Opinion
June 19, 1951. Rehearing Denied July 3, 1951.
Appeal from the Circuit Court for Leon County, Hugh M. Taylor, J.
Messer Willis, Tallahassee, for appellant.
Caldwell, Parker, Foster Wigginton, Tallahassee, for O.E. Baker et al.
Laurence J. Lafleur, in pro. per.
The appellees owned property abutting Meridian Street situated between Oakland Avenue and Magnolia Drive in the City of Tallahassee, Florida. This street was paved by the City and special assessment liens in its behalf assessed against the property on the basis of $3.46 per front foot. The appellees filed in the Circuit Court of Leon County, Florida, their bill of complaint for a declaratory decree under the provisions of Section 87, F.S.A., against the City of Tallahassee, and prayed for a decree declaring the special assessment liens so levied and assessed to be null and void and of no effect and should be declared to be clouds on title of the owners of the abutting property. Laurence J. Lafleur filed a similar but separate suit against the city. The two suits were consolidated for trial in the court below and on appeal here. The Chancellor below, on final hearing decreed a 25% reduction in the amount of each special assessment lien and the City of Tallahassee appealed.
In a well considered decree the Honorable Hugh M. Taylor, Circuit Judge, set forth his findings of fact and conclusions of law, which may be adopted, in part, as the opinion of this Court; viz.:
"Findings of Fact
"1. South Meridian Street in the City of Tallahassee is approximately 4500 feet in length, running in a North-South direction from a T intersection with Van Buren Street to the south boundary of the city. It runs parallel to and some 3 blocks east of Monroe Street, which is also State Road #61. Its entire length runs through a residential section of the city, which has developed rapidly within the past 25 years. Some of the plaintiffs were among the first to build along this street, some have built recently.
"2. Until the year 1946 the street was a sand-clay construction and, for most of its length was so laid out that there was a narrow driveway on each side of an esplanade in which were trees, grass and weeds. For approximately half the length of the street on the south it is located one narrow block west of Golf Terrace, which in turn borders the Municipal Golf Course. The platted building lots extend East and West from Golf Terrace Drive to Meridian Street across the entire block. Building restrictions limit the construction to one residence on each lot. On this section of the street all residences which have been constructed face Golf Terrace Drive and the golf course and most of these lots have driving entrances and/or garages located on Meridian Street, a few have entrances from side streets (running east and west) and only one has a driveway entrance from Golf Terrace Drive, which is an unpaved street.
"3. At the time when many of the present property owners purchased their lots and built, and others purchased lots for the purpose of later building thereon, South Meridian Street terminated on the south, with a right angle intersection with Magnolia Drive.
"4. In the early years of the development of this section of the city, and at the time several of the plaintiffs built their homes, South Meridian Street was used almost exclusively by those residing there and their visitors and others making deliveries to or serving their homes. By 1946 the Community was fairly well, but not completely, built up. At that time there developed some demand for changes in Meridian Street. Some property owners wanted the esplanade removed. These were mainly some parties whose homes faced Golf Terrace Drive on the south part of the street and some on the north end of the street who, because the street was then considerably below the lot levels, found the esplanade made it difficult to use driveways into their lots. Some opposed removal of the esplanade because they admired its beauty, and others (those located on the west of south Meridian Street on the south half of the street) because the esplanade served as a screen protecting their property from a view of the back of the homes across the street fronting on Golf Terrace Drive.
"5. In 1946 the City removed the esplanade in contemplation of eventual paving of the street, but not as a part of the paving project. The paving was actually laid in 1949 pursuant to a resolution adopted December 9, 1947. The removal of the esplanade was followed by the laying of sanitary sewers along the middle of the street for about 2/3 of its length on the north end.
"6. Prior to the removal of the esplanade and the digging incident to the laying of the sanitary sewer, the surface of the driveways on each side of the street were hard sand-clay which, under then existing traffic conditions created little inconvenience to residents caused by dust. After the removal of the esplanade, traffic increased in number and speed of vehicles and the surface of the street became quite dusty, causing great inconvenience to many property owners. For the comfort and convenience of abutting property owners, (sometimes in wet weather the street became extremely muddy) the need for paving was greater after the removal of the esplanade than before. The resolution providing for the pavement was adopted December 9, 1947.
"7. At the time of the hearing the evidence indicates a very substantial traffic load on this street, viz., probably an average of 45 to 50 cars per hour during normal driving hours. This increase in traffic is due to the combined influence of the following factors:
"(a) The natural increase in use of the street resulting from the increased number of persons residing on or adjacent to the street, by home-owners, their visitors and persons making deliveries and otherwise serving the interests of the home-owners.
"(b) About the time that Meridian Street was paved, Leon County caused to be paved a section of rural highway which is, in effect, an extension of Meridian Street south to the County Fair grounds, the South City Public School and an area zoned by the County (although now but slightly developed) for business. As a consequence, this new road and the paved Meridian Street furnished a direct connection between this community and the City of Tallahassee.
"(c) Along the south line of the City there is an east-west highway known as Magnolia Drive, which runs from South Monroe Street (State Highway #61) East crosses Meridian Street at its junction with the county road above mentioned, continues east and then curves around the east side of the golf course and proceeds north to intersect State Road #20, running east from the State Capitol. This highway serves a considerable local population who, entering Tallahassee from the east, are now furnished an alternative route. They may, upon reaching Meridian Street continue west to Monroe Street and then turn north and proceed to the business part of the City, or they may turn north on Meridian and approach the center or eastern part of the city by using Meridian Street and its northerly connections. In this way the very heavy traffic on Monroe Street is avoided.
"(d) The fact that Meridian Street is 32 feet wide has a tendency to attract traffic and encourse greater speed.
"(e) For some months prior to the hearing in this case, South Monroe Street extended (State Road #61) was under repair and closed to traffic. Through traffic could, and most of it did, use an alternate route consisting of an extension of South Adams street, but a considerable portion of this traffic used Meridian Street by leaving State Road #61 opposite the county fair grounds and proceeding along a county road to the fair grounds thence north along the new county road above mentioned into the South end of Meridian Street; or by approaching the south end of Meridian Street over Magnolia Drive and then transversing Meridian Street. This is obviously a temporary condition.
"8. It is impossible to evaluate accurately the extent to which each of the above factors has contributed to the present heavy traffic in Meridian Street, but they all played an important part.
"9. The great majority of the property owners here complaining purchased their property for homesites and in doing so took into account and gave considerable importance to the quiet semi-rural nature of the area at the time they purchased. Many of them have young children and wanted to avoid the danger to their children of heavy traffic near the home.
"10. In weighing the benefits and detriments to the landowners by reason of the paving and other factors above outlined, the property should be considered in three divisions:
"(a) The north end of the street where lots on both sides `face' the street.
"(b) The property on the south end east of Meridian Street, where the lots face Golf Terrace Drive.
"(c) The property on the south end of the street where the lots `face' on Meridian Street.
"To the property in division (a) the removal of the esplanade was a definite asset in the use of their driveways to the street, but a disadvantage in the increased dust resulting therefrom.
"To the property in division (b) the removal of the esplanade was of little benefit or detriment. Some wanted it removed, some did not. Apparently the personal tastes of the individuals was a controlling factor in determining their preference.
"To the property in division (c) the removal of the esplanade was a definite detriment. It made the street less attractive and caused these lots to face directly on the rear of the lots east of Meridian Street.
"11. The increase in traffic has been a detriment to all the lots on the street but the pavement of the street has been an advantage to all the property. From the location of the driveways and garages on lots facing Golf Terrace Drive it is apparent that the paving of Meridian Street is preferable to a paving of Golf Terrace Drive.
"12. In making the assessments, the City took the entire cost of a project consisting of Meridian and other streets and allocated the cost over the entire project without reference to the difference in the cost of grading as between those streets and lots which required more work of this character than did others. The difference in such cost cannot now be accurately determined, but would not be great although it would be substantial.
"13. The street is wider than most residential streets and is materially wider than would be reasonably necessary to serve the transportation needs of the persons living along the street and immediately adjacent thereto.
"14. To a substantial degree the street actually serves as a medium for traffic consisting of the general public as distinguished from the residents of the locality.
"15. That the findings and the effect of the decree entered in this cause are based upon the special facts and circumstances incident to the paving and improvement of South Meridian Street and the development of the area within which said street is located and areas adjacent thereto, and shall be applicable, limited and effective only to the plaintiffs and their properties specifically involved in this cause and shall not affect any other streets or assessments for street improvements not involved in this suit.
"Conclusions of Law
"1. The City of Tallahassee in determining the benefits accruing to the abutting property as a result of the paving of Meridian Street failed to take into account and deduct from the value of said benefits the extent of the damage resulting to said property from the user of Meridian Street by the general public.
"2. The value of the benefits to the property as a result of the paving of Meridian Street, which were determined by the City of Tallahassee to be the actual cost of the said paving in the sum of $3.4651007 per front lineal foot of property abutting on Meridian Street, should be diminished by the depreciated value of the property measured by the extent to which said Meridian Street is being used and enjoyed by the general public over and above the use to which a residential street would normally be used by the public.
"3. The depreciation in value of the property abutting Meridian Street, as a result of the user of said street by the general public, and against which the paving assessments have been made by the City in the amount above stated, is a sum equivalent to 25% of the total sum of said assessments, to which extent said assessment liens are decreed to be void.
"4. That none of the plaintiffs in this cause have been shown by the evidence to be guilty of any conduct on their part which would in law constitute an estoppel against their right to contest the amount of the paving liens in question.
"5. Public benefit and user of Meridian Street being substantially more than is generally derived by virtue of paving in residential areas, the City is not entitled to place the entire burden of cost upon abutting property owners.
"Decree
"It is therefore adjudged and decreed as follows:
"1. The paving liens levied and assessed by the City of Tallahassee against the property hereinafter described on account of the paving of Meridian Street be and the same are hereby decreed to be void to the extent of 25% of the assessment made by the defendant against each parcel of said land and the owners thereof, and the defendant, City of Tallahassee, is hereby ordered to make all necessary changes and corrections in its assessment lien records to show that the paving liens which the defendant holds against the properties hereinafter described to be the sum of 75% of the sum heretofore assessed and levied against said properties:"
Counsel for appellant points out (1) that since the abutting property owners petitioned the City of Tallahassee to pave Meridian Street; made no objection to the width of the pavement nor the type of the improvement and raised no objection whatsoever until after the completion of the construction, they cannot now be heard to challenge the construction or assessment, as here attempted, because they are estopped as a matter of law; (2) likewise, the appellees, under the provisions of Section 9 of Chapter 24917, Special Laws of 1947, were limited to thirty days, after the date of confirmation of the special assessment in which to file suit and, having failed so to do, cannot now be heard; (3) a legal presumption exists to the effect that the abutting property was benefitted by the improvements; (4) the abutting property owners admit the regularity of all the assessing authority, and, absent a showing of fraud, cannot now be heard as to the regularity of the city in perfecting the special assessment liens.
Counsel for appellant cites our holdings viz.: Atlantic Coast Line R. Co. v. City of Gainesville, 83 Fla. 275, 91 So. 118, 29 A.L.R. 668; Summerland, Inc., v. City of Punta Gorda, 101 Fla. 543, 134 So. 611; Davis v. City of Clearwater, 104 Fla. 42, 139 So. 825; Escott v. City of Miami, 107 Fla. 273, 144 So. 397; Tampa Dock Co. v. Hanchett Bond Co., 105 Fla. 470, 141 So. 526; City of New Smyrna v. Mathewson, 113 Fla. 861, 152 So. 706; Atlantic Coast Line R. Co. v. City of Winter Haven, 114 Fla. XXV, 151 So. 321; Webb v. Scott, 129 Fla. 111, 176 So. 442; Evans v. Hillsborough County, 135 Fla. 471, 186 So. 193; Ocean Beach Hotel Co. v. Town of Atlantic Beach, 147 Fla. 445, 2 So.2d 879. The rule of law enunciated by this Court in these cases has been reviewed. It must be kept in mind, however, that the decree challenged here did not cancel the special assessment liens except as to 25% thereof. The Chancellor set forth reasons supra based upon the evidence and the equity of the cause for voiding 25% of the costs of the special assessment liens.
Presented on this record are facts distinguishable from the several cases cited and relied upon for a reversal on the part of counsel for the appellant. The facts involved in this controversy, as the writer sees and analyzes them, are more in accord with the facts alleged in the bill of complaint in our recent case of Rafkin v. City of Miami Beach, Fla., 38 So.2d 836, although the writer stubbornly contended for the rule now advocated by counsel for appellant (see dissenting opinion 38 So.2d 838-839), nevertheless he, as well as others, are bound by the majority view.
The decree appealed from is affirmed.
SEBRING, C.J., and ADAMS and ROBERTS, JJ., concur.