Appellants challenge a final summary judgment determining that a special assessment imposed by appellee, Clay County (county) for financing solid waste disposal was valid. Appellants raise a number of issues which may be consolidated and restated as whether the trial court correctly determined that no material factual disputes existed concerning the validity of the assessment. Appellants asserted that as a general proposition a special assessment for providing for solid waste disposal services throughout an entire geographical area (which service was previously funded through tipping fees) on a particular class of property was an invalid tax. We find that the trial court properly rejected this general assertion. In addition, no disputed issues of material facts remain concerning whether the properties subject to this assessment received a special benefit, and whether this assessment is fairly and reasonably apportioned among the properties that receive the special benefit. We therefore affirm.
In 1992, Clay County enacted an ordinance imposing a partial year special assessment (ordinance 93-26) applicable only to residential properties in the unincorporated areas of the county for the maintenance of county solid waste facilities. The assessment was for $63 per residential dwelling unit. Commercial properties and undeveloped properties were not subject to the assessment. Appellants are homeowners subject to the assessment.
Appellants brought two separate actions (which were later consolidated), challenging the assessment. The county filed a motion for summary judgment. In support of the motion, the county filed an affidavit from the interim county manager (formerly solid waste director), and an affidavit of a consultant who assisted in the preparation of the partial solid waste disposal assessment for the county. The affidavits outlined the assessment adoption process and in addition, alleged that the amount of the assessment was apportioned to the properties subject to the assessment in an amount equal to or less than the benefit received by such properties. The affidavits further provided (1) that the cost of providing for the processing and disposal of solid waste from properties located within the municipalities and for commercial and other nonresidential properties within the unincorporated area are collected through tipping fees at the disposal site, (2) that the tipping fees imposed are equal to the cost of the processing and disposal of the solid waste generated from such properties, and (3) that the determination not to impose the partial year solid waste disposal assessment upon commercial properties in the unincorporated area is based upon the varying production of solid waste generated from commercial properties.
The trial court also had before it the ordinances adopting the assessment, which made specific findings as to (1) the rationale for not imposing the partial year solid waste disposal assessment within the municipal boundaries, and (2) how the residential properties subject to the partial year solid waste disposal assessment were benefitted by the processing and disposal of the solid waste generated from their properties. Further, the board expressly made various findings of benefit in the Final Assessment Resolution. These included the availability of solid waste disposal facilities to properly and safely dispose of solid waste generated on improved residential lands, closure and long-term monitoring
On August 31, 1993, the date of the summary judgment hearing,
In City of Boca Raton v. State, 595 So.2d 25, 29 (Fla. 1992), the supreme court recognized that a special assessment is not a tax and is, thus, not subject to the preemption of taxation to the state pursuant to article VII, section 1(a) of the Florida Constitution.
In City of Boca Raton, the supreme court said that there are only two factors in determining whether a special assessment is valid.
Id. at 29.
Appellant essentially argues that the levy is not valid because (1) a special assessment may not be levied throughout an entire taxing unit, (2) that special assessments are not appropriate for the provision of certain services such as stormwater or solid waste, see Sarasota County v. Sarasota Church of Christ, 641 So.2d 900 (Fla. 2d DCA 1994), and (3) that questions of fact were presented concerning the apportionment of benefits in light of the documents which were improperly rejected by the trial court. We disagree with these contentions.
The first two issues concern whether the properties in question were specially benefitted. In Madison County v. Foxx, 636 So.2d 39 (Fla. 1st DCA 1994), this court was asked to determine the validity of a special assessment for solid waste disposal, and found that properties may receive a special benefit from services such as solid waste disposal.
Madison County v. Foxx, 636 So.2d 39, 49 (Fla. 1st DCA 1994). In Charlotte County v. Fiske, 350 So.2d 578 (Fla. 2d DCA 1977), the second district upheld the validity of a special assessment for garbage disposal. In Sarasota County v. Sarasota Church of Christ, 641 So.2d 900 (Fla. 2d DCA 1994), the second district recognized that special assessments were appropriate for funding fire and rescue services.
We find no error in the analysis.
We are also unaware of any constitutional prohibition which would preclude a special assessment based on a county or municipality's home rule power from being assessed throughout an entire taxing unit. In Hanna v. City of Palm Bay, 579 So.2d 320 (Fla. 5th DCA 1991), the fifth district held that a special assessment for road maintenance was not valid because the benefitted properties did not "receive a benefit which is different in type or degree from the community as a whole." We find Hanna inapplicable in the instant situation for several reasons.
The first reason is that the limitation placed by the court on special assessments was based upon statutory language contained in chapter 170. The assessments in Hanna were enacted pursuant to chapter 170, Florida Statutes. The assessment in the instant case is one enacted pursuant to the home rule authority of the county. Such an assessment is only subject to the limitations enumerated in City of Boca Raton v. State, supra. In addition, the residential property in the instant case which was subject to the assessment, received benefits which were different in degree and type from those received by other properties within the taxing unit. For instance, vacant land generates far less solid waste than improved property. Commercial properties are more easily serviced by commercial haulers who may be subjected to a tipping fee at the dump based on the volume produced.
In relation to the fair apportionment of benefits, the trial court stated as follows:
The trial court, citing to Charlotte v. Fiske, 350 So.2d 578 (Fla. 2d DCA 1977), and Fire Dist. No. 1 of Polk County v. Jenkins, 221 So.2d 740 (Fla. 1969), found that such a method for determining apportionment was valid. We concur with the trial court's statement of the law.
We also recognize that apportionment of benefits is a legislative function that should not be second guessed.
In City of Boca Raton v. State, 595 So.2d 25, 30 (Fla. 1992), the Supreme Court, in discussing the role of the court in analyzing the apportionment of a special assessment, stated as follows:
In this case, the trial court correctly analyzed the apportionment issue when it stated,
The documents submitted by appellant on the date of the hearing also do not provide a basis for finding disputed issues of material fact because these documents were neither timely nor properly presented. The procedures which govern a court's consideration of a motion for summary judgment are contained within rule 1.510, Florida Rules of Civil Procedure, as well as the specific information which may be reviewed by the court in determining whether a disputed material fact exists and the proper form of that information:
Rule 1.510(c), Fla.R.Civ.P. (emphasis added). The language of rule 1.510, Florida Rules of Civil Procedure, reflects a clear intent to
Appellants attempted to file, as an exhibit to their supplemental response to defendants' motion for summary judgment, various documents purportedly obtained through discovery. No accompanying affidavit was provided with those documents, and the only discussion concerning what they allegedly represented was by the attorney in her own memorandum. As such, submission of the documents was not in compliance with rule 1.510, Florida Rules of Civil Procedure.
This court has previously addressed the timing and form requirements of rule 1.510. In DeMesme v. Stephenson, 498 So.2d 673 (Fla. 1st DCA 1986), this court upheld the trial court's exclusion of two documents that failed to comply with the requirements of rule 1.510 in that they were not timely filed. The rule requires that any opposing affidavits to a motion for summary judgment be mailed at least five days prior to the scheduled hearing or be hand delivered to opposing counsel at least two days prior to the hearing. Consequently, the documents sought to be submitted by appellants at the hearing were not timely submitted. Rule 1.510, Fla.R.Civ.P.
Furthermore, the proposed documents in this case were not in a proper admissible form. This court in DeMesme excluded documents sought to be admitted upon a motion for summary judgment because they were not in the form of an affidavit as required by Florida Rule of Civil Procedure 1.510(e). Id. at 675. Florida Rule of Civil Procedure 1.510(e) states as follows:
Id. (emphasis added). The last requirement, by its language, excludes any document from the record on a motion for summary judgment that is not one of the enumerated documents or is not a certified attachment to a proper affidavit. Nothing was presented which provides us with any context as to when they were prepared. These documents, standing by themselves, are insufficient to raise a material dispute concerning the legislative determination of the county.
We, thus, affirm the summary final judgment.
MICKLE, J., concurs.
BOOTH, J., dissenting with written opinion.
BOOTH, Judge, dissenting.
I must dissent because it appears that summary judgment was premature, leaving unresolved issues of fact. Discovery documents from the county were received by appellant on August 17, 1993.
At the August 31, 1993 summary judgment hearing, the trial court acknowledged that "I continued the hearing to give them an opportunity to prepare what they needed to prepare." Nonetheless, when appellant sought at the August 31 hearing to introduce the documents, the county objected, although it did not dispute that the documents were either from its discovery response or from public records. In offering the documents, Appellee explained:
Appellant also offered an affidavit regarding the source of the documents. The trial court ultimately disallowed the evidence in its order entered several weeks after the hearing.
Affidavits filed by the county stated that there was no profit to the county from the proposed assessment. The excluded documents cast doubt on that statement, however, and tended to show that the assessment was not calculated to cover only the landfill service provided. In view of the confusion generated by the trial court's statements regarding its continuance of the summary judgment hearing, the nature of the discovery documents sought to be introduced, and the material bearing these documents have on this case, I believe the trial court abused its discretion by excluding the documents.
Even without the excluded documents, however, the record on summary judgment is sufficient to create genuine issues of material fact regarding (1) whether there is a special benefit to the assessed property owners; (2) whether the funds collected are limited to maintenance of the landfill for which the assessment is made; and (3) whether profit or excess collected from the assessment will go into the county general fund, or will be required to be reinvested in the landfill in question and/or returned to the assessed property owners.
The record before us contains appellees' response to an interrogatory question regarding benefit to the assessed property:
In a subsequent interrogatory answer, appellees further asserted:
However, the above-stated benefits to the assessed property owners are shared county-wide. Another of appellees' answers to interrogatories states that "[i]n addition to the special benefit derived by property owners subject to the Partial Year Solid Waste Disposal Assessment, less littering occurs from the availability of solid waste disposal facilities as well as a cleaner environment generally."
Although these county-wide benefits are generally shared by both assessed and nonassessed property owners, the up-front costs of maintaining the landfill in question are not shared. Owners of residential property in the unincorporated area of the county are required to pay the fixed assessment to maintain the landfill; however, the landfill so maintained continues to be available to all other county residents and commercial users, who can use the landfill at will by payment of
Furthermore, the record does not establish that the assessed property owners receive any new or enhanced service as a result of the assessment (such as garbage collection, for example); to the contrary, the assessed property owners must still take their garbage to the landfill, just as they always have, only now they must pay the mandatory set assessment rather than the variable "tipping fee." All other county residents and businesses are free to use the landfill or not, and need only pay a tipping fee if and when they use it. Thus, the majority's reliance on Madison County v. Foxx, 636 So.2d 39 (Fla. 1st DCA 1994), and Charlotte County v. Fiske, 350 So.2d 578 (Fla. 2d DCA 1977), is misplaced, in that those cases involved garbage collection, a service that directly inured to the assessed property. Foxx and Fiske stand for the general proposition that special assessments may be used to fund services as well as capital improvements; however, this court in Foxx held that summary judgment was not appropriate for resolution of the benefit issue, and Fiske is totally distinguishable as involving a sanitation district and a franchised garbage collection company that received all of the assessment funds with no profit to the county. The court in Fiske held that, although the garbage fee was denominated a "special assessment", the fee was, in reality, a service charge. 350 So.2d at 580 (citing Turner v. State ex rel. Gruver, 168 So.2d 192 (Fla. 3d DCA 1964)).
Genuine issues of material fact exist in the present case regarding whether the special assessment at issue provides any special benefit to the assessed property owners beyond the general benefit provided to all Clay County residents. Under the limited facts of record, there is no presumption of benefit to the assessed property owners; special benefit must be shown.
The court in Sarasota County v. Sarasota Church of Christ, Inc., 641 So.2d 900 (Fla. 2d DCA 1994), rev. granted, 652 So.2d 817 (Fla. 1995), held that a special assessment for stormwater management was invalid. The assessment was sought to be imposed against various tax-exempt landowners, to wit, churches. The court upheld the assessment for fire and emergency services on the grounds that the churches' past practice of voluntarily paying estopped them from objecting to the fire and emergency service assessment. However, as to the stormwater assessment, the court held:
Id. at 902-03.
The solid waste landfill service here is akin to the stormwater management system in the Sarasota Church case, a service held to be of general benefit but not sufficient special benefit to support an assessment. Further, this court has held that the issue of benefit supporting a special assessment is a mixed question of law and fact and should not be resolved by summary judgment. In Foxx, supra, 636 So.2d at 49, this court held:
In Hanna v. City of Palm Bay, 579 So.2d 320, 323 (Fla. 5th DCA 1991), the court struck down a special assessment for street improvements against abutting property owners, holding:
Several other issues of material fact appear in the record which preclude summary judgment in this case. Appellees responded to an interrogatory that all funds from the assessment are deposited as revenue into what appears to be a general county solid waste fund, for expenditure in accordance with the budget thereof. This fund is not expressly limited to maintenance of the landfill for which the assessment is made.
Appellees' answers to interrogatories provide for shortfalls in revenue collected but conspicuously lack any provision addressing what will be done with excess revenue from the assessment, should any exist. In Fiske, supra, 350 So.2d at 581, the court was able to uphold a special assessment for garbage disposal because the entire amount of the fee was paid to the garbage company and no profit was made by the county; this was the critical point, as the court held:
A special assessment imposed by a legislative body must be limited to the amount necessary to efficiently accomplish that purpose; the proceeds of a special assessment cannot be used for any purpose other than payment for the particular improvement, and in no case may the assessment be in excess of the benefit conferred on the land, nor may it exceed the cost of the improvement and necessary
The instant case goes further than any to date in crossing the boundary between assessment and tax. I would diligently uphold the requirements for a valid special assessment and require proof that all revenues collected are for services to the assessed property and not general revenue to the county, and that the benefits are particular to the property assessed and not county-wide. Otherwise, selected groups and areas can be singled out and subjected to "assessment" without regard to the exemptions and millage caps, and a tax masquerading as an assessment will become a proverbial monster, escaping all bonds and undermining the legal limitations on taxation.