OPINION IS NOT FINAL UNTIL DISPOSITION OF ANY FURTHER MOTION
FOR REHEARING AND/OR MOTION FOR REHEARING EN BANC. ANY
PREVIOUSLY-FILED MOTION FOR REHEARING EN BANC IS DEEMED MOOT.
Appeal from the Circuit Court for Monroe County Lower
Tribunal No. 09-822-K, David J. Audlin, Jr., Judge.
Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A.,
and Michael T. Burke and Hudson C. Gill (Fort Lauderdale),
Oropeza, P.L., and Barton W. Smith and Ashley N. Sybesma, for
appellees/cross-appellants. Before SALTER, EMAS, and LOGUE,
ON MOTION FOR REHEARING
case comes before us on rehearing. We grant rehearing,
withdraw our previous opinion, and issue this opinion in its
West Golf Club Homeowners' Association, Inc.
(Association), Key West Golf Club, LLC (Golf Course), and Key
West HMA, LLC (Hospital) brought suit seeking a declaration
that the City of Key West's stormwater utility fee was
illegal as applied to their properties. After a bench trial,
the court agreed and entered a judgment exempting the
properties from future stormwater utility fees. We reverse.
undisputed record at trial reveals that the Association, Golf
Course, and Hospital contributed to the need for the
stormwater utility by discharging stormwater. They also
benefited from both the stormwater utility's flood
control and pollution control measures. While the trial court
apparently found that the amount of the fee had no reasonable
relationship to the benefits received, it considered only the
costs of the flood control measures and failed to consider
the substantial, City-wide stormwater anti-pollution services
which comprise a large part of the stormwater management
system at issue. In City of Gainesville v. State,
863 So.2d 138, 145 (Fla. 2003), the Florida Supreme Court
upheld a method of establishing stormwater fees virtually
identical to the method used here by the City. For these
reasons, we hold that the City acted within its lawful
authority by subjecting the properties to the stormwater
State has authorized municipalities to create stormwater
utilities in order to fund stormwater management.
See §§ 403.0891, .0893, 163.3202(d), Fla.
Stat. (2001). The purpose of these laws is to control
flooding and to prevent pollution-the latter being deemed by
the Legislature as "a menace to public health and
welfare." See § 403.021(a). The need to
mitigate the effects of stormwater discharge is particularly
heightened in the municipality of Key West. It is part of the
Florida Keys which the Legislature has designated "as an
area of critical state concern" in order to, among other
things, "[p]rotect and improve the nearshore water
quality." § 380.0552 (2)(i) & (3), Fla. Stat.
2001, the City established a stormwater utility as authorized
by Chapter 403 of Florida Statutes. See Key West,
Fla. Code § 74.365. One purpose of the utility was to
improve "the water quality in the stormwater and surface
water system and its receiving waters." Key West, Fla.
Code § 74.362. Tracking the ordinance upheld in City
of Gainesville, the fee at issue is based on the amount
of impervious surface area, such as buildings and parking
lots, on a property. A larger impervious surface area results
in a higher utility fee because the larger such areas, the
less stormwater is absorbed into the ground and the more
stormwater is discharged. The ordinance exempts certain
property, including property that retains its stormwater
runoff. The ordinance establishes a sliding scale
for the amount of the utility fee based upon the amount of
water retained on site. The fees do not go into the general
fund, but are segregated in a separate account dedicated to
plan, construct, operate, and maintain the City's
stormwater management system on a city-wide, unitary basis
for present and future needs.
2003, the City began billing the Association, Golf Course,
and Hospital for the stormwater utility fee. In 2009, the
Association, Golf Course, and Hospital filed suit against the
City, essentially claiming that they received little or no
benefit from the stormwater utility.
Association, Golf Course, and Hospital are located on Stock
Island, which is immediately east of the island of Key West.
Stock Island is bisected by U.S. Highway 1 (US 1). The
portion of Stock Island north of U.S. 1 is within the
municipal boundaries of the City of Key West. The main road
providing access to the northern portion of Stock Island is
College Road. College Road forms a horseshoe-shaped loop
which generally runs along the water's edge on the
perimeter of northern Stock Island. Each end of the loop
intersects U.S. 1.
within the loop formed by College Road are all or part of the
properties of the Association, Golf Course, and Hospital and
also a tidal salt marsh. The submerged land under the salt
marsh is largely owned by the City, although part is leased
to the Golf Course and part is owned by the Hospital. The
Association, Golf Course, and Hospital properties have
injection wells, retention ponds, and catch basins. They
stipulated, however, that the properties did not retain
stormwater at levels that would qualify them for a fee
exemption or reduction under the ordinance. Instead, they
discharge stormwater into the salt marsh or Gulf. The water
discharged into the salt marsh drains out to the Gulf of
Mexico by means of seven culverts cut through College Road.
trial, the undisputed testimony of numerous witnesses was
that without the seven culverts that allow the salt marsh to
flow into the Gulf, the salt marsh would back up and the
Association, Golf Course, and Hospital properties would
flood. In addition, without the culverts and also the storm
drains and outlets along College Road that divert stormwater
coming onto the road into either the salt marsh or ...