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

other statutes through adoption of Chapter 2006 -252. Section 180. 03( 3) was added. It provides, in pertinent part, that a City also exercises its utility powers under Chapter 180 by the adoption of a resolution that includes " consideration of the local authority's obligations for water body cleanup and protection under state or federal programs, including requirements for water bodies listed under § 303( d) of the Clean Water Act...." 403. 08'91, FLA. STAT., addresses the state, regional and local stormwater management plans and programs. ? 3 403. 0885 establishes the state NPDES program under which MS4 permits are issued and the impairment or protection of water bodies including ( but not limited to) listed water bodies, is considered. § 403. 031( 17) defines a stormwater utility 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 036758 -004: CWATT /CVEIL " : 00742098. DOC; 2} 174 Council Meeting, June 22, 2010  OBB C OLE Mr. Kurt Spitzer November 24, 2009 Page 3 regularly, similar to water and wastewater services." Thus the basis of the Gainesville III decision, narrowly reading the authority of cities to establish utilities, has been undermined. Chapter 2006 -252 also added similar language with respect to water body cleanup and protection, to § 153. 73. That statute gives authority to counties ( if such authority is needed) to create water and sewer districts. Subsection ( 13) specifically authorizes such districts to impose special assessments on the properties of counties, school districts and other political subdivisions of the state. § 153. 83 further forbids free utility service to such political subdivisions. It would be ironic indeed if legislation were construed to immunize other political subdivisions from the stormwater fees and assessments of cities, but not counties. It is easier to defend a utility charge, and to come within the specific statutory authorization, if it is structured as a utility fee rather than a special assessment. A special assessment, in its traditional form, is a means of recouping the special benefit or incremental and disproportionate addition to property value which occurs as to some parcels when a general program of public improvements is executed. The legal theory is that there is a general public benefit which accrues to all properties in the jurisdiction, and a special benefit which is typically limited to those most proximate to the improvement, such as those lots which may directly abut a new sewer line. There is a general health benefit arising from the installation of central sewage systems, but there is a disproportionate increase in value to the abutting properties only. Unlike private investors, the State does not acquire and hold property based on the possibility of increases in value, and there is no windfall where the value of state -owned property increases. If there were no immunity, then the State' s power to budget and control its expenditures would be compromised. In recent years, special assessments have strayed from their historic use as a one -time charge to recoup a special benefit or enhancement of property value. They have become more common as a means to recoup the ongoing costs of providing a service which enhances property value or use, such as for solid waste pickup, fire services, etc. This has blurred the distinction between special assessments and user fees in the case law. An express contract for stormwater utility service may not necessarily be limited to a formal writing, if the terms and conditions otherwise can be made out from documents which evidence a meeting of the minds of the parties, such as was the case in an application for annexation and the terms of the annexation ordinance spelling out an undertaking of the city to extend its utilities. Waite Development, Inc. v. City of Milton, 866 So. 2d 153 ( Fla. 1 st DCA 2004). Moreover, in Gainesville II, the Supreme Court expressly held that voluntariness was only one factor in determining whether a stormwater utility charge was a valid user fee. Also, some jurisdictions impose unitary utility fees, so that a customer opting for potable water service may not selectively refuse wastewater or stormwater utility services. A local government has regulatory authority to require surface water management systems for development within its 1036758 -004: CWATT /TVEIL : 00742098. DOC; 2} 175 Council Meeting, June 22, 2010  oit Mr. Kurt Spitzer N November 24, 2009 Page 4 bounds. Turkey Creek, Inc. v. City of Gainesville, 570 So. 2d 1055 ( Fla. 1st DCA 1990). Alternatively or in addition, the local government may operate a stormwater utility. Use of the stormwater utility, and payment of utility charges therefor, may mandatorybe made notwithstanding; the immunity of a governmental agency from special assessments. The voluntariness of the fee is not dispositive. City of Cocoa v. School Board of Brevard County, 711 So. 2d 1322 ( Fla. 5th DCA 1998) ( although school board and community college were immune from special[ assessments, record was insufficient to justify dismissal of city's claim for unpaid stormwater utility fees even if use of the utility was involuntary). Gainesville h7 became final in the First District in 2006, after the decision of the Fifth District in Cocoa and without reconciling that decision, or the prior decision of the Second District in City of Clearwater v. School Board ofPinellas County, 905 So. 2d 1051 ( Fla. 2d DCA 2005). Thus, in the absence of a clear statement from the Supreme Court disavowing Gainesville II (which is unlikely in view of its context as a bond validation case), or consensus among and within the District Courts of Appeal, I do not find that Gainesville III or the recent Clearwater decision are controlling, and each case must be determined by balancing the factors and interests as Gainesville I announced and Gainesville II affirmed. Judge Benton in Gainesville I pointed to the need for an equitable balancing of interests in resolving immunity claims between contending governments on a case -by -case basis, as evidenced in the decision in Hillsborough Association for Retarded Citizens v. City of Temple Terrace, 332 So. 2d 610 ( Fla. 1976). Application of that test in any contest between a state entity and a local stormwater utility should more often than not yield a decision in favor of payment for local utility services. The most persuasive factual argument is that the state and its subdivisions are not entitled to free services from a required utility. Since public utilities are barred by case law from overcharging their paying customers by more than their fair share, the effect of providing free service is that there will be a shortfall in the stormwater utility fund, and stormwater services must necessarily be subsidized by the general fund. Clearly that is not the intent of the Legislature in enacting § 403. 0892, FLA. STAT. to provide for " dedicated funds for stormwater management ". That statute was intended to authorize, not to frustrate, stormwater utilities. Nevertheless, to minimize confusion in the applicable judicial precedents, it would be wise to structure a stormwater utility ordinance so as to define the payment for stormwater service as a utility fee rather than a special assessment. 036758 -004: CWATT /IFVEIL : 00742098. DOC; 21 176 Council Meeting, June 22, 2010 Mr. Kurt Spitzer NL'7.R November 24, 2009 Page 5 Kindly advise if there are remaining questions or items needing clarification. Sincerely, C. Allen Watts Allen.Watts@CobbCole. com Fax( 386) 944 -7965 CAW /tav 036758 -004: CWATT /TVEIL : 00742098. DOC; 21 177 Council Meeting, June 22, 2010  Page 1 of 1 Carole Jones From: Toni Craig [toni @toinicrailg. info] Sent: Wednesday, June 16, 2010 7: 37 AM To: Carole Jones Cc: Robert Mearns Subject: June 22 Agenda Carol On the June 22 agenda, please note tinder attorney report: Discussion of application of storm wafer utility charges on Okaloosa County School Board properties. I will have a memorandum for the agenda packet to you by the end of today. Thank you. Toni L. Craig Attorney Fla Bar No 115444 Board Certified, City, County, Local Government Law PO Box 2917 105 Lewis Street Suite 102 Fort Walton Beach FL 32549 850) 243 -6969 Fax: ( 850) 244 -8929 www.tonicraig,info Marital & Family Law Local Government Law CONFIDENTIALITY NOTICE: This email is intended only for the use of the addressee. If you received this email in error, please notify me immediately, delete the email from your computer and do not copy or disclose it to anyone else. If you are not an existing client of Toni L. Craig, Attorney at law, do not construe anything in this email as legal advice! or to make you a client. Do not disclose anything to me in any reply that you expect to be kept confidential. I You are a client you should keep the contents of this email confidential to preserve the attorney -client or work product privilege. 178 Council Meeting, June 22, 2010  W, / ANN IL LEGEND FVVB Utilities --- Oigitized Impervious Account Location | D Area o 200 Street Centerline Feet ka| oosoCounty TcTRArEC* Parcel Boundaries PUBLIC SCHOOL IMPERVIOUS MAPPING FIGURE LOCID8358 ST{) RMVVATER UTILITY 4 CITY OF FORTVVALTC] N BEACH. FLORIDA  i r