Judge rejects request to revise Marco sewer decision

The campaign by a group of Marco Island septic tank users to stop the city’s sewer expansion program took a another hit from a recent court decision, forcing the group to take its case to the Florida Supreme Court.

Collier County Circuit Judge Frederick R. Hardt refused a request from Marco Citizens Advocating Responsible Environmental Solutions (CARES) last week to reconsider his May decision in favor of the city’s sewer program.

Specifically, Hardt ruled May 15 that Marco city officials had followed legal procedures for notification of public hearings and notification to affected property owners when the City Council devised and approved the property assessment method to charge residents who use septic tanks to convert to central sewer.

The ruling affects owners of 394 properties in Tigertail and South Barfield, the first two of 15 sewer districts planned for the island. Construction of the first two districts is expected to be finished in November or December.

Hardt also ruled that the court is limited in its ability to intervene in or overturn the legislative act of a local government’s legislating body — in this case, the City Council —because of home rule protections in state law.

The City Council is considering an alternative method for charging residents to connect to sewers in the remaining 13 districts during fiscal 2007 budget hearings.

The new method, proposed by council Chairwoman Terri DiSciullo, would not involve the use of a property tax assessment. It would instead charge new sewer customers for the construction and connection costs on their monthly utility bills.

Hardt’s ruling completes the local legal cycle of the city’s lawsuit against CARES. The city sued CARES in a bond validation hearing for the Tigertail and South Barfield districts after CARES filed a lawsuit against the city in Collier Circuit Court earlier this year.

CARES alleges in its lawsuit that the city’s assessment method is unfair, inequitable, and provides residents already on sewers a windfall because they won’t have to pay for improvements to the city’s wastewater treatment plant.

The city successfully argued in Hardt’s court that only existing sewer customers will pay for the improvements to the treatment plant through utility base rate increases on monthly bills. The improvements are needed because the previous utility owner, Florida Water Services, allowed the plant’s condition to deteriorate.

The city purchased the utility with voter approval in 2004 and scheduled long overdue improvements needed to keep the plant in compliance with operational permit requirements. The Florida Department of Environmental Protection renewed the plant’s operational permit in November 2005.

CARES contends that the city did not meet state requirements for obtaining the renewed permit, in part, because the city failed to file capacity analysis reports with the DEP. CARES added the DEP as a defendant because the DEP continues to stand by its approval as legal.

The city so far has successfully argued that charging new sewer customers to expand capacity for flows created by their properties’ addition to the sewer system is fair and legal.

CARES, however, is hoping its appeal to the Florida Supreme Court will find the whole scenario to be a violation of constitutional rights and state law.

CARES attorney Sam Gold said he believes case law is on their side. He quoted the Florida Supreme Court’s ruling in the 1976 case of Contractors and Building Association of Pinellas County vs. City of Dunedin, Fl.

“For the purposes of allocating the cost of replacing original facilities, it is arbitrary and irrational to distinguish between old and new users, all of whom bear the expense of the old plant and all of whom will use the new plant,” the ruling states.

“We are not surprised by the denial of the motion for rehearing,” Gold said in an e-mail. “The vast majority of rehearings are denied, but we wanted to exhaust our local options first. We’re optimistic about our chances on appeal. The prevailing law is on our side.”

Marco City Manager Bill Moss said he agreed with City Attorney Rich Yovanovich’s prediction that CARES’ chances of prevailing on the appeal are slim.

“The city’s legal counsel is very comfortable with the facts and record established in circuit court and do not expect the Supreme Court to overturn Judge Hardt’s ruling,” Moss said.

The Supreme Court could take as long as six months to consider CARES’ appeal.

Meanwhile, CARES’ lawsuit is scheduled to be heard by Collier Circuit Magistrate Lawrence Pivacek at 2 p.m. July 13.