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

factors 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; ( 6) whether the fee is charged to recover the costs of improvements 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. 863 So. 2d at 145. The supreme court further instructs us that none of these factors is controlling, nor are they necessarily exclusive. Each factor is to be considered in the light of all the circumstances in each case. Id. Therefore, to consider the School Board' s argument that the circuit court reached the right result notwithstanding its incorrect finding that the City's stormwater fee was a user fee instead of a special assessment, we would need to analyze the City' s ordinance establishing its stormwater management program in light of the eight factors listed by the supreme court, plus any other pertinent factors. C. The Record Is Insufficient to Apply the " Tipsy Coachman" Doctrine d The School Board' s argument that the circuit court was right for the wrong reason in effect invokes the rule sometimes referred to as the " tipsy coachman doctrine. This rule allows an appellate court to affirm a trial court decision that " reaches the right result, but for the wrong reasons" so long as there is any basis which would support the judgment in the record." Dade_ Sc h. Bd. v. Radio Station WnBA, 731 So. 2d 638, 644 ( Fla 1999; see also Robertson v. State; 829 So. 2d 901, 906 -07 ( Fla 20021. Upon reviewing our record, we find that it is insufficient for us to apply this rule of appellate efficiency to consider affirming the circuit court' s ruling as the School Board suggests. We have before us -as did the circuit court -only fragments of the City's stormwater management ordinance. Section 32. 244 of the ordinance refers the reader to appendix A of the Code. Appendix A apparently contains the critical information concerning how the City levies, calculates, and bills its stormwater utility fee. Absent this information, we are unable to consider at least three -if not four -of the factors listed by our supreme court as * 1058 necessary to determine if the City's stormwater fee is a user fee or a special assessment. Therefore, we are unable to go behind the circuit court' s finding that the City's stormwater fee is a user fee to search for a basis to sustain the judgment. CONCLUSION The circuit court' s ruling that the School Board was exempt from the payment of web2.westlaw.com /... /documenttext.as... 167 Council Meeting, June 22, 2010  6/ 16/ 2010 905 So. 2d 1051 a user fee for the City's stormwater management program was in error. We decline to consider whether the stormwater utility fee was actually a special assessment to affirm the circuit court' s ruling because our record is inadequate for that purpose.We: halve considered the other arguments advanced by the School Board in support of affirmance of the circuit court' s ruling and find them to be without merit. Accordingly, we reverse the summary final judgment, and we remand this case to the circuit court for further proceedings consistent with this opinion. Reversed and remanded. Fla. App. 2 Dist., 2005. City of Clearwater v. School Bd. of Pinellas County 905 So. 2d 1051, 200 Ed. Law Rep. 429, 30 Fla. L. Weekly D1726 Briefs and Other Related Documents ( Back to ton) 2D04 -3260 ( Docket) ( Jul. 14, 2004) Judges and Attorneys ( Back to top) Judges Canady, Hon. Charles T. State of Florida Supreme Court Florida Litigation History Belo# I Judicial Reversal Report I Judicial Expert Challen= Repmt I Profiler Northcutt, Hon.. Stevan T. State of Florida District Court of Appeal, 2nd District Florida Litigation History mot I Judicial Reversal Report I Judicial Expert Chall _nae Report I Profile Penick, Hon. Thomas E. Jr. State of Florida Circuit C; ourt,, 6th Judicial Circuit Florida Litigation History 82ort I Judicial Reversal Report Walker, Hon. Davidl Seth State of Florida Circuit Court,, 6th Judicial Circuit Florida Litigation History ort I Judicial Reversal Report I Profiler Wallace, Hon. Doucllas A. State of Florida District Court of Appeal, 2nd District Florida web2. westlaw .com /... /documenttext.as... 168 Council Meeting, June 22, 2010  6/ 16/ 2010 Advisory Legal Opinion - Stormwater Ut... Florida Attorney General Advisory Legal Opinion Number: AGO 91 -27 Date: April 25, 1991 Subject: Stormwater Utility Services User's Fee Mr. Michael S. Davis City Attorney City of St. Petersburg RE: MUNICIPALITIES- STORMWATER UTILITIES - SCHOOL DISTRICTS - municipality may charge stormwater utility user' s fee to school district based upon estimated use of the system. s. 403. 0893, F. S. QUESTION: May the City of St. Petersburg pursuant to s. 403. 0893, F. S., impose a stormwater utility services user' s fee on a district school board based upon estimated use? SUMMARY: The city may impose stormwater utility user fees adopted pursuant to s. 403. 0893( 1), F. S., upon a school board based upon the board' s use of the system. Section 403. 0893( 1), F. S., authorizes a to " municipality c] reate 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. 0891( 3)." In AGO 90 - 47, this office considered whether stormwater fees imposed by the City of Orlando pursuant to s. 403. 0893( 1), F. S., could be charged against property owned by the State of Florida. The fees in AGO 90 - 47 were imposed upon property within the city regardless of use and were based upon the particular property having received some particular benefit from the stormwater system. Furthermore, the provisions of s. 197. 363, F. S.,[ 1] were used by the city to collect the fees. These factors led to the conclusion that the fees were special assessments which in the absence of legislation subjecting the state to liability could not be assessed myfloridalegal .com /.../ 399791FBDOE637... 169 Council Meeting, June 22, 2010  6/ 16/ 2010 Advisory Legal Opinion - Stormwater Ut... against state property. It was noted in AGO 90 - 47 that to the extent the sought to city impose the fees as service charges, however, the state could be liable for such charges. While state property used for public purposes is not generally subject to taxes or special assessments, the state may be liable for charges for services it uses.[ 2] The opinion stated further that there appears to be no judicial decision which has directly considered the of a authority municipality to compel the state or another governmental to agency use the services it offers in the absence of a provision statutory or contractual agreement to that effect. Accordingly, it was suggested that legislative or judicial clarification might be sought on this issue. Similarly, property owned by school districts which is used for educational purposes is constitutionally and statutorily exempt from taxation and special assessments.[ 3] There is no analogous exemption for school districts from service charges or fees for the use of utilities and like services.[ 4] To the extent a school board uses a service, charges may be imposed. This office, however, may not comment upon