Fort Walton Beach Council agenda — 06-22-2010 Regular — reading text

November 12, 2008 651 Powell Drive NE CAST 008 -1049' 651 POWIELL DRIVE NE PHOTO TAKEN, 11 -12 -2008 BY EGA MOORE EXHIBIT G -11 140 Council Meeting, June 22, 2010  Page 1 of 1 Carole Jones From: Tim Bolduc Sent: Monday, June 14, 2010 3:27 PM To: ' Joseph D. Lorenz' Subject: City Council Meeting June 22nd Attachments: cc. 100622. Brown Code Case Update 651 Powell Blue. doc; cc. 100622. Brown Code Case Update 651 Powell. doc; cc. 100622. Brown Code Update Pictures. pdf Joe, here is the agenda back -up that staff will be providing for the meeting. It is my intention to cover the history, the code events of the last month and turn it over to you for the legal. You will probably want to have clarification on the Homestead issue. Tim Bolduc, C. B. O. Building Official Engineering Services Department City of Fort Walton Beach P. O. Box 4009 Fort Walton Beach, FL 32548 Phone: 850 -833 -9605 Cell: 850 -585 -4644 Nextel: 186 *13224 *25 Web Page: www. fwb.org Email: tbolduc@fwb. org 141 Council Meeting, June 22, 2010 THIS PAGE IS LEFT INTENTIONALLY BLANK City Council Regular Meeting June 22, 2010 142 Council Meeting, June 22, 2010  CITY COUNCIL MEETING June 22, 2010 City Manager Reports No Backup) Agenda Item Number: 15  CITY COUNCIL MEETING June 22, 2010 City Attorney Reports Application of Storm Water Utility Charges on Okaloosa County School Board Properties Synopsis: City Attorney will explain recent court decisions relating to the collection ofsaid charges; provide options for the City Council; and seek direction Agenda Item Number: 16. 1  PO Box 2917 TONI L CRAIG 105 Lewis St Ste 102 Fort Walton Beach FL 32549 t ATTORNEY PHONE: ( 850) 243 -6969 FAX: ( 850) 244 -8929 C601, .. City, County, E -MAIL; toni @tonicraig. info Local Government Law WEB SITE: www.tonicraig. info 16 June 2010 To: Mayor City Council CC: City Manager Re: Okaloosa County School Board Refusal to Pay Stormwater Utility Charges Background On August 26, 2008, the City formed its Stormwater Utility and began charging user fees for the utility in October 2008. The user fees are calculated, generally, on the amount of impervious surface of a property and billed accordingly on the monthly water bill. The Okaloosa County School District has twelve educational and ancillary plants located within the City limits. The City began charging the School District for the user fee in October 2008. On November 17, 2008, Jeff McInnis, the attorney for the School District informed the City that it was his opinion that the School District should not be responsible for paying the user fees. I responded to Mr. McInnis that, in my opinion, the School District was not exempt from the stormwater utility user fee because the charge is a user fee and not an assessment or impact fee. Pursuant to my advice, the City continued to bill the appropriate stormwater utility user fee to the School District until October 2009. In October 2009, Mr. McInnis contacted me to tell me about a new appellate court decision that he believed supported his position that the School District was exempt from payment of the user fee. I conducted research on the new case, staff assisted in compiling information from other municipalities and the Florida Stormwater Association, and I again confirmed my legal conclusion that the School District was not exempt from paying the stormwater utility charges. After abating billing for November and December 2009, in January 2010, the City again began billing the School District for the stormwater utility charges. 143 Council Meeting, June 22, 2010  Page Two OCSB /Stormwater However, in late! January 2010, Mr. McInnis informed the City that the School District would not pay the monthly utility charges. The City has continued billing the School District for the stormwater utility charges. The School District has refused to pay the fees and currently has an outstanding balance of $ 24,417.02 for the stormwater utility charges as of June 16, 2010. Issues to Resolve - 1. Is the School District legally responsible for paying the stormwater utility user fee? It is my opinion, based on the legal precedence of City of Clearwater v. School Board of Pinellas County, 905 So. 2d 1051 ( Fla. 2nd DCA 2005) and City of Cocoa v. School Board of Brevard County, 711 So. 2d 1322 ( Fla. 5th DCA 1998), among other, that the City may charge and the School District is legally responsible for paying the stormwater utility user fee because it is not an assessment or an impact fee. 2. If the School District is legally responsible for paying the stormwater utility user fee, are there alternatives to the charge of that user fee that can be agreed upon by the City and the School District? There may be alternatives to the City charging the School District for the stormwater utility user fee. For example, section 10.521. 05, Right of Refusal to Connect to Utility, of the City' s Code, states: Any property owner responsible for paying the stormwater user fee, who chooses not to use stormwater management program services, may elect to develop their property in a manner that retains all run -off on -site and orevmts discharge to the city' s stormwater infrastructure. The property owner must verify retention of all stormwater on -site by submitting, for review and approval by the city, certified engineering drawings and calculations demonstrating that one hundred ( 100) percent of the total volume of runoff from the property will be retained within the property. The engineering calculations shall be based on runoff volumes from the one hundred -year frequency rainfall event, for the following durations: one ( 1), two ( 2), four ( 4), eight ( 8) and twenty -four 24) hours and one ( 1), two ( 2), three ( 3), four (4), seven ( 7) and ten ( 10) days. The City Engineer and the School District Planner would most likely have other alternatives that could 1) assist the City in maintaining the stormwater utility 144 Council Meeting, June 22, 2010  Page Three OCSB /Stormwater program, 2) allow, or ensure, that the School District pursues its own stormwater discharge and retention policies and procedures for the benefit of the public, and 3) help the City satisfy the several unfunded legislative mandates regarding stormwater discharge and retention. 3. If the City and School District cannot agree on an alternative to the City charging the School District the user fee and the School District continues to not pay the charges, how can the issue be resolved? The City can resolve the legal issues by filing a complaint for declaratory relief with the Circuit Court of Okaloosa County. The City and School Board would present the facts of the case and their arguments. The Judge would make a ruling regarding the rights of both parties. If the School District agrees, this type of suit can be conducted as a friendly suit" rather than adversarial litigation and thereby reduce the costs and time consumed by the suit. Recommendations: 1. The City Council authorizes the City Manager and City Attorney to negotiate with the School District regarding alternatives to charging the stormwater utility user fee. 2. If negotiations fail after or are unproductive as of December 30, 2010, then the City Attorney is authorized to file an action for declaratory relief to resolve the matter. Respectfully Submitted, City Attorney Attachments: 403. 0893, Fla. Stat. ( 2009) November 17 -8, 2008 Emails —McInnis /Craig October 2009 Case Law, Clearwater v. Pinellas County December 17, 2009 McInnis Letter 21 Pages of Case Law 145 Council Meeting, June 22, 2010  6/ 16/ 2010 FL ST § 403.0893 West' s F. S. A. § 403. 0893 West' s Florida Statutes Annotated Currentness Title XXIX. Public Health ( Chapters 381 -408) i- Chanter 403. Environmental Control kRefs & Annos) W Part I. Pollution Control ( Refs & Annos 403. 0893. Stormwater funding; dedicated funds for stormwater management In addition to any other funding mechanism legally available to local government to construct, operate,, or maintain stormwater systems, a county or municipality may: 1) Create one or more stormwater utilities and adopt stormwater utility fees sufficient to plan, construct, operate, and maintain stormwater management systems set out in the local program required pursuant to s. 403. 08910; 2) Establish and set aside, as a continuing source of revenue, other funds sufficient to plan, construct, operate, and maintain stormwater management systems set out in the local program required pursuant to s. 403. 0891_0; or 3) Create, alone or in cooperation with counties, municipalities, and special districts pursuant to the Interlocal Cooperation Act, s. 163. 01, one or more stormwater management system benefit areas. All property owners within said area may be assessed a per acreage fee to fund the planning, construction, operation, maintenance, and administration of a public stormwater management system for the benefited area. Any benefit area containing different land uses which receive substantially different levels of stormwater benefits shall include stormwater management system benefit subareas which shall be assessed different per acreage ifees from subarea to subarea based upon a reasonable relationship to benefits received. The fees shall be calculated to generate sufficient funds to plan, construct, operate, and maintain stormwater management systems called for in the local program required pursuant to si, 403. 0891( 3). For fees assessed pursuant to this section, counties or municipalities may use the non -ad valorem levy, collection, and enforcement method as provided for in chapter 197. CREDITS)