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

Laws 1986, 86- 186,, • • ; Laws 19890 c.- 89- 279, • HISTORICAL AND STATUTORY NOTES Amendment Notes: Laws 1989, c. 89 -279, provided therein that the law take effect July 1, 1989; however, approval by the governor occurrPri subsequent thereto. Thin Flnrirla web2. westlaw .com /... d / ocumenttext.as... 146 Council Meeting, June 22, 2010  6/ 16/ 2010 FL ST § 403. 0893 Supreme Court in an advisoryopinion to the governor of July 19, 1979 374 ( So 2d 959) stated in part " * * *the effective date provided in the bill is inoperative unless the bill becomes law on or before that date" and concludes that under such circumstances the provision of Const. Art. 3., 9, that the law take effect on the sixtieth day after adjournment sine die of the session of the legislature in which enacted, is applicable. LAW REVIEW AND JOURNAL COMMENTARIES Establishing a stormwater utility: Considerations for the local government lawyer. Mary Julianne Yard, 64 Fla. B. J. 36 ( Dec. 1990). LIBRARY REFERENCES Countnes • Municipal C• •• • 1. 403. Westlaw •Topic 14 268. Counties .. • s .. • •• • •• 111 . • RESEARCH REFERENCES Encyclopedias 90111111111 HOME 4,0914 NOTES OF DECISIONS Remand 3 Sovereign immunity 2 Stormwater utility fees and assessments 1 1. Stormwater utility fees and assessments None of the factors to be considered in determining whether a stormwater fee constitutes a user fee or a special assessment is controlling, nor are they necessarily exclusive; rather, each factor is to be considered in the light of all the circumstances in each case. City of Clearwater v. School Bd. of Pinellas County Muni * App. , 905 So. 2d 1051 ( 20051. pal Corporations 405; Municipal Corporations 715 Factors to be considered in determining whether a stormwater fee constitutes a user fee or a special assessment are: ( 1) the name given to the charge; ( 2) the relationship between the amount of the fee and the value of the service or benefit; ( 3)whether the fee is charged only to users of the service or is charged to all residents of a given area; ( 4) whether the fee is voluntary, that is, whether a property owner may avoid the fee by refusing the service; ( 5) whether the fee is a monthly charge or a one -time charge; ( A) whether the fee is chard n l *-^ 147 Council Meeting, June 22, 2010 . om /... /documenttext.as... web2. westlaw c  6/ 16/ 2010 FL ST § 403.0893 the costs of improverents to a defined area of infrastructure or for the routine provision of a service; ( 7) whether the fee is for a traditional utility service; and 8) whether the fee is statutorily authorized as a fee. city of Clearwater v School Bd. of Pinellas Cody, Ann. 2 Dist., 905 So. 2d 1051 ( 2051, Municipal ornorations 405; Municipal Corporations 715 Assuming city's stormwater utility fee was a user fee, rather than a special assessment, school board was not exempt from paying fee; stormwater management services were traditional utility services. City of Clearwater v School Bd. of Pin _llas Cooyy, Ann. 2 Dist., 905 So. 2d 1051 ( 200-5). Municipai Corporations Z S Municipalities have the option of establishing stormwater management systems as traditional utilities and financing them by collecting utility fees. City of Clearwater v. School Imo, of Pinellas County, AQQ 2 Dist ; 905 So. 2d 1051 ( 2005). Corporate - Municipal n.s 715 A local governmental entity that elects to fund its stormwater management program though special assessments may be barred by statute from imposing such special assessments on property owned by a school board without the boards agreement or consent. City of Clearwater v. School Bd. of Pinellas Countv Alp, 2 Dist., 905 So. '_d 1051 ( 2_005). Municipal Corporation A local governmental entity may fund a stormwater management program through the use of user fees or special assessments. City_of Clearwater v. School Bd. of Pinellas County, App. 2 Dist., 905 So. 2d 1051 ( 2005). Municipal Corporations 417( 11; Municip Lporations 715 City's monthly fee to Ifund stormwater management system was a " user fee," rather than a special assessment, could be charged to state and Department of Transportation ( DOT), and, therefore, could be pledged as collateral for bonds to fund system improvements; city created a stormwater utility and referred to the fee as a user fee, property owners could avoid the fee either by not developing the property or by implementing a system to retain stormwater on site, and even if the fee was not voluntary as to apartment tenants, voluntariness was only one factor. City of Gainesville v. State, 863 So. 2d 138 ( 2003). Municipar I Corporations 405; Municipal c iorations 715; Municipa,I Corporations 919 Because a landowner could refuse the city's stormwater utility service and prevent liability for stormwater utility fees by containing runoff, the fees were not invalid as a tax or a special assessment. City of Gainesville v State, Dept_ of Trans Apn, 1 Dist. 778 cited_519 ( 2401), Municipal Corporations 715 Municipalities may establish stormwater management systems as traditional utilities and finance them by collecting utility fees. City of Gainesville v State, Dept. of Transn., kj2p. 1 Dost., 778 So. 2d 519 ( 2001,). Municipal Corpora inner City' s stormwater utility could use uniform method for levy, collection, and enforcement of non -adl valorem assessments, although authorization for use of method came under subsection covering mating of stormwater maranQmnn} . om /... /documenttext.as... web2. westlaw c 148 Council Meeting, June 22, 2010  6/ 16/ 2010 FL ST § 403. 0893 system benefit areas and not creation of stormwater utilities, as authorization was given for fees assessed pursuant to statutory " section," not " subsection." Atlantic Gulf Communities Corp. y of Port St Lucie, Ann 4 Dust., 764 So 2d 14 ( 19991, rehearing denied. Municipal Corporations ( 4 Remand for trial court to make further factual findings was warranted to permit determination of whether school board and community college were exempt from payment of stormwater utility fees to city. Cry of Cocoa v. School Bd. of Brevard County, App 5 Dist.., 711 So. 2d 1322 ( 199 Municipal Corporations Apportionment of special assessment for stormwater services, which assessed only developed land, assessed residential and nonresidential land differently, and assessed nonresidential land based on projected stormwater discharge from parcels based on amount of " horizontal impervious area" assumed for each parcel, was not arbitrary and was reasonably related to benefits receive by individual developed properties in treatment and control of polluted stormwater runoff. Sarasota County v. Sarasota Church of Christ, Inc 667 So 2d 180 ( 1995), rehearing denied. Counties _ 22; Municipal Corporations 465 City could impose stormwater utility user fees, adopted pursuant to West' s F. S. A. 403. 0893( 1), upon a school board based upon the board' s use of the system. Op. Atty. Gen. 91 -27, April 25, 1991. As it appears that stormwater utility fees imposed by the City of Orlando are special assessments, the real property of the state is not subject to such fees absent a specific statute imposing such liability upon the state. Op. Atty. Gen. 90- 47, June 20, 1990. In light of the language of this section, authorizing the use of the non -ad valorem levy, collection, and enforcement method provided for in Ch. 197, F. S., for fees assessed pursuant to that section, such method may be used when a county or municipality elects to create a stormwater utility under this section. Op. Atty. Gen. 90 -47, June 20, 1990. Stormwater utility fees imposed by the City of Orlando pursuant to this section appear to be special assessments rather than user charges, and therefore, such fees would appear to qualify as non -ad valorem assessments. Op. Atty.Gen. 90- 47, June 20, 1990. 2. Sovereign immunity Sovereign immunity would not insulate the Department of Transportation ( DOT) from having to pay the city valid stormwater utility charges. City of Gainesville v. State_,Dept. of Transp_, App. 1 Dist. 778 So 2d 519 ( 2001). Municipal Corporations 715 I Remand Remand of city's action to collect stormwater utility charges from Department of Transportation ( DOT) was required to determine if city was entitled to amend its complaint to allege that a contract existAri for the provision of such 11 SIN - w web2. westlaw .com /... /documenttext.as... 149 Council Meeting, June 22, 2010  6/ 16/ 2010 FL ST § 403. 0893 services, for purposes of determining whether state waived sovereign immunity. City of Gainesville v. _State{ Dept, of Transn., App. 1 Dist,, 778 So 2d 519 120011. Municipal Corporations 715 West' s F. S. A. § 4031. 0893, FL ST § 403. 0893 Current with chapters in effect from the 2010 Second Regular Session of the Twenty -First Legislature through May 27, 2010 C) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. END OF DOCUMENT c) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. web2. westlaw .com /... /documenttext.as... 150 Council Meeting, June 22, 2010  Toni Craig From: Toni Craig [tonicraig @cox.net] Sent: Tuesday, November 18, 2008 10: 36 PM To: ' jmcinnis @asglegal. com' Cc: ' John Hofstad'; ' Joyce Shanahan' Subject: Stormwater Management Utility Ordinance 1768 Jeff I am hopeful that we can discuss this matter on Wednesday at our scheduled tel con. In the meantime, please review the attached cases of City of Clearwater v. School Board of Pinellas County, 2nd 905 So. 2d 1051 ( Fla. DCA 2005) and City of Cocoa v. School Board of Brevard County, 711 So. 2d 1322 ( Fla. stn DCA 1998). The City' s storm water utility fee is a user fee, not an assessment or an impact fee. Toni L. Craig Attorney at Law Fla Bar No 115444 850) 243 -6969