Tuesday, August 14, 2012
Judges rule landowners must pay for road upgrades
Article Courtesy of The Ocala Star Banner
By Bill Thompson
Published August 8, 2012
Hundreds of Marion County property owners will have to pay up for road improvements they fought against — and for which some of them were even owed refunds.
In an unsigned but unanimous opinion issued Friday, a three-judge panel of the 5th District Court of Appeal ruled that the County Commission can collect a second time for paving projects completed under the county’s Municipal Services Benefits Unit, or MSBU, program.
The court, according to its four-page ruling, determined that the property owners who had demonstrated they were wrongfully assessed under the program still had to pay because they have somehow profited from the work — and because the state Constitution empowers the County Commission to make them pay again.
On Monday, Richard Bennett, a Coral Gables lawyer representing the landowners, said his clients were still considering their options.
County Attorney Guy Minter could not be reached for comment.
The ruling consolidated three separate lawsuits brought against the County Commission between 2007 and 2010.
In those cases, landowners in the Rainbow Springs and Lake Tropicana Ranchettes subdivisions near Dunnellon and the Timberwood community in the State Road 200 corridor maintained that the County Commission had failed to follow a 1985 state law that regulated how the projects were to proceed.
That law, which was repealed in 2010, stated that the county needed approval from at least 51 percent of all affected property owners.
That was gauged by a mail-in vote of the landowners along the roads to be paved.
Critics of the program alleged that the county staff had erred by tabulating the results.
County officials had acted outside the 1985 law, they argued, by relying on an internal 1996 policy that defined the majority as 50 percent plus one, or as 40 percent voting in favor of a paving project, with two-thirds of owners of improved lots voting yes.
In the three cases at issue, the County Commission voted to approve them after being told the results met the standard set by the county policy.
Critics maintained that support fell below the mandated threshold. In one instance, the tax was levied although just 17 percent of those affected voted for the project, based on the 1985 law.
In separate rulings, Circuit Judges Jack Singbush and Brian Lambert sided with the protesters.
Refunds were also ordered. The amounts in the three cases ranged from about $900 to almost $4,900.
But in 2009 the County Commission adopted an ordinance that said when the initial assessment is “annulled, vacated, or set aside” by a judge, the board may take “all steps necessary to impose a new assessment against any property” that benefitted from the paving project.
That policy establishing the second payments, called reassessments, was the subject of the opinion issued last week by the 5th DCA panel.
The appellate court upheld two Marion judges’ earlier rulings in favor of reassessments.
Those decisions “correctly determined that these cases are controlled by longstanding precedent upholding assessment or reassessment for completed public works projects that specially benefit those being assessed,” the opinion states.
The appeals panel cited several rulings from Florida, including a case involving the city of Ocala that was decided by the Florida Supreme Court in 1922, and cases from outside the state.
The appellate judges concluded that the protesting property owners “attempt to avoid application of this well-settled law by arguing that reassessment should be barred in this case because the county lacked ‘jurisdiction’ to build the improvements when the assessments were first made.”
“This argument ignores the broad scope of home rule powers granted to counties under the 1968 (Florida) Constitution and under general law,” their opinion says.
“Under the constitution and laws in effect at the time that these road improvements were constructed (between 2007 and 2009) the county enjoyed a broad grant of general power (or ‘jurisdiction’) to make road improvements and to impose special assessments based upon the benefits conferred by those improvements.”
Bennett, in an email, said he sees an opening for an appeal in this language.
“When the roads were constructed the special act had not been repealed. That didn’t happen until 2010,” Bennett said.
“The county home rule powers were restricted by special act requiring prior majority landowner approval in order for the county to make road improvements and impose special assessments.
“The opinion does not recognize that the proposals to assess for road improvements were not approved by a majority of landowners as required by the special act,” he added. “That’s why the original assessment was invalidated.”
Bennett said he was discussing with his clients whether to appeal to the 5th DCA’s full 10-judge panel.