WITH THREE ME THIS MORNING ARE TWO MEMBERS OF MY FIRM. AT THE END OF THE TABLE IS ASSISTANT COUNTY ATTORNEY JOE MORRISEY. WE ARE HERE, THIS MORNING, REPRESENTING PINELLAS COUNTY. I WILL HAVE FIVE MINUTES FOR MY REBUTTAL. THIS IS A CASE OF GREAT CONCERN TO MANY LOCAL GOVERNMENTS AND, OF COURSE, IN PARTICULAR TO PINELLAS COUNTY, BECAUSE IT IS A CHALLENGE TO THE COUNTY COMMISSION OF THAT COUNTY, A HOME RULE CHARTER COUNTY, TOIES EFFORTS TO PROVIDE WATER TO ITS CITIZENS. I THINK IT IS IMPORTANT TO START WHAT FEW FACTS AND HAVE AN UNDERSTANDING OF THIS UTILITY SYSTEM AND HAVE AN UNDERSTANDING OF THE CHARGE OF THIS PARTICULAR PROJECT. THIS COUNTY IS CHARGED WITH PROVIDING WATER TO CERTAIN MUNICIPALITIES ALONG THE GULF OF MEXICO IN PINELLAS COUNTY. IT HAS BEEN CHARGED, AS EARLY AS 1935, PURSUANT TO A SPECIAL ACT OF THE LEGISLATURE, WHICH IS STILL IN FULL FORCE AND OF HE CAN'T. -- AND EFFECT. THEY HAVE PROVIDED WATER TO THESE CITIES BECAUSE THEY ARE UNABLE TO DO SO, THEMSELVES. THE REASON THEY HAVE PROVIDE WATER AS THEY HAVE BEEN MANDATED TO DO IS TO PUT IN PLACE A CLEAN WATER SYSTEM. THE CITY HAS TWO TYPES OF WATER CUSTOMERS, WHOLE SAIL AND RETAIL. THE APPELLEES IN THIS CASE ARE RETAIL WATER CUSTOMERS, AND THERE ARE 13 APPELLEES THAT ARE CITIZENS OF THE COUNTY'S WATER SYSTEM, AND IN THIS CASE THE FEES AND THE CAPITAL COMPONENTS THEREOF ARE ADOPTED PURSUANT TO A REGULATION OF THE COUNTY. IT, AGAIN, HAS BEEN DONE THAT WAY SINCE 1935. IT IS, ALSO, A 1939 SPECIAL ACT AND A 1591953 SPECIAL ACT, WHICH GOMPS -- AND A 1903 SPECIAL ACT, WHICH GOVERNS THE WAY THAT IT IS DID AND DONE BY THE COUNTY COMMISSION.

YOUR OPPOSITION, AGAIN, TRIES TO RECATEGORIZE THE RECLAIMED WATER SYSTEM AS SOMETHING DIFFERENT THAN A RECLAIMED WATER SYSTEM, AND THAT IS THE ONLY SOURCE OF POWER THAT YOU WOULD HAVE TO DEAL WITH IT. HOW HAVE OTHER STATES ADDRESSED RECLAIMED WATER TYPE OF PROJECTS?

JUSTICE WELLS, I DON'T THINK YOU HAVE TO LOOK TO OTHER STATES. I THINK YOU CAN LOOK TO THE STATE AND SEE THAT RECLAIMED WATER IS CONSIDERED BY THE LEGISLATURE TO BE CONSIDERED PART OF WATER. IN CHAPTER 73 AND IN CHAPTER 403, THE LEGISLATURE HAS SPOKEN AND SAID WATER MANAGEMENT DISTRICTS IN THESE AREAS, SUCH AS PINELLAS COUNTY, WHERE POTABLE WATER IS AT A PREMIUM, AND WHERE YOU HAVE WHAT THE STATUTORY TERM IS A WATER CAUTIONARY, A WATER RESOURCE CAUTIONARY, YOU HAVE TO LOOK TO RECLAIMED WATER, IN ORDER TO USE YOUR LOCAL SOURCES, BEFORE YOU GO OUTSIDE AND USE OTHER PEOPLE'S SOURCES, AND THEY SPECIFICALLY STATED, IN BOTH OF THOSE CHAPTERS THAT, RECLAIMED WATER IS WATER. THAT ROSE BY ANY OTHER NAME SMELLS AS SWEET, SO WE WOULD MAINTAIN, THAT IN GOING TO THE CHAPTER 153 ISSUE FIRST, AND BASICALLY THERE ARE TWO ISSUES, AND THE CHAPTER 153 ISSUE, WE THINK THE TRIAL COURT CLEARLY ERRED IN FINDING THAT 153 WAS IN ANY WAY APPLICABLE TO THIS CASE. AN IF DO YOU LOUISIANA OUT-OF-STATE, THOUGH, WHAT DO THE OUT-OF-STATE CASES OR THE OTHER STATES, IN THEIR LEGISLATION OR CASE DECISIONS TELL US ABOUT HOW THEY HAVE TREATED THE USE OF RECLAIMED WATER?

I THINK THE OTHER STATES TELL US THAT RECLAIMED WATER IS A SOURCE OF WATER THAT YOU LOOK TO. RECLAIMED WATER, LET'S TALK A LITTLE BIT ABOUT WHAT RECLAIMED WATER. I THINK THE STATES, IN WATER SHORTAGE AREAS, WE HAVE STATED THAT WE CAN HIGHLY TREAT WATER, WASTE WATER AFFLUENT, AND THEN HAVE THAT FOR A VARIETY OF USES. IT IS THE TYPE OF WATER THAT WE DO HAVE A DIFFERENT TYPE OF LINE THAT RUNS TO THE HOUSE, AND THE COUNTY IS PROPOSING TO FINANCE JUST SMALLER DISTRIBUTION LINES THAT GO INTO THESE PROPERTIES AND THE SMALL HOSE BIB OR SERVICE BOX THAT IS PERTINENT AT THE PROPERTY, AND I THINK THAT IS THE WAY IT HAS BEEN DONE IN OTHER STATES, YOUR HONOR.

ARE YOU AWARE OF ANY OTHER CASE DECISIONS FROM OTHER STATES THAT HAVE SAID NO, IN TERMS OF FINANCING?

NO. I HAVE NOT N OUR RESEARCH, WE HAVE NOT FOUND THAT.

RESEARCH DIFFERENT?

NO. MOST OF OUR RESEARCH IN OTHER STATES HAS BEEN FOCUSED, QUITE FRANKLY, ON THE WAY THE FEE HAS BEEN IMPOSED, BUT UNDER 153, BECAUSE I DON'T WANT TO LEAVE THAT ARGUMENT, WE FEEL VERY STRONGLY THAT THE TRIAL COURTERED IN MAKING THAT DETERMINATION, AND WE HAVE SEVERAL CASES THAT ARE DIRECTLY ON POINT BY THIS COURT. WE ARE TOLD THAT VERY SIMILAR LANGUAGE IN STATUTES DOES NOT APPLY, WHEN YOU ARE DEALING WITH A HOME RULE CHARTER COUNTY. WE WOULD ASK THE COURT TO LOOK TO THE BOCA RATON CASE, IN PARTICULAR, LOOK AT THE SECOND DCA MOUNTAIN CASE, AND FIND THAT THE LANGUAGE OF 153 THAT TALKS ABOUT HAVING A CONCEPT IS NOT A GENERAL BAR TO A HOME RULE COUNTY THAT IS NOT AFTER AILING ITSELF OF THAT PARTICULAR CHAPTER, IN ADOPTING A UTILITY FEE. SO IF THERE ARE ANY QUESTIONS ON THE 153, I WOULD LIKE TO GO RIGHT INTO THE ISSUE, WHICH IS THE SECOND ISSUE, REALLY, THAT IS INVOLVED IN THE CASE, WHICH IS IS THIS CAPITAL COMPONENT UTILITY CHARGE, WHAT IS CALLED AN AVAILABILITY CHARGE, BY COUNTY ORDINANCES, HAS SOMEHOW BECOME AN INVALID TAX, AND JUST BECAUSE THE COUNTY HAS STATED THAT THERE IS A CERTAIN CLASS OF USES WHICH ARE REQUIRED TO -- OF USERS WHICH ARE REQUIRED TO PAY THIS FEE, DOES IT FALL WITHIN THE PORT ORANGE CASE. THE COUNTY MAINTAINS THAT WE ARE VERY DIFFERENT THAN THE PORT ORANGE CASE. IN THIS CASE WE ARE EXERCISEING A PRIORITY AREA INTEREST THAT THE GOVERNMENT HAS. WE ARE ACTING, YES, UNDER OUR HOME RULE POWERS, BUT WE, ALSO, HAVE A LOT OF STATUTES THAT ARE DIRECTLY ON POINT. IN PARTICULAR, CHAPTER 403 STATES THAT GO.THS CAN CHARGE -- THAT GOVERNMENTS CAN CHARGE FOR RECLAIMED WATER SYSTEMS. THERE IS A GENERAL LAW DIRECTLY ON POINT WHICH SAYS THAT LOCAL GOVERNMENTS CAN HAVE THESE CHARGES. WE, ALSO, HAVE THE SPECIAL ACTS ON POINT MUCH THE SPECIAL ACTS GOES SO FAR AS TO SAY THE COUNTY COULD HAVE HAD A MANDATORY CONNECTION CHARGE FOR THE RECLAIMED WATER. THE COUNTY DIDN'T GO THAT FAR. THE COUNTY, IN FACT, PUT IN PLACE A $7 CHARGE AND EXEMPTED OUT FROM THE USERS THAT HAVE NONPOTABLE WATER WELL ON THEIR PROPERTY FROM THE PAYMENT OF THE $7 FEE. THE $7 FEE IS A VERY SMALL COMPONENT. IT IS A 30-YEAR FEE, AND IT IS RECOVERING, AGAIN, THE CAPITAL COST OF PUTTING IN PLACE THE DISTRIBUTION LINES IN THE NEIGHBORHOOD AND THE ACTUAL IMPROVEMENTS THERE ON THE PROPERTY FOR THESE PROPERTY OWNERS. IT IS NOT AN USAGE FEE. IN OTHER WORDS IT IS NOT A CHARGE FOR THE ACTUAL RECHAMED WATER. IF THEY HOOK UP AND -- FOR THE RECLAIMED WATER. IF THEY HOOK UP AND CHOOSE TO AVAIL THEMSELVES OF THE SSTS, IT IS AN ADDITIONAL $-- OF THE SERVICE, IT IS AN ADDITIONAL $2 FEE. FOR THAT THEY HAVE THE NONPOTABLE WATER TO PRESSURE WASH THEIR BOATS OR HAVE A DECORATIVE FOUNTAIN OR DO WHATEVER THEY WANT TO DO WITH THIS WATER SEVEN DAYS A WEEK, 24 HOURS A DAY.

THE $7 FEE IS WHETHER YOU WANT TO USE RECLAIMED WATER OR NOT, BUT IF YOU DO USE RECLAIMED WATER, YOU PAY AN ADDITIONAL FEE.

YOU PAY AN ADDITIONAL $2.

EVERYONE IN THE AREA PACE THIS -- PAYS THIS.

IT IS NOT OPTED OUT FOR PEOPLE WHO CHOOSE TO OPT OUT, BECAUSE THE COUNTY STUDIED THE PROJECT. THEY HAVE A FEASIBILITY STUDY. YOU HAVE IT IN THE ENGINEERING REPORT WHICH THE COUNTY PREPARED. THIS IS REQUIRED TO BE PREPARED BECAUSE THE WATER MANAGEMENT DISTRICT HAS REQUIRED THAT WE LOOK TO THESE LOCAL SERVICES, AND IN DOING THE ENGINEERING STUDY, THE COUNTY TARGETED THE PART OF THE COUNTY WHICH COULD BEST BENEFIT FROM THE RECLAIMED WATER, WHICH COULD LESSEN THE DEPENDENCE ON POTABLE WATER. THE FINDINGS OF THE COMMITTEE WERE THAT 20% OF THE POTABLE SOURCES WOULD BE REDUCED BY HAVING THE RECLAIMED WATER AVAILABLE IN THESE COMMUNITIES.

WHAT IS THE SIGNIFICANCE FOR THOSE THAT HAVE EXEMPTION WHO HAVE WELL WATER, AS FAR AS DETERMINING WHETHER THIS IS A FEE OR A TAX.

I THINK IT IS JUST ONE COMPONENT YOU HAVE TO LOOK AT. WHEN YOU LOOK AT PORT ORANGE, I THINK YOU LOOK AT THE FACT THAT IT IS NOT 100% MANDATORY, WITH RESPECT TO THIS CAPITAL COMPONENT, BUT YOU, ALSO, HAVE TO LOOK AT A VARIETY OF OTHER FACTORS WHICH DISTINGUISH THIS CASE FROM PORT ORANGE. HERE WE ARE OPERATING UNDER A PRIORITY AREA, TRADITIONAL, LONG STANDING LAW, AND THIS COURT HOLDS THAT MANDATORY FEES, IN GARBAGE CONTEXT, SEWER CONTEXT, WATER CONTEXT ARE NOT TAXES. YOU LOOK AT THE FACT THAT THIS IS EARMARKED. THESE MONIES ARE VERY SPECIFICALLY GOING INTO THE ENTERPRISE FUND TO PAY FOR THESE PIPES AND THESE HOSE BIBS IN THESE NEIGHBORHOODS. THEY ARE NOT GOING TO COLLIER AND ALACHUA AND OTHER CASES, THEY ARE NOT GOING INTO THE GENERAL FUND. IT HAS NO INDICIA OF A TAX THAT IS BEING PUT IN PLACE TO SUPPORT THE GENERAL GOVERNMENTAL FUNCTIONS OF PINELLAS COUNTY. IT IS GOING FOR A TRADITIONAL UTILITY. I WOULD LIKE TO, ALSO, SAY THAT THIS IS A LARGE PROJECT. ALTHOUGH, IF YOU READ THE BRIEF, IT KIND OF GETS LOST IN THERE THAT THERE IS A $200 MILLION PROJECT. THIS PARTICULAR COMPONENT IS ABOUT $16 MILLION WORTH FOR THESE SMALLER LINES. THE SEWER CUSTOMERS IN THE COUNTY ARE PAYING OVER 90% OF THE COSTS OF THIS. THERE ARE A LOT OF IMPROVEMENTS TO THE WASTE WATER TREATMENT PLANT. THERE ARE A LOT OF IMPROVEMENTS TO THE PUMPING AND STORAGE, AND THERE ARE LARGER TRANSMISSION LINES THAT GO OUT FROM THE WASTE WATER TREATMENT PLANT TO THESE NEIGHBORHOOD COMMUNITIES. ALL OF THOSE COSTS ARE BEING AND -- ARE BEING ABSORBED BY THE SEWER CUSTOMERS, SO THE COUNTY COMMISSION, AS A LEGISLATIVE BODY, HAS NOT BEEN SHOWN TO BE ACTING IN AN ARBITRARY OR CAPRICIOUS MANNER. THEY HAVE HAD THE HEARINGS AND GONE OUT INTO THE COMMUNITIES AND EDUCATED CITIZENS ABOUT THE RECLAIMED WATER AND RECEIVED FEEDBACK, IN FACT, FROM THE CITIZENS. THEY DIDN'T LIKE THE PRICE TAG. THE COUNTY, THEN, WENT OUT AND GOT A SERIES OF GRANTS AND REDUCED THE COST FROM $22 MILLION TO $16 MILLION, AND AS THE BODY WAS MAKING THE LEGISLATIVE DETERMINATION CONCERNING THE CLASSES OF THE USERS, THE TYPES OF FEES TO BE PUT IN PLACE, THEY DETERMINED THAT THESE FEES SHOULD BE SET IN THIS MANNER AND SHOULD BE SET IN THIS AMOUNT AND BE CHARGED PROPORTIONALLY TO THE BENEFITS TO THESE PARTICULAR COMMUNITIES.

I DIDN'T QUITE UNDERSTAND WHAT YOU SAID A FEW MINUTES AGO, ABOUT THE OTHER COSTS FOR THE SYSTEM ARE BEING ABSORBED BY THE SEWER CUSTOMERS? ARE THESE IMPROVEMENTS THAT ARE BEING MADE TO THE ENTIRE SEWER SYSTEM THAT IS REALLY FOR THE RECLAIMED WATER PROJECT, AND THE COSTS OF THOSE IMPROVEMENTS ARE BEING PASS THED -- ARE BEING PASSED ON TO THE ENTIRE COUNTY. IS THAT BECAUSE ARE SAYING?

YOU HAVE TO UNDERSTAND THAT WATER AND SEWER, AS THIS COURT FOUND, IN THE 1946 CITY OF MIAMI CASE, THEY ARE IN EX-TRICKBLY LINKED. THERE ARE REALLY -- IN EX-TRICK ABLY LINKED. THEY ARE REALLY PART OF THE SAME SYSTEM. IN THIS $200 MILLION PROJECT, YOU HAVE TO IMPROVE THE WASTE WATER IN ORDER TO TURN IT INTO THE NONPOTABLE WATER THAT IS SAFE TO USE IN THESE COMMUNITIES, SO THE COUNTY COMMISSION LOOKED AT THE VARIOUS AND SUNDRY AMOUNTS THAT WOULD BE NECESSARY TO PUT IN PLACE FOR RECLAIMED WATER AND DID DETERMINE THAT, YES, OVER 90% OF THESE COSTS ARE BEING ABSORBED BY THE SEWER CUSTOMERS, WHICH IS A DIFFERENT SET OF USERS THAN THE WATER CUSTOMERS IN THE COUNTY. AT THIS TIME I WOULD LIKE TO GO AHEAD AND RESERVE THE REMAINING TIME I HAVE FOR MY REBULTHS.

YOU MAY DO SO.

-- FOR MY REBUTTAL.

YOU MAY DO SO.

THANK YOU.

THANK YOU.

GOOD MORNING, YOUR HONOR, MAY IT PLEASE THE COURT. MY NAME IS LEE ATKINSON OF THE CLEARWATER LAW FIRM. WITH ME IS MARIE KING FROM THE STATE ATTORNEY'S OFFICE. I REPRESENT THE INTERVENEORS. SHE REPRESENTS THE STATE OF FLORIDA. WE WOULD LIKE TO RESERVE FIVE MINUTES OF OUR TIME FOR HER REMARKS. AT THE OUTSET WE SHOULD BE CLEAR ON WHAT THIS CASE IS ABOUT. IT IS NOT ABOUT THE BENEFITS OF RECLAIMED WATER. IT IS NOT ABOUT ASSURING THAT SUFFICIENT QUANTITIES OF POTABLE WATER WILL BE AVAILABLE FOR FUTURE GENERATIONS. IT IS NOT ABOUT THE GENERAL AUTHORITY OF COUNTIES OR MUNICIPALITIES TO PROVIDE ESSENTIAL SERVICES OR CO-OPT, FROM A LAWFUL AND PERMISSIBLE FUNDING MECHANISM, THE MONIES NECESSARY TO PAY FOR THEM. AS WE STAND HERE THIS MORNING, COUNSEL TO THE PELL A -- FOR THE PILLANT STILL -- -- FOR THE APPELLANT STILL HAS NOT ADDRESSED THE PROBLEM. THEY HAVE TO DISPOSE OF IT. THEY ARE SPENDING $200 MILLION TO DO THAT AND ARE CHARGING ALL WASTE WATER PRODUCERS THE VAST MAJORITY OF THAT COST. WHY IS THE INITIAL $16 MILLION NOT BEING SPREAD OUT OVER THE ENTIRE COMMUNITY WHICH WILL BENEFIT FROM THIS SYSTEM? WHY ARE THE PEOPLE OF THE BEACHES BEING REQUIRED TO PAY AN INFRASTRUCTURE CONSTRUCTION TAX? TRIAL COURT SAID IT WAS A TAX. THIS IS WHAT THIS IS ABOUT. IT IS WHETHER OR NOT THE COUNTY CAN CHARGE --

LET ME ASK YOU A QUESTION HERE. AS I UNDERSTAND IT, THE $16 MILLION IS ACTUALLY FOR THE PIPES OR -- I AM NOT EXACTLY SURE WHAT YOU CALL IT THAT ACTUALLY GOES TO THE AFFECTED PROPERTIES.

WHETHER THEY WANT IT OR NOT. WHETHER THEY ACTUALLY EVER CONNECT TO THE SYSTEM OR NOT. THAT IS THE POINT HERE THIS. IS NOT A USER FEE. IT IS NOT A CONNECTION FEE. IT IS SAYING, TO THE PEOPLE OF THE BEACH COMMUNITIES, YOU WILL PAY $7 A MONTH FOR THE NEXT 30 YEARS, WHICH IS VERY IMPORTANT, SO THAT WE CAN RUN THESE PIPES DOWN YOUR STREET, WHETHER YOU WANT THEM OR NOT, WHETHER YOU EVER CHOOSE TO CONNECT TO THEM OR NOT, WHETHER YOU HAVE ANY USE ON THE BEACHES FOR RECLAIMED WATER OR NOT.

ARE THE PIPES GOING ON TO THE OTHER AREAS THAT YOU ARE CLAIMING SHOULD, ALSO, BE PARTICIPATING IN PAYING THE FEE?

THE FEES FOR THE RECONSTRUCTION OF THIS SYSTEM AND ITS EXPANSION SHOULD BE EVENLY DISTRIBUTED OVERALL OF THE PEOPLE WHO GENERATE THE WASTE WATER THAT THIS SYSTEM WILL TREAT AND THEN MAKE AVAILABLE AS AWAY OF DISPOSING.

I AM ASKING YOU DO THESE PIPES GO TO -- ARE THERE PEOPLE TO WHOM THESE PIPES ARE HEADED? RESIDENTS THAT ARE NOT PAYING THE FEE?

THERE WILL BE SOME. THOSE WHO, IN FACT, ARE EXEMPTED BY THAT PART OF THE STATUTE THAT SAYS IF YOU HAVE A DEEP WATER WELL AND THEREFORE ACTUALLY HAVE NO NEED FOR RECLAIMED WATER, YOU WON'T HAVE TO PAY THE FEE. EVERYONE ELSE WILL.

BUT THAT IS IN THE AREA WHERE THE PIPES ARE GOING. DIRECTED TO.

RIGHT.

I AM ASKING YOU, GENERALLY, THROUGHOUT THE COUNTY, THE PIPES ARE NOT GOING TO OTHER -- ANOTHER OTHER PARTS OF THE COMMUNITY THAT EITHER HAVE RECLAIMED WATER OR GENERATE WASTE WATER BUT IT WILL NOT BE AN ADDITIONAL PART OF THE SYSTEM ARE NOT PAYING THAT $7 A MONTH FEE.

YOU ARE ARGUING THAT, BECAUSE THE COUNTY HAS TO STILL DISPOSE OF THE WASTE, AND THIS IS THE WAY THEY CHOOSE, THAT IS WHY IT SHOULD -- SHOULD BE GENERALLY APPLICABLE TO --

ALL WASTE WATER PRODUCERS. YES, MA'AM.

THE QUESTION IS WHETHER THERE IS SOME SPECIAL BENEFIT THAT FLOWS TO THE PROPERTY, WHETHER YOU USE THAT OR NOT, WITH REGARD TO THE AVAILABILITY OF THAT SERVICE AND TO THE PIPE THAT PROVIDES THE SERVICE. IS THAT NOT THE THEORY?

NO, JUSTICE WELLS. THAT WOULD BE THE THEORY IF THEY WERE A SPECIAL ASSESSMENT AND IF WE WERE GOING TO ANALYZE IT AS A SPECIAL ASSESSMENT. I WANT TO POINT OUT THAT THE ORDINANCE THAT ORIGINALLY STARTED THIS CONTROVERSY, AT PAGE 12 IS A SAVINGS CLAUSE. COUNSEL DISAGREE ABOUT WHAT THAT SAVINGS CLAUSE MEANS. INTERESTINGLY ENOUGH, THE COUNTY, WHEN THEY PASSED THEIR ORDINANCE, ASSUMED THAT THEIR AVAILABILITY CHARGE MIGHT NOT BE VALID. THEY WENT AHEAD AND THEN REFERENCED CHAPTER 153 AS THE ALTERNATIVE THEY WOULD LOOK TO, IF, IN FACT, THE AVAILABILITY CHARGE WAS IN FACT FOUND INVALID. THEN THEY DO AN INTERESTING THING AND SAY AT THE END OF THAT SAVINGS CLAUSE, IF WE CAN'T FIND A WAY OF FUNDING IT THERE, WE WILL COME BACK AND LOOK TO A SPECIAL ASSESSMENT. AS TESTIMONY MADE CLEAR, IF YOU GO TO PAGES 40 THROUGH 43, THE COUNTY NEVER DID ANY OF THE THINGS NECESSARY TO MAKE THIS A SPECIAL ASSESSMENT. THEY DID NOT, IN FACT, ANALYZE THE INDIVIDUAL BENEFIT TO INDIVIDUAL HOMES. WE ASKED THEM ABOUT SPECIFIC STREET ADDRESSES. DO YOU KNOW HOW THIS WILL ENHANCE THE VALUE OF THAT PROPERTY? I HAVE NO IDEA. ARE YOU CHARGING THIS AMOUNT UNIFORMLY, THE SAME AMOUNT, TO EVERY PIECE OF LAND, NO MATTER WHAT ITS SIZE, NO MATTER WHAT ITS USE, NO MATTER WHAT ITS VALUE? YES!

CAN YOU TELL ME HOW IT WILL ENHANCE THE VALUE? NO. IT CAN'T AND SPECIAL ASSESSMENT.

THERE ARE CERTAIN ATTRIBUTES OF A SPECIAL ASSESSMENT, AS OPPOSED TO THE ATTRIBUTES OF A TAX. WHAT ARE THE ATTRIBUTES OF THE TAX HERE?

WELL -- I THINK IT GOES --

IF YOU PUT IT IN THE TAX CATEGORY, AND WHAT ARE THESE SPECIAL ATTRIBUTES THAT YOU WOULD USE FOR MAKING THAT DETERMINATION?

WELL, YOU KNOW, JUSTICE SHAW, WHAT YOU MADE CLEAR RECENTLY, THE COURT MADE CLEAR RECENTLY IN THE BROWARD COUNTY CASE, WHERE YOU HAD AN UNANIMOUS OPINION OF THE COURT, IS THAT YOU GO BACK TO BOCA RATON AND RECOGNIZE THAT, WAIT A SECOND, ANYTHING THAT DOESN'T MEET THE CRITERIA OF SPECIAL ASSESSMENT OR PERMISSIBLE FEE IS BY DEFINITION, A TAX RESPECT AND IT IS EITHER AUTHORIZED OR IT IS NOT. SPECIAL ASSESSMENTS HAVE TO MEET THOSE TWO SPECIFIC CITE EAR YEAH. THEY HAVE TO BE FAIRLY APPORTIONED, BASED ON THE ENHANCED VALUE BROUGHT TO THE PROPERTY, AND THEY HAVE TO BRING --

YOU WOULD MAKE IT A TAX BY DEFAULT RATHER THAN YOU ARE UNABLE TO GIVE ME 1, 2, 3, 4, 5. THESE ARE THE ATTRIBUTES OF A TAX AND THIS IS WHAT WE HAVE HERE.

AGAIN, YOUR HONOR, I HAVE TO DO IT THE OTHER WAY AROUND, BECAUSE THAT IS THE WAY THE COURTS HAVE ANALYZED IT THE OTHER WAY AROUND. WHEN ARTICLE 7, SECTION 9 WAS PASSED, IT ELIMINATED THE ABILITY OF LOCAL GOVERNMENT TO, IN FACT, IMPOSE TAXES. YOU HAVE, THEN, SAID IN YOUR VARIOUS OPINIONS, THAT, IN FACT, THE WAY YOU FIND THINGS -- THE WAY YOU FUND THINGS ARE THROUGH USER FEES, INCLUDING CONNECTION FEES, IMPACT FEES, WHICH LOCAL GOVERNMENTS HAVE THE POWER TO EMPOSE -- TO IMPOSE, SPECIAL ASSESSMENTS. EVERYTHING ELSE IS A TAX, AND IT IS EITHER BEING PROPERLY AUTHORIZED AND IMPLEMENTED OR NOT. WE SUGGEST, IF IT LOOKS LIKE A TAX AND IT WALKS LIKE A TAX AND IT CRACKS LIKE A TAX, IT IS A TAX.

BUT YOUR OPPOSITION WOULD SAY THIS IS AN AVAILABILITY FEE, AS SUCH. THESE LINES ARE AVAILABLE TO THIS GEOGRAPHIC AREA.

AND WE SUGGEST THAT NOWHERE IN YOUR OPINIONS HAVE YOU EVER SUGGESTED THAT AN INFRA INSTRUCT USER CONSTRUCTION FEE TO MAKE A -- AN IN -- AN INFRASTRUCTURE CONSTRUCTION FEE TO MAKE USE USABLE IS ANYTHING OTHER THAN A TAX. THE COUNTY POINTS OUT, FOR SOME OF ITS PROPOSITION HERE, THAT THIS IS AN AUTHORIZED FEE. FOR EXAMPLE IT LOOKS TO 372.250. BUT IF WE LOOK AT THAT STATUTE AND WE GO TO 250, WE SEE THAT RECLAIMED WATER MAY BE AVAILABLE WHEN AN UTILITY EXISTS, THE COUNTY, WHICH PROVIDES RECLAIMED WOOTER, THE COUNTY, WHICH HAS UNCOMMITTED RECLAIMED WATER CAPACITY, WHICH THE COUNTY DID, AND WHICH HAS DISTRIBUTION FACILITIES, WHICH IS WHAT THESE PIPES ARE, WHICH ARE INITIALLY PROVIDED BY THE UTILITY AT ITS COST. TO THE SITE OF THE AFFECTED APPLICANTS' PROPOSED USE. THEY DON'T WANT TO DO. THAT THEY WANT TO MAKE THE PEOPLE ON THE BEACHES PAY FOR THAT DISTRIBUTION FACILITY. I SUGGEST THIS STATUTE SAYS THEY HAVE TO DO THAT AT THEIR OWN COST, IF THEY ARE GOING TO RELY ON IT. SIMILARLY THEY LOOK 403.064 AND THEY SAY WE CAN'T CHARGE A FEE IF WE APPORTION IT IN A REASONABLE MANNER. WE SUGGEST THAT IS THE LEGISLATURE SAYING YOU HAVE TO EITHER DO A TAX, WHICH, SINCE YOU ARE GOING TO IMPOSE IT FOR MORE THAN TWO YEARS, YOU NEED A REFERENDUM TO, IN FACT, AUTHORIZE, IT OR YOU HAVE TO HAVE A CONNECTION AND USER FEE, WHICH WE DID NOT CHALLENGE, REMEMBER. THE CONNECTION AND USER FEES ARE VALID, UNDER FLORIDA LAW. THE AVAILABILITY CHARGE IS NOT. INTERESTINGLY ENOUGH, IN .064, THERE WAS, ALSO, SOME DIRECTION FOR PRIVATE UTILITIES THAT ARE UNDER THE PUBLIC SERVICE COMMISSION, AND IT, ALSO, REFERENCES BACK TO 367.0817. YOU READ THOSE STATUTES TOGETHER AND YOU KNOW WHAT THEY SAY? PRIVATE UTILITIES WHO WANT TO PROVIDE RECLAIMED WATER MAY DO SO, PROVIDED THAT THE COSTS ARE PASSED ON TO ALL OF THEIR CUSTOMERS THROUGH THE RATE BASE. AND, IN FACT, IN A 1998 DECISION OF THE FIRST DISTRICT COURT OF APPEALS, WHICH IS SOUTHERN STATE UTILITIES VERSUS FLORIDA PUBLIC SERVICE COMMISSION, THE COURT, IN FACT, REVERSED THE PFC RULING, WHICH HAD ATTEMPTED TO EXCLUDE THE RECLAIMED WATER SYSTEM CONSTRUCTION COST FROM THE RATE BASE, BECAUSE THAT IS WHERE THEY BELONG. THAT IS WHERE THEY BELONG. WHAT WE HAVE HERE IS A SITUATION IN WHICH, RATHER THAN SPREAD THE COSTS OF THIS ENTIRE PROJECT OVERALL OF THE CITIZENS OF THE COMMUNITY OR OVERALL OF THE CITIZENS WHO ARE GENERATING THE WASTE WATER, WHICH IS THE SOURCE OF THE PROBLEM, THEY HAVE CHOSEN TO SELECT OUT A PORTION OF THE COST AND HAVE IT IMPOSED ON A MINORITY GROUP OF PEOPLE IN THE COMMUNITY, WHETHER THEY WANT THIS SYSTEM OR NOT. WE SUGGEST THAT IS AN ILLEGAL TAX. IT IS NOT A PROPER FUNDING MECHANISM FOR A BOND, AND THEREFORE THE BOND VALIDATION FAILED, AND THE TRIAL JUDGE WAS PROPNER COMING TO THAT CONCLUSION.

IN TERMS -- PROPER INCOMING TO THAT CONCLUSION.

IN TERMS OF THE SPECIAL BENEFIT, IF THE PERSON WHO IS RECEIVING THIS WATER, USES, IS THERE ANY TESTIMONY ABOUT THE FACT THAT THE WATER BILL WILL BE DECREASED BECAUSE OF USING THIS TYPE OF WATER, VERSUS THE REGULAR WATER?

WELL, AGAIN, YOUR HONOR, I WOULD HAVE TO SAY YES, THERE IS. CERTAINLY THE RECORD SUPPORTS THE IDEA THAT, IF YOU WANT RECLAIMED WATER, AND IF YOU CAN USE IT FOR SOME REASON, AND IN FACT, YOU SUBSTITUTE THAT RECLAIMED WATER FOR A PORTION OF YOUR POTABLE WATER COSTS, THEN AT LEAST THE USAGE PART OF YOUR WATER COSTS WILL CHANGE. NOW, NOBODY DEMONSTRATED THAT, IN FACT, THE $7 FEE WOULDN'T MAKE UP THAT DIFFERENCE. NOBODY HAS DEMONSTRATED, IN THE RECORD, THAT, IN FACT, THE NET BENEFIT TO A HOMEOWNER WHO CHOOSES TO USE RECLAIMED WATER, IF HE CAN, IS GOING TO BE EQUAL TO WHAT HIS PRESENT COSTS FOR POTABLE WATER ARE. THERE IS NO EVIDENCE TO SUPPORT THAT PROPOSITION IN THE RECORD. WHAT WE THINK WAS HIGHLY IMPORTANT HERE, THOUGH, WAS, AGAIN, UNDERSTAND ABOUT RECLAIMED WATER. I CAN'T CONNECT IT TO MY HOUSE. I CAN'T PUT IT IN MY BUILDING, WHERE SOMEBODY MIGHT MISTAKENLY DRINK IT. IT IS NOT THAT USEFUL TO THOSE PEOPLE WHO LIVE ON BEACHES WITH SER AN ESCAPED PROPERTY OR -- ZERASCAPED PROPERTY OR PEOPLE WHO HAVE NO GRASS, AND THAT IS WHY PEOPLE WANT TO OPT OUT OF THIS BECAUSE THEY HAVE NO USE FOR THIS.

WHY IS THAT NOT DIFFERENT OR THE SAME THING, IN A SITUATION THAT YOU DEAL WITH, WITH SOME TYPE OF A SOLID WASTE SERVICE OR SOMETHING LIKE THAT, AND THE PROPERTY OWNER WOULD SAY, WELL, MY PROPERTY IS VACANT. I REALLY DON'T WANT TO PARTICIPATE. SO THEREFORE WE NEED NOT HAVE AN INVALID FEE.

HERE IS A DIFFERENCE IN THIS CASE, JUDGE. AGAIN, IF THEY WANT TO CHARGE EVERYBODY IN THE COUNTY ON SOME RATIONAL, REASONABLE BASIS, FOR THIS PROJECT, I THINK THEY CAN DO THAT. IF THEY WANT TO SPREAD THE COST OUT OVER EVERY CITIZEN, BUT YOU SEE, THEY DIDN'T DO THAT HERE. THEY SAID, AS TO THIS DISCREET COST, WE ARE ONLY GOING TO MAKE THE PEOPLE IN THE BEACH COMMUNITIES PAY FOR IT. WHEN YOU HAD A CASE INVOLVING, OKAY, KT COUNTY IMPOSE A GARBAGE COLLECTION FEE ON EVERY PIECE OF LAND IN THE PROPERTY, IN THE COUNTY, THE ANSWER WAS YES, BECAUSE THAT WAS FUNDAMENTALLY A TAX, BUT IT WAS BEING IMPOSED ON EVERYBODY.

WELL, IS OUR STATUS OF FLORIDA LAW, ESSENTIALLY, THEN, THAT, IF THE GOVERNMENTAL UNIT PROVIDES SOME UTILITY TYPE SERVICE, THAT IS FOR A BENEFIT OF A PARTICULAR AREA, IT MAY HAVE SOME GENERAL BENEFIT TO THE ENTIRE COUNTY, BECAUSE OF THE NATURE OF IT, BUT YOU CANNOT, THEN, RECEIVE ANY TYPE OF COMPENSATION FROM THAT SPECIFIC AREA, BECAUSE TO DO SO RENDERS THAT AS A TAX, AS OPPOSED TO SOME TYPE OF A UTILITY FEE THEN.

I WOULD HAVE TO ABS THAT, NO, -- I WOULD HAVE TO ANSWER THAT, NO, I THINK THAT PAINTS THE BRUSH A LITTLE TOO BROAD.

WHERE DO WE NARROW THAT BRUSH, PLEASE.

IN THAT CASE I THINK YOU NARROW IT BY LOOKING AT THE QUESTION OF WHAT IS IT BEING CHARGED FOR. OKAY. WHAT IS IT BEING CHARGED FOR. THE WASTE WATER SERVICES ARE BEING CHARGED FOR UNIFORMLY ACROSS THE COUNTY.

LET'S MAKE SURE WE UNDERSTAND. WE ARE TALKING ABOUT JUST DISTRIBUTION PIPES THAT RUN FROM A TRANSMISSION SYSTEM TO EACH PIECE OF PROPERTY. CORRECT SOME.

CORRECT.

OKAY. SO -- CORRECT?

CORRECT.

SO THAT WE ARE REALLY NOT TALKING ABOUT THE ENTIRE TRANSMISSION SYSTEM. WE ARE TALKING ABOUT ONLY THE PIPES THAT GO TO THE COMPLAINING OWNER'S PROPERTY.

CORRECT.

OKAY. SO LET'S GO FROM THERE WITH THAT STORY.

I FIND NOTHING IN FLORIDA LAW THAT SUGGESTS THAT THAT FEE FOR THE DISTRIBUTION FALSE WITHIN WHAT YOU HAVE RECOGNIZED TO BE EITHER AN IMPACT FEE, A USE FEE, OR A CONNECTION FEE.

AND IT CANNOT BE CHARGED AS PART OF ANY TYPE OF A UTILITY FEE.

NOT TO THE INDIVIDUALS, IF IT IS NOT SPREAD OUT OVER THE ENTIRE COMMUNITY. THAT IS OUR POSITION.

EVEN THOUGH --

IT COULD BE A SPECIAL ASSESSMENT. IF IT MEETS THE CRITERIA OF SARASOTA AND THAT LINE OF CASES, COULDN'T IT?

WELL, OUR POSITION, JUSTICE WELLS, IS THAT THEY DIDN'T MEET THE CRITERIA -- COULD A SPECIAL ASSESSMENT BE DONE UNDER THE RIGHT CIRCUMSTANCES? YES. CAN'T DENY THAT. CAN'T DENY THAT, AND THAT WOULD BE THE APPROPRIATE WAY TO DO IT. THAT IS WHY WE DIDN'T CHALLENGE THE USER AND CONNECTION FEES, BECAUSE THEY WERE APPROPRIATE.

IF THEY HAD CALLED THIS A CONNECTION FEE INSTEAD OF AVAILABILITY, WITH WOULD IT MAKE ANY DIFFERENCE?

NO. I DON'T THINK IT MATTERS WHAT YOU CALL IT, JUDGE. I THINK YOU HAVE TO LOOK AT THE UNDERLYING FACTS OF WHAT IS ACTUALLY BEING PROVIDED. HOW IS IT BEING FUNDED.

AS I UNDERSTOOD THE ARGUMENT EARLIER, THERE ARE SOME OTHER PARTS OF THE COUNTY THAT HAVE RECLAIMED WATER?

YES.

AND I WOULD ASSUME THAT, IN THOSE AREAS, YOU, ALSO, HAVE THESE CONNECTION PIPES.

AND I HAVE NO REASON TO BELIEVE, AND COUNSEL CAN CORRECT ME, IF I AM WRONG, BUT WHEN THOSE DISTRIBUTION LINES WERE PUT IN, THERE WAS NOT THAT FEE FOR DISTRIBUTION.

HOW WAS IT FUNDED?

I DON'T KNOW HOW IT WAS EXACTLY FUNDED, OTHER THAN I DO, MY UNDERSTANDING OF 6 THE FACTS IS IT WAS NOT UNDER -- OF THE FACTS IS IT WAS NOT FUNDED THIS WAY. WHETHER IT WAS PART OF THE OVERALL COST OF THE SYSTEM AT THE TIME OR FUNDED THROUGH SOME OTHER MECHANISM, BUT I AM NOT AWARE OF A BOND VALIDATION, BASED ON THE DISTRIBUTION CONSTRUCTION CHARGE FEE, BASED ON THAT SYSTEM.

I AM NOT SURE ABOUT YOUR TIME, BUT IT SEEMS TO ME THAT YOU MAY BE INTO HER TIME.

IT IS TIME FOR ME TO ALLOW MS. KING TO TALK. THANK YOU.

MAY IT PLEASE THE COURT. I AM C MARIE KING, ASSISTANT STATE ATTORNEY FOR THE SIXTH JUDICIAL CIRCUIT, AND IT IS THE STATE'S POSITION THAT IT IS NOT A VALUE ID SPECIAL ASSESSMENT BECAUSE -- VALID SPECIAL ASSESSMENT BECAUSE IT DOES NOT MEET THIS COURT'S TWO-PRONGED TEST FOR A VALID SPECIAL ASSESSMENT AND I WOULD LIKE TO START WITH THE FIRST PRONG. IT WORKS BEST THAT WAY. THIS PARTICULAR ASSESSMENT CANNOT BE REASON WILL AND FAIR, WHEN, ACCORDING TO THE COUNTY'S OWN TESTIMONY, THEY ARE ABLE TO PROVIDE RECLAIMED WATER TO ONLY ONE OF EVERY FOUR HOUSEHOLDS THAT PRODUCES THE SEWER WATER TO BE RETREATED AS RECLAIMED WATER. IN OTHER WORDS THESE CITIZENS ON THE BEACHES ARE BEING CHARGED FOR SEWER WATER TREATMENT THAT WAS PRODUCED NOT ONLY BY THEIR HOUSEHOLDS BUT BY THREE OTHER HOUSEHOLDS AS WELL. THEY ARE NOT BEING CHARGED --

THAT IS RECLAIMED WATER, THOUGH, IS THAT IT TAKES FOUR HOSE HOLDS TO PRODUCE ENOUGH FOR ONE. THAT IS THE NATURE OF IT.

EXACTLY. SO THE FOUR HOUSEHOLDS PRODUCING THE SEWER WATER THAT IS BEING TREATED ARE BENEFITING FROM THE DISPOSAL. THEREFORE WE FEEL IT IS UNFAIR TO CHARGE THE ONE FOURTH OF THE CUSTOMERS FOR THAT DISPOSAL OF THE TREATED SEWER WATER.

BUT THEY WILL HAVE THE BENEFIT OF BEING ABLE TO USE RECLAIMED WATER AND --

THAT IS THE FIRST PRONG.

THEN THEY WILL HAVE, ALSO, THE WATER RESTRICTIONS AND THOSE TYPES OF THINGS THAT ARE INVOLVED IN OTHERWISE DAILY LIVING.

THAT GOES TO THE FIRST PRONG, THEN, AS TO WHETHER OR NOT THIS MEETS THE CRITERIA FOR A SPECIAL BENEFIT. WE TAKE THE POSITION THAT IT IS GOING TO HAVE TO MEET BOTH PRONGS, TO A VALID ASSESSMENT, BUT WE FEEL IT DOES NOT MEET THE FIRST PRONG, EITHER, AS SPECIAL BENEFIT TO THE PROPERTY. NOW, WHAT IS RECLAIMED WATER. IT HAS BEEN DISCUSSED HERE TODAY, IN THAT IT HAS VERY LIMITED USE, AND IT IS NOT THE LIKE 9 SEWER AND THE WATER -- LIKE THE SEWER AND THE WATER SERVICE, WHICH HAS, BEEN BY LAW ASSUMED THAT EVERYONE IS GOING TO HAVE A NEED AND NECESSITY FOR. THE USE OF WATER TO WATER YOUR YARD IS NOT A NECESSITY. IT DOES NOT EQUATE WITH THE SAME KIND OF A SERVICE AS SEWER AND WATER, WHICH EVERYONE IS GOING TO HAVE TO USE. IT IS NOT A NECESSITY. IT IS NO MORE A SPECIAL BENEFIT THAN IF THE COUNTY HAD A QARD A COUNT OF CHARTREUSE PAINT ---A QUANTITY OF CHARTREUSE PAINT AND ANNOUNCED AN AVAILABILITY FEE FOR ALL OF 9 CITIZENS OF -- ALL OF THE CITIZENS OF THIS ONE AREA TO HAVE AVAILABLE TO THEM A CHARTREUSE PAINT.

IS IT REALLY THAT EXTREME? IS FIRE SERVICE A NECESSITY?

I THINK IT IS, YOUR HONOR. FIRE SERVICE IS GOING TO BE A NECESSITY.

BUT WE DON'T HAVE TO HAVE, IN OTHER WORDS, I AM SURE THERE ARE LOTS OF HOMEOWNERS OUT THERE THAT WOULD SAY, NO, I DON'T WANT IT. THEY DON'T NEED A FEE TO PAY FOR IT.

IT IS ALL RIGHT IF YOU WANT IT LET YOUR OWN HOUSE BURN DOWN, BUT YOU WILL LET YOUR NEIGHBOR'S HOUSE BURN DOWN, AS WELL. IT IS NOT THE SAME KIND OF A BENEFIT, BECAUSE IT DOES NOT INVOLVE THE SAFETY OF THE COMMUNITY, AS DOES THE FIRE PROTECTION.

IN OTHER WORDS FOR A HOMEOWNER TO MARKET THEIR HOUSE TO SOMEBODY ELSE --

THAT IS PURELY A COMMERCIAL INTEREST THAT A CITIZEN SHOULD HAVE THE RIGHT TO OPT OUT OF. THEY CAN PAINT THEIR HOUSE CHARTREUSE IF THEY WANT TO BUT THEY DON'T HAVE TO, BUT THEY CAN'T BE CHARGED FOR THE AVAILABILITY OF THAT KIND OF A NONNECESSITY, AND I WOULD NOT EQUATE IT WITH THE SAFETY OF FIRE PROTECTION AT ALL. IT IS MERELY WATERING YOUR YARD, SO WE FEEL THAT IT DOES NOT MEET EITHER PRONG OF THIS TEST AND THAT THE LEGISLATURE SIMILARLY HAS FELT, IN ITS PRONOUNCEMENTS ABOUT THE NEW IDEA OF THIS RECLAIMED WATER, THAT THEY HAVE RECOGNIZED THE DIFFERENCES, AND THOSE DIFFERENCES APPEAR IN CHAPTER 153, BUT ADDITIONAL AE -- ADDITIONALLY IN CHAPTER 153.086, THE PREAMBLE TALKS ABOUT THIS SHOULD BE AN INCENTIVE FOR THE USE OF RECLAIMED WATER BY CUSTOMERS. THAT WOULD BE A CARROT APPROACH. THE COUNTY IS APPLYING A STICK APPROACH. YOU HAVE TO USE THIS WATER. THE STATE ALSO TALKED, IN CHAPTER 373.250, OF THE FACT THAT THE DISTRIBUTION OF RECLAIMED WATER IS A UTILITY COST INITIALLY, AND IF IT IS A UTILITY COST, THAT MEANS IT IS A COST OF THE GENERAL UTILITY THAT CAN ONLY BE CHARGED TO THE GENERAL PUBLIC OF THE UTILITY, SO THE DISTRIBUTION LINES HAVE BEEN RECOGNIZED BY THE LEGISLATURE, IN THAT PARTICULAR SECTION, 373.250(2)(B), THAT THE DISTRIBUTION LINES ARE A COST OF THE UTILITY. THAT MEANS A GENERAL BENEFIT THAT CAN ONLY BE CHARGED TO THE GENERAL PUBLIC. WE FEEL THAT IT IT AN INVALID SPECIAL ASSESSMENT.

THANK YOU. REBUTTAL.

AS YOU START, WOULD YOU ADDRESS WHETHER YOU, THE COUNTY MAINTAINS THAT THIS IS OR IS NOT A SPECIAL ASSESSMENT. OR SHOULD COME WITHIN THAT LINE OF CASES OF SARASOTA COUNTY AND LAKE COUNTY CASE AND --

YES, JUSTICE WELLS. HE WOULD BE HAPPY TO DO. THAT I THINK THE AND LEASE WOULD HAVE YOU BOX PINELLAS COUNTY IN TO HAVING IT EITHER BE A SPECIAL ASSESSMENT OR A TAX, AND THEY WOULD HAVE YOU IGNORE DECADES OF UTILITY LAW IN THIS AREA, WHICH IS STATED YOU CAN HAVE MANDATORY FEES. I THINK THE COUNTY'S POSITION IS THAT, IF THIS COURT DOES NOT FIND THAT IT IS A VALID UTILITY FEE, IMPOSED UNDER 403, THE SPECIAL ACTS, CHAPTER 180 AND CHAPTER 373, THEN THE COURT COULD GO SO FAR AS TO LOOK AT THIS AS BEING A SPECIAL ASSESSMENT. IT DOES, AND THE COUNTY, IN FACT, AS THE LEGISLATIVE BODY MAKING THE DETERMINATION OF HOW THEY WANTED TO APPROACH THIS, DIDN'T SET IT UP AS A SPECIAL ASSESSMENT.

WHAT DID THE COUNTY DO, AS FAR AS THIS TYPE OF INFRASTRUCTURE IN CURLO, FOR INSTANCE.

THE COUNTY, THERE IS A SYSTEM IN THE NORTH PART. AND THE COUNTY DID MORE OF WHAT YOU CONSIDER AN IMPACT FEE, BECAUSE IT WAS NEW GROWTH, AND THEY PAID IT WITH DEVELOPMENT.

THEY WERE BASICALLY DONE AS HOOK UP FEES?

AS IMPACT FEES, IF YOU WILL.

SOUGHT BUILDER PAID AT THE TIME THAT THE HOUSE WAS BUILT.

THAT'S CORRECT. AND ANOTHER AREA OF THE COUNTY, THE TIERRA VERDE AREA, WHICH IS THE SOUTHERN MOST COASTAL AREA IN PLACE, THE COUNTY WENT IN AND THOUGHT THEY WERE GOING TO DO A SPECIAL ASSESSMENT AND HAD PUBLIC HEARINGS WITH THE CITIZENS AND DETERMINED THAT THE SIT TENTHS WOULD PREFER TO HAVE THIS AS A UTILITY FEE ON THEIR UTILITY BILL RATHER THAN LIENING THEIR HOMESTEAD, SO THE COUNTY DISAGREES WITH THE FACT THAT YOU HAVE TO FIND DEFINE THIS AS A SPECIAL ASSESSMENT OR A SPECIAL TAX.

WHAT ABOUT THE IDEA THAT, IF THIS IS A SPECIAL UTILITY COST OR FEE, THAT IT CAN BE SPREAD THROUGHOUT THE UTILITY USERS.

THE ANSWER IS THAT IT IS BEING SPREAD IN THAT FASHION. THAT HAS BEEN NOT BEEN SHOWN TO BE ARBITRARY OR CAPRICIOUS. THERE ARE NO FINDINGS IN THE RECORD THAT THE COUNTY ALWAYS ALLEGATIONS OF THIS COST HAVE -- THE COUNTY ALWAYS ALLOCATIONS OF THIS COST HAVE BEEN DONE IN AN ARBITRARY OR CAPRICIOUS MANNER. IT IS SHOWN THAT THEY DID MAKE THE DIFFERENTIATION IN THE CLASS OF USERS. I WOULD LIKE TO GO BACK TO THE IDEA THAT THEY ARE NOT --

I THINK THE POINT THAT I UNDERSTAND YOUR OP THINKS MAKING ABOUT THE OTHER AREAS OF COUNTY, UP IN THE NORTH PART OF THE COUNTY, UP IN CURLEY AND THAT -- UP IN CURLEW AND THAT AREA, YOU DID IT AS AN IMPACT FEE.

RIGHT AND NOW BEING DONE AS A UTILITY.

NOW, RATHER THAN DOING IMPACT FEES, YOU CAN'T DO IMPACT FEES BECAUSE THERE IS NOT ANYBODY BUILDING ON THERE.

CORRECT. SO YOU DO THIS AS SHOWN AS AN AVAILABILITY CHARGE, BECAUSE OTHERWISE THESE PEOPLE HAVE A WINDFALL. OTHERWISE WHAT YOU ARE HAVING HAPPEN IS THAT YOU ARE GOING TO HAVE THESE BENEFITS TO THESE PARTICULAR PROPERTIES, AND ALL THEY ARE -- THOUGH THEY ARGUE THERE ARE CERTAIN SUBCLASSES OF A FEW PEOPLE THAT WON'T USE IT, THEY ALL USE POTABLE WATER. WE ALL DRINK WATER, AND WHAT THE TESTIMONY IS, AT THE TRIAL COURT AND WHAT THE ENGINEERING REPORTS REFLECT IS THAT THE PRIMARY GOAL WE HAVE IS THAT IT IS DRIVING THIS, AND THE WATER SYSTEM.

BUT THE DISPARITY, THE THING THAT I AM TRYING TO WORK THROUGH IS THE PEOPLE THAT ARE LIVING IN CURLEW, THAT ARE BUYING A HOUSE IN CURLEW TODAY, SOMEBODY ELSE PAID THAT IMPACT FEE. THEY ARE NOT BEING CHARGED THIS THING.

IT WENT INTO THE BASIS OF THEIR HOUSE WHEN THEY PURCHASED THE HOUSE.

BUT THEY ARE NOT, TODAY, BEING CHARGED --

THEY ARE BEING CHARGED THE RECLAIM WATER FEES FOR THE USE OF THE RECLAIMED WATER. THEY ARE.

DID YOU SAY THERE IS ANOTHER AREA, THOUGH, THERE ARE UTILITY FEES BEING CHARGED?

THE TIERRA VERDICT' AREA OF -- THE TIERRA VERDE AREA OF THE COUNTY, AN UNINCORPORATED AREA OF THE COUNTY, THEY HAVE, IN PLACE, THIS SYSTEM.

THEY DIDN'T CHALLENGE?

CORRECT. WHEN YOU SAY IT WASN'T CHALLENGED, I WOULD SAY THAT THE CITIZENS WERE HEARD ON THAT MATTER, AND THEY VERY CLEARLY STATED THAT THEY WANTED IT DONE AS A UTILITY FEE, AS AVAILABILITY FEE.

SAME AS HERE.

CORRECT, YOUR HONOR.

IN TERMS OF NUMBERS, DO WE KNOW, SAY, IN A COMPARABLE AREA, ARE WE TALKING ABOUT HALF OF THE HOMEOWNERS ARE USING IT? 90%?

WHAT THEY HAVE SHOWN AND THERE WAS A STUDY DONE IN THE ENGINEERING REPORT IN THE SOUTHERN PORTION OF THE COUNTY, IS THAT THE INCREASE OCCURS OVER A PERIOD OF TIME. AT FIRST PEOPLE MAY NOT WANT TO USE IT OR MAY NOT USE T.

IT MAYBE A PSYCHOLOGICAL ASSESSMENT.

OR THEY APPRECIATE THE NEIGHBOR'S LANDSCAPING OR WHATEVER, AND IT TAKES TIME BEFORE THE POTABLE USE IS SUPPLANTED BY THE NONPOTABLE WATER. I THINK IT IS IMPORTANT TO TALK ABOUT THE FACT THAT THESE PEOPLE ARE USING THE WATER, AND THAT YOU CAN'T FORCE THE COUNTY INTO PIGEON HOLING THIS INTO SOME KIND OF A MANDATORY LIEN ON HOMESTEAD IN GOING TO THE SPECIAL ASSESSMENT. THEY ARE USED TO USING THEIR UTILITY BILLS IN ORDER TO RECANT YOUR THESE TYPES OF CAPITAL COSTS, AND YOU HAVE TO LOOK AT THIS COURT'S LONG STANDING TRADITIONAL UTILITY LAW, AND THE CASES ON POINT, ALTHOUGH, THE AND LEASE WOULD HAVE YOU BELIEVE THAT THERE ARE CASES ON POINT, THAT IT REALLY HAS NEVER BEEN THE LAW, AND THIS WOULD BE A DEPARTURE FROM A LONG-STANDING UTILITY LAW THAT STATES TO PROHIBIT A COUNTY IN PROVIDING WATER TO ITS CITIZENS, FROM CHARGING THESE TYPE OF CAPITAL COSTS THROUGH TO THEM.

THEN YOU WOULD DISTINGUISH THAT FROM PORT ORANGE, FROM THE TRANSPORTATION FEE IN PORT ORANGE, ON THE BASIS OF CHAPTER 180?

CHAPTER 180 IS A VERY IMPORTANT CHAPTER. I THINK CHAPTER 180, THOUGH, ON ITS FACE, IT APPLIES TO CITIES. WHEN YOU HAVE A HOME RULE COUNTY, THE HOME RULE COUNTY IS ALLOWED, UNDER ITS HOME RULE POWERS, TO DO ANYTHING THAT IS NOT --

THE MUNICIPALITY.

CAN DO ANYTHING THAT A MUNICIPALITY CAN DO OR IS NOT IN CONFLICT WITH ANY GENERAL LAW, AND HERE 180.02, IT GOES SO FAR AS TO SAY THE COUNTY CAN HAVE A MANDATORY HOOK UP REQUIRED. THE COUNTY HASN'T GONE AS FAR AS THE STATUTE ALLOWS THE COUNTY TO DO, IN FOLLOWING THE MANDATES OF THE LEGISLATURE INPUTING IN THE RECLAIMED WATER -- IN PUTING IN THE RECLAIMED WATER. I WOULD LIKE TO RECOMMEND A COUPLE OF CASES TO LOOK AT, IN LOOKING AT HOW THESE UTILITY FEES ARE IMPLEMENTED OVER THE YEARS. WE LIVE IN A CIVILIZED COUNTRY. WE LIVE IN A HIGHLYLY-DEVELOPED COUNTRY, AND IT IS LONG HELD THAT WE CAN REQUIRE HOOKUPS TO WATER AND SEWER AND REQUIRE MANDATORY WATER FEES IN THE GARBAGE CASE AND THIS IS NO DIFFERENT THAN, FOR EXAMPLE, THE MEXICO BEACH CASE THAT CAME BEFORE YOU IN 1977, WHEN YOU SAID, YES, YOU CAN HAVE A MANDATORY FLAT RATE FOR GARBAGE, IRRESPECTIVE OF WHETHER YOU ARE IN YOUR CONDOMINIUM AND PUTTING YOUR GARBAGE OUT OR NOT, BECAUSE THAT IS A FUNCTION THAT COUNTY GOVERNMENT CAN UNDERTAKE.

WHY WASN'T IT PUT DOWN AS A HOOKUP FEE AS OPPOSED TO AN AVAILABILITY?

WHY DIDN'T THE COUNTY CHOOSE?

THAT'S RIGHT.

I THINK THE COUNTY LOOKED AT ENCOURAGING PEOPLE TO USE THIS PARTICULAR RECLAIMED WATER SOURCE, AND IN ORDER TO FAIRLY ALLOCATE THE COSTS OVER THE BENEFITED PROPERTIES, THEY DETERMINED THAT THEY CHARGED $7. THAT EQUATES DIRECTLY TO THEIR COSTS RESPECT AND THEY WOULD CHARGE ANED ANITIONAL $2 FOR FOR-CHARGE AN ADDITIONAL $2 FOR THE -- AN ADDITIONAL $2 FOR THE USAGE OF THE WATER.

WOULDN'T THE HOOKUP FEE APPLY?

THE HOOKUP FEE WOULD BE EXTREME. I THINK, IN GOING FURTHER, THEY COULD HAVE LEGALLY DONE IT THAT WAY, BUT CLEARLY I THINK THEY COULD HAVE GONE THE WAY THEY DID IN CHARGING THIS AVAILABILITY FEE TO THE PARTICULAR CLASS OF USERS.

YOU HAVE ONE MORE CASE AND THEN YOUR TIME IS --

I WOULD LIKE TO ALSO RECOMMEND THE CITY OF MIAMI SPRINGS CASE IN 1946, WHICH BASICALLY SAYS THE FLAT RATE FOR SEWER CHARGES AND WATER SEWER CHARGES OF THIS NATURE ARE NOT TAXES.

THANK YOU.

WE WOULD LIKE TO, ALSO, REQUEST THAT YOU LOOK AT THAT 153 CONSENT ISSUE AND OVERTURN THE TRIAL COURT ON. THAT THANK YOU.

THANK YOU VERY MUCH.