Daily Development for Tuesday, November 7 , 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

SUBDIVISIONS; DEDICATIONS: Where subdivision plat dedicates property to city for waste water treatment plant in order to resolve PUD requirements, city obtains fee title to property and is not limited in its use of the property to only a treatment plant; therefore city may lease property for telecommunications tower. 

Verizon Wireless v. Sanctuary at Wulfert, 916 So. 2d 850 (Fla. App. 2005)

In 1982, City entered into a settlement stipulation and mutual release with Developers over the development of a subdivision.  The stipulation, as amended, provided that Developers would design, build and convey to the City a wastewater treatment plant on 6 acres of the Developers’ land.  The treatment plant showed on the subdivision plat, which stated that the tract was “dedicated” to the City, “ subject to the public roadway, utility and bicycle path easement as shown. . . .”

Twenty years later, pursuant to a cell tower location plan adopted in the City, the City determined to permit the construction of such a tower on the wastewater treatment plant property.  Homeowners objected, arguing first that the plant was an easement area, and inconsistent uses were not permitted; or that, if the plant was owned by the city in fee, the dedicated plat created a use covenant limiting the use to the wastewater plant; or that the PUD ordinance itself limited the use of the property.

The trial court found for the homeowners, but the appeals court reversed. 

The appeals court found, in fact that the City, having adopted legislatively the cell tower location plan, was obligated to supercede any contrary provisions of the PUD ordinance and locate the tower at the site. 

As to the argument that there were other use restrictions on the site, the court held that, although generally a dedication of land to public use transfer only an easement, here the settlement stipulation expressly transferred ownership of the affected land to the city.  Under such circumstances, the original purpose of the acquisition establishes neither an exclusive limitation nor a permanent requirement.  There was no easement of use expressly imposed and the court would not infer one.

As to the arguments based upon equity - in light of the prior dedication, the court noted that the homeowners had taken no role in the two and a half years of hearings leading to the telecommunications location ordinance, and lacked any equitable standing.

Comment 1: What the editor finds interesting here is the relationship between this outcome and an unconstitutional exaction.  Clearly the demand for a wastewater treatment plant as part of the PUD approval was an exaction (albeit by means of a settlement).  If the City had demanded unrestricted fee simple to build whatever it wanted, this certainly would have been an unconstitutional exaction (again, assuming that this was a demand, and not a settlement).  The developer would have been well within his rights to restrict the grant to an easement or, if the City insisted it needed a fee to build the plant, then the developer could have restricted the fee to wastewater treatment.  The City likely would have agreed, and, if exaction law applied, likely could not have objected anyway.

But the problem is that the Developer, which planned to sell out the lots and disappear, had little interest in the long term protection of its lots.  Consequently, the City did not get restricted.

Comment 2: Of course, the Developer had a short term interest in protecting the property from uses inconsistent with his development plans, and at least should have bargained for use restrictions for that.  But this is one of those cases in which the consumer loses out mainly because there is no one around looking after consumer interests at the critical moment in the transaction. 

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