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City of Key West v. Florida Keys Community College

Florida Court of Appeal, Third District

January 18, 2012

CITY OF KEY WEST, Appellant,
v.
FLORIDA KEYS COMMUNITY COLLEGE, Appellee.

Rehearing Denied March 23, 2012.

Page 495

Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., and Michael T. Burke and Christopher J. Stearns, Fort Lauderdale, for appellant.

Barton Smith, P.L., and Barton Smith, Key West, for appellee.

Anne M. Harvey, Tallahassee, for Florida Wildlife Federation, The Environmental Confederation of Southwest Florida and Sierra Club, as Amici Curiae, in support of appellant City of Key West.

Brannon & Humphries, and Steven L. Brannock and Maegen Peek Luka, Tampa, for Florida Stormwater Association, the Florida League of Cities and the City of Gainesville, as Amici Curiae, in support of appellant City of Key West.

Walter Harvey and Susan M. Seigle, Gainesville, for the School Board of Miami-Dade County and the School Board of Alachua County, as Amici Curiae, in support

Page 496

of Appellee Florida Keys Community College.

Before WELLS, C.J., and CORTIÑ AS and ROTHENBERG, JJ.

ROTHENBERG, J.

The City of Key West (" the City" ) appeals the trial court's order granting final summary judgment to Florida Keys Community College (" the College" ), in which the trial court: (1) determined that the College enjoys sovereign immunity from the City's imposition [1] of stormwater utility fees; and (2) directed the City to refund the stormwater utility fees paid by the College. We affirm.

In 2001, pursuant to the authority derived from sections 403.0891 and 403.0893, Florida Statutes, the City enacted Ordinance No. 01-06, creating a stormwater utility system, and establishing stormwater utility fees to fund the system. The stormwater utility fees apply to all developed property throughout the City's municipal area, including North Stock Island, where the College's main campus is located.

The City has no operational stormwater system on the College's property, and has not identified any of the City's facilities that collect or treat stormwater generated by the College's property. The College's property is accessed via College Road, which is owned by the City. College Road is elevated, and loops around North Stock Island and, consequently, provides a boundary that keeps stormwater runoff generated on the island within the College Road loop, and directs the runoff generated outside the loop into the Gulf of Mexico.

The College, which is organized and operated under Florida law, collects and treats any stormwater generated on its property with its own stormwater system, operated under a valid permit issued by the South Florida Water Management District. There is no written contract or agreement between the City and the College obligating the College to pay the City's stormwater utility fees. Nonetheless, after establishing the stormwater utility, the City billed the College for stormwater utility services. To date, under threat of enforcement penalties, including litigation, the imposition of attorney's fees for collection, a five percent per month late fee, liens, the discontinuation of utility services, and the denial of City permits, the College has paid $160,529.60 in stormwater utility fees.

The College filed the action below, seeking, among other things, a declaration that the College enjoys sovereign immunity with respect to the City's stormwater utility fees. During the litigation, the College filed a motion for final summary judgment, which the trial court granted upon determining that the College is protected by sovereign immunity, and ordered the City to refund the $160,529.60 paid by the College in utility fees. This appeal followed.

On appeal, the City contends that the trial court erred in granting the College's motion for summary judgment because the State of Florida has waived sovereign immunity with respect to the City's stormwater utility fees. The City also challenges

Page 497

the trial court's determination that the College is entitled to a refund for the stormwater utility fees it has paid because: (1) sovereign immunity is a " shield" rather than a " sword" ; and (2) the College submitted payment for the stormwater utility fees " voluntarily." We entirely agree with the trial ...


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