          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         CITY OF FORT PIERCE,
                               Appellant,

                                      v.

    AUSTRALIAN PROPERTIES, LLC; WTC, LLC; TED GLASRUD
  ASSOCIATES FL, LLC; WILLIAM D. MCKNIGHT and KATHRYN A.
  MCKNIGHT on behalf of themselves and all others similarly situated,
                            Appellees.

                              No. 4D14-2728

                            [November 12, 2015]

  Appeal of non-final order from the Circuit Court for the Nineteenth
Judicial Circuit, St. Lucie County; Dwight L. Geiger, Judge; L.T. Case No.
562011CA003396.

    Virginia B. Townes and Carrie Ann Wozniak of Akerman LLP, Orlando,
for appellant.

   Harold G. Melville of Melville & Sowerby, P.L., Fort Pierce, for appellees.

MAY, J.

   The City of Fort Pierce (“City”) appeals a non-final order granting a
motion for class action certification. It argues the court erred in certifying
the class for multiple reasons, including that the plaintiffs lacked standing
because the statute of limitations had run. We agree with this argument
and reverse the order certifying the class.

    In 2005, the City adopted Ordinance No. K-390, codified as the
Stormwater Management Utility (“SMU”). Section 20-71 established
stormwater management services as a utility under section 403.0893,
Florida Statutes, and provided for the levy of fees “against all property in
the city in proportion to the property’s contribution to the stormwater
runoff as determined by the impervious surface of developed property and
the runoff ratio for the future use of undeveloped property.” City of Fort
Pierce Code of Ordinances, § 20-71 (2005).           The code defined an
“[e]quivalent residential unit (‘ERU’)” as “[t]he representative average
impervious area of a single family residential property located in the city.”
Id. § 20-72. All property within the city is “subject to SMU fees, unless
specifically exempted.” Id. § 20-74. A formula assigns ERUs to properties
with the fee per ERU established by separate resolution. See id. §§ 20-75,
20-76. The only property exempted is “[p]ublic roads and rights-of-way.”
Id. § 20-77.

    A property owner can request a fee adjustment from the SMU director.
Id. § 20-79. If dissatisfied with the result, the owner can petition the city
manager, whose decision is final. Id. § 20-80.1

   In 2011, four owners of property within the City brought a class action
for declaratory and injunctive relief, and damages against the City. The
class representatives filed an amended complaint on their behalf and that
of thousands of other owners, who had been assessed a SMU fee, but
whose property was neither connected to, nor drained through, the City’s
stormwater system.

   They alleged the City’s system consisted of nine drainage or basin areas
located in the older, more densely populated, part of the City. The City
also assessed numerous annexed properties outside of those basins,
which had never drained through the City’s system. They claimed sections
20-71 through 20-81 were arbitrary, capricious, unreasonable, and invalid
on their face because they assessed fees against unconnected properties.
They alleged the fees were not legitimate user fees because the
unconnected properties did not receive a benefit, resulting in an illegal tax.
They sought a refund of assessed fees for the tax years of 2007-2012.


1 In November 2013, the City amended the SMU by Ordinance No. L-302, effective
on passage. A whereas clause for Ordinance No. L-302 provided that it was the
intent

      of the City Commission that the SMU director, in responding to
      requests for adjustment of the stormwater utility fee, may adjust or
      waive payment [of the fee] to the extent the fees otherwise due are
      not reasonably commensurate with the benefits accruing to the
      property and/or the burdens the property imposes on the SMU.

The codified amendment also created a stormwater management fees and credits
appeals board to hear appeals from any decision of the SMU director pursuant
to section 20-79. City of Fort Pierce Code of Ordinances, § 20-80 (2013). Section
20-79 now allows the SMU director to adjust the fee so it bears a reasonable
relationship to the benefits received by the property, and may exempt the
property. Id. The lawsuit concerns only tax years preceding the amendment.


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    Local governments like the City, the Department of Environmental
Protection (“DEP”), and the water management districts are responsible for
developing compatible stormwater management programs. § 408.0891,
Fla. Stat. (2014). Section 403.0893(1) allows counties and municipalities
to create one or more stormwater utilities and to adopt utility fees to
construct, operate, and maintain these systems. Alternatively, they may
create benefit areas and assess a per acreage fee upon all the property
owners within a particular benefit area, assessing different subareas
different per acreage fees based upon a reasonable relationship to benefits
received. § 403.0893(3), Fla. Stat. Local government can use the non-ad
valorem method to levy, collect, and enforce the fees assessed, pursuant
to section 403.0893, whether the government chooses to create a utility
under subsection (1) or benefit areas under subsection (3). Atl. Gulf Cmtys.
Corp. v. City of Port St. Lucie, 764 So. 2d 14, 17 (Fla. 4th DCA 1999).

   The City moved to dismiss the amended complaint, and argued:

      (1) the facial constitutionality attack is barred by the
          applicable statute of limitations; and

      (2) the plaintiffs failed to exhaust their administrative
          remedies.

The trial court denied the motion. The City answered the complaint and
asserted the following defenses, among others: (1) statute of limitations,
(2) failure to exhaust administrative remedies, and (3) failure to satisfy
class action certification requirements.

   The plaintiffs moved for class certification under Florida Rule of Civil
Procedure 1.220. The proposed class was all owners of real property
within the City, assessed an SMU fee from 2007 through 2012, and whose
property was unconnected.

   The City responded by asserting that:

      (1) each representative plaintiff lacked standing because of the
          statute of limitations and their failure to exhaust
          administrative remedies;

      (2) the class was not readily ascertainable because each
          potential class member must prove the City’s liability,
          resulting in an improper fail-safe class;

      (3) there was no commonality of fact or law because the class

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         definition required individual proof of class membership;

      (4) none of the representative plaintiffs were typical or
          adequate to represent class members because of their lack
          of standing; and

      (5) the predominance of common questions of law or fact, and
          superiority of class representation over other methods of
          adjudication did not exist because of the necessity for
          individual proof as to potential class members.

    The plaintiffs argued the SMU does not provide services to portions of
the City that were formerly within the unincorporated sections of St. Lucie
County. Those areas receive stormwater management services from the
North St. Lucie River Water Control District, the South Florida Water
Management District canal system, or natural drainage pathways or
tributaries owned by the state and managed by the DEP. These properties
pay fees to the other entities for stormwater management, but also pay the
City for stormwater utility services they do not receive.

   The City replied that the SMU fee was neither a tax, as the revenues
are kept separate for the SMU upkeep, nor a special assessment. The SMU
fee was a user fee established under section 403.0893(1). See City of
Gainesville v. State, 863 So. 2d 138, 144–46 (Fla. 2003) (discussing factors
that assist in determining whether stormwater fees are user fees or special
assessments).

   The plaintiffs claimed the SMU fees were annual assessments, and the
statute of limitations began to run anew on the date of the assessment.
Therefore, the statute of limitations had not run for the 2007 and
subsequent tax years. They claimed it was futile to try to exhaust their
administrative remedies because neither the city engineer nor the city
manager could exempt a property from the SMU fee. The unfettered
discretion of the city engineer and manager was an unconstitutional
delegation of legislative authority. And, the proposed class was well-
defined and objectively verifiable.

   At the class certification hearing, testimony revealed that all four
plaintiffs purchased their properties before 2007 and paid their SMU fees
each year. One owner of two properties sought an adjustment for one of
them, but had his paperwork rejected because it was not prepared by an
engineer, and the property’s retention pond was not properly maintained.
The owner never submitted the requested additional documentation so
there was no decision and no appeal. The manager of that property did

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not bother seeking an adjustment for the other property because he was
busy and had not succeeded with the original request.

   The plaintiffs also called a senior pastor of Westside Baptist Church, a
purported class member. He testified the church retained a professional
engineer to advise the City that none of the church’s stormwater went
through the City’s system. The City told him the maximum reduction was
forty-eight percent regardless of whether the church’s stormwater drained
through its system.

   The pastor then met with the city manager and each commissioner; he
wrote a letter to the mayor. At the subsequent commission meeting, the
commissioners opposed the exemption because the City could potentially
lose $1.1 million. Ultimately, the pastor received a letter advising him the
City was evaluating ways to reduce the church’s assessment or exempt it.
A few days later, the pastor learned the church was given an eighty percent
credit, but not an exemption. The pastor found the answer unacceptable,
but did not appeal.

   The plaintiffs’ expert, a general civil consulting engineer, testified that
he could determine which parcels drained into the Atlantic Ocean without
going through the City’s system. The city engineer testified that the SMU
was responsible for maintaining the existing city stormwater system, for
planning projects for flood control and water quality, and for maintaining
permits for the National Pollution Discharge Elimination System. It was
responsible for water quality from all the parcels in the City, not only those
that drain through the original nine basins.

   The SMU participated in developing the Basin Management Action
Plan, addressing water quality throughout the St. Lucie River Basin. Its
goal was to reduce nutrient loading of stormwater discharge to improve
water quality. The unconnected properties also drain into the Indian River
Lagoon, and the SMU was obligated to remediate water quality caused by
that drainage.

    The City’s expert testified that the water control districts were
responsible for flood control during the wet season and impoundment of
stormwater runoff for agricultural purposes during the dry season, but not
for water quality and nutrient reduction; the SMU was responsible for that.

   The trial court granted the motion for class certification. The court
found that a civil engineer in stormwater management could determine
the properties within the City whose stormwater did not drain through the
City’s facilities. The order noted the City creates a one-year assessment

                                      5
for stormwater management fees with each new tax roll. The order
concluded as a matter of law the plaintiffs’ claim was a facial constitutional
attack, and that the fees were an illegal tax based on invalid special
assessments levied on an annual basis.

   The trial court found the plaintiffs had established by clear and
convincing evidence that further pursuit of administrative remedies was
futile because the ordinance did not allow for an exemption. And, evidence
established that the church essentially exhausted all administrative
remedies without success. The court found that the action had been filed
within the four-year statute of limitations under section 95.11(3)(p),
Florida Statutes, based on the annual assessment for the relevant years.

   Finally, the trial court found the plaintiffs met all the requirements for
class certification, pursuant to Florida Rule of Civil Procedure 1.220. From
the certification order, the City now appeals.

   We review orders granting class certification for an abuse of discretion.
Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 102 (Fla. 2011)
(explaining that whether a case meets the requirements for class
certification is a factual finding).

   In determining whether to certify a class, the trial court should focus
on class certification rather than the merits of the case, except for
considering evidence on the merits as they apply to class certification. Id.
at 105–06. The proponent carries the burden of pleading and proving the
elements of class certification. Id. at 106 (citing InPhyNet Contracting
Servs. v. Soria, 33 So. 3d 766, 771 (Fla. 4th DCA 2010)).

   While the City makes several attacks on the certification order, the
statute of limitations argument is dispositive. If the statute of limitations
bars the representative plaintiffs’ claims, they lack standing, cannot be a
class member, and the class cannot be certified. Great Rivers Co-op. of Se.
Iowa v. Farmland Indus., Inc., 120 F.3d 893, 899 (8th Cir. 1997) (affirming
dismissal of count where representative plaintiff’s claim was barred by
statute of limitations so the putative class lacked a representative for that
count).

   The parties agree that a four-year statute of limitations applies. They
disagree on when the statute of limitations began to run. The City argues
the statute began to run when the ordinance was enacted in November
2005. The plaintiffs argue the statute runs anew with each annual
assessment.


                                      6
   The City relies on three cases to support its position: Fredrick v. North
Palm Beach County Improvement District, 971 So. 2d 974 (Fla. 4th DCA
2008); H & B Builders, Inc. v. City of Sunrise, 727 So. 2d 1068 (Fla. 4th
DCA 1999); and Keenan v. City of Edgewater, 684 So. 2d 226 (Fla. 5th
DCA 1996).

    In Keenan, property owners brought a class action to challenge a
special assessment on their properties to build a water and sewer
treatment plant. Keenan, 684 So. 2d at 227. The plant served the entire
city, but only property owners in one portion of the city were specially
assessed to pay for it. Id. The Fifth District held that the four-year statute
began to run when the special assessment was approved by resolution,
not from the time the property owners became aware that other property
owners were not being assessed. Id.

   We relied on Keenan in H & B Builders, Inc. v. City of Sunrise, 727 So.
2d 1068 (Fla. 4th DCA 1999). There, we affirmed the trial court’s
application of the four-year statute of limitations to bar a property owner’s
claim. H & B Builders, Inc., 727 So. 2d at 1071. The property owners paid
assessments over a period of years and sought to recover interest paid in
certain later years when the interest rate had been reduced. Id. at 1068–
69. The trial court held the statute of limitations began to run when the
government first assessed the property; it did not run from the date the
property owners made their annual payments. Id. at 1069–70.

          [The] installment payment argument would be persuasive
      if our decision were based upon the general proposition of
      contract law that in the case of contract obligations payable
      by installment, the statute of limitations does not begin to run
      against each installment until the day it becomes due.
      However, we reject the notion that this general proposition is
      analogous to payments due on special assessment liens.
      Special assessments are a method of funding local
      improvements and are “a creature of statute.” We note that
      Keenan specifically recognizes that section 95.11(3)(p) bars
      any challenge to a special assessment brought more than four
      years after the governing board of the municipality equalizes
      and approves the special assessment by resolution, even if the
      improvements have not been completed.

Id. at 1071 (internal citation omitted). We concluded the city’s assessment
was not subject to annual review “simply because it chose to allow the
landowners the convenience of paying their assessment obligations in
equal annual installments.” Id.

                                      7
   We reached a similar result in Fredrick v. North Palm Beach County
Improvement District, 971 So. 2d 974 (Fla. 4th DCA 2008). There,
homeowners challenged impact fees and assessments imposed on their
properties for the expansion of a road. Id. at 975. An improvement district
had adopted a water management plan. Id. at 976. To pay for it, the
district adopted a bond resolution in 1990 and authorized non-ad valorem
annual assessments. Id. at 976–77. In an unrelated suit, a final judgment
validated the bonds in 1990. Id. at 976. The documents were recorded in
1990. Id. at 977.

   In 1993, the Declaration of Covenants was recorded, including a
provision that each owner acknowledged the assessment. Id. at 976–77.
The homeowners bought their properties no later than 1998. Id. at 977.
They filed suit in 2004 challenging the assessments because other nearby
housing developments also benefitted from the improvements without
being taxed. Id.

    The district moved for summary judgment based in part on the statute
of limitations. Id. at 977–78. The homeowners argued they did not learn
until 2003 that other developments were not being assessed. Id. at 978.
The trial court entered a summary judgment for the district. Id. The
property owners appealed.

    We concluded the statute of limitations began to run from the creation
of assessments or the date of the city’s approval. Id. at 979. That decision
balanced the property owners’ right to adequate notice against the
district’s need for certainty in its decisions and economic affairs. Id. at
980. We held the property owners’ interests were outweighed by the
district’s need. Id. We affirmed the summary judgment. Id.

    The plaintiffs argue, however, that the utility fees are annual
assessments, with each year starting the statute of limitations anew. See
Milan Inv. Grp., Inc. v. City of Miami, 50 So. 3d 662 (Fla. 3d DCA 2010). In
Milan, a property owner challenged the establishment and boundaries of
a downtown development authority and the imposition of an ad valorem
tax on properties within those boundaries. Id. at 662–64. The Third
District agreed the statute of limitations barred the plaintiff’s challenge to
the establishment of the authority and its boundaries, but reversed an
order dismissing the claim concerning the ordinance imposing the tax for
fiscal year 2008. Id. at 664–65.

   After discussing Keenan and Frederick, the Third District noted that
the case did not involve the long-term financing of municipal

                                      8
improvements. Instead, the city decided annually whether to impose the
optional special levy to fund the authority. Id. at 664. It allowed the
challenge to the 2008 levy and the claim for refund to proceed. Id. We
find Milan distinguishable. It did not involve policy considerations of long-
term bonds or infrastructure projects, did not involve a singular
assessment to be paid over time, and the fees were not dedicated to a
specific capital project.

    Because the utility fee is more akin to a special assessment, Fredrick,
Keenan, and H & B Builders control. The trial court abused its discretion
in finding the plaintiffs were not barred by the statute of limitations. As
the statute of limitations bars the class representatives’ claims, they have
no standing. We therefore reverse and remand the case to the trial court
to decertify the class. It is unnecessary for us to address the other issues
raised.

   Reversed and Remanded.

GROSS and TAYLOR, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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