City of Cooper City v. Joliff, 4D16-2504.

• Decision Date: 27 September 2017
• Docket Number: No. 4D16-2504.,4D16-2504.
• Citation: 227 So.3d 633
• Parties: CITY OF COOPER CITY, Appellant, v. Walter S. JOLIFF, Barbara Joliff and Brenda J. Kezar, Appellees.
• Court: Florida District Court of Appeals

227 So.3d 633

CITY OF COOPER CITY, Appellant,

v.Walter S. JOLIFF, Barbara Joliff and Brenda J. Kezar, Appellees.

No. 4D16-2504.

District Court of Appeal of Florida, Fourth District.

[September 27, 2017]

Edward G. Guedes and Adam A. Schwartzbaum of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, Jamie A. Cole and Matthew H. Mandel of Weiss Serota Helfman Cole & Bierman, P.L., Fort Lauderdale, for appellant.

Christopher J. Lynch of Christopher J. Lynch, P.A., Coral Gables, and David Frankel, P.A., Fort Lauderdale, for appellees.

Kuntz, J.

The City of Cooper City appeals the court's final judgment in favor of the Plaintiffs, a class of citizens challenging the city's special assessment. The court found the special assessment void and, therefore, found its twenty-day deadline to challenge it inapplicable. We disagree. The Plaintiffs limited their challenge to Cooper City's apportionment of the special assessment and the improper apportionment of a special assessment renders it voidable. As a result of the special assessment being voidable, rather than void, the deadline to challenge the special assessment applied and the Plaintiffs failed to timely challenge it. Therefore, we reverse the court's judgment and remand for entry of judgment in favor of Cooper City.

Background

In 1999, Cooper City passed Ordinance 99–7–1, levying a special assessment for Fire Rescue Services. The ordinance defined "Fire Rescue Services" as "Emergency Medical Services and Rescue Services."

Three years later, in City of North Lauderdale v. SMM Properties, Inc. , 825 So.2d 343 (Fla. 2002), our supreme court held that emergency medical services do not provide a "special benefit" to property and, therefore, cannot be the basis for a special assessment. In accordance with that decision, Cooper City amended the ordinance, removing the term "emergency medical services" from the definition of "Fire Rescue Services." Thereafter, for 2006, 2007, 2008, and 2009, Cooper City passed annual resolutions implementing the special assessment without emergency medical services as an item for which the property owner was being assessed.

In 2011, the Plaintiffs filed a two-count putative class action lawsuit against Cooper City. Count I sought damages for assessments collected for the years 2006 through the present; and Count II sought a declaratory judgment determining "the Fire Protection Assessment set forth in the Ordinance lacks foundation and thus is improperly apportioned."

The court granted a motion to certify the putative class and certified the class as "[a]ny and all record title owners of residential real property located within Cooper City subject to the Cooper City Fire Rescue Assessment, who paid the Cooper City Fire Rescue Assessment for the fiscal tax years commencing October 1, 2006, 2007, 2008, and 2009." We affirmed the court's class-certification order. Cooper City v. Joliff , 126 So.3d 1066 (Fla. 4th DCA 2013) (table).

After we affirmed the certification order, the Plaintiffs renewed a previously-filed motion for summary judgment. Cooper City filed its own motion for summary judgment, asking the court to decide whether a twenty-day deadline contained in the ordinance barred the Plaintiffs' claims. The relevant provision in the ordinance stated:

The adoption of the final assessment resolution shall be the final adjudication of the issues presented (including, but not limited to, the determination of special benefit and fair apportionment to the assessed property, the method of apportionment and assessment, the initial rate of assessment, the initial assessment roll, and the levy and lien of the Fire Assessments), unless proper steps shall be initiated in a court of compe tent jurisdiction to secure relief within twenty (20) days from the date of the city commission action on the final assessment resolution .

(Emphasis added). The Plaintiffs argued the twenty-day deadline in this provision was inapplicable; that rather, the four-year statute of limitations in section 95.11, Florida Statutes (2011), controlled the time within which they were required to file their complaint. Therefore, they asserted that even if the claims were voidable, the majority of their claims were timely filed.

On the merits, the Plaintiffs argued to the court that after our supreme court's opinion in SMM Properties, "most municipalities ... went back and they recalculated and they figured out what their appropriate assessment would be for just fire to comply with the law." However, they argued, "Cooper City didn't catch it" and for each of the assessments at issue, its methodology continued to rely on a study that included emergency medical services as a component. As such, they argued the assessments were void.

The court granted the Plaintiffs' motion for summary judgment, denied Cooper City's motion, and found the special assessments void. Importantly, the Plaintiffs then moved to voluntarily dismiss Count I and to amend Count II, seeking supplemental relief for the second count. The court granted the motion, and then entered final judgment in favor of the Plaintiffs.

Cooper City appealed, asking that we reverse the court's judgment in favor of the Plaintiffs and enter judgment in its favor or, alternatively, reverse the summary judgment for further proceedings.

Analysis

A. Taxes and Special Assessments–Generally

Taxes are unavoidable. Hamilton explained that "a complete power to procure a regular and adequate supply of revenue ... may be regarded as an indispensable ingredient in every constitution." The Federalist No. 30, at 188 (Alexander Hamilton) (C. Rossiter ed., 1961). However, the power to tax is not absolute. As Jefferson countered, a government is "not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union." Thomas Jefferson, Opinion on the Constitutionality of a National Bank (1791), reprinted in Michael S. Paulsen, Our Constitution: Landmark Interpretations of America's Governing Documents 17, 19 (2012).

The people of Florida have included a limitation on the government's power to tax in our state constitution. See, e.g. , Art. VII, §§ 1(a), 9(a), Fla. Const. Relevant here is the fact that local governments lack the "authority to levy taxes, other than ad valorem taxes, except as provided by general law." Desiderio Corp. v. City of Boynton Beach , 39 So.3d 487, 493 (Fla. 4th DCA 2010) (citing Collier County v. State , 733 So.2d 1012, 1014 (Fla. 1999) ).

These limitations require local governments continually to seek to expand their revenue other than through taxation. To do so, local governments use various tactics such as user fees, impact fees, and special assessments. At issue in this case are special assessments.

When used properly, a tax and a special assessment are unique. A tax is a burden "of contribution imposed by sovereign right for the support of the government, the administration of the law, and to execute the various functions the sovereign is called on to perform." Klemm v. Davenport , 100 Fla. 627, 129 So. 904, 907 (1930). A special assessment is "like a tax in that it is an enforced contribution from the property owner, it may possess other points of similarity to a tax, but it is inherently different and governed by entirely different principles." Id. A special assessment

is imposed upon the theory that that portion of the community which is required to bear it receives some special or peculiar benefit in the enhancement of value of the property against which it is imposed as a result of the improvement made with the proceeds of the special assessment. It is limited to the property benefited, is not governed by uniformity, and may be determined legislatively or judicially.

Id.

For almost a century, our supreme court has called upon local governments to ensure the limitations on taxation set forth in our constitution are not avoided by the blurring of the line between taxes and special assessments. See, e.g. , Morris v. City of Cape Coral , 163 So.3d 1174 (Fla. 2015) ; SMM Props. Inc. , 825 So.2d at 343 ; Collier County , 733 So.2d at 1012 ; Lake County v. Water Oak Mgmt. Corp. , 695 So.2d 667 (Fla. 1997) ; Harris v. Wilson , 693 So.2d 945, 949 (Fla. 1997) ; Sarasota County v. Sarasota Church of Christ, Inc ., 667 So.2d 180 (Fla. 1995) ; City of Boca Raton v. State , 595 So.2d 25 (Fla. 1992) ; City of Treasure Island v. Strong , 215 So.2d 473 (Fla. 1968) ; Blake v. City of Tampa , 115 Fla. 348, 156 So. 97 (1934) ; Klemm , 129 So. at 904 ; Atl. Coast Line R.R. Co. v. City of Gainesville , 83 Fla. 275, 91 So. 118, 121 (1922).

These cases, and others, establish a two-prong test for the imposition of a valid special assessment. First, the property to be assessed "must derive a special benefit from the service provided." City of Boca Raton , 595 So.2d at 29 (citing Atl. Coast Line R.R. Co. , 91 So. at 118 ). Second, the "assessment must be fairly and reasonably apportioned among the properties that receive the special benefit." Id. (citing S. Trail Fire Control Dist. v. State , 273 So.2d 380 (Fla. 1973) ). As discussed below, ultimately it is only the second prong that is at issue in this case.

B. The Special Assessments Challenged by the Plaintiffs

Now we turn to the special assessments at issue in this case. We review the court's order granting summary judgment de novo . Fla. Bar v. Cosnow , 797 So.2d 1255, 1258 (Fla. 2001). However, we are required to give greater deference to the legislative body that imposed the assessment. Sarasota Church of Christ, Inc. , 667 So.2d at 184 ("[T]he standard is the same for both prongs; that is, the legislative determination as to the existence of special benefits and as to the apportionment of the costs of those benefits should be upheld unless the determination is arbitrary.").

We note the parties simplified our task. The Plaintiffs' complaint was premised on challenges to both prongs of the two-prong test explained above. First, they challenged...