5D02-1851 Donnelly v. Marion Co.

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-1851

Case Date: 07/28/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2003

PATRICK DONNELLY and LEIGH A. DONNELLY, Appellants, v. MARION COUNTY, ET AL., Appellees. / Opinion Filed August 1, 2003 Appeal from the Circuit Court for Marion County, Jack Singbush, Judge. Richard Bennett and Lisa Bennett of Bennett & Bennett, Coral Gables, for Appellants. Gordon B. Johnston, Marion County Attorney, Ocala, and Gregory T. Stewart, Harry F. Chiles and Virginia Saunders Delegal of Nabors, Giblin & Nickerson, P.A., Tallahassee, and Charles R. Forman of Forman, Hanratty & Montgomery, Ocala, for Appellees. PLEUS, J. This appeal concerns the legality of using special assessments to fund "enhanced law enforcement" and "community resource facilities" in an unincorporated area of Marion County. Case No. 5D02-1851

Patrick Donnelly, individually and on behalf of others similarly situated, and Leigh Donnelly (the plaintiffs), appeal from an adverse final judgment validating the Marion County Marion Oaks Municipal Service Taxing Unit (MSTU).

The plaintiffs, representing a class of some 14,000 landowners, sued Marion County and the MSTU seeking a declaration that a special assessment levied by the MSTU for the purpose of funding, in the words of the ordinance creating the taxing unit, "law enforcement" and "community resource facilities," was unconstitutional. The plaintiffs alleged that the services funded by the special assessment provided no special benefit and had no logical relationship to the class members' real property. apportionment of the assessments. The plaintiffs and approximately 14,000 class members are owners of unimproved property within the Marion Oaks development in Marion County subject to annual levy of non ad valorem special assessments fixed by the MSTU. The actual class was certified by the trial court consisting of all owners of unimproved real estate located within the boundaries of the Marion Oaks MSTU who are listed on the current tax roll. The plaintiffs' lots are located on paved roads but contain no structures.1 The MSTU and Marion County are governed by the Marion County Board of County Commissioners. Marion County had previously created a municipal service taxing unit which provides law enforcement services in the unincorporated area of the county funded by a special ad valorem tax. That service is provided to properties in the Marion Oaks MSTU. Enhanced law enforcement (greater patrols, creation of a sheriff's substation in Marion Oaks) is provided pursuant to the instant MSTU funded by the special assessment. The complaint also challenged

Marion Oaks was developed by the Deltona Corp. which marketed the lots particularly to out-of-state buyers. As a result, some 12,000 class members reside out of state and are not qualified to vote in Marion County. 2

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The assessments fund 160 hours per month of sheriff services in Marion Oaks. The assessments have also been used to construct and operate a 450-seat auditorium and a building containing recreational areas and rent-free space for a public library, a sheriff's substation and a neighborhood watch office. The grounds contain sports courts (basketball, tennis, shuffleboard) and a children's playground.2 This MSTU was created after a referendum election in 1988 when the voting residents of Marion Oaks approved enhanced law enforcement services and a community resource facility within Marion Oaks to be funded by special assessments on properties within the development. Ordinance 88-37, in creating the Marion Oaks MSTU, does so under section 125.01(1)(q), Florida Statutes, "for the purpose of providing law enforcement and the construction, maintenance, and operation of community resource facilities . . . ." The ordinance authorized the collection of special assessments beginning in 1989 at the following rates (the assessments continue to be imposed at the same rates):3 Improved Property Partially Improved Property $20 Commercial Improved Commercial Tracts $25 $10 $25

These facilities are located within the Marion Oaks development on land donated by the Deltona Corp. Use of the facilities is not limited to residents of Marion Oaks. There are some fee-based activities at the facility for which other county residents pay higher fees than do residents of Marion Oaks.
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The plaintiffs' properties are assessed at the "partially improved property" rate. 3

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The annual resolution of the Marion County Commission imposing the assessment contains no legislative finding of special benefit from 1990-96. Beginning in 1997, the annual resolution asserts that the services funded provide a special benefit to the properties assessed. No legislative finding of fair apportionment was included in any resolution until 2001. The MSTU currently has six employees. The MSTU contracts annually with the Sheriff's Department to provide for patrols and investigative services at Marion Oaks for a total of 160 hours per month. The MSTU construction debt has been satisfied and the annual

assessments now pay for operations and maintenance of the facilities and the sheriff's services and for reserves. The plaintiffs moved for partial summary judgment claiming Ordinance 88-37 was unconstitutional under Florida law and that the assessments made pursuant to it were invalid as a matter of law. The defendants countered with their own motion for partial summary judgment. The trial court denied the plaintiffs' motion and granted the defendants' motion, finding the ordinance to be valid, facially constitutional and constitutional as applied. The court declined to rule on the actual correctness of the assessments, finding that genuine issues of material fact existed which necessitated an evidentiary hearing. At trial, the plaintiffs' expert, Dr. Nicholas, and the defendants' expert, Dr. Fishkind, testified on the issues of special benefit and fair apportionment of the special assessments. At the close of the plaintiffs' case, the court entered judgment for the defendants on the issue 4

of special benefit. The court found that the assessments do not fund general government services but supplement such services. The court ruled that the special assessments provide a special benefit to the assessed properties by enhancing the value of the property and creating a community identity. At the close of the trial, the court ruled that the assessments were fairly and reasonably apportioned among the benefitted properties. A final judgment incorporating these rulings was entered. In order for a special assessment to be valid and enforceable, it must be made pursuant to legislative authority and the method prescribed by the Legislature must be substantially followed. Madison County v. Foxx, 636 So. 2d 39 (Fla. 1st DCA 1994). Further, a valid special assessment requires that the property assessed must derive a direct, special benefit from the service provided and that the assessment must be fairly and reasonably apportioned among properties that receive the special benefit. City of North Lauderdale v. SMM Props., Inc., 825 So. 2d 343 (Fla. 2002); Workman Enters., Inc. v. Hernando County, 790 So. 2d 598 (Fla. 5th DCA 2001). Counties are authorized by the Florida Constitution to levy ad valorem taxes on real property4 and are authorized by general law to impose special assessments and user fees. Collier County v. State , 733 So. 2d 1012 (Fla. 1999). The county, in enacting Ordinance 8837, acted pursuant to section 125.01(1)(q), Florida Statutes, which provides in relevant part that counties have the power to: Establish, and subsequently merge or abolish those created hereunder, municipal service taxing or benefit units for any part

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