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State Supreme Court validates fire assessment

By Staff | May 7, 2015

After opponents and the judicial system wrangled with it for more than two years, the Florida Supreme Court on Thursday validated the city of Cape Coral’s fire service assessment and its methodology.

The high court said that since the city “properly exercised its authority to issue a special assessment to fund fire protection services and that the assessment does not violate existing law, we affirm the order of validation.”

City Councilmember Jim Burch said the city is pleased with the result, as it can now get going on needed capital improvements.

“We now have money to free up money in the general fund to do things we have not been able to do with our infrastructure,” Burch said. “We put street lights, vehicles and roads on the back burner, so it’s a big deal and goes right to our quality of life issues.”

City Manager John Szerlag said the ruling will benefit people with single-family homes and that the city will be allowed to spend the nearly $23.6 million that has been held in escrow on capital projects such as new vehicles and roads.

“We will now be able to release the funds and work on budgeting for the coming year with certainty of what our revenues will be,” Szerlag said. “We’ve been holding up two years of much-needed expenditures and funding projects based on failure. The residents will now be able to see the benefits of their payments.”

Detractors of the assessment have said the assessment would give the city a blank check to spend on whatever it desires.

Szerlag disagrees with that position.

“As city manager, all I can do is to recommend a budget. It’s up to mayor and council to approve the document,” Szerlag said. “All we want to be is fair, fast and predictable. We also want to be cost efficient for all our services.”

Szerlag said had the city lost the case, the city would have had to find more revenue through its ad valorem and public service tax which was approved in 2013. As it stands, Szerlag said the city could now lower its ad valorem taxes by .75 mills.

In August 2013, the city passed an ordinance levying a special assessment against all real property in the city, both developed and undeveloped, as part of the city’s “three-legged stool” approach (with the fire assessment, public service tax and a lower-ad valorem) to “financial diversification” that Szerlag said is necessary to keep the city’s revenues consistent.

The city also sought to have a releated bond validated in court. In October, the case went to court after some residents challenged the tax. Two months later it was validated but then went into appeal.

The assessment has two tiers – one fixed rate for all property regardless of size, and a second that applies only to developed property based on the value of the structure.

Scott Morris and other property owners appealed the validation, arguing that the two-tier methodology is “arbitrary, that the assessment violates existing law, that the trial court erred in denying their motion for continuance, that the trial court improperly relied on facts not in evidence, and that their procedural due process rights were violated,” according to the court document on the Supreme Court’s decision.

Resident William Deile, a former council member, said he was not surprised by the decision, but what struck him about the decision was how the court could find Tier 1 of the assessment fair.

“They held that the apportionment had to be fairly done, but failed to explain how the same assessment for a quarter-acre lot was a fair proportion when someone with a 200-acre lot pays the same amount,” Deile said. “Even if we won, they would just do it a different way to make it legal. It wasn’t going to go away.”

Morris will have 10 days from when the decision was handed down to file a request for the court to rehear the case.

Morris said his clients have not had a chance to analyze the decision, but will do so in the next day or so.

Meanwhile, he said it may take the legislature to change the laws.

“This may very well be a situation where the Florida Legislature may have to change the law if the citizens of the State of Florida believe a fire assessment based partly on value is a tax,” Morris said in a statement.

Szerlag said the city has authorized BryantMillerOlive, the firm that handled the case for the city, to collect the $258,563 expended for legal fees on the appeals process.