Fla. Bankers Ass'n v. Fla. Dev. Fin. Corp.

• Decision Date: 15 October 2015
• Docket Number: Nos. SC14–1603,SC14–1618.,s. SC14–1603
• Citation: 176 So.3d 1258
• Parties: FLORIDA BANKERS ASSOCIATION, etc., Appellant, v. FLORIDA DEVELOPMENT FINANCE CORPORATION, etc., et al., Appellees. Robert Reynolds, Appellant, v. Florida Development Finance Corporation, etc., et al., Appellees.
• Court: Florida Supreme Court

176 So.3d 1258

FLORIDA BANKERS ASSOCIATION, etc., Appellant,

v.FLORIDA DEVELOPMENT FINANCE CORPORATION, etc., et al., Appellees.

Robert Reynolds, Appellant,

v.Florida Development Finance Corporation, etc., et al., Appellees.

Nos. SC14–1603

SC14–1618.

Supreme Court of Florida.

Oct. 15, 2015.

Ceci Culpepper Bermanof Brannock & Humphries, Tampa, FL, on behalf of Florida Bankers Association; and James C. Dinkins of Mark G. Lawson, P.A., Tallahassee, FL, on behalf of Robert Reynolds, for Appellants.

Gregory Thomas Stewart, Lynn Miyamoto Hoshihara, and Carly J. Schraderof Nabors, Giblin & Nickerson, P.A., Tallahassee, FL, on behalf of Florida Development Finance Corporation; Raoul G. Cantero, III, Thomas Neal McAliley, and Jesse Luke Greenof White & Case LLP, Miami, FL, on behalf of Florida Development Finance Corporation; Jane Kreusler–Walsh, Rebecca Mercier Vargas, and Stephanie L. Serafinof Kreusler–Walsh, Compiani & Vargas, P.A., West Palm Beach, FL, on behalf of Florida Development Finance Corporation; L. Thomas Giblinof Nabors, Giblin, et al., Tampa, FL, on behalf of Florida Development Finance Corporation; Gerald Paul Hill, State Attorney, and Victoria Jacquelyn Avalon, Assistant State Attorney, Tenth Judicial Circuit, Bartow, FL, on behalf of the State of Florida; Ralph Larizza, State Attorney, and Phillip Dale Havens, Assistant State Attorney, Seventh Judicial Circuit, Daytona Beach, FL, on behalf of the State of Florida; and Philip Glen Archer, State Attorney, and Laura Michelle Moody, Assistant State Attorney, Eighteenth Judicial Circuit, Viera, FL, on behalf of the State of Florida, for Appellees.

Erin Lee Deadyof Erin L. Deady, P.A., Lantana, FL, for Amicus Curiae PACENow.

Keith W. Davisof Corbett, White and Davis, P.A., Lantana, FL, for Amicus Curiae Florida Green Finance Authority.

George Steve Cavros, Fort Lauderdale, FL, for Amicus Curiae Southern Alliance for Clean Energy, Inc.

Edward George Guedesand Chad Stuart Friedmanof Weiss Serota Helfman Cole Bierman & Popok, P.L., Coral Gables, FL, for Amicus Curiae Green Corridor Property Assessment Clean Energy District.

Richard Watson, Tallahassee, FL, for Amicus Curiae Associated Builders and Contractors of Florida, Inc.

Jody Lamar Finklea and Amanda L. Swindle, Tallahassee, FL, for Amicus Curiae Florida Municipal Electric Association, Inc.

Joshua Douglas Smith and Travis Ritchie, San Francisco, CA, for Amicus Curiae Sierra Club.

Elizabeth Wilson Neibergerand Susan Hamilton Churutiof Bryant Miller Olive P.A., Tallahassee, FL; Virginia Saunders Delegal, General Counsel, Florida Association

of Counties, Tallahassee, FL; Harry Morrison, Jr.and Kraig Armantrout Conn, Florida League of Cities, Inc., Tallahassee, FL; Herbert William Albert Thiele, Leon County Attorney, Tallahassee, FL; and Daniel Scott McIntyre, St. Lucie County Attorney, Fort Pierce, FL, for Amici Curiae The Florida Association of Counties, The Florida League of Cities, Inc., Leon County, Florida, and St. Lucie County, Florida.

Opinion

LABARGA, C.J.

In these consolidated cases, the Florida Bankers Association (FBA) and Robert Reynolds appeal the judgment of the Circuit Court of the Second Judicial Circuit, in and for Leon County, validating bonds proposed to be issued by the Florida Development Finance Corporation (FDFC), a public body corporate and politic in the State of Florida. We have jurisdiction. Seeart. V, § 3(b)(2), Fla. Const. The purpose of the bonds is to finance qualifying improvements pursuant to the Property Assessed Clean Energy Act (PACE Act), established by the Legislature in section 163.08, Florida Statutes (2014).¹

The PACE Act provides for issuance of bonds to finance the retrofitting of existing improved properties with qualifying improvements for energy conservation, renewable energy, clean energy, and hurricane protection. Under the program, FDFC and participating local governments enter into interlocal agreements that will provide the PACE program benefits in those localities. Participation in the program by local governments and by property owners is completely voluntary. Participating property owners enter into financing agreements to provide for repayment of the cost of the improvements by way of voluntary non-ad valorem assessments imposed upon the benefitted property. As we explain below, we affirm the amended final judgment of the circuit court, but remand with directions to the circuit court to require FDFC to amend and approve the amended bond documents and submit the amended documents to the circuit court as directed herein. We turn first to discuss the appeal by FBA.

I. FLORIDA BANKERS ASSOCIATION

Appellant FBA, an association of Florida banks, did not intervene or appear in the circuit court proceedings below. Only after the circuit court entered its amended final judgment on July 18, 2014, did FBA file an appeal, arguing that the PACE Act is an unconstitutional impairment of contracts. FDFC has challenged the standing of FBA to appear in this appeal. To support its claim of standing notwithstanding its failure to appear in the bond validation proceeding below, FBA relies on Meyers v. City of St. Cloud,78 So.2d 402 (Fla.1955), in which this Court allowed citizens, taxpayers, and property owners who had not appeared in the trial court to appear for the first time on appeal in a bond validation proceeding. Id.at 404.

We recently receded from Meyersin Reynolds v. Leon County Energy Improvement District,SC14–710, 176 So.3d 254, 256, 2015 WL 5727823, at *2 (Fla. Oct. 1, 2015), because its reasoning was not in accord with the statutory scheme governing bond validation proceedings. However, even our decision in Meyerswould not have conferred standing upon FBA. Meyers“dealt with the right of property ownersand taxpayers.” Rich v. State,663 So.2d 1321, 1324 (Fla.1995). As FDFC correctly argues, FBA has never shown that it is a citizen, taxpayer, or property owner in any jurisdiction where the FDFC bonds will support PACE improvements. Moreover, FBA presented no evidence that it suffered any specific injury or has a stake in the matter sufficient for standing. That showing had to occur in the circuit court. Accordingly, the appeal brought by FBA is dismissed. We turn next to the claims of Robert Reynolds in this appeal.

II. REYNOLDS' CLAIMS

Appellant Reynolds, a property owner in Leon County, appeared in the circuit court and raised several objections to the bond validation proceeding. In this appeal, he raises three claims which he contends require reversal of the amended final judgment of validation entered by the circuit court. Reynolds contends in his first claim that the circuit court erred in allowing an amended financing agreement to be submitted by FDFC, and that the matter was not ripe for determination. Second, he contends that the judgment must be reversed because some of the bond documents approved by FDFC and submitted with the complaint for validation refer to judicial foreclosure as a remedy in violation of the PACE Act. Third, he contends that the judgment must be reversed because some of the bond documents would authorize FDFC to levy the special non-ad valorem assessments when those assessments should be levied by the participating local government, and because there is no executed interlocal agreement in place calling for that procedure, the bond validation should have been denied.

Before discussing Reynolds' claims in detail, we set forth the facts and procedural background against which Reynolds filed his objections to the bond validation and the standard of review in this appeal. We then discuss each of Reynolds' claims in turn.

III. FACTUAL AND PROCEDURAL BACKGROUND

FDFC is a corporate and political entity created by the Florida Development Finance Corporation Act of 1993 initially to engage in activities conducive to economic development in Florida. See§ 288.9604, Fla. Stat. (1993); § 288.9604(1), Fla. Stat. (2010). In addition to activities enhancing economic development, FDFC has express statutory authority to issue bonds for programs authorized under the PACE Act, as set forth in section 163.08, Florida Statutes (2014). See§ 288.9606(7)(c), Fla. Stat. (2014). On February 27, 2014, the FDFC filed its complaint in the circuit court of the Second Judicial Circuit in Leon County seeking to determine the validity of a series of bonds proposed to be issued under the PACE Act. The bond funds are to be used to pay for qualifying improvements under section 163.08, Florida Statutes, which improvements are carried out by approved private contractors. The repayment obligations for the bonds are tied to the properties and not to the individuals, and repayment is collected through voluntary special non-ad valorem assessments placed on the property. The special non-ad valorem assessments are to be collected by the tax collector, similar to the method for collecting taxes and other non-ad valorem assessments.

The Complaint sought validation of bonds not exceeding $2 billion in aggregate principal at any one time of “Florida Development Corporation Special Assessment Revenue Bonds (Florida HERO Program), in various series.”²The bond validation complaint also sought determination of the validity of the pledge of revenues for the repayment of the bonds, the validity of the non-ad valorem assessments that would constitute all or part of the revenues pledged, the lien priority of the assessments, and other proceedings related to the issuance of bonds. Attached to the complaint was a master bond resolution approved by the governing board of FDFC, a form master indenture agreement, a list of local governments that have executed prior but unrelated interlocal agreements with FDFC, a form interlocal agreement for this PACE Act bond issue, and a form financing agreement to be executed by the property owners for the PACE improvements and assessments.

The master bond resolution states that FDFC's HERO Program bonds shall serve the public purposes described in the Florida PACE Act, section...