Rosche v. City of Hollywood

• Decision Date: 04 January 1952
• Citation: 55 So.2d 909
• Parties: ROSCHE et al. v. CITY OF HOLLYWOOD.
• Court: Florida Supreme Court

Page 909

55 So.2d 909

ROSCHE et al. v. CITY OF HOLLYWOOD.

Supreme Court of Florida, Special Division A.

Jan. 4, 1952.

Rehearing Denied Jan. 21, 1952.

Leonard Robbins and Robbins & Cannova, all of Hollywood, for appellants.

Sherwood Spencer and Ellis & Spencer, all of Hollywood, for appellee.

CHAPMAN, Justice.

The City of Hollywood on August 19, 1947, pursuant to Chapter 12877, Special Acts of 1927, being the Charter of said City, adopted Resolutions Nos. 1254 and 1255. These resolutions authorized the improvement of Tyler and Harrison Streets of the City of Hollywood by resurfacing each thereof with asphalt and asphalt finish of prescribed weight per square yard. The improvement specifications and costs and incidental expenses were to be estimated by the City Engineer and ultimately be assessed against the abutting property upon the two streets specially benefitted by the improvement. Tyler and Harrison Streets run east and west some eleven or twelve blocks but are separated by Hollywood Boulevard. The streets are heavily travelled by the public and maintenance of the then existing pavements approximated some $7,500 per month. Heavy rains and standing water about the streets were contributing factors to their giving way. The area is low, marshy land having but little water fall.

It appears that the total costs of repaving Tyler Street a distance of some ten blocks came to the sum of $29,269.39, while the costs of repaving ten blocks on Harrison Street came to the sum of $30,998.56. These costs were assessed by the City of Hollywood against the abutting property owners on the aforesaid streets on a front foot basis. The abutting property owners on Harrison Street have paid the amount of the assessments in the sum of $30,998.56, except the sum of $1,719.66. The abutting property owners on Tyler Street have paid the amount of the assessments in the sum of $29,269.39, except the sum of $2,621.48. A class suit consisting of those who had paid their street lien assessments and those who had not paid them filed suit in the Circuit Court of Broward County, Florida, against the City of Hollywood to obtain a decree invalidating the paving liens and requiring the City of Hollywood to refund the sum of $56,000 previously paid to it by the abutting property owners on Tyler and Harrison Streets. On final hearing a decree was entered in behalf of the City of Hollywood and the original plaintiffs appealed. The following portions of the able and well considered opinion of the Chancellor below, Honorable George W. Tedder, may be adopted as the opinion of this Court:

'This suit is brought against the City of Hollywood, Florida, by fifty-four (54) plaintiffs to cancel special assessments put on lands abutting on Harrison and Tyler Streets in said city for paving done on such streets from 7th to 17th Avenues. They prayed that a decree be entered declaring such assessments unconstitutional and void; that the city be enjoined from the collection of the assessments not paid, and that the city be required to refund payments already made thereon. The bill of complaint alleges that the assessments are void for the reason that the lands abutting on said streets have received no benefits from the local improvement; that said improvements have resulted in a detriment to said land, in that the drainage on these streets has been impaired and retarded, which has caused the water to overflow and flood the abutting lands; and that said lands are less valuable, because of the increased traffic on said streets, which have become main thoroughfares for traffic to and from the beach; that the hazards and noise from the increased traffic and speeding cars has made these lands less desirable as a quiet residential section.

'It was also alleged that the said streets are used largely by the public; that the improvements were made for the benefit of the general public, in order to allow a larger volume of traffic to pass over said streets; that from a quiet residential section, the streets have been turned into speedways with increased traffic; that plaintiffs' land received no benefit from the improvements, but the benefits inured primarily to the general public.

'The defendant city denied the material allegations of the bill alleging no benefits and detriment to the abutting lands. The Special Master was appointed to take the testimony and submit his findings of fact and law. In his report he summarized the pleadings and the evidence submitted and found that the lands abutting on said streets derived no benefits from the repaving of said streets; that the property abutting the streets in question has not been enhanced in value as a result of the improvements; that the raising of the general level of the streets by the resurfacing caused the water to overflow the curbing and flood a few lots which had not been flooded prior to the repaving, and that there has been some increase in traffic. The Special Master further recommended that a decree declaring the assessments void. The city filed exceptions to the Special Master's report.

'There are many facts in this case, which may be deemed as undisputed. Harrison and Tyler Streets parallel Hollywood Boulevard, which boulevard is the only main thoroughfare to the beach. It is 120 ft. wide, 100 ft. being paved with a 10 foot parkway between the pavement and property line. Harrison and Tyler Streets are 70 ft. wide, 50 ft. being paved with a 10 foot parkway similar to the boulevard. The two streets in question end on the east at 7th Avenue, which is a 50 foot street bordering on and immediately adjacent to the East Coast Canal. The only bridge in the city crossing the East Coast Canal is at the eastern end of the boulevard. This entire section is zoned strictly for residences but there are several nonresidential structures on Harrison and Tyler Streets, seven (7) apartments and one (1) hotel on Tyler Street; three (3) apartments, one (1) large rooming house and one (1) church on Harrison Street. This area is known as the 'Lake Section' and is among the finest residential sections of the city.

'In its original state the land lying east of the middle of the blocks between 14th and 15th avenues was a low mangrove swamp. The developer conceived the idea of dredging out the two lakes known as 'North Lake' and 'South Lake' and pumping the muck, marl and rock onto the remaining portions of the tract. These 'made' lands are level and quite low, the water table being near the surface, with a very gentle slope to the east. The...