BROWARD COUNTY v. JANIS DEVELOPMENT CORP.

WALDEN, Judge.

This appeal concerns the legality of a land use fee imposed by a Broward County Ordinance.1 Broward County has non-charter government. See, Fla. Const. Art. VIII § 1 (f). The trial court held the ordinance was invalid. We affirm that conclusion.

Defendants-appellants are Broward County, Florida, and City of Sunrise, Florida. Plaintiffs-appellees are Janis Development Corp., Millstream Corporation, and Huac Corporation. Intervenor is City of Fort Lauderdale.

The portion of the ordinance setting the fee amount determined that units within a higher density of development imposed a greater burden on the community and should pay a greater fee. The fee imposed was to be assessed by the appropriate official at the time of application for a building permit and it was to be collected prior to the issuance of a final certificate of occupancy. The ordinance provided for a trust fund for fees collected, and designated the fees should be used "solely for the purpose of constructing or improving roads, streets, highways and bridges, including acquisitions of rights of way for such facilities, serving the vicinity of the project in which the charges are collected." The ordinance provided for credit to be given to any entity that donated funds for improvements and excluded public housing from the burden of the fee.

The attack upon the ordinance consisted of charges that (1) the county did not have the authority to enact the ordinance, because the fee was a tax, and (2) that it was discriminatory and therefore unconstitutional. We do not reach the second contention as we hold the fee is an improper tax. The cases cited by appellee on this point were admitted by the appellant to be the more conservative, though not archaic, line of precedent which prohibits the raising of revenue by a regulatory fee. The only purpose for which a city might impose a fee is for offsetting the necessary expense of regulation, and the regulatory power emanates from the police power. Atkins v. Phillips, 26 Fla. 281, 8 So. 429 (1890). See Tamiami Trail Tours, Inc. v. City of Orlando, 120 So.2d 170 (Fla. 1960).

It is undisputed that the city expected some Six Million Dollars in anticipated revenue from the first year the ordinance was in effect, and it is impossible that such revenue could approximate any cost of regulation. In Bateman v. City of Winter Park, 160 Fla. 906, 37 So.2d 362 (1948), the Florida Supreme Court spoke to the difference between a tax and a fee:

Appellant relies solely upon the proposition that the police power invests it with the right to exact an impact fee for the good of the community to provide services for the community. It cites to Jenad, Inc. v. Scarsdale, 18 N.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673 (1966), in which a city's right to impose a Two Hundred and fifty dollar fee on a developer, in lieu of an allocation of land, was upheld. In Jenad there was an existing ordinance which required land to be set aside for parks and open spaces, the fee was in lieu of such setting aside — for the benefit of a subdivider who had a relatively small amount of land to develop. That ameliorating circumstance does not apply here, and even the legality of such required pledges is undefined in Florida. Although requiring pledges of land as a condition for subdivision approval has been upheld in some jurisdictions, see Annot. 43 A.L.R.3d 847 (1972), this district has recently stricken a like proposal. Admiral Dev. Corp. v. City of Maitland, 267 So.2d 860 (4th D.C.A. Fla. 1972).

Further, the amount of the fee in the instant case is not equitable with land allocation. For instance, under the ordinance in question the builder of a multi-family building of some thirty units (fifteen hundred square feet each), if located in a one acre multi-family development, would pay a total fee of Nineteen Thousand Three Hundred and Fifty Dollars. The fee here is simply an exaction of money to be put in trust for roads, which must be paid before developers may build. There are no other requirements. There are no specifics provided in the ordinance as to where and when these monies are to be expended for roads, apparently this was to be left for future commission determination. This fee, therefore, is an exercise of the taxing power. Haugen v. Gleason, 226 Or. 99, 359 P.2d 108 (1960).

The fee being a tax, then it is improper. Article 7, § 1 (a), Florida Constitution, (1968), provides:

In City of Tampa v. Birdsong Motors, Inc., 261 So.2d 1 (Fla. 1972), the court stated that municipalities could only be granted the power to tax (except for ad valorem taxes) by general law. F.S. 125.01(1)(r) (1973) states also that counties may only levy and collect taxes as provided by general law. There is no general law on this subject permitting such fees for impact to create funds for heightened county costs and it is not otherwise contended.

Thus, holding as we do that the land use fee in question is a tax — the enactment of the ordinance is unauthorized because such land use charges are not sanctioned by general law.

The legislative findings and stated purposes found in sections 1 and 2 of the ordinance obviously reflect a real problem in Broward County.2 We sympathize and wonder, too, if it has a solution. In that vein we notice that the Legislature of Florida adopted House Concurrent Resolution 2800 (1 Laws of Florida 1344 (1973)). It is a comprehensive and in-depth representation of the State's concern with and policy on growth. It shares much the same view as expressed by the Broward County officials and specifically deals with the matter of impact costs occasioned by population growth. It concludes that the policy guide therein provided shall be reviewed annually by the Legislature and implementation shall require legislative approval. We notice in passing that statutes of implementation have not thus far materialized. However, in view of its Resolution we are sanguine that future Sessions will produce implementation in the form of specific authorizations and criteria in the area of land use and impact costs for use by local governments. Thus, we feel that the solution necessarily must come from the Legislature in the form of legislation implementing its own Resolution. Since such general laws have not been passed, we feel it would be inappropriate for the Court to suggest what criteria they should contain. Also in its absence we could not even speculate, of course, as to what would be acceptable ordinances thereunder. We mention this only because it had been suggested that we express our views as to what terms an acceptable ordinance might contain.

The record and all arguments having been considered, we affirm the appealed judgment.

Affirmed.

MAGER and DOWNEY, JJ., concur.