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IN THE SUPREME COURT OF THE STATE OF FLORIDA TALLAHASSEE, FLORIDA

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IN THE SUPREME COURT OF THE STATE OF FLORIDA TALLAHASSEE, FLORIDA NORTH PORT ROAD AND DRAINAGE DISTRICT, a dependent special district of the State of Florida, vs. Petitioner, WEST VILLAGES IMPROVEMENT
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IN THE SUPREME COURT OF THE STATE OF FLORIDA TALLAHASSEE, FLORIDA NORTH PORT ROAD AND DRAINAGE DISTRICT, a dependent special district of the State of Florida, vs. Petitioner, WEST VILLAGES IMPROVEMENT DISTRICT, an independent special district of the State of Florida, Respondent. / CASE NO. SC ANSWER BRIEF OF RESPONDENT ON THE MERITS On Discretionary Review from a Decision of the Second District Court of Appeal CALDWELL PACETTI EDWARDS SCHOECH & VIATOR, LLP One Clearlake Centre 250 South Australian Avenue, Suite 600 West Palm Beach, FL and BURLINGTON & ROCKENBACH, P.A. Courthouse Commons/Suite West Railroad Avenue West Palm Beach, FL (561) (561) (fax) Attorneys for Respondent TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES PREFACE iii-vi vii STATEMENT OF THE CASE AND FACTS 1-6 SUMMARY OF ARGUMENT 7-8 ARGUMENT 9-50 POINT I 9-38 NORTH PORT DISTRICT IS NOT AUTHORIZED TO IMPOSE NON-AD VALOREM SPECIAL ASSESSMENTS UPON PROPERTY OWNED BY A STATE GOVERNMENTAL ENTITY. POINT II THERE ARE ADDITIONAL GROUNDS TO UPHOLD THE SECOND DISTRICT S DECISION. [These arguments need only be addressed if this Court rejects Respondent s position in Point I supra. In that event, this Court could consider these additional arguments or remand the case to the Second District with instructions to address them.] CONCLUSION 50 CERTIFICATE OF SERVICE 51 CERTIFICATE OF TYPE SIZE & STYLE 52 ii TABLE OF AUTHORITIES PAGE Cases Adler v. Deegan, 167 N.E. 705 (N.Y. Ct. App. 1929) 14 Advisory Opinion to Governor, 22 So.2d 398 (Fla. 1945) 28 Alford v. State, 107 So.2d 27 (Fla. 1958) 17, 20, 21, 25 American Home Assurance Co. v. Nat'l Railroad Passenger Corp., 908 So.2d 459 (Fla. 2005) 29, 30 Andrews v. Pal-Mar Water Control District, 388 So.2d 4 (Fla. 4th DCA 1980) 23 Atlantic Gulf Communities Corp. v. City of Port St. Lucie, 764 So.2d 14 (Fla. 4th DCA 1999) 39, 40 Blake v. City of Tampa, 115 Fla. 348, 156 So. 97 (1934) passim Cauley v. City of Jacksonville, 403 So.2d 379 (Fla. 1981) 26 Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260 (Fla. 1991) 28 City of Boca Raton v. State, 595 So.2d 25 (Fla. 1992) passim City of Gainesville v. State, 778 So.2d 519 (Fla. 1st DCA 2001) 24, 27 City of Gainesville v. State, 863 So.2d 138 (Fla. 2003) 24 iii City of Miami Beach v. Fleetwood Hotel Inc., 261 So.2d 801 (Fla. 1972) passim City of Miami Beach v. Forte Towers, Inc., 305 So.2d 764 (Fla. 1974) 15 City of Miami Beach v. Rocio Corp., 404 So.2d 1066 (Fla. 3d DCA 1981) 32 City of Portland v. Pacific Telephone & Telegraph Co., 5 F.Supp. 79 (D. Or. 1933) 13 Dade County v. Little, 115 So.2d 19 (Fla. 3d DCA 1959) 23 Dickinson v. City of Tallahassee, 325 So.2d 1 (Fla. 1975) passim Eldred v. North Broward Hosp. Distr., 498 So. 2d 911 (Fla. 1986) 26 Grimshaw v. South Florida Water Management District, 195 F. Supp. 2d 1358 (S.D. Fla. 2002) 23 Heriot v. City of Pensacola, 146 So. 654 (Fla. 1933) 10 Lake Worth Utilities Authority v. City of Lake Worth, 468 So.2d 215 (Fla. 1985) 11, 18 Linn v. Fossum, 946 So.2d 1032 (Fla. 2006) 9 P.S. Fagan v. City of Chicago, 84 Ill. 227, 234 (Ill. 1876) 22 Pan-Am Tobacco Corp. v. Dep t of Corrections, 471 So.2d 4 (Fla. 1984) 29 Remington Community Dev. Dist. v. Education of Foundation of Osceola, 941 So.2d 15 (Fla. 5th DCA 2006) passim iv Rinzler v. Carson, 262 So.2d 661 (Fla. 1972) 31, 32 State ex. rel. Cray v. Stoutamire, 179 So.730 (Fla. 1938) 21 State v. Fla. Police Benevolent Association, 613 So.2d 415 (Fla. 1992) 28 State v. Goode, 830 So.2d 817 (Fla. 2002) 33 Straw v. Harris, 103 P. 777 (Or. 1909) 12 Tabb v. Florida Birth-Related Neurological Injury Comp. Ass n, 880 So. 2d 1253 (Fla. 1st DCA 2004) 33 Thomas v. State, 614 So.2d 468 (Fla. 1993) 33 Treadway v. Terrell, 158 So.512 (Fla. 1935) 21 Turner v. Florida State Fair Authority, 974 So.2d 470 (Fla. 2d DCA 2008) 24 West Villages Improvement Dist. v. North Port Road and Drainage District, 36 So.3d 837 (Fla. 2d DCA 2010) 4, 6 Williams v. Town of Dunnellon, 169 So. 631 (Fla. 1936) 10 Wyche v. State, 619 So.2d 231 (Fla. 1993) 33 Statutes 1.01, Fla. Stat , Fla. Stat. 36, , Fla. Stat. 8, 19, , Fla. Stat. 16, , Fla.Stat. 25 v , Fla. Stat. passim , Fla. Stat. passim , Fla. Stat , Fla. Stat. 29, A. Fla. Stat. Ann. 292 (1970) 11 Chapter 166, Fla. Stat. 15 Chapter 189, Fla. Stat. 1, 23 Chapter 298, Fla. Stat. 1, 23 Other Authorities (16)(a), Fla. Stat (1), Fla. Stat. 25 Article IV, 3, U.S. Const. 13 Article VII, 1(c), Fla. Const. 20, 27, 28, 29 Article VII, 2(b), Fla. Const. 31 Article VIII, 1(c), Fla. Const. 7 Article VIII, 2(b), Fla. Const. passim Art. VIII, 2(6), Fla. Const. 11, 12 Ch , 2(3), Laws of Fla. 1 Chapter 1013, Fla. Stat. 36 Chapter 190, Fla. Stat. 37 Chapter , Laws of Florida passim Chapter , Laws of Florida 1, 3 Chapter , Laws of Florida 1, 3, 23 Chapter , Laws of Florida 23 Chapter , Laws of Florida 23 House of Rep. Staff Analysis, HB 1721 w/ CS (Apr. 22, 2003) 48 Op. Att y Gen. Fla (2003) 47 Op. Att y Gen. Fla (2004) 47 Op. Att y Gen. Fla (2007) 47 Op. Att'y Gen. Fla (1990) 25 Op. Att'y. Gen. Fla (2008) 25 Op. Att'y. Gen. Fla (1990) 25 Steven L. Sparkman, The History and Status of Local Government Powers in Florida, U. of Fla. Law Rev., Vol. XXV, p. 271, 286 (1973) 11 Treatises John F. Dillon, The Law of Municipal Corporations, 55 (1st ed. 1872) 10 vi PREFACE This proceeding involves discretionary review of a decision of the Second District Court of Appeal. The parties will be referred to by their proper names or as they appeared in the trial court. The following designations will be used: (A) Appendix Submitted as Record in Second DCA (AA) Appendix Attached to Answer Brief of Respondent vii STATEMENT OF THE CASE AND FACTS Respondent, West Villages Improvement District ( West Villages ), generally agrees with the Statement of the Case and Facts in Petitioner s Initial Brief, with the following supplementation and corrections: West Villages is an independent special district of the State of Florida, located in Sarasota County, Florida. It was created by special act of the Florida Legislature, pursuant to Chapter 189, Fla. Stat., through enabling legislation, including Chapter , Laws of Florida (not Chapter , Laws of Florida as stated by Petitioner), and subsequent amendments. 1 West Villages was created as a water control district under the provisions of Chapter 298, Fla. Stat. (to the extent not inconsistent with its special act), and is authorized to perform any acts necessary for the provision, acquisition, development, operation, and maintenance of those public infrastructure works and services authorized herein. Ch , 2(3), Laws of Fla. West Villages boundaries and jurisdiction extend beyond the City of North Port ( City ) into unincorporated Sarasota County (see Ch ), contrary to the description in the Statement of the Case and Facts by North Port Road and 1 The enabling legislation for West Villages was amended in Chapter , Chapter and Chapter , Laws of Florida, and specifically states that it may be amended only by special act of the Florida Legislature. Chapter , 2(4), Laws of Florida. 1 Drainage District ( North Port District ) (IB p.11). The real property at issue in this case, however, is located within the City and is not utilized for nonpublic or private commercial purposes. 2 The enabling legislation reflects that the legislature intended the role of West Villages to be cooperative with that of the local governmental entities. Ch (3). West Villages is authorized to acquire real property, but (as to property within the City) can only obtain fee simple title with the approval of the City; and West Villages does not have the right of eminent domain outside its boundaries. Id. 3(2)(d). West Villages is authorized to acquire and construct (among other things) works or elements for water management and drainage, public roadways, water plants and systems, and wastewater systems. Id. 3(2)(e), (i), (l) and (m). However, upon the request of the City, it is required to donate these listed works 2 Parcel Numbers , , and were dedicated by plat for Wetland Preservation Tracts, Water Management Tracts, and Recreation Tracts, respectively (A1:2). Parcel Numbers , , , and were dedicated by plat for Gopher Tortoise Preserve Conservation Area, Wetland Preservation Tracts, Water Management Tracts, and Recreation Tracts, respectively (A1:3). The Gopher Tortoise Preserve Conservation Area is encumbered by a perpetual Conservation Easement for gopher tortoise habitat conservation in favor of the Florida Fish and Wildlife Conservation Commission (A1:4). Parcel Numbers and were acquired by deed for the purpose of, and are being used for, the installation, construction and/or operation of a modern public road right-of-way, the West Villages Parkway, including appurtenant works, facilities, and improvements, such as utilities, landscaping, drainage, and signalization (A1:5). 2 (within the City) and turn over their operation to the City, subject to a developers agreement with the City. Id. West Villages is also authorized to levy non-ad valorem assessments and issue bonds and notes secured by such non-ad valorem assessments. Id. 3(2)(q)(t). 3 In the provision authorizing the acquisition of real property, the enabling legislation specifically addresses West Village s liability for, inter alia, non-ad valorem assessments. Id. 3(2)(d); (AA2): Any property interests owned by the district which are used for nonpublic or private commercial purposes shall be subject to all ad valorem taxes, intangible personal property taxes, or non-ad valorem assessments, as would be applicable if said property were privately owned. 4 As noted previously, the property at issue in this case is not being utilized for nonpublic or private commercial purposes, see n.2 supra. Despite that unambiguous language of Chapter , 3(2)(d), the City adopted an ordinance authorizing North Port District to levy non-ad valorem assessments against all governmental real property within its boundaries, regardless of the nature of its use. 3 West Villages is also authorized to acquire, construct, and operate systems and facilities for school buildings and related structures, as further provided in its special act. Id. 3(2)(p). 4 This provision is contained in the District s initial enabling legislation, Chapter , Laws of Florida, and the subsequent 2006 and 2007 special act amendments, Chapter , and Chapter , Laws of Florida. 3 After the City adopted Ordinance No , 5 which amended North Port s Enabling Ordinance to provide for the first time that it shall levy its non-ad valorem assessments against governmental real property, West Villages submitted timely written and verbal objections, see West Villages Improvement District v. North Port Road and Drainage District, 36 So.3d 837, 838 (Fla. 2d DCA 2010). Additionally, once the City established North Port District s non-ad valorem assessment rates and non-ad valorem assessment roll, 6 West Villages timely filed nine (9) administrative appeals challenging the 2008 non-ad valorem assessments levied against its nine (9) parcels of real property. See id. at 839. North Port denied those appeals, whereupon West Villages timely filed a Petition for Writ of Certiorari seeking review of that decision in the Circuit Court of the Twelfth Judicial Circuit in and for Sarasota County, Florida. See id. The Circuit Court denied West Villages Petition in its Order rendered April 15, See id. Thereafter, West Villages timely filed a Petition for Writ of Certiorari with the Second District Court of Appeal of Florida ( Second DCA ). See id. In its decision granting certiorari, the Second DCA held that the circuit court departed 5 North Port District asserts that it had the right to levy non-ad valorem assessments on governmental property within its boundaries by virtue of adopting Ordinance No However, that statement is inappropriately argumentative for a Statement of Facts. 6 Although North Port District states throughout its Initial Brief that it assessed West Villages for both road and drainage services, North Port District levied only non-ad valorem assessments on West Villages real property for road services. 4 from the essential requirements of law by failing to apply the principles established by this Court in Blake v. City of Tampa, 115 Fla. 348, 156 So. 97 (1934). See id. The Second DCA acknowledged that under home rule principles, municipalities have the general power to impose special assessments, but held that that authority did not permit them to impose those assessments on public property. Furthermore, the Second DCA rejected North Port District s reliance on Remington Community Development District v. Education of Foundation of Osceola, 941 So.2d 15 (Fla. 5th DCA 2006) ( Remington ), finding it distinguishable: The Court also stated: Id. at [North Port] thus argues that Remington stands for the proposition that unless there is a statutory exemption, all public property may be subjected to special assessments. We do not read Remington so broadly. The issue in Remington was whether a charter school qualified for the statutory exemption provided for in section But there is no holding in Remington that all public property is subject to special assessments absent a statutory exemption. We therefore reject [North Port District s] argument that Remington supports its position that it may lawfully impose non-ad valorem assessments on West Villages property despite the absence of legislative authority. But to the extent that our conclusions conflict with the Fifth District s opinion in Remington, we certify conflict. 5 Thus, contrary to North Port District s assertion, the Second DCA did not find that its opinion conflicted with Remington. See West Villages Improvement District, 36 So.3d 837. Nor did the Second DCA state, as North Port District asserts, that the issue of conflict between West Villages and Remington is whether a special district may levy non-ad valorem assessments against government real property when there is no statutory exemption to prevent such a levy. See id. The Second DCA stated only that there may be a conflict between the two cases and that to the extent that such a conflict exists, the Second DCA certified conflict. See id. follows: The Second DCA also certified a question of great public importance, as MAY A MUNICIPAL DEPENDENT SPECIAL DISTRICT, PURSUANT TO MUNICIPAL HOME RULE POWER, IMPOSE A NON-AD VALOREM SPECIAL ASSESSMENT UPON REAL PROPERTY OWNED BY A STATE GOVERNMENTAL ENTITY, IN THE ABSENCE OF EXPRESS OR NECESSARILY IMPLIED LEGISLATIVE AUTHORITY? 6 SUMMARY OF ARGUMENT The North Port District does not have authority under principles of home rule power to impose non-ad valorem assessments on property owned by West Villages. West Villages is a special district created by an act of the state legislature, and municipalities (and their dependent districts), do not have authority equal to or superior to the state. Even under the home rule powers provision in the 1968 Florida Constitution, the legislature retains superior and all pervasive power, and is not subject to obligations unilaterally imposed upon it by municipalities. The disposition of state funds and property are an attribute of sovereignty of the state, and local government cannot impose obligations upon them without express and unambiguous authorization from the legislature. This inherency doctrine is not dependent upon statutory or constitutional provisions, but rests upon broad grounds of fundamentals in government. Nothing in the constitutional or statutory provisions granting home rule power have changed that principle. Additionally, Article VIII, 1(c), Fla. Const., provides that no money shall be drawn from the treasury except in pursuance of appropriation made by law. Based on that provision, any authority for disposition of state funds must be made by a duly enacted statute. There is no statute authorizing the payment of the special assessments unilaterally imposed by North Port District and, therefore, that constitutional provision necessarily limits the authority granted by the Municipal 7 Home Rule Powers Act, (3)(b), Fla. Stat. For that additional reason, North Port District did not have authority to unilaterally impose the special assessments on the property owned by West Villages. North Port District also lacked the authority to unilaterally impose the special assessments because the enabling legislation establishing West Villages contains a provision limiting its liability for special assessments to property utilized for non-public or private commercial purposes. The ordinance relied upon by North Port District as authority for its special assessments is inferior to state legislation and, therefore, is unenforceable. That fundamental principle of governmental authority has not been altered by either the constitutional or the statutory provisions granting home rule authority. For the reasons stated above, the Second DCA s decision should be approved and the certified question should be answered in the negative. 8 ARGUMENT POINT I NORTH PORT DISTRICT IS NOT AUTHORIZED TO IMPOSE NON-AD VALOREM SPECIAL ASSESSMENTS UPON PROPERTY OWNED BY A STATE GOVERNMENTAL ENTITY. Standard of Review The standard of review in this case is de novo because it involves issues of law and questions of decisional conflict, Linn v. Fossum, 946 So.2d 1032, 1036 (Fla. 2006). Introduction North Port District contends that it is entitled to unilaterally impose a special assessment or non-ad valorem upon a special district of the State, relying on its home rule powers. However, its argument is inconsistent with the historical development of home rule authority and decisions of this Court construing the constitutional and statutory provisions which granted that authority. An analysis of those provisions and the case law leads to the conclusion that there are three separate grounds upon which North Port s argument must fail. 9 Historical Development and Judicial Interpretation of Municipalities Home Rule Authority Prior to the grant of home rule powers to municipalities by the 1968 Florida Constitution, municipal authority was provided by Article VIII, 8, Fla. Const. (1885). That provision stated: The Legislature shall have power to establish, and to abolish, municipalities to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time. Under that provision, Florida applied what was known as Dillon s Rule, 7 under which local governments such as municipalities could only exercise those powers expressly granted, and those necessarily or fairly implied, in state statutes, see Williams v. Town of Dunnellon, 169 So. 631 (Fla. 1936); Heriot v. City of Pensacola, 146 So. 654 (Fla. 1933). Under Dillon s Rule, powers not granted to a municipality were deemed to be reserved to the legislature, see City of Boca Raton v. State, 595 So.2d 25, 27 (Fla. 1992). Practical difficulties arising from the development of Florida and population growth mandated a different approach to municipal power than that provided in the 1885 Constitution. After World War II, the legislature was flooded with local bills and acts designed to create a grant of authority to municipalities. Id. For example, 7 The term Dillon s Rule was derived from the treatise by John F. Dillon, The Law of Municipal Corporations, 55 (1st ed. 1872), see City of Boca Raton v. State, 595 So.2d 25, 27 (Fla. 1992). 10 in 1965, there were 2,107 local bills introduced in the legislature. Steven L. Sparkman, The History and Status of Local Government Powers in Florida, U. of Fla. Law Rev., Vol. XXV, p. 271, 286 (1973). This resulted in the inclusion of a provision in the Constitution of 1968 granting municipalities home rule powers. Article VIII, 2(b), Fla. Const. of 1968 provides: POWERS. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and ren
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