        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         CITY OF COOPER CITY,
                               Appellant,

                                      v.

                 WALTER S. JOLIFF, BARBARA JOLIFF
                      and BRENDA J. KEZAR,
                             Appellees.

                              No. 4D16-2504

                           [September 27, 2017]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Marina Garcia-Wood, Judge; L.T. Case No. CACE11-
012602 18.

    Edward G. Guedes and Adam A. Schwartzbaum of Weiss Serota
Helfman Cole & Bierman, P.L., Coral Gables, Jamie A. Cole and Matthew
H. Mandel of Weiss Serota Helfman Cole & Bierman, P.L., Fort Lauderdale,
for appellant.

  Christopher J. Lynch of Christopher J. Lynch, P.A., Coral Gables, and
David Frankel, P.A., Fort Lauderdale, for appellees.

KUNTZ, J.

   The City of Cooper City appeals the court’s final judgment in favor of
the Plaintiffs, a class of citizens challenging the city’s special assessment.
The court found the special assessment void and, therefore, found its
twenty-day deadline to challenge it inapplicable. We disagree. The
Plaintiffs limited their challenge to Cooper City’s apportionment of the
special assessment and the improper apportionment of a special
assessment renders it voidable. As a result of the special assessment
being voidable, rather than void, the deadline to challenge the special
assessment applied and the Plaintiffs failed to timely challenge it.
Therefore, we reverse the court’s judgment and remand for entry of
judgment in favor of Cooper City.
                                Background

   In 1999, Cooper City passed Ordinance 99-7-1, levying a special
assessment for Fire Rescue Services. The ordinance defined “Fire Rescue
Services” as “Emergency Medical Services and Rescue Services.”

   Three years later, in City of North Lauderdale v. SMM Properties, Inc.,
825 So. 2d 343 (Fla. 2002), our supreme court held that emergency
medical services do not provide a “special benefit” to property and,
therefore, cannot be the basis for a special assessment. In accordance
with that decision, Cooper City amended the ordinance, removing the term
“emergency medical services” from the definition of “Fire Rescue Services.”
Thereafter, for 2006, 2007, 2008, and 2009, Cooper City passed annual
resolutions implementing the special assessment without emergency
medical services as an item for which the property owner was being
assessed.

    In 2011, the Plaintiffs filed a two-count putative class action lawsuit
against Cooper City. Count I sought damages for assessments collected
for the years 2006 through the present; and Count II sought a declaratory
judgment determining “the Fire Protection Assessment set forth in the
Ordinance lacks foundation and thus is improperly apportioned.”

    The court granted a motion to certify the putative class and certified
the class as “[a]ny and all record title owners of residential real property
located within Cooper City subject to the Cooper City Fire Rescue
Assessment, who paid the Cooper City Fire Rescue Assessment for the
fiscal tax years commencing October 1, 2006, 2007, 2008, and 2009.” We
affirmed the court’s class-certification order. Cooper City v. Joliff, 126 So.
3d 1066 (Fla. 4th DCA 2013) (table).

   After we affirmed the certification order, the Plaintiffs renewed a
previously-filed motion for summary judgment. Cooper City filed its own
motion for summary judgment, asking the court to decide whether a
twenty-day deadline contained in the ordinance barred the Plaintiffs’
claims. The relevant provision in the ordinance stated:

      The adoption of the final assessment resolution shall be the
      final adjudication of the issues presented (including, but not
      limited to, the determination of special benefit and fair
      apportionment to the assessed property, the method of
      apportionment and assessment, the initial rate of assessment,
      the initial assessment roll, and the levy and lien of the Fire
      Assessments), unless proper steps shall be initiated in a court

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      of competent jurisdiction to secure relief within twenty (20)
      days from the date of the city commission action on the final
      assessment resolution.

(Emphasis added). The Plaintiffs argued the twenty-day deadline in this
provision was inapplicable; that rather, the four-year statute of limitations
in section 95.11, Florida Statutes (2011), controlled the time within which
they were required to file their complaint. Therefore, they asserted that
even if the claims were voidable, the majority of their claims were timely
filed.

   On the merits, the Plaintiffs argued to the court that after our supreme
court’s opinion in SMM Properties, “most municipalities . . . went back and
they recalculated and they figured out what their appropriate assessment
would be for just fire to comply with the law.” However, they argued,
“Cooper City didn’t catch it” and for each of the assessments at issue, its
methodology continued to rely on a study that included emergency medical
services as a component. As such, they argued the assessments were void.

   The court granted the Plaintiffs’ motion for summary judgment, denied
Cooper City’s motion, and found the special assessments void.
Importantly, the Plaintiffs then moved to voluntarily dismiss Count I and
to amend Count II, seeking supplemental relief for the second count. The
court granted the motion, and then entered final judgment in favor of the
Plaintiffs.

   Cooper City appealed, asking that we reverse the court’s judgment in
favor of the Plaintiffs and enter judgment in its favor or, alternatively,
reverse the summary judgment for further proceedings.

                                 Analysis

A. Taxes and Special Assessments – Generally

    Taxes are unavoidable. Hamilton explained that “a complete power to
procure a regular and adequate supply of revenue . . . may be regarded as
an indispensable ingredient in every constitution.” The Federalist No. 30,
at 188 (Alexander Hamilton) (C. Rossiter ed., 1961). However, the power
to tax is not absolute. As Jefferson countered, a government is “not to lay
taxes ad libitum for any purpose they please; but only to pay the debts or
provide for the welfare of the Union.” Thomas Jefferson, Opinion on the
Constitutionality of a National Bank (1791), reprinted in Michael S.



                                     3
Paulsen, Our Constitution: Landmark Interpretations of America’s
Governing Documents 17, 19 (2012).

    The people of Florida have included a limitation on the government’s
power to tax in our state constitution. See, e.g., Art. VII, §§ 1(a), 9(a), Fla.
Const. Relevant here is the fact that local governments lack the “authority
to levy taxes, other than ad valorem taxes, except as provided by general
law.” Desiderio Corp. v. City of Boynton Beach, 39 So. 3d 487, 493 (Fla.
4th DCA 2010) (citing Collier County v. State, 733 So. 2d 1012, 1014 (Fla.
1999)).

   These limitations require local governments continually to seek to
expand their revenue other than through taxation. To do so, local
governments use various tactics such as user fees, impact fees, and
special assessments. At issue in this case are special assessments.

    When used properly, a tax and a special assessment are unique. A tax
is a burden “of contribution imposed by sovereign right for the support of
the government, the administration of the law, and to execute the various
functions the sovereign is called on to perform.” Klemm v. Davenport, 129
So. 904, 907 (Fla. 1930). A special assessment is “like a tax in that it is
an enforced contribution from the property owner, it may possess other
points of similarity to a tax, but it is inherently different and governed by
entirely different principles.” Id. A special assessment

      is imposed upon the theory that that portion of the community
      which is required to bear it receives some special or peculiar
      benefit in the enhancement of value of the property against
      which it is imposed as a result of the improvement made with
      the proceeds of the special assessment. It is limited to the
      property benefited, is not governed by uniformity, and may be
      determined legislatively or judicially.

Id.

   For almost a century, our supreme court has called upon local
governments to ensure the limitations on taxation set forth in our
constitution are not avoided by the blurring of the line between taxes and
special assessments. See, e.g., Morris v. City of Cape Coral, 163 So. 3d
1174 (Fla. 2015); SMM Props. Inc., 825 So. 2d at 343; Collier County, 733
So. 2d at 1012; Lake County v. Water Oak Mgmt. Corp., 695 So. 2d 667
(Fla. 1997); Harris v. Wilson, 693 So. 2d 945, 949 (Fla. 1997); Sarasota
County v. Sarasota Church of Christ, Inc., 667 So. 2d 180 (Fla. 1995); City
of Boca Raton v. State, 595 So. 2d 25 (Fla. 1992); City of Treasure Island

                                       4
v. Strong, 215 So. 2d 473 (Fla. 1968); Blake v. City of Tampa, 156 So. 97
(Fla. 1934); Klemm, 129 So. at 904; Atl. Coast Line R.R. Co. v. City of
Gainesville, 91 So. 118, 121 (Fla. 1922).

    These cases, and others, establish a two-prong test for the imposition
of a valid special assessment. First, the property to be assessed “must
derive a special benefit from the service provided.” City of Boca Raton, 595
So. 2d at 29 (citing Atl. Coast Line R.R. Co., 91 So. at 118). Second, the
“assessment must be fairly and reasonably apportioned among the
properties that receive the special benefit.” Id. (citing S. Trail Fire Control
Dist. v. State, 273 So. 2d 380 (Fla. 1973)). As discussed below, ultimately
it is only the second prong that is at issue in this case.

B. The Special Assessments Challenged by the Plaintiffs

   Now we turn to the special assessments at issue in this case. We review
the court’s order granting summary judgment de novo. Fla. Bar v. Cosnow,
797 So. 2d 1255, 1258 (Fla. 2001). However, we are required to give
greater deference to the legislative body that imposed the assessment.
Sarasota Church of Christ, Inc., 667 So. 2d at 184 (“[T]he standard is the
same for both prongs; that is, the legislative determination as to the
existence of special benefits and as to the apportionment of the costs of
those benefits should be upheld unless the determination is arbitrary.”).

   We note the parties simplified our task. The Plaintiffs’ complaint was
premised on challenges to both prongs of the two-prong test explained
above. First, they challenged whether the properties assessed would
benefit from the fire and emergency medical services for which they were
being assessed. Second, they challenged whether the assessments had
been properly apportioned among the assessed properties.

    The answer to the first question may have been simple, as our supreme
court has determined emergency medical services do not provide a special
benefit to property. SMM Props., 825 So. 2d at 344. However, after the
circuit court granted summary judgment on the issue of the deadline to
challenge the assessment, the Plaintiffs voluntarily dismissed the portion
of their complaint challenging the special benefits prong. Cooper City
argued in its brief and at oral argument that the voluntary dismissal
removed this challenge from the case. At oral argument, the Plaintiffs
agreed the only issue in their challenge related to the apportionment
prong. Therefore, based upon the Plaintiffs’ voluntary dismissal—and
their commendable honesty at oral argument—this case relates exclusively
to the second prong: apportionment of the special assessment.


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   i. An Improperly Apportioned Special Assessment Is Voidable,
      Rather than Void.

    The Plaintiffs argue that the failure to properly apportion the special
assessment renders it void, and the circuit court agreed. However, our
controlling case law establishes that challenges to the amount of
assessments, or flaws in the manner under which the amount was
calculated, do not render a special assessment void. Fla. E. Coast Ry. Co.
v. Reid, 281 So. 2d 77, 79–80 (Fla. 4th DCA 1973) (“We are unable to
conclude that such a default would produce a ‘void assessment’ within the
concept of the above cited cases. The land was admittedly subject to
taxation and the assessment was authorized by law, although possibly
erroneous in amount.”); Moody v. City of Vero Beach, 203 So. 2d 345, 346
(Fla. 4th DCA 1967) (“Irregularities, as such, in administering specific
procedures involving special assessments do not render such procedures
void if constitutional guarantees are not denied.”). Similarly, our supreme
court has held that an assessment that is lawfully issued, but that is
irregular or unfair, is merely voidable. Hackney v. McKenney, 151 So. 524,
528 (Fla. 1933); see also Markham v. Neptune Hollywood Beach Club, 527
So. 2d 814, 815 n.4 (Fla. 1988); City of Treasure Island, 215 So. 2d at 476.

   Therefore, where the only remaining challenge is to the apportionment,
the challenge is to the fairness of the apportionment and any impropriety
that would result in a voidable ordinance as opposed to a void ordinance.

   This conclusion is further supported by section 170.14, Florida
Statutes (2016), which provides that if any portion of an assessment is
declared invalid by a court, the governing authority is required to reissue
the assessment until a “valid assessment shall be made.” § 170.14, Fla.
Stat. (2016). Here, Cooper City issued a special assessment and the only
challenge raised on appeal by the Plaintiffs is to its apportionment.
Therefore, if the special assessment was improperly apportioned, the
statute requires Cooper City to reassess the property.

   The fact that Cooper City would be required to reissue the assessment
in a properly apportioned manner supports the controlling authority that
an assessment that is merely irregular is voidable and not void. A void
assessment is one that is issued by a local government without jurisdiction
to do so and, in that situation, could not be reissued because the local
government lacked the authority to issue it. Here, where the special
assessment was alleged to be improperly apportioned, the statutory
requirement that the local government reissue the assessment supports
the conclusion that it had authority to issue it in the first instance.


                                     6
   Consistent with the controlling authority on the issue, we hold that a
successful challenge to the apportionment of a special assessment renders
that assessment voidable.

    ii. The Plaintiffs Failed to Timely Challenge the Special
        Assessment.

   This determination—that is, whether the special assessment is either
void or voidable—is of vital importance to the Plaintiffs’ claims. A special
assessment that is void would not be subject to any procedural deadline—
whether it be a statute of limitations defense or a deadline imposed in the
ordinance.

   However, we find the special assessment here is voidable. And the
Plaintiffs fail to demonstrate why the deadline imposed in the ordinance,
an ordinance duly passed by the local government authority at a public
hearing after notice was given, should not be given effect. Instead, they
argue that the general catch-all statute of limitations found in section
95.11(3)(p), Florida Statutes (2011), should apply to their challenge. 1

    As an initial matter, we question whether the twenty-day deadline to
challenge the assessment is more appropriately called a bar to suit, similar
to a statute of nonclaim, as opposed to a statute of limitation. The Florida
Supreme Court has held that a “statute of nonsuit” includes reasonable
restrictions on “the fixing of a time within which suit must be brought.”
Bystrom v. Diaz, 514 So. 2d 1072, 1075 (Fla. 1987) (citations omitted).
The enactment of a time requirement to challenge a special assessment
fits into the definition of a statute of nonclaim provided by our supreme
court. But we need not decide that issue, as we reach the same result in
this case regardless of the terminology used.

   Limitations such as the twenty-day limitation at issue here have been
consistently enforced in this state. In Park-A-Partners v. Dade County, 487
So. 2d 94, 95 (Fla. 3d DCA 1986), the Third District affirmed a circuit
court’s decision applying a thirty-day deadline to challenge an ordinance.
In another case, the Third District held that the plaintiffs were precluded
from raising their challenge because “none of them availed themselves of
the ten day time limitation period, following the confirmation of the first
assessment roll, to voice objections or bring appropriate legal action.”
Whitman v. City of N. Miami, 223 So. 2d 105, 107 (Fla. 3d DCA 1969); see
also Gulf View Apartments v. City of Venice, 145 So. 842, 844 (Fla. 1933)

1There is no dispute that certain of the claims were filed even outside of the four-
year period the Plaintiffs relied upon.

                                         7
(upholding three-month deadline to challenge assessment); Carpenter v.
Dade County, 269 So. 2d 775, 776 (Fla. 3d DCA 1972) (upholding ten-day
deadline to challenge assessment).

   We certainly agree that the twenty-day deadline at issue in this case is
short. However, the proper place to raise that issue is with the legislature
or the local government that imposed the deadline—not a lawsuit in a
court of law, filed years after the assessment was due.

    Many years ago the supreme court held that “where a tax assessment
is voidable and not per se void, as where it is made in good faith but is
irregular or unfair, the taxpayer must move in due time.” Hackney, 151
So. at 528. Here, the Plaintiffs failed to move in due time to challenge the
apportionment of the special assessment. Therefore, the challenge was
waived; their lawsuit barred.

                                Conclusion

   Both parties twice confirmed at oral argument that the sole issue
remaining in this case is the apportionment of Cooper City’s special
assessment. As the challenge was to the amount of the assessment, and
not the authority of the government to issue it, the Plaintiffs were asserting
the assessment was voidable. And, as a voidable assessment, the Plaintiffs
were required to timely raise their challenge. Having failed to do so, the
Plaintiffs were not entitled to judgment in their favor. Cooper City was.
On remand, the court shall enter judgment in favor of Cooper City.

   Reversed and remanded with instructions.

GERBER, C.J., and GROSS, J., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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