HomeMy WebLinkAbout11-19-2002 Legal Opinion - Stormwater Management Utility FeeBROWN, WARD, SALZMAN & WEISS, P.A.
Usher L. Brown
Suzanne D'Agresta'
Anthony A. Garganese°
Gary S. Salzman°
John H. Ward •
Jeffrey S. Weiss
•Board Certified Civil Trial Lawyer
°Board Certified Business Litigation Lawyer
Board Certified City, County & Local Government Law
Mr. Ronald McLemore
City Manager
City of Winter Springs
1126 East State Road 434
Winter Springs, FL 32708
Attorneys at Law
Offices in Orlando, Kissimmee,
Cocoa & Viera RECEIVED
NOV 2 0 2002
CITY OF VV
VV LATERManaSPRINGS
City
November 19, 2002
Debra S. Babb
Jeffrey P. Buak
John U. Biedenharn, Jr.
Joseph E. Blitch
Jennifer A. Michael
Todd K. Norman
Michelle A. Reddin
Vincent E. Scarlatos
Erin J. O'Leary
Of Counsel
Re: Legal Opinion - Stormwater Management Utility Fee
City of Winter Springs - General
Our File No.: 1193 ek A -V -a.
,,;,.
Dear Ron:
Please allow this correspondence to serve as a follow-up to our discussion last
week regarding the above -referenced matter. As you indicated, there is a developed
parcel of land within the City which has been benefitting for the past ten (10) years from
the City's stormwater management utility system. Due to error, the City has not produced
or rendered monthly statements demanding payment of the stormwater management utility
fee during this time frame. The approximate amount due to the City for accrued fees is
$10, 000.00.
Substantially you asked, may the City seek reimbursement of the accrued fees for
the full ten (10) year period or is the City limited by the Statute of Limitations, further may
the City Commission consider a negotiated settlement of the outstanding fees.
In short, we believe the City may seek to recover outstanding stormwater fees
subject to a four (4) year statute of limitations. We also believe that it is within the power
of the City Commission to negotiate a settlement of the outstanding fees.
As you are aware, Chapter 19 of the City Code, in accordance with Chapter 403,
Florida Statutes, provides for a stormwater management utility. Municipalities are
225 East Robinson Street, Suite 660 • P.O. Box 2873. Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 - Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566
Website: www.orlandolaw.net • Email: firm@orlandolaw.net
Ron McLemore, City Manager
November 19, 2002
Page 2
authorized to collect a fee sufficient to plan, construct, operate, and maintain the utility
system. § 403.0893(1), Florida Statutes. Such a utility system is to be run as a typical
utility which bills services regularly, similar to water and wastewater systems. §
403.031917), Florida Statutes; and § 19-165, City Code. Where the fee is unpaid on a
developed property for ninety (90) days, the same shall constitute a lien in favor of the
City.
In the instant case the property has benefitted from the stormwater utility for
approximately ten (10) years, but the property owner has never been properly invoiced for
the service. As such, the property owner has not tendered payment of the accrued fees.
As the property owner has benefitted from the utility service we believe the entire fee is
due the City, however, due to the statute of limitations the City is unable to maintain an
action for the collection of the fees due beyond the immediately proceeding four year (4)
period. § 95.11(3)(p), Florida Statutes.
The remaining question therefore, is whether the City Commission may negotiate
a reduced fee in settlement and compromise. As you suspected, and confirmed by Kip
Lockuff, there are no outstanding bonds for the construction of the stormwater
management utility system, therefore any associated bond covenants are not at issue in
this matter. Additionally, it is well settled municipalities enjoy latitude in setting its policy
regarding the colleciton of utility rates, and the courts will not intervene unless the policy
is unreasonable or discriminatory. City of Gainesville v. State Dept. of Transp., 778 So.2d
519 (Fla. 11 DCA 2001). Likewise, in Jacksonville Electric Authority v. Draper's Egg and
Poultry Co., Inc., 531 So.2d 373 (Fla. 1' DCA 1988), the Court held the utility had the
authority to negotiate through settlement and compromise a reduced fee and that such
served as an accord and satisfaction of the charges due, as of the date of agreement.
Such a negotiated settlement was found not to be unreasonable or discriminatory.
In light of the foregoing, there appear to be no constraints upon the City
Commission's ability to consider the facts surrounding this matter and negotiate an
equitable settlement in this matter.
If you have any questions regarding this matter please do not hesitate to call our
offices.
Very truly yours,
Je y P. Buak
Assistant City Attorney
JPB
F:1LawyerljeffblCity of Winter Springs%Correspondenee%MeLemore StormwaterFea Ltr111902.wpd