Pursuantto a request from the City of Gainesville, FASU's Board of Directors voted on June 23rd to join with the City in its lawsuit against the Florida DOT over non-payment of stormwater utility fees. FASU will be participating as an amicus curiae or "Friend of the Court". Other jurisdictions and associations are expected to also join in the appeal.

DOT has refused to pay stormwater fees charged by the City to a maintenance complex (not state roads) for the past several years. Eventually, the City filed suit against the Department seeking to enforce payment. The trial court in the Second Judicial Circuit for Leon County ruled in DOT's favor this past June. The City will now appeal to the District Court.

As with similar challenges brought against stormwater fees recently (e.g. the School District's challenges in St. Petersburg and Cocoa), DOT argues that the fee is mandatory, is therefore not a valid fee but a special assessment and that they are exempt from payment.

Statewide Impacts

The case is an important one and will have statewide impacts. Since Gainesville's ordinance is one of the more generous ones in terms of allowing credits against the fee for retaining runoff on-site, the City argues that its ordinance is, in fact, "permissive". For example, a property owner can choose to take steps to retain water on-site and not pay the stormwater utility fee. If the Gainesville ordinance is not permissive and therefore invalid, it is unlikely that most other ordinances imposing stormwater utility fees in the State will be valid either.

In addition to the arguments posed by the City of Gainesville, there are other issues that should be of interest to many other jurisdictions throughout the State. As with water/sewer and solid waste, most stormwater fees are not "permissive" in the sense that the person paying the fee has the option to choose to avail or not avail himself of receiving stormwater management services. Until a 1995 decision by the Supreme Court in Port Orange, most persons believed that local governments could require payment of fees in exchange for specific services. The Port Orange decision seems to indicate that for a fee to be valid, it must be permissive

The Gainesville case affords an opportunity to readdress the decision made by the Court in 1995.

FASU will soon release a request for Letters of Interest from qualified law firms to serve as counsel. The Association anticipates that no matter who wins the case at the District Court level, it will likely be appealed to the Florida Supreme Court.

$$$ Millions At Risk

Millions of dollars in stormwater utility fee revenues are at risk. When the challenge to fees imposed against School Districts was initiated last year, an abbreviated FASU survey found that local governments were receiving over $3 million in such stormwater fee revenues alone. Adding DOT and possibly other state agencies (at least one city reports that other agencies are now refusing to pay) to the list will increase that amount significantly.

The Board's decision included a motion to fund the lawsuit through a combination of FASU reserves and voluntary, supplemental assessment of the membership. The specific amount of the assessment will be determined shortly. However, it is anticipated that (on a jurisdiction-by-jurisdiction basis) it will be very minimal.

For more information on the Gainesville decision or the appeal, contact Kurt Spitzer at 850/561-0904.