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

following findings: 1. The City' s ordinance imposes a utility /user fee. 2. The School Board did not enter into any contract or agreement to pay such utility /user fees and denied any obligation for those fees in the pleadings. 3. The Florida Statutes in effect at the time, sections . 26 ( now 1 n 1 " ' 171) web2. westlaw .com /... /documenttext.as... 163 Council Meeting, June 22, 2010  6/ 16/ 2010 905 So. 2d 1051 and 235. 34 ( now 1013. 51) exempted the School Board from liability for such utility /user fees. Based on these findings, the circuit court entered a partial summary judgment declaring that the School Board was not obligated to pay the stormwater utility fee to the City and that it was entitled to reimbursement for the fees it had previously paid. The circuit court also ruled -at least by implication -that the City would take nothing on its counterclaim for the unpaid fees. In accordance with the partial summary judgment on liability, the circuit court subsequently entered a summary final judgment in favor of the School Board and against the City for the amount of the stormwater utility fees paid from November 1995 through April 1998, plus interest. The judgment was for $ 197, 295. 36 principal and $ 135, 807. 32 interest, for a total sum of $ 333, 102. 68. From this summary final judgment, the City appeals. THE STANDARD OF REVIEW A final order granting a summary judgment is subject to de novo review. Volusia Counter Ab ?rdeen at Ormond BeachL. P.. 760 So 2d 126a 130 20001. Our task in reviewing the summary judgment in this case is to determine whether the circuit court correctly ruled as a matter of law that sections 235. 26 and 235. 34 exempt the School Board from the payment of the City' s stormwater utility, fee. DISCUSSION A. School Districts and Fees for Stormwater Management Programs Sections 235. 2E-1 and 235. 34, Florida Statutes ( 1999, provide, in pertinent part, as follows: 1055 235. 26. State Uniform Building Code for Public Educational Facilities Construction.- .... 1) UNIFORM BUILIDING CODE.- a) Except as otherwise provided in paragraph ( b), all public educational and ancillary plants constructed by a district school board ... must conform to the State Uniform Building Code for Public Educational Facilities Construction, and such plants are exempt from all other state, county, district, municipal, or local building codes, interpretations, building permits, and assessments of fees for building permits, ordinances, road closures, and impact fees or service availability fees.... 235. 34. Expenditures authorized.- 1)( a) Subject to exemption from the assessment of fees pursuant to S, 235. 26( 1),school boards ... may expend funds, separately or collectively, by contract or agreement, for ... sanitary sewer, water, stormwater, and utility improvements upon, or contiguous to ... any existing or proposed educational plant. web2. westlaw .com /... /docum,enttey:t.as... 164 Council Meeting, June 22, 2010  6/ 16/ 2010 905 So. 2d 1051 c).... Payment by a board for any improvement set forth in this section shall be authorized in any amounts agreed to by the board. Any payments so authorized to be made are not mandatory unless the specific improvement and costs have been agreed to prior to the improvement' s being made. 2) The provisions of any law, municipal ordinance, or county ordinance to the contrary notwithstanding, the provisions of this section regulate the levying of assessments for special benefits on school ... districts and the directing of the payment thereof. Any municipal ordinance or county ordinance making provision to the contrary is void. L11 -' L4 `tip Generally speaking, these 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. See Bd. of Pub. Instruction v. City of Jacksonville 86 So 2d 887 ( Fla 1956); City of Newberry v. Sch. Bd., 368 So. 2d 87 ( Fla 1st DCA 1979).In City of Newberry, the court outlined the purpose underlying section 235. 34 as follows: The purpose of Florida Statute section 235 ,34, is to prevent the levy of special assessments against school property without agreement of the school board. Obvious dictates of the school board' s budget require, as the legislature has recognized, that local governmental entities planning improvements which will affect the school board' s property consult with, and obtain the approval of the school board as to the proposed improvement and its cost before special assessments can be levied. Hence the language of the above -quoted statute that the specific improvement and its cost have been agreed to by the school board prior to the improvement['] s being made, are a condition precedent to the levy of assessments for special benefits on school districts. 368 So. 2d at 88 ( considering the 1975 version of the statute, which is substantially similar to the version at issue in this case). Sections 235. 26 and 235. 34 also exempt school districts from the payment of impact fees and service availability fees. See Hernando County Water Sewer Dist. v Hernando County Bd. of Pub. Instruction 610 So. 2d 6 ( Fla 5th DCA 1992); Loxahatchee River Envtl_ Control Dist. v. Sch. Bd.{ 496 So. 2d 930 ( Fla 4th DCA 1986, approved, 515 So. 2d 217 ( Fla. 1987). 1056.[.31 - Yid ,.A The exemption of school districts from liability for the payment of special assessments imposed without their agreement or consent assumes importance in the context of the method adopted by a local governmental entity to fund its stormwater management program. Under section 403. 08930 Florida Statutes ( 1989 -99), a local governmental entity may fund a stormwater management program through the use of user fees or special assessments. .Citi Hof Gainesville_v. State. 863 So. 2d 138. 144 ( Fla. 200 . Compare Sarasota County v. Sarasota Church of rist,, Inc . 667 So. 2d 180 Fla. 1 ( special assessments), with City of Cocoa v. Sch. Bd. 711 So. 2d 1322 Fla. 5th DCA 1998) ( user fees). A local governmental entity that elects to fund its stormwater management program though special assessments may be barred web2. westlaw .com /... /documenttext.as... 165 Council Meeting, June 22, 2010  6/ 16/ 2010 905 So. 2d 1051 by sections 235. 2L and 235. 34 from imposing such special assessments on property owned by a school board without the board' s agreement or consent. L5J In this case, the City' s ordinance indicates that it acted under the + - 03. 0893( 1) to create a stormwater utility and to impose authority of secti m stormwater utility feE! s. A stormwater utility is defined in the statute as 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. ( 1989- 99). FN2 "[ M] unicipalities have the option of establishing stormwater management systems as traditional utilities and financing them by collecting utility fees." City of Gainesville v. State. Den' t of Trans 778 So. 21d 519, 523 ( Fla, 1st DCA 2001). The legislation requiring local governments like the City to develop stormwater management plans " appears to have intended to create a stormwater utility' akin to water or sewer service." of Cocoa{ 711 So. 2-d at 1323. FN2. Formerly fiction 403. 031( 16), this subsection was redesignated as section 403. (x( 17) in 1991. Ch. 91 -305, 22, Laws of Fla. d Y' ' Based upon the portions of the City's stormwater management ordinance presented to it on the School Board' s motion for a partial summary judgment on liability in this case, the circuit court found that the stormwater utility fee imposed by the City was a user fee, not a special assessment. This finding controls the result in this case. No one suggests that sections 235. 26 and 235. 34 exempt school) boards from payment of user fees for traditional utility services such as water and sewer service and garbage collection. Our supreme court has referred to stormwater management programs as being among the traditional utility services provided by governmental entities. Pinellas Caunty - v. State, 776 So. 2d :? 62,_ 268 n. 11 ( Fla. 2001). Because school districts are not exempt from payment: of user fees for traditional utility services, the circuit court erred in ruling that the School Board was exempt from paying a user fee imposed by the City for stormwater management services. See City of Cocoa, 711 So. 2d 1322. B. The School Board "s Argument The School Board' s argument for affirmance of the judgment takes issue with the circuit court' s finding that the City' s stormwater fee is a user fee. The School Board claims that an owner of developed property within the City must " pay[ ] the fee, with no exceptions or amelioration, and no consideration of whether the property contributes to stormwater issues." * 1057 For this reason, the School Board concludes that the stormwater utility fee is in fact a mandatory assessment from which it is exempt in accordance with sections 235. 26 and 235. 34. The substance of the School Board' s argument is that the circuit court reached the right result for the wrong reason. In the School Board' s view, it is exempt from payment of the stormwater utility fee because it is a mandatory special assessment, not a user fee as the circuit court concluded. web2. westlaw .com /... /documenttext.as... 166 Council Meeting, June 22, 2010  6/ 16/ 2010 905 So.2d 1051 1 The premise of the School Board' s argument is that the City' s stormwater fee cannot be a user fee and must be a special assessment because payment of the fee is involuntary. But the School Board' s premise is incorrect. In determining whether a fee imposed for a traditional utility service such as stormwater management is a user fee or a special assessment, the voluntariness of the fee is only one of several factors to be considered. The voluntariness of the fee is not dispositive. City of Gainesville. 863 So. 2d at 145T Pinellas County v. State, 776 So. 2d at 268 In the City of Gainesville case, our supreme court listed eight factors to be considered in determining whether a stormwater fee constitutes a user fee or a special assessment. These