State ex rel. Bower v. City of Tampa

• Decision Date: 09 July 1975
• Docket Number: No. 73--359,73--359
• Citation: 316 So.2d 570
• Parties: STATE of Florida ex rel. Lewis E. BOWER et al., Appellants, v. CITY OF TAMPA, a Municipal Corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 570

316 So.2d 570

STATE of Florida ex rel. Lewis E. BOWER et al., Appellants, v. CITY OF TAMPA, a Municipal Corporation, et al., Appellees.

No. 73--359.

District Court of Appeal of Florida, Second District.

July 9, 1975.

William E. Thompson and Frederick M. Lucarelli, Tampa, for appellants.

William T. Keen, Tampa, for appellees.

PER CURIAM.

This is an appeal from a final judgment of the Circuit Court entered adversely to appellant-plaintiffs in a Quo Warranto proceeding, seeking an ouster of the City of Tampa from lands owned by Appellants and also a declaration that Chapter 29548, Laws of Florida, Special Act 1953, extending the corporate limits of the City of Tampa to include lands owned by Appellants, is unconstitutional.

Appellants own certain unimproved, unhabitated habitated tidal shores lying mostly under water between the fringe boundaries of the City of Tampa and the bulkhead line of upper old Tampa Bay. This property is physically separated from the city land area and the Courtney-Campbell causeway, State Road 60, by 2,000 feet of water, but is within the territorial limits of the City. Appellants purchased this property on May 15, 1969, from the Tampa Port Authority, which owned the property at the time the corporate limits of the city were extended by Special Act in 1953. The City of Tampa has never supplied this area with municipal services, such as, fire protection, streets, sidewalks, sewer or water. However, police patrol boats and helicopters survey the area. Additionally, this area is subject to the power of the city to enjoin any person or corporation from discharging into the waters within Tampa any industrial waste or pollutants, and also the power of the city to veto any dredging or filling permits given by Tampa Port Authority. Probably because of the absence of municipal services, appellant does not pay city property taxes for any such services. Moreover, if the land is developed and becomes populated, the record establishes that the city can and will render the customary services.

The principal issues to be decided here are (1) whether the evidence is sufficient to support a judgment denying ouster, where the city has rendered no municipal services to the strip of land, uninhabited, undeveloped, and separated from the city, and where appellant-owners have paid to city taxes and thus suffer no injury and (2) whether appellants and their predecessors of title are estopped to deny the annexation of their property by the city, when eighteen years have elapsed since the 1953 Special Legislature Act extending the corporate boundaries and the 1971 action seeking ouster of the city.

It has been clearly established by an impressive line of authority that the determination of municipal boundaries is a discretionary legislative function. City of Long Beach Resort v. Collins, Fla.1972, 261 So.2d 498; City of Anburndale v. Adams Packing Assoc., Fla.1965, 171 So.2d 161; Gillete v. City of Tampa, Fla.1952, 57 So.2d 27; State ex rel. Landis v. City of Avon Park, 1933, 108 Fla. 641, 149 So. 409; State ex rel. Davis v. City of Stuart, 1929, 97 Fla. 69, 120 So. 335. The 1885 Constitution of the State of Florida authorized the Legislature to establish and regulate municipalities by special or local law. Const., 1885, Art. 8, Sec. 8; City of Fort Lauderdale v. Town of Hacienda Village, Fla.1965, 172 So.2d 451; State ex rel. Landis v. City of Avon Park, 1933, 108 Fla. 641, 149 So. 409. In the case now before the court, the Legislature, by special law, Ch. 29548, Laws of Florida, 1953, extended the municipal boundaries of the City of Tampa, which annexation included what is now appellants' property. Thus, the Legislature in enacting the special law must have determined the area in question to be amendable to municipal benefits and a logical extension of the City of Tampa. City of Fort Lauderdale v. Town of Hacienda, Fla.1965, 172 So.2d 451; Gillete v. City of Tampa, Fla.1952, 57 So.2d 27; State ex rel. Landis v. City of Avon Park, 1933, 108 Fla. 641, 149 So. 409.

Although it has been held that the Legislature has life and death powers over municipalities, City of Long Beach Resort v. Collins, Fla.1972, 261 So.2d 498, the courts may restrain the legislative prerogative where the annexation in question is found to be unreasonable. State ex rel. Landis v. Town of Boynton, 1937, 129 Fla. 528, 177 So. 327; State ex rel. Landis v. City of Avon Park, 1933, 108 Fla. 641, 149 So. 409; State ex rel. Davis v. City of Stuart, Fla.1929, 97 Fla. 69, 120 So. 335; Town of Satellite Beach v. State ex rel. Gleason, Fla.App.2d 1960, 122 So.2d 39. The judicial decision as to what is a reasonable annexation is ultimately a factual determination; and thus much of the case law in this area must be tempered by its factual situation and the circumstances of the times in which the judicial opinion was rendered. Generally, the major considerations taken into account by past decisions include: (1) benefits and services rendered in relation to the taxes imposed on the annexed property, (2) the nature of the land annexed, and (3) legislative policy.

Appellants have emphatically stressed the fact that the City of Tampa has never supplied the land in question with municipal services of benefit to the property. On the other hand, appellants have paid no taxes on the submerged land. All the Florida cases which have ousted municipalities in similar instances concern situations where city taxes were imposed for which the land owner received no benefits, or where boundaries were extended for revenue purposes only. State ex rel. Ervin v. City of Oakland, Fla.1949, 42 So.2d 270; City of Coral Gables v. State ex rel. Landis, 1937, 129 Fla. 834, 177 So. 290. For example, in State ex rel. Landis v. Town of Boynton, 1937, 129 Fla. 528, 177 So. 327, the Town of Boynton Beach was created by special legislative act and encompassed a strip of land three miles long and one-third mile wide, lying between the East coast canal and the Atlantic. Property at the fringes of this area was annexed for purposes of revenue, although one-third of the land was underwater. The court upheld the ouster since no municipal services were provided; but fifty percent of the indebtedness of the town was allotted to the newly annexed property. Similarly, in State ex rel. Davis v. City of Stuart, 1929, 97 Fla. 69, 120 So. 335, the City of Stuart annexed rural or suburban lands, remote from the built up portion of the city and entirely outside the range of municipal benefits. Although the land was subject to taxes greatly in excess of its real value, but received no municipal benefits. The court held the extension contravened provisions of the Declaration of Rights, protecting the rights of private property, prohibiting the taking of property without just compensation.

In the present case, appellants' contentions are based upon the fact that the land included within Tampa city limits receives no municipal benefits. However, appellants have shown no damage, since the strip of land has not been subjected to payment of taxes. In this respect, the 1930 depression cases, State ex rel. Landis v. Town of Boynton, 1937, 129 Fla. 528, 177 So. 327; State ex rel. Landis v. City of Avon Park, 1933, 108 Fla. 641, 149 So. 409; State ex rel. Davis v. City of Stuart, 1929, 97 Fla. 69, 120 So. 335, ousting outlying remote areas, are inapplicable in a case such as this where, although municipal services are not rendered, taxes are not paid. This point is clearly illustrated analogously by MacGuyer v. City of Tampa, 1925, 89 Fla. 138, 103 So. 418. The court upheld an act, extending the corporate limits of the City of Tampa, which contained a provision that no real or personal property within the territory would be liable for or...