Marco council pursues sewer program despite lawsuits

Marco Island officials are pressing forward with the mandatory septic tank replacement program, despite continuing legal challenges that have forced the city to delay issuing bonds to pay for the first two districts.

The city is paying for construction of sewer lines and lift stations in the Tigertail and Barfield districts with general operating money. Bonds originally were approved as the source of money to pay for those first two districts.

However, the bonds won’t be issued until appeals of a recent court decision filed by Marco Citizens Advocating Responsible Environmental Solutions (CARES) complete the judicial cycle all the way to the Florida Supreme Court.

CARES found itself a defendant at a bond validation hearing in Collier County Circuit Judge Frederick Hardt’s courtroom May 15. The city sued CARES to prove in court that the city’s property tax assessment method that charges property owners annual property assessments to pay for sewers in their neighborhoods is fair and equitable.

Hardt ruled in favor of the city, citing the home rule authority of city councils to legislate and CARES’s lack of evidence that the assessment method was unfair.

CARES has asked Hardt to reconsider his decision. That process is likely to fail, city attorneys say, but takes 30 days to complete. Once Hardt rules on CARES’s request to reconsider, CARES then will take its appeal to the Florida Supreme Court. That process takes at least six months.

Despite CARES’s attempts to delay sewer construction through litigation tactics, the city presses on with the program, much to the bewilderment of anti-sewer proponents, who include CARES Chairman Ed Foster.

The City Council this week squared off in another heated debate over the controversial program, with the minority arguing unsuccessfully to delay the start of any more of the remaining 13 sewer districts until CARES exhausts its legal appeals.

Foster offered a daring taunt of city officials during the council’s Monday night session during the council’s consideration of approval of engineering services for three more sewer districts that will be built next year.

The council voted 4-2 to approve spending $785,579 to pay Boyle Engineering to design the North Marco, West Winterberry and North Barfield sewer districts. Construction on those districts begins in April 2007.

But the approval came after more heated exchanges between a divided council over the program, and taunts from the leader of opposition that’s waging a legal war to disrupt and ultimately stop the sewer program.

“Even though the city has a pot of $40 million to pay for the septic tank replacement program, it is irresponsible to keep spending money on the program that has no other real funding base,” Councilman Chuck Kiester said.

Kiester, along with Councilman Ted Forcht and Council Chairwoman Terri DiSciullo, are the three-member minority on the council who oppose the sewer program.

“I can’t support moving ahead with another group of districts when the whole bond validation is under litigation,” DiSciullo said. “The money isn’t here right now. We’ll be free to go out for bonding once the court rules. I see this as waiting on the (state) Supreme Court appeal. If it means we wait a year, we wait a year.”

Forcht was absent.

The opening volleys opened the door for return fire from the four-member majority of council members who support the sewer program.

Councilman Glenn Tucker countered Kiester’s motion to table the engineering contract with his own motion to authorize approving the contract. The rest jumped in with verbal support.

“If we don’t go forward tonight, we’ll turn a seven-year project into a 20-year project, and what costs ‘X’ amount of dollars now will increase exponentially,” Councilman Bill Trotter said. “We can’t set a precedent and stop these projects because of a lawsuit.”

Councilman Mike Minozzi noted that the city always has used general budget money to pay for capital improvements before bonds eventually were issued.

“The city has always done business this way,” he said. “We’ve never had a problem with bond issues. We have a top credit rating as a city. Delay will cause much more problems. Costs will go up. Interest rates will go up. Delaying would push the seven-year program out even farther.”

The city may have had good experiences with bond issues before, but this is the first time the city has been sued over a bond issue, CARES chairman Foster said.

“I could tell during the budget hearing that the council didn’t understand the various funding mechanisms associated with the (sewer) project,” Foster added. “You seem to be confused. I’d be glad to help you.”

Foster’s words earned him some fierce verbal blows from Minozzi and the city manager.

“You walked in this door six months ago. I’ve worked on this for eight years. I’m in finance. I don’t need you to lecture me,” an obviously angered Minozzi retorted.

“When organizations put out wrong information, that’s when confusion is created,” City Manager Bill Moss added.

Councilman Rob Popoff stated his adamant support for the sewer program. He suggested that giving the city a break from construction until January might not be a bad idea. “But I’m not for delaying the bond validation.”

City Finance Director Bill Harrison reminded the council that it had approved the use of general budget dollars to pay in advance for burying power lines on Collier Boulevard before bonds were issued.

“Under accepted accounting principles, reviewed and approved by the city’s bond counsel and our auditors, the city has the ability to use the general cash resources of the city government to finance construction,” Harrison said Tuesday.

“When the bonds are issued for the first two assessment districts (Tigertail and Barfield), funds withdrawn to pay for the construction will be repaid,” Harrison explained. “This is a very common funding strategy for local government use.”

The city is gearing up for another court date, this time in Collier Magistrate Lawrence Pivacek’s courtroom, where CARES again will try to stop the sewer program with another lawsuit. That hearing is scheduled for 2 p.m. July 13 at the Collier County Courthouse.