          Supreme Court of Florida
                                    ____________

                                    No. SC14-350
                                    ____________

                              SCOTT MORRIS, et al.,
                                   Appellant,

                                          vs.

                          CITY OF CAPE CORAL, etc.,
                                  Appellee.

                                    [May 7, 2015]

PERRY, J.

      This case arises from a final judgment validating the City of Cape Coral’s

special assessment to provide fire protection services. We have jurisdiction. See

art. V, § 3(b)(2), Fla. Const. The City of Cape Coral (“City” or “Cape Coral”)

passed an ordinance levying a special assessment against all real property in the

city, both developed and undeveloped. The assessment has two tiers—one for all

property and a second that applies only to developed property. Scott Morris and

other property owners (collectively referred to as either “Morris” or “Property

Owners”) appeal the validation, arguing that the two-tier methodology is arbitrary,

that the assessment violates existing law, that the trial court erred in denying their
motion for continuance, that the trial court improperly relied on facts not in

evidence, and that their procedural due process rights were violated. Because we

find that Cape Coral properly exercised its authority to issue a special assessment

to fund fire protection services and that the assessment does not violate existing

law, we affirm the order of validation.

                                       FACTS

      In April 2013, Cape Coral authorized its city manager to hire Burton &

Associates (“Burton”) to prepare a study relating to a non-ad valorem assessment

to fund the City’s fire protection services. Burton presented its findings in a report

dated June 10, 2013, which the City accepted. The report recommended a two-tier

assessment, reasoning that all parcels in the city benefited from fire protection

services and that developed property received an added benefit of protection from

losses. Burton calculated the costs to maintain the facilities, equipment, and

personnel necessary to provide fire protection services on a 24-hour-per-day, 365-

days-per-year basis to all parcels in the city (exclusive of Emergency Medical

Services costs). These costs represented seventy percent of the total fire protection

services cost and were to be evenly distributed among all parcels. The costs for

fuel, equipment maintenance, actual response to a fire, and other related operations

were associated with protection from loss of structures.




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      At a June 10, 2013, public meeting, the City read and approved an

Assessment Ordinance, which was again read and approved at the July 15, 2013,

meeting. The City also passed a Note Ordinance at the same meeting. Thereafter,

the Initial Assessment Resolution was adopted on July 29, 2013, and the Final

Assessment Resolution was adopted on August 26, 2013. On August 28, 2013, the

City filed its complaint to validate the debt under Chapter 75, Florida Statutes.

The trial court issued an Order to Show Cause on September 11, 2013, which

provided the time and date of the hearing. The Order to Show Cause was

published in the local newspaper twenty days prior to the hearing and again the

following week.

      The trial court held the Show Cause hearing on October 7, 2013. Eight

property owners appeared in opposition to the special assessment. The hearing

was initially scheduled to last an hour, with each party given three minutes to

present its argument. The trial court realized this was insufficient time and

extended the hearing for two additional days.

      On the second day, October 8, 2013, the Property Owners moved for a

continuance in order to seek discovery. The trial court denied the motion; instead,

the court permitted all parties to submit post-hearing legal memoranda which were

due within twenty days of the Show Cause hearing. On the day the memoranda




                                         -3-
were due, Talan Corporation, which did not appear at the Show Cause hearing,

filed a Motion to Intervene and an objection to the validation.

      The trial court held a hearing on Talan’s motion on November 27, 2013, but

did not reopen evidence. Talan argued that the City had miscalculated some

parcels, and the City attempted to demonstrate that it had corrected the error.

Ultimately, the trial court denied Talan’s motion.

      On December 11, 2013, the trial court entered its final judgment of

validation. The judgment found, in pertinent part:

      (1) that the City of Cape Coral has the legal authority to issue the
      bond and assess properties within its jurisdiction as requested, (2) that
      the intended purpose of the bond is legal, to wit, it shall provide a
      continuation or provision of fire safety related service for all affected
      parcels, and (3) that the issuance of the bond and its related process
      comply with all essential elements and requirements of law, including
      reasonable apportionment.

Morris, joined by three other property owners, filed a Notice of Appeal with this

Court on February 18, 2014.

                            STANDARD OF REVIEW

      This Court’s scope of review is limited to: (1) whether the municipality has

the authority to issue the assessment; (2) whether the purpose of the assessment is

legal; and (3) whether the assessment complies with the requirements of the law.

See City of Winter Springs v. State, 776 So. 2d 255, 257 (Fla. 2001) (citations

omitted).



                                        -4-
       “[A] valid special assessment must meet two requirements: (1) the property

assessed must derive a special benefit from the service provided; and (2) the

assessment must be fairly and reasonably apportioned according to the benefits

received.” Sarasota Cnty. v. Sarasota Church of Christ, 667 So. 2d 180, 183 (Fla.

1995) (citing City of Boca Raton v. State, 595 So. 2d 25, 30 (Fla. 1992)). “These

two prongs both constitute questions of fact for a legislative body rather than the

judiciary.” Id. at 183. The standard to be applied to both prongs is that the

legislative findings should be upheld unless the determination is arbitrary. Id. at

184. “Even an unpopular decision, when made correctly, must be upheld.” Winter

Springs, 776 So. 2d at 261.

                                    ANALYSIS

       The Property Owners raise several issues, which at their core attack the

correctness of the trial court’s determination that the City’s special assessment is

valid. In response, the City argues that it passed the special assessment under its

home rule authority and not chapter 170 of the Florida Statutes. Further, the City

argues that the Property Owners have waived any right to challenge the trial

court’s determination that the City properly exercised its authority by failing to

raise it as a discrete issue.




                                         -5-
      The authority to issue special assessments under a municipality’s home rule

powers was addressed by this Court in Boca Raton. In Boca Raton, after providing

a history of home rule authority, we determined that

      a municipality may now exercise any governmental, corporate, or
      proprietary power for a municipal purpose except when expressly
      prohibited by law, and a municipality may legislate on any subject
      matter on which the legislature may act [with exceptions]. . . .
      Therefore, it would appear that the City of Boca Raton can levy its
      special assessment unless it is expressly prohibited . . . .

Boca Raton, 595 So. 2d at 28. Then, addressing whether chapter 170 expressly

prohibited a municipality from exercising its home rule authority to issue a special

assessment, we determined, “it is evident that chapter 170 is not the only method

by which municipalities may levy a special assessment.” Id. at 29. Accordingly,

irrespective of whether the Property Owners have waived any right to raise the

issue, there is no question that the City had the legal authority to levy the special

assessment.

      Further, we have previously upheld the validity of special assessments to

fund fire protection services. See, e.g., Lake Cnty. v. Water Oak Mgmt. Corp., 695

So. 2d 667 (Fla. 1997); S. Trail Fire Control Dist., Sarasota Cnty. v. State, 273 So.

2d 380 (Fla. 1973); Fire Dist. No. 1 of Polk Cnty. v. Jenkins, 221 So. 2d 740 (Fla.

1969).

      The Property Owners allege that the benefit from the fire protection services

is a general one, and not a specific benefit. To support their argument, the


                                         -6-
Property Owners rely on our decision in St. Lucie County — Fort Pierce Fire

Prevention & Control District v. Higgs, 141 So. 2d 744 (Fla. 1962), for their

contention that assessments levied on property for maintenance and operation of

fire prevention services constitutes a tax. See Higgs, 141 So. 2d at 746. In Higgs,

this Court agreed with the circuit court’s finding that a particular assessment to

fund fire services was invalid because “no parcel of land was specially or

peculiarly benefited in proportion to its value . . . .” Id.

      However, in 1997, we held that solid waste disposal and fire protection

services funded by a special assessment did provide a special benefit. Water Oak

Mgmt., 695 So. 2d at 668. Therein, the Fifth District Court of Appeal had found

Lake County’s assessment invalid under this Court’s decision in Higgs because

everyone in the county had access to fire protection services and so was not a

special benefit. We found that the Fifth District had misconstrued our decision in

Higgs, stating:

             In evaluating whether a special benefit is conferred to property
      by the services for which the assessment is imposed, the test is not
      whether the services confer a “unique” benefit or are different in type
      or degree from the benefit provided to the community as a whole;
      rather, the test is whether there is a “logical relationship” between the
      services provided and the benefit to real property.

Water Oak Mgmt., 695 So. 2d at 669 (citing Whisnant v. Stringfellow, 50 So. 2d

885 (Fla. 1951) (footnote omitted); Crowder v. Phillips, 1 So. 2d 629 (Fla. 1941)).

Noting our decision in Fire District No. 1, we found that “fire protection services


                                           -7-
do, at a minimum, specially benefit real property by providing for lower insurance

premiums and enhancing the value of the property. Thus, there is a ‘logical

relationship’ between the services provided and the benefit to real property.”

Water Oak Mgmt., 695 So. 2d at 669. We then clarified that our decision in Higgs

turned not on the benefit prong, but on the apportionment prong. Id. at 670.

      In this case, Cape Coral has established that the assessed property receives a

special benefit. In the Assessment Ordinance, the City made the following

statement:

             Legislative Determinations of Special Benefit. It is hereby
      ascertained and declared that the Fire Protection services, facilities,
      and programs provide a special benefit to property because Fire
      Protection services possess a logical relationship to the use and
      enjoyment of property by: (1) protecting the value and integrity of the
      improvements, structures, and unimproved land through the provision
      of available Fire Protection services; (2) protecting the life and safety
      of intended occupants in the use and enjoyment of property; (3)
      lowering the cost of fire insurance by the presence of a professional
      and comprehensive Fire Protection program within the City and
      limiting the potential financial liability for uninsured or underinsured
      properties; and (4) containing and extinguishing the spread of fire
      incidents occurring on property, including but not limited to
      unimproved property, with the potential to spread and endanger the
      structures and occupants of property.

Likewise, the experts retained by Cape Coral determined that all parcels in the City

received a special benefit from the City’s fire protection services and facilities. In

its report, Burton reasoned that the response-readiness of the fire department

benefitted all parcels by raising property value and marketability, limiting liability



                                         -8-
by containing fire and preventing its spread to other parcels, ensuring immediate

response, and heightening the use and enjoyment of all properties. These findings

are similar to the reasons we accepted in Water Oak Mgmt. Water Oak Mgmt.,

695 So. 2d at 669 (“[F]ire protection services do, at a minimum, specially benefit

real property by providing for lower insurance premiums and enhancing the value

of the property.”). Thus, the facts of the present case lie squarely within the facts

of Water Oak Mgmt. Only the methodology differs.

      The Property Owners question the validity of Tier 1 and Tier 2 of the

assessment. In short, the Property Owners argue that the assessment is not

properly apportioned. We have instructed:

             To be legal, special assessments must be directly proportionate
      to the benefits to the property upon which they are levied and this may
      not be inferred from a situation where all property in a district is
      assessed for the benefit of the whole on the theory that individual
      parcels are peculiarly benefited in the ratio that the assessed value of
      each bears to the total value of all property in the district.
Higgs, 141 So. 2d at 746. In other words, the assessment cannot be in excess of the

proportional benefits. S. Trail Fire Control Dist., 273 So. 2d at 384. And, the

proportional benefits cannot be calculated by the ratio of the value of the assessed

property against the value of all property. See Water Oak Mgmt., 695 So. 2d at

670 (explaining that the decision in Higgs turned on whether the land was

benefitted in proportion to its value, stating: “the assessment in that case was

actually a tax because it had been wrongfully apportioned based on the assessed


                                         -9-
value of the properties rather than on the special benefits provided to the

properties.”). However, this Court has also held that “[t]he mere fact that some

property is assessed on an area basis, and other property is assessed at a flat rate

basis, does not in itself establish the invalidity of the special assessment.” S. Trail

Fire Control Dist., 273 So. 2d at 384.

      To this end, the Property Owners allege that Tier 1 of the assessment is

invalid because it equally assesses all property and therefore is not proportional.

The Property Owners further argue that Tier 2 of the assessment, being based on

the value of any structures and improvements on a parcel, amounts to nothing more

than a tax. In other words, the Property Owners allege that the City’s chosen

methodology is arbitrary and does not properly apportion the costs. We find that

the City’s methodology is not arbitrary. See Sarasota Church of Christ, 667 So. 2d

at 184 (“[L]egislative 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.”).

      In the present case, the City contracted for a study to determine the best

method to apportion the costs of fire services. By adopting the approach

recommended in the study, the City has attempted to apportion the costs based on

both the general availability of fire protection services to everyone (Tier 1) and the

additional benefit of improved property owners of protecting structures from


                                         - 10 -
damage (Tier 2). We have not previously addressed a bifurcated approach to fire

service assessments. However, this sort of approach closely resembles the

approach we approved in Sarasota Church of Christ.

      In Sarasota Church of Christ, we considered the validity of special

assessments against developed property for stormwater management services.

There, undeveloped property was not assessed at all, residential property was

assessed at a flat rate per number of individual dwelling units on the property, and

non-residential property was assessed based on a formula. Specifically, “[t]his

method for apportionment focuse[d] on the projected stormwater discharge from

developed parcels based on the amount of ‘horizontal impervious area’ assumed

for each parcel and divide[d] the contributions based on varying property usage.”

This Court held that “this method of apportioning the costs of the stormwater

services is not arbitrary and bears a reasonable relationship to the benefits received

by the individual developed properties . . . .” Sarasota Church of Christ, 667 So.

2d at 186.

      The Tier 2 formula for improved properties is akin to the formula in Sarasota

Church of Christ for determining the assessment against commercial property.

Like that of Sarasota County, the City’s methodology reasonably relates to the

additional benefits received by improved properties. The formula contemplates

that each improved parcel benefits differently because the cost to replace the


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respective structure differs. The use of the property appraiser’s structure value is

reasonable because the property appraiser is statutorily required to use a

replacement cost to determine this value. See § 193.011(5), Fla. Stat. (2014). We

find that this is a reasonable approach to apportionment and not arbitrary.

      As we have stated, “[t]he manner of the assessment is immaterial and may

vary within the district, as long as the amount of the assessment for each tract is

not in excess of the proportional benefits as compared to other assessments on

other tracts.” Boca Raton, 595 So. 2d at 31 (quoting S. Trail Fire Control Dist.,

273 So. 2d at 384). In fact, we have acknowledged:

             No system of appraising benefits or assessing costs has yet been
      devised that is not open to some criticism. None have attained the
      ideal position of exact equality, but, if assessing boards would bear in
      mind that benefits actually accruing to the property improved in
      addition to those received by the community at large must control
      both as to the benefits prorated and the limit of assessments for cost of
      improvement, the system employed would be as near the ideal as it is
      humanly possible to make it.
Id. (quoting City of Ft. Myers v. State, 117 So. 97, 104 (Fla. 1928)). The

methodology at issue here was found by the trial court to be “valid, non-arbitrary

and considered established insofar as the [opposing parties] failed to present any

competent, persuasive evidence to dispute or call into reasonable question [the

court’s] findings and determinations.” A review of the record supports the trial

court’s determination.




                                        - 12 -
      Additionally, we find that the Property Owners’ additional arguments on

appeal are without merit. Whether to grant a continuance is within the discretion

of the trial judge. Strand v. Escambia Cnty., 992 So. 2d 150, 154 (Fla. 2008). The

Property Owners have not established that the trial court abused its discretion.

      Likewise, the Property Owners have failed to establish that they were denied

procedural due process. The Property Owners have not alleged that the City failed

to provide notice or denied the Property Owners a meaningful opportunity to be

heard. In addition to the validation hearing, the City publicly discussed the special

assessment at four public meetings, for which notice was provided. At the

validation hearing, the trial court extended the time for the Property Owners to

voice their concerns. Based on the foregoing, the Property Owners have not

established that they were denied procedural due process.

      Lastly, the Property Owners contend that the trial court improperly

considered and relied on Resolution 56-13 (November 25, 2013). Specifically, the

Property Owners point to paragraphs 31-33 and 37 of the Final Judgment. Nothing

in these findings relates to the validity of the Special Assessment. Rather, it

appears that the trial court merely noted that the errors in valuation had been

corrected and did not invalidate the apportionment methodology. Valuation is not

a part of the trial court’s review for validity. Accordingly, even if the court




                                        - 13 -
improperly considered the City’s updated valuation, it does not affect the outcome

of the validation proceedings.

                                 CONCLUSION

      For the foregoing reasons, we affirm the final judgment of validation.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and POLSTON, JJ.,
concur.
CANADY, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Lee County – Bond Validations
     Keith R. Kyle, Judge – Case No. 362013CA002406A001CH

Scott Morris of the Morris Law Firm, P.A., Cape Coral, Florida,

      for Appellants

Christopher Benigno Roe and Elizabeth Wilson Neiberger of Bryant Miller Olive
P.A., Tallahassee, Florida; Susan Hamilton Churuit of Bryant Miller Olive P.A.,
Tampa, Florida; and Dolores D. Menendez, City Attorney, Cape Coral, Florida,

      for Appellee

Robert Keith Robinson of Nelson Hesse, LLP, Sarasota, Florida

      for Amicus Curiae City of North Port, Florida

Anthony Angelo Garganese and Erin Jane O’Leary of Brown, Garganese, Weiss &
D’Agresta, P.A., Orlando, Florida,

      for Amici Curiae Florida League of Cities and City of Cocoa, Florida




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