Madison County appeals a final summary judgment invalidating its 1989 and 1990 ordinances levying special assessments for various services provided by the County, and ordering the County to refund monies paid by county residents. Wiley D. Foxx cross-appeals the trial court's dismissal with prejudice of count III of his amended complaint which sought recovery under 42 U.S.C. section 1983. We affirm in part, reverse in part, and remand for further proceedings.
Madison County adopted four ordinances in 1989 purporting to levy special assessments
Section 2 of each of the four ordinances imposed the special assessments pursuant to section 125.01(1)(q)2., Florida Statutes (1989). Each ordinance described the type of property to be subject to the assessment,
Each ordinance detailed the manner in which a lien would be placed upon the property in the event of non-payment and stated that foreclosure could be pursued to enforce delinquent assessment liens. They afforded relief for indigents by providing that after an administrative determination of indigency, and during the pendency of indigency, the lien would not be enforced while the indigent and/or indigent spouse and/or indigent minor reside in the homestead as a residence.
On December 6, 1989, the County adopted a Resolution indicating its intent to collect the special assessments on the ad valorem tax bill, and invoking the statutory collection
The validity of the 1989 ordinances was challenged by two court proceedings: one for declaratory and injunctive relief filed by Wiley D. Foxx, a resident of the City of Madison; and the second, a class action suit on behalf of county residents filed by Quinton Dryden. The two cases were consolidated. In response to the suits, the County passed four new ordinances in 1990, amending the 1989 ordinances.
At the outset, the three 1990 ordinances concerning garbage collection and disposal, landfill closure, and ambulance service, characterize the corresponding 1989 ordinances' reliance on section 125.01(1)(q)2. — the named enabling statute — as a "scrivener's error," and by means of these later ordinances attempt to correct the error by changing the referenced statute to "section 125.01(1)(q)1, Florida Statutes." Only the 1990 fire ordinance retains reliance on section 125.01(1)(q)2. as enabling legislation.
Because the County was uncertain whether imposition of these special assessments dealing with garbage collection and disposal, landfill closure, and ambulance service, required the creation of a Municipal Service Taxing Unit (MSTU), or a Municipal Service Benefits Unit (MSBU), or a special district,
Finally, the 1990 ordinances for garbage collection and disposal, landfill closure, and ambulance service require the affected cities to agree to the inclusion in the MSTU, MSBU, or district, and that "[a] certified copy of the Resolution agreeing to the inclusion must be received by the County prior to December 1, 1989, and shall be effective for 1989 and each subsequent year." The ordinances also mention measures to comply with section 125.01(5)(a).
In the meantime, on October 3, 1989, the City of Madison adopted a resolution concurring in the creation of a municipal service taxing or benefit unit within the city; however, the resolution by its terms was conditioned upon the concurrence and the creation of such unit by the other two cities — Greenville and Lee. On April 3, 1990, the City of Greenville adopted a similar resolution also conditioning its concurrence upon the concurrence of the other affected cities. The City of Lee never adopted a resolution concurring in the creation of a municipal service taxing or benefit unit or district.
Some, though not all, Madison County residents paid the special assessments. After
Foxx and Dryden, et al., maintained that the ordinances were deficient because: (1) the County failed to comply with section 125.01(1)(q)2., requiring that special service units be established by April 1 of the effective year; (2) the County failed to comply with section 125.01(5)(a) by gaining the consent of the municipalities to the applicability of the ordinances within their territory; (3) the charges levied by the ordinances were not special assessments providing special benefits to the property charged, but were instead taxes for the general benefit of the public; (4) the levies were not reasonably proportioned between the properties affected; and (5) the levies violated Article VII § 6, and Article X § 4 of the Florida Constitution governing homestead exemptions. Appellees also requested a refund of all levies previously paid.
Foxx alleged a violation of his civil rights under 42 U.S.C. section 1983 in count III of his complaint. The trial court granted the County's motion to dismiss count III with prejudice, finding from an examination of Foxx's amended complaint that no deprivation of a federal right exists in this controversy, and that the amended complaint could not be amended to show such a deprivation.
Foxx and Dryden, et al., moved for summary judgment. In response to the motion, the County filed affidavits of an expert economist, a certified real estate appraiser, an accountant and county auditor, a government expert, and the chairman of the Board of County Commissioners of Madison County. These affidavits asserted the County's good faith in the adoption of the ordinances, the reasonable apportionment of the assessments, and that they provided a special benefit to the property.
At this juncture, we would point out that resolution of this appeal requires reference to pertinent Florida constitutional provisions, and the statutory criteria of Chapter 125.
Regarding the County's compliance with these provisions, the trial court made the following findings of fact, in pertinent part:
The trial court ruled, in essence, that the 1989 ordinances were invalid for failure to comply with section 125.01(1)(q)2., the statute
It should be added that section 125.01(1)(q)1., upon which the County attempted to rely for three of its 1990 ordinances, is not applicable because by its express terms, it applies when the County is attempting to levy special assessments in the unincorporated areas only, whereas, in the three ordinances concerning garbage collection and disposal, landfill closure, and ambulance service which cited this statute as authority, the County was attempting to impose the special assessments in municipalities as well as unincorporated areas. The 1990 fire ordinance is the only one made applicable to unincorporated areas only, and that ordinance, rather than citing section 125.01(1)(q)1., which arguably was applicable, cited section 125.01(1)(q)2. as authority. As the trial court found, the County failed to comply with the provisions of section 125.01(1)(q)2.
Regarding the other challenges by the plaintiffs, the trial court ruled as a matter of law that the charges levied were not special assessments, but instead were taxes for the general benefit of the county, and therefore violated general law and the constitutional homestead provisions, Article VII § 6 and Article X § 4, which prohibit any levies other than special assessments to alter the homestead protection. The court added that the County's levies were nothing more than an annual charge made to defray the cost of a particular expense incurred by the county in providing a particular service, and no particular property is specially benefitted. The court commented that the levies were simply an attempt to circumvent the homestead tax exemption provided in the Constitution. The court granted the plaintiffs' motion for summary judgment entitling the plaintiffs to the
The County argues on appeal,
In response, appellee Dryden maintains that section 125.01(1)(r) does not grant a non-charter county the broad home rule authority to assess special assessments for furnishing municipal services within a municipality absent municipal consent. Dryden contends that when Chapter 125, and in particular section 125.01, was enacted in 1971 to implement county home rule authority, counties did not have authority to furnish municipal services beyond the unincorporated areas of the county; and further, that the present language of section 125.01(1)(q) was added to the statute in order to provide a means for a non-charter County to furnish municipal services in a city, but only if the city approved.
At this point, a brief review of the legislative history of section 125.01(1)(q) and (r) is helpful. As originally enacted in 1971, section 125.01(1)(q) and (r) provided:
According to a synopsis of legislative history contained in Gallant v. Stephens, 358 So.2d 536, 538 n. 1 (Fla. 1978), section 125.01(1)(q) created "special purpose districts," without indicating whether referenda would be required. In several opinions, the attorney general found that Article VII § 9(b) of the Florida Constitution required a referendum. Ops.Att'y Gen.Fla. 072-162 and 073-178. The legislature responded in 1974 by amending section 125.01(1)(q) and (r), by substituting "municipal service taxing or benefit units" for "special purpose districts." In addition, the legislature added new subsections (5) and (6). Chap. 74-191, § 1 Laws of Florida. The changes, in part, were as follows:
The preamble to Chapter 74-191 provides that these changes have the effect of "authorizing the governing body of any county to create municipal services and taxing units in the unincorporated areas and special purpose districts in both unincorporated and incorporated areas of the county under certain circumstances" and "authorizing the governing body of the county to levy ad valorem taxes within certain municipal service taxing and benefit units under certain circumstances... ."
Despite an expression of legislative intent in section 125.01(1)(q) to the effect that the legislation was enacted to extend taxing power under the second sentence of Article VII § 9(b), the Attorney General later opined that these units must be evaluated on the basis of their functions, not titles, and that referenda were nonetheless required in the absence of a statutory directive to the contrary. Op.Att'y Gen.Fla. 075-24. Gallant v. Stephens, 358 So.2d at 538. In 1975, the Legislature added the last sentence of the present section 125.01(1)(r) to provide specifically that referenda were not required. Chapter 75-63, § 1, Laws of Florida. Chapter 75-63 reveals the following express legislative intent:
In 1987, paragraph q of subsection (1) of section 125.01 was amended to add sub-subparagraph 2. and 3. (See Appendix A, this opinion). According to the preamble of Chapter 87-263, the amendment authorized "counties to establish municipal services taxing units which include municipalities or portions thereof to provide fire control and rescue services," and authorized "the levy of charges, assessments, or taxes therein." The amendment also provided "procedures for removal of a municipality or a portion thereof from such unit... ."
Dryden argues that to accept the County's argument that section 125.01(1)(r) grants to the County the authority to levy special assessments to provide municipal services in cities without municipal consent, absent the existence of an inconsistent municipal ordinance, means that the Legislature enacted a large quantity of needless, useless, and unnecessary legislation in enacting section 125.01(1)(q)1. and 2. and section 125.01(5), and that the requirements of these statutes become meaningless.
In the proceeding below, the trial court accepted Dryden's argument that the more specific statutes, section 125.01(1)(q)1. and 2. and section 125.01(5), were enacted subsequent to the more general statute, section 125.01(r), and that they control. Further, when the statutes are read in pari materia, section 125.01(1)(r) permits counties to levy special assessments subject to limitations provided in general law, and that the Legislature set forth such general law limitations in section 125.01(1)(q)1. and 2. and section 125.01(5).
In response, the County argues that the primary function of section 125.01(1)(q) is to provide for the creation of an MSTU funding mechanism to authorize counties to levy additional ad valorem taxes within the Florida Constitution's municipal-purposes millage limitation. Article VII § 9(b) of the Florida Constitution provides that in addition to the 10 mill county-purpose millage, counties may be authorized to levy ad valorem taxes for municipal purposes. The County contends that this municipal purpose millage authority for counties has been implemented by the Legislature through the adoption of section 125.01(1)(q), providing for the creation of municipal service taxing units by counties.
According to the County, MSTUs are funding mechanisms by which a county can provide a particular service from a levy of ad
The County is emphatic that section 125.01(1)(q)2. is not a restriction on the County's power to impose special assessments. The County urges this court to rule upon and reject the trial court's conclusion that section 125.01(1)(q)2. is the exclusive method counties may use to impose special assessments within municipalities. To reach this issue, the County requests this court to overlook the imprecise nomenclature of the ordinances and their mistaken reliance on inapplicable statutory provisions, and to rule that the County could impose the special assessments pursuant to section 125.01(1)(r).
We are unable to accept the County's proposed resolution of this controversy. We cannot overlook the fact that the County referenced section 125.01(1)(q) as the enabling legislation for its ordinances, or that the County totally failed to comply with the terms of that statute. As set forth by the trial court in its final judgment, quoted earlier in this opinion, the County's departure from the provisions of section 125.01(1)(q) cited in the ordinances was material and substantial. Failure to comply with the statute referenced in the ordinances as the authority therefor is critical. For special assessments to be valid and enforceable they must be made pursuant to legislative authority, and the method prescribed by the legislature must be substantially followed. City of Coral Gables v. Coral Gables, 119 Fla. 30, 160 So. 476, 478 (1935); see also 48 Fla.Jur.2d Special Assessments § 34 (1984) (whether the proceedings imposing the special assessment are under general statutory authority or are carried out pursuant to charter provision or other authorization, there must be substantial compliance with the terms of the authority).
For this reason, the County is incorrect that it does not matter that the County referenced the wrong statute in its ordinances. To uphold the validity of ordinances imposing special assessments based upon authority not cited in the ordinances, when the County totally failed to comply with the authority referenced in the ordinances, would undermine the requirements stated in the abovementioned authorities. The case of City of Boca Raton v. State, 595 So.2d 25 (Fla. 1992), relied upon by the County, does not compel a different result. The statutes involved in City of Boca Raton, section 166.021, Florida Statutes and Chapter 170, contain markedly different language than section 125.01. More importantly, there appears to have been no issue in that case that the City of Boca Raton attempted to proceed under Chapter 170 to impose its special assessments, failed to comply with the requirements of Chapter 170, and then attempted to save its special assessments by declaring that it could levy the assessments under section 166.021.
Because of our conclusion that these ordinances imposing special assessments are null and void for failure of the County to substantially comply with the statutory authority under which it purported to act, we do not reach the further issue raised by the County, that is, whether section 125.01(1)(q)2. is the exclusive means by which the County may impose special assessments within municipalities, or whether section 125.01(1)(r) grants counties the broad home rule power to impose special assessments county-wide unless affected cities opt out by passing inconsistent legislation.
We have briefly, but by no means exhaustively, outlined the legislative history of the pertinent provisions of section 125.01 to illustrate that this statute, and its legislative history, do not conclusively answer the question of the authority of counties to impose special assessments within municipalities, nor does the body of case law cited by
Next, we address the trial court's conclusion that the charges levied by the County were not special assessments, but taxes for the general benefit of the County, and that, therefore, they violated general law and the constitutional homestead provisions which prohibit any levies, other than special assessments, to alter the homestead protection.
In City of Boca Raton v. State, supra, the Florida Supreme Court explained the two requirements for the imposition of a valid special assessment: (1) the property assessed must derive a special benefit from the service provided; and (2) the assessment must be fairly and reasonably apportioned among the properties that receive this special benefit. In the case before us, the court ruled that the special assessment did not meet the special benefit test; the court did not reach the fair apportionment test.
The County contends that the trial judge's determination that these ordinances did not confer a special benefit as a matter of law is clearly erroneous, pointing out that several other courts have held that special assessments for fire protection, garbage collection, erosion control, sewer improvements and street improvements constitute valid special assessments. Charlotte County v. Fiske, 350 So.2d 578 (Fla. 2d DCA 1977); Bodner v. City of Coral Gables, 245 So.2d 250 (Fla. 1971); City of Hallandale v. Meekins, 237 So.2d 318 (Fla. 4th DCA 1970), aff'd, 245 So.2d 253 (Fla. 1971); Fire Dist. No. 1 of Polk County v. Jenkins, 221 So.2d 740 (Fla. 1969); and City of Treasure Island v. Strong, 215 So.2d 473 (Fla. 1968).
Appellees' dispute that the assessments in question provide special benefits to the assessed property. Dryden contends that they are some form of an attempted proprietary charge or service charge, and that they are an attempt to levy a tax in such manner as to circumvent the homestead tax exemptions provided for in the constitution, Article X § 4 and Article VII, § 6. Appellee Foxx goes further, arguing that the law of special assessments arose to provide a means for funding capital improvements and was never meant to permit a lien on homestead property for mere provision of services. Foxx urges us to rule that it is unconstitutional to allow a special assessment for mere services, and then to allow a lien to be placed against homestead property for failure to pay such assessment.
It is our view that the issue in this case — whether these alleged special assessments confer special benefits upon the property assessed — presents mixed questions of law and fact. See e.g. South Trail Fire Control Dist. Sarasota County v. State, 273 So.2d 380, 383 (Fla. 1973). Because this issue was, in part, a question of fact, and the pleadings, depositions on file, and the affidavits, do not demonstrate an absence of material issues of fact, the trial court's determination that these charges were not special assessments was premature. Regarding appellee Foxx's contention that special assessments may not be used to fund services, but only capital improvements, we note that a similar argument was considered and rejected by the court in Charlotte County v. Fiske, 350 So.2d 578, 580 (Fla. 2d DCA 1977). Moreover, we cannot
In view of our holding that the ordinances imposing the special assessments are null and void, we decline to reach the further constitutional issue raised by appellee Foxx — that it is unconstitutional to take away a homestead from an indigent homesteader based upon foreclosure of a special assessment lien — because this issue is not ripe for our consideration.
Turning to the trial court's order requiring a refund of the special assessment dollars paid by Madison County residents, the County contends that it acted in good faith, and that there will be a tremendous impact on the County Treasury if refunds are ordered. At the very least, the County argues that summary judgment was premature on this issue and asks that the cause be remanded for further proceedings.
Upon examination of the case law on the subject, Gulesian v. Dade County School Board, 281 So.2d 325 (Fla. 1973) and Coe v. Broward County, 358 So.2d 214 (Fla. 4th DCA 1978), it is our view that many factual and legal issues remain to be considered before deciding the refund issue, and it was inappropriate for the trial court to determine this issue summarily as a matter of law. In addition to the issue of whether the County acted in good faith, there remain unanswered questions whether a refund is fiscally possible for Madison County, and whether the cost of processing such refunds would be prohibitive.
Finally, we address Foxx's claim that the trial court erred in dismissing his cause of action pursuant to 42 U.S.C. § 1983. Foxx states that the purpose of a section 1983 claim is to provide a vehicle to challenge excessive governmental action. Foxx contends that in its final judgment, the trial court found that there were violations of the Fifth and Fourteenth Amendments to the Federal Constitution,
The County responds that while Foxx alleged in his complaint that the County threatened his use and enjoyment of his land and deprived him of his civil rights, he failed to allege how the County was presently interfering with his property or how his civil rights were being violated. The County contends that it has taken no action to place a lien or foreclose on Foxx's property. The County argues that the trial court's finding in the final judgment regarding federal constitutional violations of the Fifth and Fourteenth Amendments was wholly inappropriate and improper. The County further argues that it was entitled to rely on the court's earlier adjudication dismissing Foxx's civil rights claim. As the result of this reliance, the County offered no additional evidence in support of its position.
At the outset, it is necessary to observe that this issue requires resolution only because of Foxx's efforts to secure attorney's fees under the premise that even though this case has been decided on other grounds, if his section 1983 claim would have been an appropriate basis for relief, he would be entitled to an award of fees under the federal statute. Maher v. Gagne, 448 U.S. 122, 132 n. 15, 100 S.Ct. 2570, 2576 n. 15, 65 L.Ed.2d 653 (1980). Having already declared the ordinances imposing special assessments null and void for failure to comply with the enabling legislation referenced in the ordinances, this court would not ordinarily address a further issue regarding the sufficiency of the allegations stating another cause of
Upon review of Foxx's allegations of a federal civil rights violation, which we find unnecessary to detail in this opinion, we agree with the County that they were insufficient to state a cause of action. However, we are inclined to agree with Foxx that he should have been given an opportunity to amend his complaint. Dismissal of a complaint with prejudice is a severe sanction which should only be granted when the pleader has failed to state a cause of action and it conclusively appears that there is no possible way to amend the complaint in order to state a cause of action.
In so ruling, we express no opinion as to the appropriateness of a federal civil rights claim in these circumstances. Upon remand Foxx shall be given another opportunity to state his claim, if he can, at which point the trial court shall address Foxx's further claim for attorney's fees under 42 U.S.C. § 1988.
The summary final judgment is AFFIRMED in part, REVERSED in part, and the cause is REMANDED for further proceedings consistent with this opinion.
BOOTH and MINER, JJ., concur.
Article VII § 9(b), Florida Constitution (1968):
Article VIII § 1(f), Florida Constitution (1968):
Chapter 125.01 Powers and duties. —
Ch. 91-238, Laws of Florida.