City of Gainesville v. STATE, DOT

Decision Date05 March 2001
Docket NumberNo. 1D99-4548.,1D99-4548.
Citation778 So.2d 519
CourtFlorida District Court of Appeals

Marion J. Radson, City Attorney, and Elizabeth A. Waratuke, Litigation Attorney, Office of the City Attorney, Gainesville, for Appellant.

Pamela S. Leslie, General Counsel, and Gregory G. Costas, Assistant General Counsel, Florida Department of Transportation, Tallahassee, for Appellee.

C. Allen Watts of Cobb, Cole & Bell, Daytona Beach, for Amicus Curiae Florida Association of Stormwater Utilities.

James R. English, City Attorney, and Linda R. Hurst, Assistant City Attorney, Tallahassee, for Amicus Curiae City of Tallahassee.

O. Earl Black, Jr., Assistant General Counsel, Department of Management Services, Tallahassee, for Amicus Curiae State of Florida Department of Management Services.


The City of Gainesville (City) filed a complaint seeking a judgment declaring that the stormwater utility charges the City has billed the Department of Transportation (DOT) on account of its property at 2006 N.E. Waldo Road were valid utility fees, and requiring DOT to pay the fees. By amended final judgment of dismissal, the trial court dismissed the City's amended complaint against DOT, ruling that the ordinance authorizing the stormwater utility charges, sections 27-236-27-244, Gainesville Code (1998), imposed special assessments the City could not collect from a state agency, and did not authorize utility fees. We reverse as to the declaratory judgment, and affirm dismissal of the damages count, but conclude that dismissal of that count with prejudice was premature, and remand for further proceedings consistent with this opinion.


Count one of the amended complaint seeks a declaratory judgment that the City's stormwater utility charge is a valid utility fee. In conformity with the ordinance, the amended complaint alleges, the City has regularly billed DOT for stormwater management utility services. The amended complaint alleges that the City bills stormwater utility fees monthly along with charges for electricity, gas, water and wastewater utilities; that the stormwater utility ordinance does not create or purport to create a lien on property served; and that the City may collect delinquent charges by engaging a collection agency or, as in the present case, by filing a lawsuit itself. See § 27-244(d), Gainesville Code (1998).

Attached to the amended complaint, the City's ordinance requires charges "based on the cost of providing stormwater management services to all properties within the city [which] may be different for properties receiving different classes of service." § 27-241(a), Gainesville Code (1998). The ordinance provides that stormwater management service charges are to be computed using equivalent residential units (ERUs) of 2,300 square feet, a figure which represents "the estimated average impervious area for all developed, detached single-family properties in the city." Id. § 27-237. Service charges for commercial property are computed by measuring the amount of developed, impervious square footage on the property, dividing by 2,300, and multiplying the number of ERUs by an ERU rate. See id. § 27-241(b)(3).

Undeveloped property is exempt, see id. § 27-241(b)(5), as is property which does not contribute runoff to the Gainesville stormwater management system. See id. § 27-241(b). By retaining stormwater on site, a property owner may earn "retention credits" which reduce the amount of the fee, and may, by retaining all stormwater attributable to development on site, avoid paying the fee altogether. See id. §§ 27-237, 27-241(b)(3). The administrative complaint alleges that stormwater utility fees the City collects are segregated and used only for stormwater management purposes. Count two alleges that DOT has refused to pay the fees, and seeks judgment against DOT for the unpaid charges.

In its motion to dismiss amended complaint, DOT takes the position that DOT's status as a state agency precludes liability because "[a]s a matter of law the stormwater fee is a tax or special assessment." DOT's motion to dismiss asserts that "[s]ince there is no law specifically allowing the City of Gainesville to impose such tax or special assessment against the State of Florida, the Department may not be charged the stormwater fee." But the City does not contend that state property can be taxed, or that state property can be specially assessed, absent a statute authorizing special assessments specifically on state property, either explicitly or by "necessary implication." Blake v. City of Tampa, 115 Fla. 348, 156 So. 97, 99 (1934). The City does not question the rule that legislative intent to sanction special assessments on state property must "clearly appear[] from the statute." Edwards v. City of Ocala, 58 Fla. 217, 50 So. 421, 422 (1909). At issue is whether the utility fee is a user fee, as the City contends, rather than either a tax or a special assessment, as DOT contends.

Dismissing both counts of the amended complaint, the circuit court ruled that the amounts the City collects from property owners for stormwater runoff management and treatment must be deemed, as a matter of law, not fees for utility services, but special assessments which cannot be enforced against a state agency like DOT. Special assessments are, to be sure, one statutorily authorized means for financing construction of municipal stormwater management systems.1 See Sarasota County v. Sarasota Church of Christ, Inc., 667 So.2d 180, 186-87 (Fla.1995). At issue in the present case, however, is whether the City can, as the amended complaint alleges it has in fact done, employ another statutorily authorized means of financing a stormwater management system, viz., the creation of a stormwater utility and the adoption of stormwater utility fees. See § 403.0893(1), Fla.Stat. (2000).


Whether a complaint should be dismissed is a question of law. On appeal of a judgment granting a motion to dismiss, the standard of review is de novo. See Andrews v. Florida Parole Comm'n, 768 So.2d 1257, 1260 (Fla. 1st DCA 2000); Rittman v. Allstate Ins. Co., 727 So.2d 391, 393 (Fla. 1st DCA 1999) ("The sufficiency of a complaint in a civil action is a question of law."); Sarkis v. Pafford Oil Co., 697 So.2d 524, 526 (Fla. 1st DCA 1997); Troupe v. Redner, 652 So.2d 394, 395 (Fla. 2d DCA 1995). For purposes of ruling on the motion to dismiss, the trial court was obliged to treat as true all of the amended complaint's well-pleaded allegations, including those that incorporate attachments, and to look no further than the amended complaint and its attachments. See Brewer v. Clerk of the Circuit Court, 720 So.2d 602, 603 (Fla. 1st DCA 1998); Sarkis, 697 So.2d at 526; Varnes v. Dawkins, 624 So.2d 349, 350 (Fla. 1st DCA 1993). "A reviewing court operates under the same constraints. See Rittman, 727 So.2d at 393; McKinney-Green, Inc. v. Davis, 606 So.2d 393, 394 (Fla. 1st DCA 1992)." Andrews, 768 So.2d at 1260. "[A] court's gaze is limited to the four corners of the complaint, including the attachments incorporated in it, and all well pleaded allegations are taken as true. See, e.g., Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022 (Fla. 4th DCA 1996)." Alevizos v. John D. and Catherine T. MacArthur Found., 764 So.2d 8, 9 (Fla. 4th DCA 1999).


On the merits, the threshold question is whether Florida law allows a city to collect utility fees for managing stormwater runoff. We answer this threshold question in the affirmative. The Florida Constitution grants municipalities "governmental, corporate and proprietary powers to enable them to ... render municipal services" and the right to "exercise any power for municipal purposes except as otherwise provided by law." Art. VIII, § 2(b), Fla. Const. See § 166.021(1), Fla. Stat. (2000); Contractors and Builders Ass'n v. City of Dunedin, 329 So.2d 314, 319 (Fla.1976); City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801, 803 (Fla.1972). By special act, the Legislature has expressly granted the City full power and authority to provide public utility services of all kinds. Ch. 90-394, § 1, at 23, Laws of Fla. (amending the charter of the City of Gainesville, and providing in Article I, section 1.04(2), that the city may "own, operate, or lease local public utilities, including: ... wastewater and stormwater facilities"). "Implicit in the power to provide municipal services is the power to construct, maintain and operate the necessary facilities." Cooksey v. Utilities Comm'n, 261 So.2d 129, 130 (Fla.1972).

Acknowledging the importance of managing and treating the state's stormwater runoff, the Legislature mandated some fifteen years ago that the Department of Environmental Regulation assess the efficacy of stormwater management programs then in existence. See Ch. 86-186, § 15, at 1349, Laws of Fla. Later, the Legislature directed local governments to work in conjunction with the Department to develop stormwater management programs. See Ch. 89-279, § 32, at 1626-27, Laws of Fla. (codified at § 403.0891, Fla.Stat. (1989)). Eventually, a statute was enacted which, like the constitution, antecedent general law, and the special act, authorizes the City to construct, operate and finance a stormwater management utility. See § 403.0891, Fla.Stat. (2000) ("[L]ocal governments shall have the responsibility for the development of ... stormwater management programs.").

Pertinent here is statutory authorization for local governments to "[c]reate one or more stormwater utilities and adopt stormwater utility fees sufficient to plan, construct, operate, and maintain stormwater management systems." § 403.0893(1), Fla.Stat. (2000). "The imposition of fees for the use of a municipal utility system is not an exercise of the taxing power nor is it the levy of a special assessment." City of Dunedin v. Contractors and...

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