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

Cocoa, for Appellee School Board of Brevard County. Joe D. Matheny, Titusville, for Appellee The Board of Trustees of Brevard Community College. GRIFFIN, Chief Judge. web2m estlaw .com /... /documenttext.as... 155 Council Meeting, June 22, 2010  6/ 16/ 2010 711 So.2d 1322 The City of Cocoa [ " Cocoa "] appeals an order dismissing its complaint against the School Board of Brevard County [ " Brevard "] and the Board of Trustees of Brevard Community College [ " BCC "] seeking to recover unpaid stormwater utility fees. The complaint, which was styled as an action on an open account, alleged that the fees had been imposed pursuant to Ordinance 2 -92, which established Cocoa' s stormwater utility system. According to Cocoa' s complaint, the ordinance established " stormwater utility discharge fees" for undisturbed property, residential developed property and non -residential developed property, other than exempt property. The complaint alleged that exemptions were limited to public rights -of -way, streets, alleys, sidewalks, parks, and conservation areas or easements. It alleged that BCC owed Cocoa " unpaid stormwater user fees and late charges" of $ 78, 11981. 54 and that Brevard owes $ 65, 792 in. " unpaid stormwater user fees and late charges." A copy of the ordinance pursuant to which the charges were imposed was not attached to the complaint. Brevard and BCC moved to dismiss the complaint, contending among other things that the stormwater utility fees were " special assessments" from which they were exempt: pursuant to sections 235. 26 and 235, 34, Florida Statutes. Brevard informed the court of a decision of the Pinellas county circuit court FN1 dismissing a similar claim for failure to state a claim. FN1. This decision was subsequently affirmed per curiam in City of St. Peters cjool Board. 711 So. 2d 535 ( Fla 2d DCA 1998). The court agreed that Brevard and BCC were exempt from payment of the fees and dismissed the complaint with prejudice by order dated August 14, 1997. The order stated: 1. The stormwater utility discharge fee imposed by City of Cocoa Ordinance 2- 92 is a special assessment and not a user fee, as property owners do not have an option of not utilizing the government service and thereby avoiding the charge. 2. The Defendants are exempt from the City of Cocoa Stormwater utility fee, which is an assessment, by operation of 6.(1), Fla. Stat. ( 1 9 ) and * 1323 235. 34, Fla . Stag, (1995) . See also School Board of Pinellas County v. City of St. Petersburg, No. 93 -844 ( Fla. 6th Cir.Ct. Nov. 27, 1996), rev. pending, wherein the trial court found a stormwater fee a special assessment which could not be charged against the school board and junior college. We conclude the complaint should not have been dismissed with prejudice and reverse. This appeal involves " stormwater utility fees" imposed by the city of Cocoa. In 1989, the legislature began requiring local governments like Cocoa to develop stormwater management plans. 9. 403. 0891, Fla. Stat ( 19891. To help meet this obligation, local governments were empowered to create a stormwater utility or utilities. § 403. 0893(. l), Fla. Stat. ( 1989). "Stormwater utility" was defined as follows: web2. westlaw .com /... /documenttext.as... 156 Council Meeting, June 22, 2010  6/ 16/ 2010 711 So. 2d 1322 Stormwater utility" means the funding of a stormwater management program by assessing the cost of the program to the beneficiaries based on their relative contribution to its need. It is operated as a typical utility which bills services regularly, similar to water and wastewater services. 403. 031( 17), Fla. Stat. ( 198),( emphasis added). The statutes defined a stormwater management plan" as: A] system which is designed and constructed or implemented to control discharges which are necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use, or reuse water to prevent or reduce flooding, overdrainage, environmental degradation and water pollution or otherwise affect the quantity and quality of discharges from the system. 403. 031( 16), Fla. Stat. ( 1989). The statutes authorize counties and municipalities to create one or more " stormwater utilities" and to adopt stormwater utility fees to plan, construct, operate and maintain" stormwater management systems. 9 403. 0893( 1), Fla Stat ( 11 Cocoa asserts that it is plainly entitled to assess and collect " stormwater management fees" from both Brevard and BCC pursuant to these statutes and Ordinance No. 2 -92. The trial court apparently dismissed the complaint on the basis that Brevard and BCC were exempt from payment of the fees under section 235. 26( 1)', Florida Statutes 19951, which governs the payment of " impact or service availability fees." Alternatively, the trial court appears to have found that they were exempt from payment of the fees under 235- 34, Florida Statutes, which related to " special assessments" on school property. In finding that these exemptions applied, the trial court apparently determined that no portion of the fees sought by Cocoa were user fees. At this stage of the proceedings, it is not apparent that these rulings are correct. We agree with Cocoa that the legislature appears to have intended to create a stormwater " utility" akin to water or sewer service. Appellees acknowledge that they cannot use the city water or sewer service and not pay for it. They contend, however, that they do not use the stormwater utility because they have their own stormwater management system on site and thus cannot be required to pay. The complaint, on the other hand, alleges they are " users." The lower court suggested that the appellees were " users," albeit " involuntary" users. It is impossible to decide this case without a determination of these and other facts. Accordingly, the appealed order of dismissal is reversed and the case remanded for further proceedings. REVERSED and REMANDED. no:: mi • a' • • Fla. App. 5 Dist., 1998. City of Cocoa v. School Bd. of Brevard County 711 So. 2d 1322, 23 Fla. L. Weekly D1377 web2. westlaw .com /... /documenttext.as... 157 Council Meeting, June 22, 2010  6/ 16/ 2010 905 So. 2d 1051 C Y West Reporter Image ( PDF 905 So. 2d 1051, 200 Ed. Law Rep. 429, 30 Fla. L. Weekly D1726 District Court of Appeal of Florida, Second District. CITY OF CLEARWATER, Appellant, V. SCHOOL BOARD OF PINELLAS COUNTY, Florida, Appellee. No. 2D04 -3260. July 20, 2005. Background: School board sought declaratory judgment that city was not entitled to charge it a stormwater management utility fee and a money judgment for fees previously paid under- protest, and city filed counterclaim for unpaid fees. The Circuit Court, Pinellas County, David Seth Walker, Senior Judge, and Thomas E. Penick., Jr., J., entered summary judgment in favor of school board. City appealed. Holdings: The District: Court of Appeal, Wallace, J., held that: W assuming city's stormwater utility fee was a user fee, rather than a special assessment, school board was not exempt from paying fee, and 4 record was insufficient to permit District Court of Appeal to consider school board' s argument that circuit court reached right result notwithstanding its incorrect finding that stormwater utility fee was a user fee instead of a special assessment. Reversed and remanded. West Headnotes M- 268 Municipal Corporations 2.68IX Public Improvements Assessments for Benefits, and Special Taxes 2681<43-4 Exemptions 2 i8k4 3 k. Schools, colleges, and universities. Most Cited Cases Statutes protect: local school districts from being required to pay special assessments for improvements made by governmental entities without the school district' s consent or approval. F. S. 1999, 235. 261 235. 34. MPI'motM- 0141114mm web2. westlaw .com /... /documenttext.as... 158 Council Meeting, June 22, 2010  6/ 16/ 2010 905 So. 2d 1051 414 Zoning and Planning 414VIII Permits, Certificates, and Approvals 414VIII(A)In General 414ki379 Maps, Plats, and Plans; Subdivisions 4141<1382 Conditions and Agreements 4141<1382( 4) k. Fees, bonds and in lieu payments. Most Cited Cases Formerly 414k382. 4) Statutes exempt school districts from the payment of impact fees and service availability fees. F. S. 1999, 235. 26, 2,35. 34. W.. WMwenwerazz 2L$ Municipal Corporations 268IX Public Improvements Assessments for Benefits, and Special Taxes 2681<411 Nature of Improvement 2681<417 Sewers, Drains, and Water Courses 2681<417( 1l k. In general. Most Cited Cases 268 Municipal Corporations -,aj KeyCite Citing References for this Headno e 268XI Use and Regulation of Public Places, Property, and Works Sewers, Drains, and Water Courses 2681<715 k. Surface water. Most Cited Cases A local governmental entity may fund a stormwater management program through the use of user fees or special assessments. West' s F. S. A. § 403. 0893. 268 Municipal Corporations 268IX Public Improvements Assessments for Benefits, and Special Taxes 2681<434 Exemptions 2681<4 k. Schools, colleges, and universities. Most Cited Cases 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 board' s agreement or consent. West' s F. S. A. 9 403. 0893; F. S. 19990 235. 26, 235. 34. isammwt ,, M-- m - • .-..• - 2fi$ Municipal Corporations 268XI Use and Regulation of Public Places, Property, and Works