process and equal protection and allegations that the ordinance constitutes an unconstitutional taking without just compensation and is, in fact, an illegal tax. In response, the appellee contends that the ordinance does not exceed the broad home rule powers of the Broward County Charter and that the ordinance merely exacts reasonable and valid regulatory fees.

Page 609

I

THE CHARTER

At the outset, we note that counties, as political subdivisions of the state, derive their sovereign powers exclusively from the state. Florida charter counties, such as Broward County, derive their sovereign powers from the state through Article VIII, Section 1(g) of the Florida Constitution which provides in pertinent part:

Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by the vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law.

Through this provision, the people of Florida have vested broad home rule powers in charter counties such as Broward County.

The people have said that charter county governments shall have all the powers of local government unless the state government takes affirmative steps to preempt local legislation. 2 Of course, the power of charter county governments is limited by certain provisions of the Florida Constitution such as the Declaration of Rights in Article I and the limitations on taxing power found in Article VII. In addition, the counties' power is limited, just as is the state's power, by the provisions of the United States Constitution and any federal legislation that binds the states.

In the absence of preemptive federal or state statutory or constitutional law, the paramount law of a charter county is its charter. Cf. City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801 (Fla.1972) (city charter). In essence, the charter acts as the county's constitution and, thus, ordinances must be in accordance with the charter.

The people of Broward County have empowered their county government with very broad powers by incorporating the following provisions into their charter:

Section 1.03. GENERAL POWERS OF THE COUNTY.

A. Unless provided to the contrary in this Charter, Broward County "shall have all powers of local self-government not inconsistent with general law or with special law approved by vote of the electors."

Section 1.08. CONSTRUCTION.

The powers granted by this Charter shall be construed liberally in favor of the county government. The specified powers in this Charter shall not be construed as limiting, in any way, the general or specific power of the government, as stated in this Article.

Pursuant to these provisions, the people of Broward County have conferred all the powers a Florida charter county can have, subject only to other contrary provisions in the charter.

The appellant relies on another provision in the charter as establishing by inference that the county government violated the charter in enacting the ordinance under review. That provision provides:

Section 6.12. PLAT ORDINANCE.

The legislative body of each municipality within Broward County and the County Commission for the unincorporated area shall, within six (6) months after the effective date of this Charter, create a mandatory plat ordinance.

No plat of lands lying within Broward County, either in the incorporated or unincorporated areas, may be recorded in the Official Records prior to approval by the County Commission. The County Commission shall enact an ordinance establishing standards, procedures and minimum requirements to regulate and control the platting of lands within the incorporated and unincorporated areas of Broward County. The governing body of each municipality may enact an ordinance establishing additional standards, procedures and requirements as may be necessary

Page 610

to regulate and control the platting of lands within its boundaries.

We can find nothing in this provision which suggests that the people of Broward County intended to prohibit their county government from enacting an ordinance requiring dedications or fees for expanding parks as a condition of plat approval. Thus, we find appellant's first attack to be ineffective. 3

II

VALIDITY OF DEDICATION OR FEE REQUIREMENTS

The more difficult question is whether the ordinance violates the state or federal constitution. As noted before, the appellant has alleged that the ordinance denies due process and equal protection, that it effects a taking without just compensation, and that it exacts illegal taxes.

This court has previously considered the validity of an ordinance which required the dedication of park land or the payments of fees in lieu of dedication. See Admiral Development Corp. v. City of Maitland, 267 So.2d 860 (Fla. 4th DCA 1972). In Admiral Development a real estate developer challenged an ordinance as being beyond the scope of the city's charter authority and unconstitutional. The ordinance required, as a condition of plat approval, that the subdivider dedicate at least five percent of the platted land or pay five percent of the value of the land to be used for park and recreation areas. This court scrutinized the city charter and concluded that the ordinance was beyond the scope of the city government's power under its charter. Secondly, we concluded that the five percent fixed percentage was arbitrary and overbroad. We reasoned that a fixed percentage that relates to the amount of land to be platted, rather than the number of residents that will occupy the land, cannot adequately ensure that the subdivider pays only for the amount of new park lands that the locality will be required to acquire in order to service the new development.

In the present case, as noted above, there is no problem with a lack of power under the charter provisions themselves, that is, assuming the ordinance is not inconsistent with state or federal law. Secondly, the ordinance under review does not suffer the infirmities of a fixed percentage ordinance. The ordinance in the present case exacts land or fees based on the number of people expected to live in the subdivision rather than the amount of land to be platted.

In Admiral Development, we declined to provide a general prescription by which park fee ordinances should be evaluated. Yet we did suggest that the appellee city might look for guidance, in the consideration of any proposed charter amendment or ordinance adoption, to a California case that considered and rejected a due process, equal protection, and taking without just compensation challenge. 267 So.2d at 863 n. 3 (citing Associated Home Builders of Greater East Bay, Inc. v. City of Walnut Creek, 4 Cal.3d 633, 94 Cal.Rptr. 630, 484 P.2d 606 (1971)). Although we...

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28 practice notes
  • Case List
    • United States
    • Bargaining for Development Case List
    • July 19, 2003
    ...633, 563 N.W.2d 145 (1997) Hollywood Beach Hotel Co. v. City of Hollywood , 329 So. 2d 10 (Fla. 1976) Hollywood, Inc. v. Broward County , 431 So. 2d 606 (Fla. Dist. Ct. App. 1983) Holmdel Builders Ass’n v. Township of Holmdel , 121 N.J. 550, 583 A.2d 277 (1990) Home Builders & Contractors A......
  • Land Development Conditions
    • United States
    • Bargaining for Development Article
    • July 19, 2003
    ...Board of County Comm’rs of Palm Beach County, 469 U.S. 976, 105 S. Ct. 376, 83 L. Ed. 2d 311 (1984); Hollywood, Inc. v. Broward County, 431 So. 2d 606 (Fla. Dist. Ct. App. 1983); Coulter v. City of Rawlins, 662 P.2d 888 (Wyo. 1983); Contractors & Builders Ass’n of Pinellas County v. City of......
  • Home Builders Assn. of Dayton and the Miami Valley v. City of Beavercreek, 98-LW-3839
    • United States
    • United States Court of Appeals (Ohio)
    • October 23, 1998
    ...course, can attempt to refute the government's showing by offering additional evidence. Hollywood, Inc. v. Broward Cty. (Fla. App. 1983), 431 So.2d 606. After applying this test to the facts, the trial court upheld the ordinance. Regarding the choice of tests, HBA contends in its second ass......
  • The Holy Grail: Managing Growth While Maintaining Affordability and Protecting Natural Resources
    • United States
    • Land use planning and the environment: a casebook
    • January 23, 2010
    ...Governments’ Capital Funding Dilemma, 9 Fla. St. U.L. Rev. 415 (1981). This test was explained in Hollywood, Inc. v. Broward County, 431 So. 2d 606, 611-12 (Fla. 4th DCA), review denied, 440 So. 2d 352 (Fla. 1983), as follows: In order to satisfy these requirements, the local government mus......
  • Request a trial to view additional results
25 cases
  • Home Builders Assn. of Dayton and the Miami Valley v. City of Beavercreek, 98-LW-3839
    • United States
    • United States Court of Appeals (Ohio)
    • October 23, 1998
    ...course, can attempt to refute the government's showing by offering additional evidence. Hollywood, Inc. v. Broward Cty. (Fla. App. 1983), 431 So.2d 606. After applying this test to the facts, the trial court upheld the ordinance. Regarding the choice of tests, HBA contends in its second ass......
  • Home Builders Ass'n v. West Des Moines, No. 99-2025
    • United States
    • United States State Supreme Court of Iowa
    • May 8, 2002
    ...need for the public facilities generated by [the] new development.'" Id. (citation omitted); accord Hollywood, Inc. v. Broward County, 431 So.2d 606, 611 (Fla.Dist.Ct.App.1983). Such fees "have been lauded by local governments in recent years as a welcome means to `shift a portion of the co......
  • Lowe v. Broward County, No. 4D99-1664.
    • United States
    • Court of Appeal of Florida (US)
    • September 20, 2000
    ...subdivisions of the state, counties "derive their sovereign powers exclusively from the state." Hollywood, Inc. v. Broward County, 431 So.2d 606, 609 (Fla. 4th DCA 1983). A charter county such as Broward County obtains its sovereign powers through Article VIII, Section 1(g) of the state con......
  • Home Builders Ass'n of Cent. Arizona v. City of Scottsdale, No. 1
    • United States
    • Court of Appeals of Arizona
    • October 26, 1993
    ...account that can be spent only for the benefit of the developments. A.R.S. § 9-463.05(B)(2); see Hollywood, Inc. v. Broward County, 431 So.2d 606, 611-12 (Fla.Dist.Ct.App.1983) (earmarking fees satisfies second rational nexus test). Municipalities must also impose the fee in a nondiscrimina......
  • Request a trial to view additional results
3 books & journal articles
  • Case List
    • United States
    • Bargaining for Development Case List
    • July 19, 2003
    ...633, 563 N.W.2d 145 (1997) Hollywood Beach Hotel Co. v. City of Hollywood , 329 So. 2d 10 (Fla. 1976) Hollywood, Inc. v. Broward County , 431 So. 2d 606 (Fla. Dist. Ct. App. 1983) Holmdel Builders Ass’n v. Township of Holmdel , 121 N.J. 550, 583 A.2d 277 (1990) Home Builders & Contractors A......
  • Land Development Conditions
    • United States
    • Bargaining for Development Article
    • July 19, 2003
    ...Board of County Comm’rs of Palm Beach County, 469 U.S. 976, 105 S. Ct. 376, 83 L. Ed. 2d 311 (1984); Hollywood, Inc. v. Broward County, 431 So. 2d 606 (Fla. Dist. Ct. App. 1983); Coulter v. City of Rawlins, 662 P.2d 888 (Wyo. 1983); Contractors & Builders Ass’n of Pinellas County v. City of......
  • The Holy Grail: Managing Growth While Maintaining Affordability and Protecting Natural Resources
    • United States
    • Land use planning and the environment: a casebook
    • January 23, 2010
    ...Governments’ Capital Funding Dilemma, 9 Fla. St. U.L. Rev. 415 (1981). This test was explained in Hollywood, Inc. v. Broward County, 431 So. 2d 606, 611-12 (Fla. 4th DCA), review denied, 440 So. 2d 352 (Fla. 1983), as follows: In order to satisfy these requirements, the local government mus......

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