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Fire assessment challenge heard

By Staff | Dec 4, 2014

More than two years after the contested Cape Coral Fire Services Assessment was created, the Florida Supreme Court heard both sides of the argument Thursday morning in Tallahassee.

All the work done in that time by both sides had to be summed up in 20 minutes, plus rebuttal time, including arguments and questions from the justices.

Now, we wait.

Councilmember Rana Erbrick said the city should expect the court to issue its decision in eight to 12 weeks.

City Manager John Szerlag and City Attorney Dolores Menendez were present for the hearing, along with city council members Lenny Nesta and Richard Leon.

Chris Roe, attorney for Bryant Miller Olive, represented the city.

Scott Morris, whose name is on the suit, represented the plaintiffs to argue against the two-tier methodology the city seeks.

Morris argued that the “Tier 1” apportionment discriminates against the small parcel owner, since they are charged the same as someone who owns 200 acres.

Morris said the assessment methodology is arbitrary and that the city should use a commonly used methodology based on square footage of the property.

Almost immediately, Morris was questioned by Justice Barbara J. Pariente on what he thought would be a reasonable way to assess property.

“Are there smokers in the house? Are there fire alarms? Is the house made of brick or wood?” Pariente asked. “I don’t know why square footage is a more reasonable basis than the value of the house?”

“It takes the same amount of resources on the square footage to put out a fire, not just because the value is different,” Morris said.

Roe argued that all properties gain a benefit from fire services, improved property or not, with the owner of a $1 million home getting more benefit than someone with a $100,000 home.

Justice Charles Canady compared the difference between a 10,000-square foot barn and a similarly sized high-tech plant burning down, saying the plant owner would lose more even though both structures were the same size.

Roe also said the “Ready to Serve” methodology is better than the “Calls for Service” method, since the city doesn’t have to go into costly analysis every year to see where the calls are derived.

The city will incur a cost regardless of the property type, Roe said.

Roe said seven municipalities use the ready-to-serve methodology, including nearby North Port. Morris disputed that, saying those cities use modified versions.

At stake is the future of the assessment that was approved by the Cape Coral City Council in July 2012. A group of opponents went to court have the assessment, overturned but were denied.

Erbrick watched the proceedings on television and said she was confident that the city’s side of the argument would again prevail, judging by what she saw.

“There didn’t seem to be compelling arguments on the other side why this would be non-compliant. Nothing (Morris) said gave me pause,” Erbrick said.

The assessments have been collected, but the money has not been spent as a decision awaits.

The assessment was deemed legal by a Lee County judge last year.

Should the court rule the assessment unconstitutional, Erbrick said it would be back to the drawing board for the city. The money collected would be refunded

“We’d go into ‘What do we do next’ mode and that means we discuss the other tried-and-true method of assessment, which means when we apply it to all improved land, it will cost improved property owners more money,” Erbrick said.

Former city councilman Chris Chulakes-Leetz, who opposed the FSA when in office, also watched. He said the ramifications of the court allowing the assessment would be far reaching.

“Should the court approve the assessment methodology, then it will open the door to government revenues in many sorts of fashion. It will impact all of Florida, not just Cape Coral,” Chulakes-Leetz said.

The FSA is part of Szerlag’s “three-legged stool” approach to financial diversification, which has been the mantra of his term as city manager. The first part, the public service tax, was implemented in 2012.

The assessment is designed to fund a portion of fire department operations. Operational costs previously were paid for through the city’s General Fund, which is funded by property tax dollars.

This would leave more money in the General Fund for other things such as capital improvements, city officials who supported the assessment said.

With the assessment, a .75 mil decrease to the property tax was also to be implemented, to offset some of the cost of the new tax.