It’s easier to say what today’s Florida Supreme Court hearing between the city of Marco Island and a political action committee is not, than what it is.

It’s not a case that determines the legality of the city’s decision to replace the island’s septic tanks with a central sewer system.

It’s not a case that directly addresses the city’s current financing plans for the seven-year $100-million plus program.

It’s likely not even a case that will stop the city’s ability to pay for the program indefinitely.

What it does tackle is the program’s financial basis, namely the city’s special assessment process and its ability to issue bonds in the first two of 17 districts in the septic tank replacement program. Construction in those two districts, Tigertail and South Barfield, was completed last December.

Almost as important — if not more — is that the case will likely serve as a public relations boon for the victorious party, at a time when legal issues between the city and anti-sewer groups are again reaching a boiling point.

Last February the city began a bond validation process for the assessment bonds in the Tigertail and South Barfield districts in Collier County Circuit Court. In the suit, Citizens Advocating Responsible Environmental Solutions (CARES) was a party that opposed the city.

In May, Circuit Judge Frederick Hardt ruled in favor of the city in the bond validation hearing, writing that the city’s assessment process, was “fairly and reasonably apportioned” and not “arbitrary and unreasonable.” Those are all legal terms relating to standards in judging assessments. The city’s assessment process is based on “equivalent residential connections” or one assessment per lot, as opposed to say, the amount front footage in a lot.

A month later, Hardt denied a CARES motion for a rehearing in the case, but CARES appealed to the state Supreme Court. By the state constitution, the court is required to review bond validation cases and set a hearing date in December, after denying a city motion to dispense with oral arguments in the case.

“It’s our point that the special assessments are patently unfair, unreasonable and irrational,” CARES attorney Samuel C. Gold said.

CARES’ argument is that the city’s assessment process discriminates against new users of the city’s wastewater treatment plant. In addition to new sewer lines running under the 5,500 lots affected by the program, the city’s wastewater treatment plant will be expanded and upgraded as part of the program. CARES contends existing users—not new users—have worn out the wastewater treatment plant so they should be required to pay for the upgrade.

“Existing users and the community at large are reaping a windfall at the expense of new users,” CARES brief states.

The city argues that’s not the case. Existing users, its brief states, are paying for the plant upgrades through their water and sewer rates and the city was and remains the appropriate venue for debate on these issues.

Since CARES filed its appeal to the Supreme Court in July, the program’s financing has undergone a radical shift in favor of charging existing users more for the program. That leaves an odd situation where the court will not be addressing the city’s current financing structure, but instead one already discarded.

This month the Marco Island City Council approved a voter referendum to be held on June 26 that functionally gives all residents two options in paying a portion of the $100 million price tag for the entire program. What has been termed “Plan A” will limit sewer assessments to $10,000 per household, regardless of the district, with the remainder paid through an approximately 4.5 percent increase in property taxes. “Plan B” includes a nearly $2,800 reduction for previously quoted assessments — through the removal of road resurfacing and reduction of wastewater plant upgrade costs — paid for through an up to 16 percent increase in water and sewer rates.

After the city decided to hold the referendum, council members Rob Popoff and Terri DiSciullo called CARES chairman Doug Enman and asked him to drop the Supreme Court appeal. The city’s attorney, Mike Davis of Tampa-firm Bryant, Miller & Olive, also sent an e-mail to Gold formally requesting him to drop the case.

Gold wrote back to Davis saying, “While recent city actions are a step in the right direction, my client wants to set a precedent that will bind future city councils.”

Popoff said that council has done all that it can to meet CARES’ demands.

“They told us, ‘Show us something to make this equitable.’ Well guess what? We made it equitable and it still wasn’t good enough,” he said.

In addition to echoing Gold’s sentiments, Enman said Plan A and Plan B still aren’t equal for new users.

Basing costs on property taxes, Enman said, forces homeowners of varying taxable values to pay differently for the same benefit, particularly in the case of homesteaded property owners versus non-homesteaded property owners.

Basing costs on increased utility rates, Enman said, still gives condominium owners a better deal than the single-family homes affected by the septic tank replacement program because, he said, master metered condos pay a different base rate.

“It’s still not fair,” Enman said. “It’s just not fair in a different way.”

The outcome of Friday’s hearing might finally provide some definitive answers in this effort.

Should the city win the case, it can begin selling its bonds immediately. The council authorized a combined $5 million bond for the two districts.

Should CARES win the case, the result will depend on what the Supreme Court orders. Generally speaking, Davis and Gold said, when the court identifies flaws in assessments, they can be remedied or remanded with instruction to lower courts and then run through the validation process again. The assessment program also could be thrown out entirely.

But again, the decision’s biggest impact might be the positive publicity the winning side can claim, especially in keeping the best interests of the island’s taxpayers at heart. Recently, CARES has filed suit against the city and CARES supporters successfully requested a federal investigation regarding the city’s handling of asbestos on public property. The city has reacted by placing an item on Monday’s council agenda to reconsider a decision not to pursue legal fees or sanctions against current or former CARES members.

Although no Supreme Court decision is expected today, and one could be months away, any council arguments that CARES has acted frivolously would have less steam should CARES score a victory.

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