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( )Tj
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( )Tj
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( HOLLYWOOD, INC. v. BROWARD COU\
NTY)Tj
/TT0 1 Tf
0 -1.19667 TD
( 431 S\
o. 2d 606)Tj
0 -1.2 TD
( )Tj
T*
( District Court of Appeal of Fl\
orida, Fourth District.)Tj
T*
( )Tj
T*
( March 23, 1983; Rehearing Deni\
ed June 13, 1983.)Tj
T*
( )Tj
T*
( )Tj
T*
(OPINION: HURLEY, Judge.)Tj
T*
( )Tj
T*
(This appeal concerns the validity of a Broward County ordinance that req\
uires a develop\255er/subdivider, as )Tj
T*
(a condition of plat approval, to dedicate land or pay a fee to be used i\
n expanding a county level park )Tj
T*
(system sufficiently to accommodate the new residents of the platted deve\
lopment. The appellant has )Tj
T*
(asserted that Broward County lacks legal authority to adopt this type of\
ordinance. We do not agree and, )Tj
T*
(thus, we affirm the trial court's conclusion that the ordinance is valid\
.)Tj
T*
( )Tj
T*
(The appellant is a real estate development corporation that paid a fee u\
nder the ordinance and later )Tj
T*
(commenced this action seeking declaratory and injunctive relief as well \
as a refund of the fee. The )Tj
T*
(appellant has challenged the part of the ordinance that requires, as a c\
ondition of plat approval, the )Tj
T*
(dedication of land or the payment of a fee for use by the county in acqu\
iring and developing county level )Tj
0 -1.55873 TD
(parks.)Tj
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( )Tj
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( )Tj
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( )Tj
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(We note that the ordinance has, since this suit commenced, been amended \
again and renumbered. See \247 )Tj
T*
(5\225198\(h\), Broward County Code \(1981 supp. # 15\).)Tj
T*
( )Tj
T*
(The ordinance has three alternate provisions: \(1\) the developer can de\
dicate three acres for every one )Tj
T*
(thousand residents of the proposed subdivision, \(2\) the developer can \
pay an amount of money equal to )Tj
T*
(the value of land that would have been dedicated, or \(3\) the developer\
can pay an impact fee according to )Tj
T*
(a schedule in the ordinance. The developer in this case chose option tw\
o and paid an amount equal to the )Tj
T*
(value of the land that would have been dedicated. At trial, the county \
introduced evidence that the )Tj
T*
(ordinance seeks to impose fees only for those capital acquisition costs \
that the county will incur because of )Tj
T*
(the new subdivision residents and that the money collected will be used \
for the substantial benefit of those )Tj
T*
(residents. The trial court concluded that the ordinance is a valid and \
constitutional exercise of the county's )Tj
T*
(legislative powers.)Tj
T*
( )Tj
T*
(We discern two principal thrusts in appellant's overall attack on the or\
dinance: \(1\) the appellant asserts )Tj
T*
(that the Broward County Commission lacks authority under the Broward Cou\
nty Charter to enact this type )Tj
T*
(of ordinance and \(2\) the appellant asserts that no Florida court has c\
ountenanced the imposition of land or )Tj
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(fee requirements for use by a county in expanding its county level parks\
. Included in these attacks are )Tj
0 -1.2 TD
(allegations that the ordinance violates fundamental constitutional right\
s including due process and equal )Tj
T*
(protection and allegations that the ordinance constitutes an unconstitut\
ional taking without just )Tj
T*
(compensation and is, in fact, an illegal tax. In response, the appellee\
contends that the ordinance does not )Tj
T*
(exceed the broad home rule powers of the Broward County Charter and that\
the ordinance merely exacts )Tj
T*
(reasonable and valid regulatory fees.)Tj
T*
( )Tj
T*
(I THE CHARTER)Tj
T*
( )Tj
T*
(At the outset, we note that counties, as political subdivi\255sions of t\
he state, derive their sovereign powers )Tj
T*
(exclusively from the state. Florida charter counties, such as Broward C\
ounty, derive their sovereign )Tj
T*
(powers from the state through Article VIII, Section 1\(g\) of the Florid\
a Constitution which provides in )Tj
T*
(pertinent part:)Tj
T*
( )Tj
2.61818 -1.2 Td
(Counties operating under county charters shall have all powers of local \
self\225government not )Tj
T*
(inconsistent with general law, or with special law approved by the vote \
of the electors. The )Tj
T*
(governing body of a county operating under a charter may enact county or\
dinances not )Tj
T*
(inconsis\255tent with general law. Through this provision, the people o\
f Florida have vested )Tj
T*
(broad home rule powers in charter counties such as Broward County. )Tj
-2.61818 -1.2 Td
( )Tj
0 -2.2 TD
(The people have said that charter county governments shall have all the \
powers of local government )Tj
0 -1.55873 TD
(unless the state government takes affirmative steps to preempt local leg\
islation.)Tj
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( Of course, the power of )Tj
-32.6788 -1.2 Td
(charter county governments is limited by certain provisions of the Flori\
da Constitution such as the )Tj
0 -1.2 TD
(Declaration of Rights in Article I and the limitations on taxing power f\
ound in Article VII. In addition, the )Tj
T*
(counties' power is limited, just as is the state's power, by the provisi\
ons of the United States Constitution )Tj
T*
(and any federal legislation that binds the states.)Tj
T*
( )Tj
T*
(In the absence of preemptive federal or state statutory or constitutiona\
l law, the paramount law of a charter )Tj
T*
(county is its charter. Cf.City of Miami Beach v. Fleetwood Hotel, Inc.,\
261 So.2d 801 \(Fla.1972\) \(city )Tj
T*
(charter\). In essence, the charter acts as the county's constitution an\
d, thus, ordinances must be in )Tj
T*
(accordance with the charter.)Tj
T*
( )Tj
T*
(The people of Broward County have empowered their county government with\
very broad powers by )Tj
T*
(incorporating the following provisions into their charter:)Tj
T*
( )Tj
T*
(Section 1.03. GENERAL POWERS OF THE COUNTY.)Tj
T*
( )Tj
2.61818 -1.2 Td
(A. Unless provided to the contrary in this Charter, Broward County "sha\
ll have all powers of )Tj
T*
(local self-government not inconsistent with general law or with special \
law approved by vote )Tj
T*
(of the electors.")Tj
-2.61818 -1.2 Td
( )Tj
T*
(Section 1.08. CONSTRUCTION.)Tj
T*
( )Tj
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(The powers granted by this Charter shall be con\255strued liberally in f\
avor of the county )Tj
0 -1.2 TD
(government. The specified powers in this Charter shall not be construed\
as limiting, in any )Tj
T*
(way, the general or specific power of the government, as stated in this \
Article. Pursuant to )Tj
T*
(these provisions, the people of Broward County have conferred all the po\
wers a Florida )Tj
T*
(charter county can have, subject only to other contrary provisions in th\
e charter.)Tj
-2.61818 -1.2 Td
( )Tj
T*
(The appellant relies on another provision in the charter as establishing\
by inference that the county )Tj
T*
(government violated the charter in enacting the ordinance under review. \
That provision provides:)Tj
T*
( )Tj
T*
(Section 6.12. PLAT ORDINANCE.)Tj
T*
( )Tj
2.61818 -1.2 Td
(The legislative body of each municipality within Broward County and the \
County )Tj
T*
(Commission for the unincor\255porated area shall, within six \(6\) month\
s after the effective date )Tj
T*
(of this Charter, create a mandatory plat ordinance.)Tj
-2.61818 -1.2 Td
( )Tj
2.61818 -1.2 Td
(No plat of lands lying within Broward County, either in the incorporat\255\
ed or unincorporated )Tj
T*
(areas, may be recorded in the Official Records prior to approval by the \
County Commission. )Tj
T*
(The County Commission shall enact an ordinance establishing standards, p\
rocedures and )Tj
T*
(minimum requirements to regulate and control the platting of lands withi\
n the incorporated )Tj
T*
(and unincorporated areas of Broward County. The governing body of each \
municipality may )Tj
T*
(enact an ordinance establishing additional standards, procedures and req\
uirements as may be )Tj
T*
(necessary to regulate and control the platting of lands within its bound\
aries.)Tj
-2.61818 -1.2 Td
( )Tj
0 -2.2 TD
(We can find nothing in this provision which suggests that the people of \
Broward County intended to )Tj
0 -1.2 TD
(prohibit their county government from enacting an ordinance requiring de\
dications or fees for expanding )Tj
0 -1.55873 TD
(parks as a condition of plat approval. Thus, we find appellant's first \
attack to be ineffective.)Tj
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( )Tj
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( )Tj
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(II VALIDITY OF DEDICATION OR FEE REQUIREMENTS)Tj
T*
( )Tj
T*
(The more difficult question is whether the ordinance violates the state \
or federal constitution. As noted )Tj
T*
(before, the appellant has alleged that the ordinance denies due process \
and equal protection, that it effects )Tj
T*
(a taking without just compensation, and that it exacts illegal taxes.)Tj
T*
( )Tj
T*
(This court has previously considered the validity of an ordinance which \
required the dedication of park )Tj
T*
(land or the payments of fees in lieu of dedication. See Admiral Develop\
ment Corp. v. City of Maitland, )Tj
T*
(267 So.2d 860 \(Fla. 4th DCA 1972\). In Admiral Development a real esta\
te developer challenged an )Tj
T*
(ordinance as being beyond the scope of the city's charter authority and \
unconstitutional. The ordinance )Tj
T*
(required, as a condition of plat approval, that the subdivider dedicate \
at least five percent of the platted )Tj
T*
(land or pay five percent of the value of the land to be used for park an\
d recreation areas. This court )Tj
T*
(scrutinized the city charter and concluded that the ordinance was beyond\
the scope of the city )Tj
T*
(government's power under its char\255ter.Secondly, we concluded that the\
five percent fixed percentage was )Tj
T*
(arbitrary and overbroad. We reasoned that a fixed percentage that relat\
es to the amount of land to be )Tj
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(platted, rather than the number of residents that will occupy the land, \
cannot adequately ensure that the )Tj
0 -1.2 TD
(subdivider pays only for the amount of new park lands that the locality \
will be required to acquire in order )Tj
T*
(to service the new development.)Tj
T*
( )Tj
T*
(In the present case, as noted above, there is no problem with a lack of \
power under the charter provisions )Tj
T*
(themselves, that is, assuming the ordinance is not inconsistent with sta\
te or federal law. Secondly, the )Tj
T*
(ordinance under review does not suffer the infirmities of a fixed percen\
tage ordinance. The ordinance in )Tj
T*
(the present case exacts land or fees based on the number of people expec\
ted to live in the subdivision )Tj
T*
(rather than the amount of land to be platted.)Tj
T*
( )Tj
T*
(In Admiral Development, we declined to provide a general prescription by\
which park fee ordinances )Tj
T*
(should be evaluated. Yet we did suggest that the appellee city might lo\
ok for guidance, in the )Tj
T*
(consideration of any proposed charter amendment or ordinance adoption, t\
o a California case that )Tj
T*
(considered and rejected a due process, equal protection, and taking with\
out just compensation challenge. )Tj
T*
(267 So.2d at 863 n. 3 \(citing Associated Home Builders of Greater East \
Bay, Inc. v. City of Walnut Creek, )Tj
T*
(4 Cal.3d 633, 94 Cal.Rptr. 630, 484 P.2d 606 \(1971\)\). Although we be\
lieve that the ordinance now under )Tj
T*
(review satisfies the standards established by the California Supreme Cou\
rt in Walnut Creek, we also )Tj
T*
(believe that our reference to the California case has been superseded to\
some extent by later Florida )Tj
T*
(decisions. Nonetheless, we think it helpful to note the California cour\
t's statements concerning the )Tj
T*
(rationale justifying subdivision exactions for parks:)Tj
T*
( )Tj
0 -2.2 TD
(The rationale of the cases affirming constitutionality indicate the dedi\
cation statutes are valid under the )Tj
0 -1.2 TD
(state's police power. They reason that the subdivider realizes a profit\
from governmental approval of a )Tj
T*
(subdivision since his land is rendered more valuable by the fact of subd\
ivision, and in return for this )Tj
T*
(benefit the city may require him to dedicate a portion of his land for p\
ark purposes whenever the influx of )Tj
T*
(new residents will increase the need for park and recreational facilitie\
s. Such exactions have been )Tj
T*
(compared to admittedly valid zoning regulations such as minimum lot size\
and setback requirements. )Tj
T*
([Citations omitted.] 4 Cal.3d at 644\22545, 94 Cal.Rptr. at 639, 484 P.2\
d at 615; see also Wald Corp. v. )Tj
T*
(Metropolitan Dade County, 338 So.2d 863, 867 \(Fla. 3d DCA 1976\) \(disc\
ussed infra\), cert. denied, 348 )Tj
T*
(So.2d 955 \(Fla.1977\).)Tj
T*
( )Tj
T*
(The Florida Supreme Court recently announced the legal standards by whic\
h Florida courts must evaluate )Tj
T*
(ordinances which exact dedications or fees from real estate developers. \
See Contractors & Builders )Tj
T*
(Association of Pinellas County v. City of Dunedin, 329 So.2d 314 \(Fla.1\
976\). In City of Dunedin the )Tj
T*
(court rejected the argument that fees exacted from builders for the cons\
truction of capital improvements to )Tj
T*
(water and sewage systems constitute illegal taxes. The court held that \
local governments can impose )Tj
T*
(impact fees which do not exceed a pro rata share of the reasonably antic\
ipated costs of capital expansion )Tj
T*
(reasonably required because of new development so long as the use of the\
money collected is limited by )Tj
T*
(law to meeting the costs of that capital expansion and so long as the ex\
actions are not inconsistent with a )Tj
T*
(state statute. Thus, the court held that local governments can shift to\
new residents the reasonable capital )Tj
0 -1.55873 TD
(costs incurred on their account.)Tj
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0 -1.2 TD
(One of our sister courts has also addressed the question of whether subd\
ivision exactions are permissible )Tj
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(under Florida law. See Wald Corp. v. Metropolitan Dade County, 338 So.2\
d 863 \(Fla. 3d DCA 1976\), )Tj
0 -1.2 TD
(cert. denied, 348 So.2d 955 \(Fla.1977\). The Wald case concerned a cou\
nty ordinance that required )Tj
T*
(subdividers, as a condition of plat approval, to dedicate drainage canal\
rights-of-way and maintenance )Tj
T*
(easements. The apparent purpose of the ordinance was to protect the sub\
division from periodic flooding )Tj
T*
(and to protect up\225and\225downstream owners from the effects of the su\
bdivision's rainwater runoff. The )Tj
T*
(court, recognizing that subdividing is a profit making enterprise, held \
that a county can impose dedication )Tj
T*
(or impact fee require\255ments in order to forestall the potential adver\
se effects of the development and to )Tj
T*
(enable the county to provide adequate public facilities for the new resi\
dents. After surveying )Tj
T*
(constitutional tests used by courts in other states to evaluate subdivis\
ion exactions, the court enunciated a )Tj
0 -1.55873 TD
("rational nexus" or "reasonable connection" test.)Tj
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( The court held that dedication or impact fee )Tj
-20.33881 -1.2 Td
(ordinances are valid when there is a reasonable connection between the r\
equired dedication or fee and the )Tj
0 -1.2 TD
(anticipated needs of the community because of the new develop\255ment. \
)Tj
T*
( )Tj
0 -2.2 TD
(From City of Dunedin, Wald, and Admiral Development, we discern the gene\
ral legal principle that )Tj
0 -1.2 TD
(reasonable dedication or impact fee requirements are permissible so long\
as they offset needs sufficiently )Tj
T*
(attributable to the subdivision and so long as the funds collected are s\
ufficiently earmarked for the )Tj
0 -1.55873 TD
(substantial benefit of the subdivision residents.)Tj
ET
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281.00975 471.92851 l
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([6])Tj
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( In order to satisfy these requirements, the local )Tj
-19.70979 -1.2 Td
(government must demonstrate a reasonable connection, or rational nexus, \
between the need for additional )Tj
0 -1.2 TD
(capital facilities and the growth in population generated by the subdivi\
sion. In addition, the government )Tj
T*
(must show a reasonable connection, or rational nexus, between the expend\
itures of the funds collected and )Tj
T*
(the benefits accruing to the subdivision. In order to satisfy this latt\
er requirement, the ordinance must )Tj
T*
(specifically earmark the funds collected for use in acquiring capital fa\
cilities to benefit and new residents. )Tj
T*
(The developer, of course, can attempt to refute the government's showing\
by offering additional evidence.)Tj
T*
( )Tj
T*
( )Tj
T*
( III THE EVIDENCE)Tj
T*
( )Tj
T*
(In the present case, Broward County offered evidence that it has adopted\
and implemented a county park )Tj
T*
(program with a standard of three acres of developed county level parklan\
d per one thousand residents. )Tj
T*
(The evidence also shows that this standard is not unreasonably high; in \
fact, it could be argued that it is )Tj
T*
(low. In addition, the record shows that the county is meeting the needs\
of the current population through )Tj
T*
(various methods including a $73 million bond issue, but that the growth \
generated by new subdivi\255sions )Tj
T*
(will require the county to acquire and develop new land in order to main\
tain its standard of three acres per )Tj
T*
(one thousand residents. The county also offered evidence to show that t\
he fees collected under the )Tj
T*
(ordinance were less than the amount it would have to pay in order to mai\
ntain its standard of parkland and )Tj
T*
(yet accommodate the subdivision residents even after they were credited \
for the future ad valorem taxes )Tj
T*
(they would pay towards retiring the outstanding park bonds. Thus, Browa\
rd County demonstrated a )Tj
T*
(reasonable connection between the need for additional park facilities an\
d the growth in population that )Tj
T*
(will be generated by the subdivision and, in addition, that the fees wer\
e an equitable pro rata share of the )Tj
T*
(cost of reasonable capital expansion required because of new development\
. Although the developer )Tj
T*
(attempted to refute this showing, the trial court resolved the conflicts\
in the evidence in a permissible )Tj
T*
(manner and the judgment is supported by competent substantial evidence.)Tj
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( )Tj
0 -2.2 TD
(Broward County also demonstrated a reasonable connection, or a rational \
nexus, between the expenditures )Tj
0 -1.2 TD
(of the funds collected under the ordinance and the benefits accruing to \
the subdivision. The ordinance )Tj
T*
(requires the funds collected to be "expended within a reasonable period \
of time, for the purpose of )Tj
T*
(acquiring and developing land necessary to meet the need for county leve\
l parks created by the )Tj
T*
(development in order to provide a system of county level parks which wil\
l be available to and )Tj
0 -1.55873 TD
(substantially benefit the residents of the platted area.")Tj
ET
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317.901 641.86101 l
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0 0 1 rg
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([7])Tj
0 0 0 rg
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( The ordinance further limits the use of these )Tj
-22.39281 -1.2 Td
(funds to acquiring and developing new land for park purposes within fift\
een miles of the platted land. The )Tj
0 -1.2 TD
(reasonableness of this distance is shown by the county's evidence that r\
esidents travel widely in order to )Tj
T*
(take advantage of the features that can be provided at county level park\
s. Based on this evidence, we )Tj
T*
(believe that the ordinance adequately earmarks the funds collected for u\
se in expanding the regional park )Tj
T*
(system to accommodate the subdivision residents.)Tj
T*
( )Tj
T*
( )Tj
T*
( IV PRIOR CASE LAW)Tj
T*
( )Tj
T*
(The appellant has asserted that the Broward ordinance violates our holdi\
ng in Broward County v. Janis )Tj
0 -1.55873 TD
(Development Corp., 311 So.2d 371 \(Fla. 4th DCA 1975\).)Tj
ET
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([8])Tj
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( Janis involved a Broward County road )Tj
-23.95979 -1.2 Td
(impact fee ordinance. The ordinance, which was enacted while Broward Co\
unty was a non\225charter )Tj
0 -1.2 TD
(county, attempted to assess $200 per dwelling on new development, as a c\
ondition for the issuance of a )Tj
T*
(building permit, to be used to construct or improve roads, streets, high\
ways and bridges or to acquire )Tj
T*
(rights\225of\225way for such facilities in the vicinity of the developme\
nt. In considering the validity of the )Tj
T*
(ordinance, we first looked to the source of power to enact the ordinance\
. We implicitly concluded that )Tj
T*
(Broward County, as a non\225charter county, could impose such a fee, if \
at all, only because it had the power )Tj
T*
(to require building permits. Next, we concluded that the impact fees we\
re impermissible as regulatory )Tj
T*
(fees exacted pursuant to the power to require building permits because t\
he money generated was far in )Tj
T*
(excess of the cost o regulating the quality of building. We distinguish\
ed cases upholding the validity of )Tj
T*
(ordinances requiring dedications or fees in lieu thereof, such as that i\
nvolved here, on several grounds. )Tj
T*
(First, we found that the ability to pay a fee in lieu of dedication actu\
ally inured to the benefit of a )Tj
T*
(subdivider and was an amelio\255rating characteristic of the dedication \
ordinanc\255es.Second, we found certain )Tj
T*
(deficiencies in the particular road impact fee ordinance under review. \
In particular, we considered the )Tj
T*
(requirement that the money be used to construct or improve roads in the \
vicinity of the development to be )Tj
T*
(an insufficient and nebulous limitation on the county's discretion in sp\
ending the funds. We then )Tj
T*
(concluded that the fees were not valid as regulatory fees and must there\
fore constitute taxes. Finally, we )Tj
T*
(concluded that, evaluated as taxes, the fees were illegal because they w\
ere not authorized by a state statute )Tj
T*
(as required by the Florida Constitution.)Tj
T*
( )Tj
T*
(Even if we assume that Janis Development has not been limited in prospec\
tive application by the more )Tj
T*
(recent opinion of the Florida Supreme Court in City of Dunedin, the pres\
ent ordinance would not violate )Tj
T*
(Janis Development. In the case now before us, the source of power to re\
quire dedications or fees is not the )Tj
T*
(county's power to require platting, but rather the county's power to reg\
ulate the adverse effects of )Tj
T*
(subdivision development. In this case, the evidence shows that the mone\
y collected will not exceed the )Tj
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(amount the county will spend in alleviating the adverse effects attribut\
able to the regulated development. )Tj
0 -1.2 TD
(In addition, the present ordinance sufficiently earmarks the future use \
of the money for capital facilities to )Tj
T*
(serve the new subdivision. Thus, in the present case, the ordinance is \
valid as a regulatory measure and is )Tj
T*
(not, as in Janis, invalid and by default a tax.)Tj
T*
( )Tj
0 -2.2 TD
(In addition to relying on Florida cases, the parties have cited authorit\
ies from other states. Although these )Tj
0 -1.2 TD
(authorities disagree on the proper test which should be used to evaluate\
the validity of park dedication or )Tj
T*
(fee ordinances, they overwhelming\255ly recognize that government has a \
legitimate interest in and can use )Tj
0 -1.55873 TD
(its police power to ensure, the adequate provision of parks, open space,\
and recreational areas.)Tj
ET
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541.366 608.86101 l
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0 0 1 rg
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([9])Tj
0 0 0 rg
13.75 0 0 13.75 541.366 603.40501 Tm
( On the )Tj
-38.64481 -1.2 Td
(other hand, at least one court has said:)Tj
0 -1.2 TD
( )Tj
2.61818 -1.2 Td
(While government can clearly require the dedication of watermains and se\
wers as well as )Tj
T*
(property for streets and alleys, we believe these to be distinguish\255a\
ble from the dedication of )Tj
T*
(property for recreational purposes. The former bears a substantial rela\
tion to the safety and )Tj
T*
(health of the community while the latter does not. Berg Development Co.\
v. City of Missouri )Tj
T*
(City, 603 S.W.2d 273, 275 \(Tex.Civ.App. 1980, writ ref'd n.r.e.\). We \
respect\255fully disagree. )Tj
T*
(Open space, green parks and adequate recreation areas are vital to a com\
munity's mental and )Tj
T*
(physical well\225being. As such, the ability to regulate subdivision de\
velopment in order to )Tj
T*
(ensure the adequate provision of parks and recreational facilities is a \
matter that falls squarely )Tj
T*
(within the state's police powers to provide for the health, safety, and \
welfare of the )Tj
0 -1.55873 TD
(community.)Tj
ET
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([10])Tj
0 0 0 rg
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( )Tj
0 -1.2 TD
( )Tj
T*
( V SUMMARY)Tj
T*
( )Tj
T*
(To summarize, we hold \(1\) that the ordinance does not violate the prov\
isions of the Broward County )Tj
T*
(Charter and \(2\) that subdivi\255sion exactions for county level parks \
are permissible so long as \(a\) the )Tj
T*
(exactions are shown to offset, but not exceed, reasonable needs sufficie\
ntly attributable to the new )Tj
T*
(subdivision residents and \(b\) the funds collected are adequately earma\
rked for the acquisition of capital )Tj
T*
(assets that will sufficiently benefit those new residents. Accordingly,\
the judgment of the trial court is )Tj
T*
(AFFIRMED.)Tj
T*
( )Tj
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( )Tj
11 0 0 11 27.1875 175.58 Tm
([1])Tj
13.75 0 0 13.75 40.0135 168.54001 Tm
( This case concerns Ordinance 77\22543 as amended by Ordinances 78\22519\
, 78\22551, and 79\2259. The )Tj
-2.1828 -1.2 Td
(relevant provisions of the amended ordinance were codified as Section 5\225\
192\(e\) of the broward County )Tj
T*
(Code and provide:)Tj
T*
( )Tj
2.61818 -1.2 Td
(\(e\) A plat suitable for residential development pursuant to the applic\
able land development )Tj
T*
(regulations shall be designed to provide for the park, open space and re\
creational needs of the )Tj
T*
(future residents of the platted area, and the developer shall be require\
d to comply with the )Tj
T*
(provisions of subsection \(1\) and subsection \(2\) prior to the recorda\
tion of the proposed plat.)Tj
ET
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( )Tj
2.61818 -1.2 Td
(\(2\) In order to provide lands or funds or both to be used by the Count\
y Commission to )Tj
0 -1.2 TD
(provide additional regional, subregional and urban parks necessary to me\
et the need for such )Tj
T*
(county level parks created by addition\255al residential development, a \
developer must, at the )Tj
T*
(discretion of the County Commission, either:)Tj
-2.61818 -1.2 Td
( )Tj
2.61818 -1.2 Td
(a. Dedicate land of suitable size, dimension, topography and general ch\
aracter to serve as )Tj
T*
(regional, subregional or urban parks or a substantial portion thereof wh\
ich will meet County )Tj
T*
(level park needs created by the development. The total amount of land t\
o be dedicated either )Tj
T*
(on or off the development site must equal a ratio of three \(3\) acres o\
f land for every one )Tj
T*
(thousand \(1,000\) residents of the development, or)Tj
-2.61818 -1.2 Td
( )Tj
2.61818 -1.2 Td
(b. Agree to deposit in a non\225lapsing Trust Fund established and main\
tained by the County, )Tj
T*
(an amount of money equal to or exceeding the value of such amount of lan\
d as would have )Tj
T*
(been required to be dedicated under subsection a. above, to be deter\255\
mined by the Broward )Tj
T*
(County Property Appraiser's appraised value of the land or by the most r\
ecent purchase price )Tj
T*
(paid for the land, whichever is higher. Such amounts of money shall be \
deposited in the )Tj
T*
(Trust Fund prior to the recordation of the proposed plat, or c. Agree to\
deposit in a non-)Tj
T*
(lapsing Trust Fund established and maintained by the County an amount of\
money as set )Tj
T*
(forth in the schedule below for each dwelling unit to be constructed wit\
hin the platted area. )Tj
T*
(Such amounts shall be deposited prior to the issuance of a building perm\
it for the )Tj
T*
(construction of each dwelling unit. From the effective date of this Ord\
inance until September )Tj
T*
(30, 1978 the amount of money to be deposited for each dwelling unit to b\
e constructed shall )Tj
T*
(be as follows and for each fiscal year thereafter shall be increased by \
six percent \(6%\) )Tj
T*
(compounded on an annual basis.)Tj
-2.61818 -1.2 Td
( )Tj
5.23636 -1.2 Td
(Sixty dollars \($60.00\) for each dwelling unit with up to one \(1\) bed\
room.)Tj
-5.23636 -1.2 Td
( )Tj
5.23636 -1.2 Td
(Eighty\225five dollars \($85.00\) for each dwelling unit with two \(2\) \
bedrooms.)Tj
-5.23636 -1.2 Td
( )Tj
5.23636 -1.2 Td
(One hundred twenty\225five dollars \($125.00\) for each dwelling unit wi\
th three \(3\) or )Tj
T*
(more bedrooms.)Tj
-5.23636 -1.2 Td
( )Tj
2.61818 -1.2 Td
(\(3\) The county commission shall establish an effective program for the\
acquisition of lands )Tj
T*
(for development as regional, sub\255regional and urban parks in order to\
meet, within a )Tj
T*
(reasonable period of time, the existing need for county level parks, and\
to meet, as it occurs, )Tj
T*
(the need for county level parks which will be created by further residen\
tial developments )Tj
T*
(constructed after the effective date of this Ordinance. The annual budg\
et and capital program )Tj
T*
(of the County shall provide for appropriation of funds as may be necessa\
ry to carry out the )Tj
T*
(County's program for the acquisition of land for county level parks. Th\
e funds necessary to )Tj
T*
(acquire lands to meet the existing need for county level parks must be p\
rovided from a source )Tj
T*
(of revenue other than from the amounts deposited in the Trust Fund. Suc\
h amounts shall be )Tj
T*
(expended within a reasonable period of time, for the purpose of acquirin\
g and developing )Tj
T*
(land necessary to meet the need for county level parks created by the de\
velopment in order to )Tj
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(provide a system of county level parks which will be available to and su\
bstantially benefit the )Tj
0 -1.2 TD
(residents of the platted area. If a proposed plat is approved by the Co\
unty Commis\255sion and )Tj
T*
(recorded in the Official records after the effective date of this Ordina\
nce then the developer )Tj
T*
(shall be exempted from any provisions in the County Land Use Plan requir\
ing the payment of )Tj
T*
(impact fees for the purpose of providing funds for the acquisition of la\
nd for county level )Tj
T*
(parks. )Tj
-2.61818 -1.2 Td
( )Tj
2.61818 -1.2 Td
(\(7\) In accordance with the descriptions of neighbor\255hood, community\
, urban, subregional and )Tj
T*
(regional parks contained in Chapter IIIG, Broward County Land Use Plan 1\
977, monies )Tj
T*
(deposited by a developer pursuant to this subsection shall not be expend\
ed to acquire or )Tj
T*
(develop land for park purposes farther from the platted land than the fo\
llowing distances )Tj
T*
(measured from the perimeter of the platted land:)Tj
-2.61818 -1.2 Td
( )Tj
5.23636 -1.2 Td
(ii. urban, subregional and regional parks \225\225 15 miles.)Tj
-5.23636 -2.64964 Td
( )Tj
11 0 0 11 27.1875 510.19502 Tm
([2])Tj
13.75 0 0 13.75 40.0135 503.15501 Tm
( In the present case, the appellant has not asserted that the Broward Co\
unty ordinance violates a )Tj
-2.1828 -1.2 Td
(statute.)Tj
0 -2.64964 TD
( )Tj
11 0 0 11 27.1875 457.26251 Tm
([3])Tj
13.75 0 0 13.75 40.0135 450.22252 Tm
( In light of our ruling, we have found it unnecessary to address the app\
ellee's argument that it was )Tj
-2.1828 -1.2 Td
(empowered to enact the ordinance by the Local Government Comprehensive P\
lanning Act. @ 163.3161, )Tj
0 -1.2 TD
(et seq., Fla.Stat. \(1975\).)Tj
0 -2.64964 TD
( )Tj
11 0 0 11 27.1875 387.83 Tm
([4])Tj
13.75 0 0 13.75 40.0135 380.79001 Tm
( The court, however, concluded that the particular ordinance under revie\
w was defective because it )Tj
-2.1828 -1.2 Td
(failed to include sufficient restrictions on the use of the money collec\
ted. The ordinance was later )Tj
0 -1.2 TD
(amended and upheld. See City of Dunedin v. Contractors & Builders Assoc\
iation of Pinellas County, 358 )Tj
T*
(So.2d 846 \(Fla. 2d DCA 1978\), cert. denied, 370 So.2d 458 \(Fla.1979\)\
, cert. denied, 444 U.S. 867, 100 S.)Tj
T*
(Ct. 140, 62 L.Ed.2d 91 \(1979\).)Tj
0 -2.64964 TD
( )Tj
11 0 0 11 27.1875 285.39751 Tm
([5])Tj
13.75 0 0 13.75 40.0135 278.3575 Tm
( This test was espoused, at least in part, in Jordan v. Village of Menom\
onee Falls, 28 Wis.2d 608, )Tj
-2.1828 -1.2 Td
(137 N.W.2d 442 \(1965\), appeal dismissed, 385 U.S. 4, 87 S.Ct. 36, 17 L\
.Ed.2d 3 \(1966\), and described in )Tj
0 -1.2 TD
(Juergensmeyer & Blake, Impact Fees: An Answer to Local Governments' Capi\
tal Funding Dilemma, 9 )Tj
T*
(Fla. St.U.L.Rev. 415, 430\22533 \(1981\).)Tj
0 -2.64964 TD
( )Tj
11 0 0 11 27.1875 199.465 Tm
([6])Tj
13.75 0 0 13.75 40.0135 192.425 Tm
( Of course, a county could not require subdivision exactions which are s\
o formidable as to deny the )Tj
-2.1828 -1.2 Td
(property owner of all reasonable use of the property. See Graham v. Est\
uary Properties, Inc., 399 So.2d )Tj
0 -1.2 TD
(1374 \(Fla.\), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 61\
8 \(1981\). Such an exaction would )Tj
T*
(not be reasonable.)Tj
0 -2.64964 TD
( )Tj
11 0 0 11 27.1875 113.5325 Tm
([7])Tj
13.75 0 0 13.75 40.0135 106.49249 Tm
( Although "developing" is arguably ambiguous, we believe that it adequat\
ely limits the use of the )Tj
-2.1828 -1.2 Td
(funds to construction of capital improvements on the newly acquired land\
.)Tj
T*
( )Tj
11 0 0 11 27.1875 60.59999 Tm
([8])Tj
13.75 0 0 13.75 40.0135 53.56 Tm
( The appellant has also relied on two trial court opinions which, althou\
gh not binding as legal )Tj
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(precedent are nonetheless persuasive. Venditti\225Siravo, Inc. v. City \
of Hollywood, 39 Fla.Supp. 121 \(Cir.)Tj
0 -1.2 TD
(Ct.1973\); Carlann Shores, Inc. v. City of Gulf Breeze, 26 Fla.Supp. 94 \
\(Cir.Ct.1966\). Venditti\225Siravo )Tj
T*
(concerned an ordinance that required the payment of a fixed percentage o\
f building costs. Carlann Shores )Tj
T*
(concerned an ordinance that required dedication of a fixed percentage of\
the amount of subdivided land or )Tj
T*
(payment of a fee in lieu thereof. Thus, both ordinances were analogous \
to the ordinance invalidated in )Tj
T*
(Admiral Development, supra.)Tj
0 -2.64964 TD
( )Tj
11 0 0 11 27.1875 642.19502 Tm
([9])Tj
13.75 0 0 13.75 40.0135 635.15501 Tm
( See Associated Homebuilders of Greater East Bay, Inc. v. City of Walnut\
Creek, 4 Cal.3d 633, 94 )Tj
-2.1828 -1.2 Td
(Cal.Rptr. 630, 484 P.2d 606 \(1971\); Krughoff v. City of Naperville, 68\
Ill. 352, 12 Ill.Dec. 185, 369 N.)Tj
0 -1.2 TD
(E.2d 892 \(1977\); Home Builders Ass'n of Greater Kansas City v. City of\
Kansas City, 555 S.W.2d 832 )Tj
T*
(\(Mo.1977\); Billings Properties, Inc. v. Yellowstone County, 144 Mont. \
25, 394 P.2d 182 \(Mont.1964\); )Tj
T*
(Patenaude v. Town of Meredith, 118 N.H. 616, 392 A.2d 582 \(N.H.1978\); \
Jenad, Inc. v. Village of )Tj
T*
(Scarsdale, 18 N.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673 \(1966\); Banb\
erry Development Corp. v. )Tj
T*
(South Jordan City, 631 P.2d 899 \(Utah 1981\); Jordan v. Village of Meno\
monee Falls, 28 Wis.2d 608, 137 )Tj
T*
(N.W.2d 442 \(1965\); see generally, Annot., Validity and Construction of\
Statute or Ordinance Requiring )Tj
T*
(Land Developer to Dedicate Portion of Land for Recreational Purposes, or\
Make Payment in Lieu )Tj
T*
(Thereof, 43 A.L.R.3d 862 \(1972\).)Tj
0 -2.64964 TD
( )Tj
11 0 0 11 27.1875 457.26251 Tm
([10])Tj
13.75 0 0 13.75 45.5135 450.22252 Tm
( This view was espoused by the Florida Legislature which has required co\
unties to establish )Tj
-2.58279 -1.2 Td
(comprehensive land use plans including the "efficient provision of trans\
portation, water, sewage, schools, )Tj
0 -1.2 TD
(parks, recreational facilities, housing and other requirements and servi\
ces...." See @ 163.3161\(3\), Fla.Stat. )Tj
T*
(\(1981\) \(emphasis added\). )Tj
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