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Citizens Advocating Responsible Environmental Solutions v. City of Marco Island
SC06-1577
BETWEEN WHETHER YOU DEFER
ENTIRELY TO THE LEGISLATIVE
JUDGMENT OR WHETHER THERE
ARE SOME CHECKS ON THE
LEGISLATIVE JUDGMENT.
>> IN QUESTION QUESTION IS:
WHERE WHETHER YOU YOU HAVE A
FUNDAMENTAL DISAKBRAEMENT
ABOUT WHAT THE JUDGMENT WAS?
>> YEAH.
IT IS NOT ABOUT THE ISSUE
ABOUT WHETHER THE MONEY FROM
THESE ASSESSMENTS ARE ALL --
FOR THIS PHASE OF THE BOND
ARE ALL GOING TO GO TO THE
EXPANSION OF THE SYSTEM TO
SERVE THE NEW USERS VERSUS
THE ISSUE OF WHETHER MONEY
FROM THESE ASSESSMENTS ARE
GOING TO GO TO IMPROVE THE
SYSTEM TO BENEFIT EVERYBODY
AND IT SEEMS THAT IF YOU,
THAT WAS -- THERE WAS
EVIDENCE PRESENTED, NOT
ONLY, IT IS NOT JUST THE
LEGISLATURE, THE
MUNICIPALITY, BUT ALSO
BEFORE THE TRIAL JUDGE ABOUT
THAT.
>> RIGHT.
THE SPECIAL ASSESSMENT WAS
DIVIDED UP INTO TWO PARTS.
THE PART THAT I BELIEVE YOU
ARE REFERRING TO IS CALLED
THE CAPACITY COST PORTION OF
THE ASSESSMENT WHICH CAME TO
6,298.
THAT PORTION OF THE COST IS
THE PORTION OF THE COST THAT
MAY NOT BENEFIT THE PROPERTY
OWNERS DIRECTLY WHO ARE IN
THE DISTRICT PROPER AND FOR
MORE GENERAL COMMUNITY
CONCERNS SUCH AS EXPANSION
OF THE WASTE WATER PLANT.
>> I WAS UNDER THE
IMPRESSION, THERE WAS
DISCUSSION, EVIDENCE,
DIRECTLY RELATED TO, THERE
WOULD BE ABC LATELY NO
REASON FOR THE EXPANSION
BECAUSE IT DIDN'T NEED
ADDITIONAL CAPACITY WITHOUT
THIS EXPANDED SERVICE OUT
THERE AND THAT IT WAS ONLY
FOR THE EXPANSION, NOT THE
UPGRADING OF OTHER
FACILITIES THAT THIS
ASSESSMENT WOULD APPLY TO,
THAT IS INCORRECT?
>> I BELIEVE THAT WITH ALL
RESPECT, I BELIEVE THAT IS
IN CORRECT.
>> HE KAY, TELL ME WHERE IT
IS WRONG.
>> I BELIEVE THAT THE
TESTIMONY WAS THAT THE
EXPANSION WAS GOING TO BE
NECESSARY WHETHER OR NOT
THESE NEW USERS CAME
ON-LINE.
>> I AM SORRY, I MEAN, THERE
IS DIRECT TESTIMONY, QUOTES
IN THE RECORD, IS THEIR NOT,
WHERE THE ANSWER WAS NO.
3.5.
IT WAS GOING TO JUMP UP TO 5
OR 6 OR SOMETHING.
THERE IS DIRECT QUOTES WHERE
THE OFFICER, NO, WE WOULD
NOT EXPAND IT.
WE WOULD NOT NEED THIS
ADDITIONAL CAPACITY WITHOUT
THIS EXPANSION.
ARE YOU SAYING THAT IS NOT
IN THIS RECORD?
>> WHAT IS ON THE RECORD,
YOUR HONOR, THE PLANT IS DY
LIBTATED.
>> ANSWER MY FIRST QUESTION.
THAT IS NOT IN THE RECORD?
-- IS THAT NOT IN THE
RECORD?
>> THAT IS IN THE RECORD,
YOUR HONOR.
>> OKAY.
THAT IS BASIS THEN.
THERE IS A PROBLEM THEN.
IT IS AN OLDER SYSTEM.
I THINK THEIR POSITION IS
THAT THE OTHER SIDE'S
SPECIAL IS, YEAH, THAT IS
GOING TO BE COVERED BY THE
CURRENT USERS.
WHATEVER WE NEED TO FIX OLD
WARN OUT THINGS THE BURDEN
OF THAT WILL BE SHARED
EQUALLY, IS THAT NOT PART OF
IT?
>> WELL, ALL WE HAVE ON THE
RECORD IS A PROMISE FROM THE
CITY FINANCE DIRECTOR THAT
THEY WILL MEANING THE CITY
WILL AT SOME POINT HAVE USER
FEES TO BALANCE THAT OUT.
>> BUT WE ARE NOT DECIDING
SOMETHING IN THE FUTURE.
ALL WE ARE LOOKING AT, AND
AGAIN, THIS IS A BOND
VALIDATION PROCEEDING.
THE ONLY WAY WE GET TO WHERE
THE SPECIAL ASSESSMENT IS
VALID BECAUSE IT IS GOING TO
BE THOSE REVENUES THAT FUND
THE BOND REPAYMENT, THERE
WERE 15 DISTRICTS INVOLVED
IN THE PLANT.
THE BON ISSUES IN THE CASE
RELAYED ONLY TO TWO
DISTRICT, SO WE ARE NOT
GOING TO END UP IN THIS CASE
VALIDATING WHAT THEY MIGHT
DO IN THE FUTURE ONE WAY OR
ANOTHER, YOU MOW YOU?
MAY BE RIGHT, BUT HOW IS
THAT BEFORE US PROPERLY IN
THIS NARROW, VERY NARROW
PROCEEDING, THIS DIRECT
APPEAL PROCEEDING TO
VALIDATE A BOND BASED ON
SPECIAL ASSESSMENTS FWOR
DISTRICT INS THAT ARE WHERE
THE EXPANSION IS GOING TO
OCCUR.
SO IS WHERE OUR JURISDICTION
TO EVEN DECIDE THIS OTHER
ISSUE THAT YOU SAY IS, WELL,
THEIR PROMISE THAT THEY ARE
GOING TO DO THIS.
WE DOP KNOW, MAYBE THEY
WILL, MAYBE THEY WON'T.
THAT IS NOT BEFORE US.
>> THE FACT THAT IT'S NOT
BEFORE IS BECAUSE IT IS NOT
INCLUDED ON THE CURRENT
VALIDATION SCHEME.
IF IT HAD BEEN INCLUDED IN
THE CURRENT VALIDATION
SCHEME.
>> YOU SEE VALIDATION SCHEME
HAS TO DO WITH BONDS THAT
ARE GOING TO GO TO LINK UP
THESE AREAS THAT DIDN'T HAVE
IT.
YOU KNOW?
AGAIN, YOU KNOW, REREAD THE
BRIEFS, WE TRIED TO
UNDERSTAND THIS.
WE READ THE RECORD.
I AM JUST, YOU KNOW, I AM
HAVING DIFFICULTY WITH WHAT
YOU ARE ASSERTING THAT WE
ARE SUPPOSED TO DECIDE IN
THIS CASE.
>> OKAY.
WHAT WE ARE ASKING THE COURT
TO DECIDE, WE ARE ASKING THE
COURT TO CONSIDER IS TO LOOK
AT THE PREVIOUS DEFINITION
OF ASH ARBITRARY AND
IRRATIONAL IN THIS CONTEXT?
>> WELL, IT SEEMS TO ME, AND
I DIDN'T GET THIS FROM YOUR
PREVIOUS BRIEFS, BUT IT
SOUNDS LIKE NOW YOU ARE
ARGUING THAT THIS MONEY THAT
WILL BE GENERATED BY THE
BONDS IS NOT ONLY GOING TO
BE USED FOR THE EXPANSION
BUT IT IS ALSO GOING TO BE
USED FOR THAT OTHER
MAINTENANCE THAT YOU SAY IS
NEEDED IN THE PLANT?
>> YES.
>> SO WHERE DO WE GET THAT
FROM?
WHERE IN THE RECORD IS THEIR
EVIDENCE THAT THAT IS WHAT
IS GOING TO HAPPEN WITH THIS
BOND MONEY?
>> LET ME LOOK FOR A RECORD
CITATION HERE.
>> APPENDIX C EXHIBIT 4 IS
WHERE THE DEFINITION OF
CAPACITY COST IS DISCUSSED
IN THE CONTEXT OF THAT
CAPACITY COST BEING $6,280
AND THE CAPACITY COST IS
ATTRIBUTED TO THE COST OF
PLANNING, ENGINEERING,
CONSTRUCTION OF OTHER WASTE
WATER FACILITHAT IS MAY NOT
BE WITHIN YOUR DISTRICT, AND
THAT IS THE PROBLEM THAT WE
HAVE.
THE TESTIMONY, THE RECORD
EVIDENCE IS REPLEAT WITH
TESTIMONY ABOUT HOW THE CITY
OF MARCO ISLAND
DISTINGUISHED BETWEEN NEW
USERS AN OLD USERS IN
DEVELOPING THIS PLAN.
AND RIGHT NOW, THE
OVERWHELMING BURDEN IS BEING
PLACED ON THE NEW USERS.
THERE IS NOTHING IN THIS
PLAN.
NOTHING IN THE RECORD THAT
INDICATES THAT EXISTING
USERS ARE GOING TO BE PAYING
FOR ANY PART OF THE OTHER
EXPANSION THAT IT HAS TALKED
ABOUT IN THE CAPACITY COSTS.
AND I JUST POINT TO THE CITY
OF THIS COURT, ARBITRARY AN
IRRATIONAL.
WHAT IS THAT, WHAT THAT IS
DEFINITION?
THE DEFINITION THAT THAT
COURT GAVE VAUSE READ IT,
WHEN YOU ALLOCATE THE COST
OF REPLACING ORIGINAL --
SHALL REPLACING ORIGINAL
FACILITY, IT IS ARBITRARY
AND IR RIGSAL TO DISTINGUISH
BETWEEN OLD AND NEW USERS.
>> LET ME QUOTE TO YOU THE
TESTIMONY I SEE.
MAYBE YOU CAN RESPOND TO IT.
THE DOCUMENTS THEMSELVES
CONTRADICTED BUT THERE WAS
QUESTION ASKED, I BELIEVE,
IT WAS THE CITY MANAGER,
WERE ANY OF THE EXISTING
USERS BENEFIT FROM ANY
EXPANSION OF A THE WASTER
WATT TREATMENT FACILITY AS A
RESULT OF THE ASSESSMENT,
WE'RE HERE TODAY TO TRY TO
VALIDATE.
NO, SIR, WITH VERY TO MAKE
IMPROVEMENTS IN THE PLANT
ITSELF, BUT IN TERMS OF
CAPACITY, THINK OUR A PASS
IS ADEQUATE NOW.
I DON'T SEE HOW THEY WOULD
BENEFIT BY ADDING ADDITIONAL
CAPACITY.
THEY MAY BENEFIT BY HAVING
ADDITIONAL EQUIPMENT AT THE
PLANT, MODERNIZING THE
PLANT, BUT THEY ARE PAYING
FOR THAT THROUGH WHAT M THEY
ARE PAYING FOR THE MODERNIZATION
OF THE WASTE WATER TREATMENT
PLANT, BUT NOT PAYING ANY
PORTION OF THE CAPACITY
EXPANSION.
WHERE DOES THE RECORD
CONTRABILITY CONTRADHAKT
TESTIMONY?
>> THE RECORD DOES NOT
CONTRADICT THAT TESTIMONY,
BUT PIT IS WRONG TO PUT THE
COST OF THE OTHER
MODERNIZATION THAT WAS
REFERRED TO IN A QUO FASHION
SOLELY ON THE BACKS OF THE
NEW USERS.
>> BUT THAT IS THE WHOLE
POINT.
THE TESTIMONY WAS THEY ARE
NOT DOING IT.
THE NEW USERS ARE PAYING FOR
EXPANSION FROM 3500 GALLONS
TO 5,000 GALLON, THEY ARE
NOT PAYING FOR THE
MODERNIZATION.
THE OLD USE -- ACTUALLY THE
ENTIRE CITY IS PAYING FOR
MODERNIZATION.
>> AND I CITED THE PART OF
THE RECORD WHICH DEFINES
WHAT THE CAPACITY COST IS
AND THAT IS BEING OF OVER $6,000
PER PROPERTY AND THAT IS
BEING ACCESSED ONLY ON THE
NEW USERS AND NOT ON THE
EXISTING USERS.
>> ARE YOU SAYING THE
DOCUMENT, THE ACTUAL
DOCUMENTS THAT ARE THERE
JUST ABSOLUTELY REFUTE AND
RENDER THE STATEMENT THAT
JUSTICE CANTERO GRABBED TO
BE FALSE.
THAT IS WHAT YOU ARE SAYING?
>> YEAH, HE READ THE WHOLE
THING.
WHAT I AM ARGUING I BELIEVE
IS CONSISTENT WITH WHAT HE
HAS SAID.
HE IS TALKING ABOUT A PASS
TIN CREASE.
>> AND TALKED ABOUT
MODERNIZATION.
>> MODERNIZATION.
I AM DEFINING WHAT CAPACITY
IS, WHICH IS A PORTION OF
THE ASSESSMENT AND CAPACITY
COST IS FOR MODERNIZATION
WHICH MAY NOT BE IN YOUR
DISTRICT HENCE YOU HAVE
EXHIBIT -- THE NEW USERS
PAYING FOR THE
MODERNIZATION.
>> SO WHERE ON THE SDMOUMENT
THAT IS APPENDIX?
>> YES.
>> SO THE DOCUMENT RENDERS
THAT TESTIMONY FALSE IS WHAT
YOU ARE SAYING?
>> YES.
>> OKAY.
>> LET ME ASK THIS YOU.
THERE IS ANOTHER QUOTE FROM
THE CITY FY FANS DIRECTOR.
HE SAID AND I QUOTE THE COST
ATTRIBUTEABLE TO THE NEW
CUSTOMERS ARE COMING FROM
ASSESSMENTS FROM THE BONDS
AND THE ISSUE.
THOSE CALLS THAT BENEFIT THE
ENTIRE SYSTEM SUCH AS THE
REPLACEMENT OF EXISTING
SEWER PLANT WILL COME FROM
ALL OF THE CUSTOMERS ON WHAT
IS CALLED A RATE-BASED BOND
ISSUE WHERE THE DEBT SERVICE
WILL BE INCLUDED IN THE
MONTHLY USER FEE.
>> MY RESPONSE TO THAT IS IT
IS IN THE FUTURE TENSE.
WILL, I AM NOT SURE THAT THE
CITY FINANCE DIRECTOR A CAN
PREDICT THE POLITICAL WHIMS
OF THE CITY COUNCIL.
THAT IS ALL BASED ON WHETHER
THE CITY COUNCIL IS GOING TO
VOTE FOR WHAT THE FINANCE
DIRECTOR PREDICTS WILL
HAPPEN.
>> BUT THAT IS WHY -- I
GUESS THAT IF SOMETHING
HAPPENS IN THE FUTURE, THAT
ENDS UP' BEING AN UNFAIR
ALLOCATION OF COST, I THINK,
THIS CASE DOESN'T PUT THAT,
YOU KNOW, I THINK YOU ARE
STILL ABLE TO ARGUE IT.
ALL WE ARE LOOKING AT HERE,
AND I WOULD IMAGINE THAT IF
THE MONEY AS COLLECTED AND
THE BOND DOESN'T GO TO THE
PURPOSES REPRESENTED IN THE
RECORD, WOULD YOU HAVE
ANOTHER CASE, WE ARE JUST
LOOKING AT, I MEAN, THIS
RECORD WITH WHAT HAS BEEN
SAID BY THE CITY COUNCIL,
YOU KNOW, WITH THE STUDY,
AND THE FINDK, WHETHER THIS
BOND, THE BOND SHOULD BE
VALIDATED.
NOW, YOU KNOW, AGAIN, IF
SOMETHING HAPPEN WHERE THE
SPECIAL ASSESSMENTS ARE
COLLECTED THEN IT IS USED
FOR SOMETHING ELSE, I WOULD
THINK WOULD YOU HAVE A
PRETTY GOOD LAWSUIT.
SO DO YOU SEE?
I WANT TO MAKE -- I DON'T
THINK YOU ARE PRECLUDED, IF
WHAT HAS BEEN SAID IN THE
LAWSUIT DOESN'T OCCUR, FROM
CHALLENGING THOSE OTHER
METHODS OF FUNDING, THE
MODERNIZATION.
DO YOU THINK YOU ARE?
>> NO, I WOULD NOT THINK WE
ARE PRECLUDE BUT I WOULD
HOPE THIS PARTICULAR
LAWSUIT, BECAUSE WE HAVE 13
OTHER DISTRICTS TO VALIDATE
WOULD SET GUIDELINES.
>> BUT, YOU KNOW, THAT IS
THE PROBLEM.
THERE IS A REASON FOR THIS
COURT TO HAVE DIRECT
JURISDICTION OVER BOND
VALIDATION AND THE COURT,
WHETHER WE HAVE STRAYED MORE
THAN SOME MEMBERS MIGHT
THINK WE SHOULD.
THE ISSUES RELATED TO IT ARE
VERY NOW AND THAT IS WHY I
WOULD HESITATE TO GO, WELL,
YOU WANT US TO DO MORE, TALK
ABOUT THESE FUTURE
ASSESSMENTS AN, YOU KNOW, OR
MAKE SOME OTHER DECISIONS
THAT THEY ARE BOUND TO, I
DON'T THINK THAT IS WITHIN
OUR JURISDICTION.
>> ACTUALLY, YOUR HONOR, I
BELIEVE WE ARE MAKING THE
SAME ARGUMENT AS JUSTICE
BELL INDICATED, HE WAS
INDICATING WHAT THE CITY
MANAGER SAYS WILL HAPPEN IF
HIS TESTIMONY, IF THE CITY,
OR AS THE CITY FINANCE
DIRECTOR.
IF THE CITY FINANCE
DIRECTOR'S TESTIMONY HAD
BEEN, THIS IS HAPPENING,
THIS IS PART OF THE PLAN
RIGHT NOW.
THEN I THINK IT WOULD BE
DIFFERENT.
>> DON'T THE CITY'S
RESOLUTIONS AND THE BOND
COVENCE SAY THAT THAT IS
WHAT IS GOING TO HAPPEN?
WHAT THE CITY FINANCE
DIRECTOR TESTIFIED TO IS
CONSISTENT WITH WHAT THE
CITY'S RESOLUTIONS AND THE
BOND CONVENT SAY IS GOING TO
HAPPEN.
AND SO WHAT JUSTICE PARIENTE
IS SAYING IF THAT DOESN'T
HAPPEN, THIN, MAY HAVE A
CASE, BUT AT THIS POINT,
THEY ARE CONNENTED BY
RESOLUTION OF THE CITY
GOVERNMENT SAYING THIS IS
WHAT WE ARE GOING TO DO WITH
THE MONEY, THIS IS HOW WE
ARE GOING TO BIFURCATE THEM.
WHAT IS WRONG WITH THE PLAN
AS IT IS SET OUT?
>> BECAUSE THAT PLAN IS
TOTALLY SUBJECT TO POLITICAL
WINS.
IT IS.
WILL THOSE, WILL THOSE OTHER
THINGS ACTUALLY TAKE PLAINS
THE FUTURE?
IT IS JUST BASICALLY A
PROMISE.
WE ARE WORKING AT WHAT IS
PROVIDED FOR RIGHT NOW IN
THE DOCUMENTS AND RIGHT NOW
ON THE DOCUMENTS, WE KNOW
THROUGH READING THE
TRANSCRIPTS THAT THE WHOLE
DISCUSSION WAS
DISTINGUISHING BETWEEN
EXISTING USERS AND NEW USERS.
>> HOW DO THEY GO ABOUT
FINANCING THIS EXPANSION?
>> WELL, ONE OF THE WHOLE
QUESTIONS THAT YOU HAVE IS
IS THIS REALLY A HIDDEN TAX
AND SHOULDN'T YOU GO TO A
TAX WHERE EVERYBODY PAYS
PART OF THE BURDEN?
>> SO YOUR POSITION IS THAT
THEY SHOULDN'T BE ABLE TO
MAKE THESES ASSESSMENTS FOR
THIS SPECIFIC EXPANSION,
THAT THIS SHOULD ONLY BE
DONE THROUGH EVERYBODY
INCLUDING EXISTING USERS AN
EXISTING DISTRICTS?
>> RIGHT, YEAH.
>> BUT THERE IS NO LEGAL
REQUIREMENT OF THAT, IS
THERE?
>> THE ONLY LEGAL
REQUIREMENT AS I READ THE
DECISION WHEN THE BOND
VALIDATION PAPERS ARE
DEVELOPED THERE MAY BE NO
DISTINGUISHING BETWEEN OLD
AN NEW USERS AND THAT IS
EXACTLY WHAT HAS HAP BENED
HERE.
HAVEN'T WE CONSISTENTLY,
THOUGH, IN OUR CASES DEALT
WITH SITUATIONS WHERE THERE
MAY BE THE EXTENSION OF SOME
KIND OF UTILITIES BE IT
WATER, WHATEVER INTO AREA,
HAVEN'T WE ALWAYS ANSWERED
THAT, THAT THAT DOES THEN
REND EAR SUFFICIENT BENEFIT
TO THOSE PARTICULAR PROPERTY
OWNERS AN SEPARATE AN APART
FROM THE PEOPLE WHO LIVE IN
THE CITY OTHERWISE AND
HAVEN'T WE ALWAYS ALLOWED
THAT KIND OF APPROACH, YOU
MAY GET INTO A QUESTION OF
WHETHER THERE IS A BENEFIT,
BUT ONCE YOU DETERMINE THERE
IS A BENEFIT, HASN'T THIS
COURT ALWAYS ALLOWED THAT?
>> WELL, THE HISTORY, THE
HISTORY OF THE COURT IN
EARLIER DAY, IT WAS CALLED
PRECOURIER BENEFIT TO THE
PROPERTY.
RIGHT NOW, THE BENEFIT AS WE
BELIEVE IT TO BE IS THAT A
COMMUNITYWIDE BENEFIT.
>> FROM SEPTIC TANKS TO SES
PITS THE GIVEN SEWER SYSTEM.
>> THERE IS SOME.
I MEAN, THERE IS SOME
BENEFIT, BUT YOU HAVE TO
LOOK AT THE EVERALL BENEFIT.
>> YOU ARE INTO YOUR
REBUTTAL IF YOU WANT TO SAVE
LITTLE BIT OF TIME.
>> I WILL SAVE A COUPLE
MINUTES.
THANK YOU VERY MUCH.
>> THANK YOU VERY MUCH.
>>> GOOD MORNING.
I AM MIKE DAVIS WITH THE LAW
FIRM OF BRYANT MILLER OLIVE
REPRESENTING THE CITY OF
MARCO ISLAND.
>> WOULD YOU GO RIGHT
DIRECTLY TO WHAT HE
IDENTIFIED THIS MORNING LUGE
THE QUESTIONING THE REAL
COMPLAINT, THAT IS THAT THIS
REALLY IS NOT A SET IN STONE
PLAN THAT THESE NEW FOLKS
ARE GOING TO HAVE TO PAY FOR
THIS MODERNIZATION THING,
TELLS US, THERE IS
DOCUMENTATION THAT JUST
RENDERS THE SYSTEM THAT WE
HAVE QUOTED TO BE INCORRECT.
>> THAT IS NOT TRUE, YOUR
HONOR.
THERE IS NO SUCH
DOCUMENTATION.
>> HE REFERRED TO A
DOCUMENT.
HAVE YOU LOOKED THAT?
WHAT IS THAT DOCUMENTATION
THAT HE TOLD YOU?
>> I THINK THE ONE HE IS
REFERRING TO WAS THE EXHIBIT
THAT HAS VARIOUS NUMBERS IN
IT AS PROJECTIONS TO HOW
MANNIS GOING TO BE SPENT.
I MEAN, I DON'T SEE THAT IN
THERE, YOUR HONOR.
I SEE NOTHING IN THERE.
>> WHAT WAS THE ARGUMENT
MADE TO THE TRIAL COURT
JUDGE DURING THE VALIDATION
PRECEDINGS IN OPPOSITION
HERE?
>> IN OPPOSITION, THE
ARGUMENT WAS MUCH THE SAME
AS WHAT HAS BEEN MADE HERE
BY OPPOSING COUNSEL.
THERE IS NO EVIDENCE, YOUR
HONOR, THIS IS ABSOLUTELY NO
EVIDENCE TO REBUT THE
TESTIMONY THAT WAS DISCUSSED
IN COUNSEL'S ARGUMENT.
THERE WAS NO POSING
TESTIMONY.
>> SO THE ARGUMENT THERE WAS
YOU ARE STICKING ALL OF
THESE PEOPLE THAT ARE GOING
TO BE ACCESSED FOR THIS
EXPANSION WITH ALL OF THIS
OTHER MODERNIZATION AND ALL
OF THAT?
>> I BELIEVE THAT WAS THE
ARGUMENT.
I TRIED IT AND THAT WAS THE
ARGUMENT.
THE PROBLEM IS THERE IS
NOTHING TO CONTRADICT THE
TESTIMONY ON THE RECORD.
>> LET ME GO LUGE THE
BACKDOOR ON THIS ONE.
IS THEIR DOCUMENTATION THAT
DEMONSTRATES, NOT TESTIMONY,
DOCUMENTATION THAT
DEMONSTRATES THAT THE
MODERNIZATION ASPECTS
ACCORDING TO THE TESTIMONY
WILL BE BORN UNIFORMLY AND
NOT BY THE NEW CONNECTION.
IS THEIR SOME DOCUMENTATION
WE CAN LOOK AT FOR THAT.
LET'S GO REVERSE.
I BELIEVE IN THE EXHIBITS
BEING DISCUSSED.
I WOULD HAVE TO LOOK AT IT
TO TELL YOU.
I AM GOING BY MEMORY.
I BELIEVE THAT THAT IS IN
THAT EXHIBIT.
>> OKAY.
>> AGAIN, OBVIOUSLY, THAT
WAS A PROJECTION, THOSE
THINGS CHANGED.
THOSE NUMBERS CHANGED AS
TIME GUESS ON, BUT I THINK
THE RECORD IS CLEAR, THERE
IS NOTHING IN THE RECORD TO
INDICATE THAT THE FOLKS THAT,
THAT THIS ASSESSMENT MONEY
IS GOING TO BE SPENT ON THE
MODERNIZATION.
SO THIS REALLY IS A GARDEN
VARIETY ASSESSMENT.
YOU AGREE THAT IF IT WERE,
USED NOT FOR THE PURPOSE
THAT IS BEING REPRESENTED
WHICH IS TO AGAIN PAY BACK
THE 1.5 MILLION AND 3.5
MILLION, FIT WAS USED
DIFFERENTLY, WOULD THEY HAVE
A BASIS TO COME BACK INTO
COURT?
>> YES, YOUR HONOR.
I BELIEVE THEY WOULD.
>> LET ME SEE IF I CAN
DELINEATE WHAT I THINK YOUR
OPPONENT IS SAYING.
THAT EXHIBIT THAT HE POINTED
TO, IT SAYS BASICALLY THAT
THOSE PROJECTS THAT ARE
UPLAID AND CAPACITY TO
COLLECTION AN TREATMENT
SYSTEM COMPLIES THIS
COMPONENT AND IT ENDS UP
SAYING THAT THIS IS GOING TO
COST $38 MILLION.
THEN THE NEXT PART OF THOSE
TWO, THE NUMBER OF PARCELS
THAT ARE BEING AFFECTED, ARE
THOSE PARCELS THE NEW UPLAID
PAR SELL, I ASSUME, IT COMES
TO 3,000 OR SO, SO THOSE
3,000, FOR EACH OF THOSE
6,000 PARCELS, THEIR SHARE
IS ABOUT 6,000 DOLLARS.
YES, THAT IS CORE REMEMBER.
>> THAT IS CORRECT.
BUT I THINK THE PROBLEM HERE
AS HE SEES IT IS THAT THIS
SAYS UPGRADE AND CAPACITY
ADDITION, AND SO IF THOSE
SIX PEOPLE WHO ARE THE
ADDITIONAL CAPACITY PEOPLE
ARE PAYING FOR THOSE, BOTH
OF THOSE COMPONENTS IN THE
$38 MILLION.
I THAT I IS WHAT HIS
ARGUMENT IS, AND SO HOW DO
YOU ADEGREES THAT?
BECAUSE YOU KNOW IT WOULD BE
READ IN THE WAY HE IS
SAYING.
>> YES.
I THINK THAT WAS ADDRESSED
IN THE TESTIMONY.
IT WAS EXPLAINED UNTHINK
TESTIMONY THAT IS IN THE
RECORD THAT YOU HAVE GOT TWO
COMPONENTS.
GOT A ROUGHLY $68 MILLION
PROJECT, ABOUT $30 MILLION
OF IT IS FOR THE PLANT
UPGRADES THAT ARE GOING IN
THE RATE BASE, NOT GOING ON
THE ASSESSMENT.
ABOUT $38 MILLION ARE GOING
IN THE ASSESSMENT.
THAT WAS THE ONLY, THAT IS
THE ONLY TESTIMONY IN THE
RECORD.
S THAT YOU THE TESTIMONY.
>> THE RATE BASE IS
EVERYBODY?
>> THE RATE BASE IS
EVERYBODY.
THE FINANCE DIRECTOR WENT ON
TO TALK ABOUT HOW WE DMI A
BOND ISSUE IN THE FUTURE
BASED ON THE RATE BASE.
THEY MAY PUT PIT ON THE
UTILITY BILLS.
>> AND WE ARE NOT GOING TO
BE DETERMINING THIS CASE THE
WAY THEY FINANCE THAT OTHER
IMPROVEMENTS IS PROPER OR
IMPROPER.
THAT IS NOT BEFORE US.
SO WHEN WE ISSUE AN OPINION
ASSUMING WE UPHOLD THE TRIAL
COURT, WE ARE DOING IT ON
THE BASIS THAT THE
ASSESSMENTS THAT ARE GOING
TO THEN BE USED TO PAY BACK
THE BOND ARE ASSESSMENTS
THAT WILL SOLELY FOR THE
EXPANSION OF THE SYSTEM.
>> THAT IS CORRECT.
>> ALL RIGHT.
GAIN.
JUST WANT TO MAKE SURE.
IF IT DOESN'T, IT IS A
REMEDY.
>> THAT IS ANOTHER, THAT IS
A WHOLE ANOTHER CASE.
THAT IS RIGHT.
>> THE OPPONENT ALSO SAYS TO
YOU, HE SAYS THAT THIS IS
REALLY JUST GENERAL BENEFIT.
>> YES.
>> THIS IS THE CASE LAW SAYS
THAT YOU MUST HAVE SOME KIND
OF SPECIFIC BENEFIT.
WHAT IS THE CITY'S RESPONSE.
>> THE ANSWER TO THAT
JUSTICE YOU LEWIS IS THAT
THE CASES THAT THIS CASE HAS
COME DOWN WITH PARTICULARLY
IN THE LAST TEN YEARS HAS
SIDED IN THE BRIEFS HAS SAID
THAT THE DETERMINATION OF
SPECIAL BENEFIT IS A
LEGISLATIVE DETERMINATION
FOR THE LOCAL GOVERNING
AUTHORITY UNLESS IT IS
ARBITRARY, IN THIS CASE, WE
HAVE GOT THAT DETERMINATION
MADE IN THE RESOLUTIONS AN
BACKED UP BY EXPERT
TESTIMONY IN THE RECORD
CITED ON THE BRIEFS,
ADDITIONALLY, THIS COURT HAS
SET OUT A CATEGORY, A
GENERAL CATEGORY OF PROJECTS
THAT YOU CAN'T FINANCE WITH
SPECIAL ASSESSMENTS ON THE
LAKE COUNTY CASE.
CAN'T FINANCE GENERAL
GOVERNMENTAL OPERATIONS, FOR
EXAMPLE.
>> HAVE HE EVER HELD THAT
YOU CAN'T DO THIS WITH
REGARD TO INSTALLING OF THE
SEWER SYSTEM TO REPLACE
SEPTIC TANKS.
>> NO.
JUSTICE LEWIS, YOU HAVE NOT.
>> HAVE WE DONE THE OPP SIT?
WHAT IS THE CASE CLOSESTS?
>> WELL, A COUPLE OF CASE
THAT ARE CLOSE ON POINT AND
THE ONE IS THE PORT SAINT
LUCIE CASE WHERE THIS CORT
UPHELD AN ASSESSMENT FOR
EXPANDING SEWER LINES, A
SPECIAL ASSESSMENT.
MARKY VERSUS POINT YOU ST.
LUCIE IN 1995, A COUPLE OF
OTHER CLOSES THAT ARE REALLY
CLOSE INVOLVE SOLID WASTE
ASSESSMENTS.
IN THE PARIS VERSUS WILSON
CASE IN 1997 -- HARRIS
VERSUS WILSON CASE.
THIS COURT UPHELD A
COUNTYWIDE FOR MAINTENANCE
OF A SOLID WASTE FACILITY.
HERE, WE'RE DEALING WITH
LIQUID WASTE, NOT SOLID
WASTE, BUT THE CONCEPT IS
THE SAME AND ALSO POINT OUT
IF THERE IS ANYTHING IN THE
RECORD THAT COULD, COULD BE
FROM WHICH AN IN FURRANCE
COULD BE DLAUN THE MONIES
BEING SPENT IN SOME WAY
OTHER THAN WHAT THE
TESTIMONY IS THAT IS BEING
SPENT WHICH IS CLOSING
COUNSEL'S ARGUE AM.
THIS WAS TRIED BEFORE A
CIRCUIT JUDGE.
THE CIRCUIT JUDGE WAS
ENTITLED TO EVALUATE THAT
EVIDENCE AND EVALUATE THE
INFERRANCES FROM THAT
EVIDENCE, WHICH HE DID, SO
OBVIOUSLY, IF THERE WERE ANY
INFERRANCES TO THE CONTRARY,
THEY WERE DISCOUNTED BY THE
CIRCUIT JUDGE.
THERE IS CERTAINLY EVIDENCE
IN THE RECORD ABUNDANT
EVIDENCE TO SUPPORT THE
CITY'S INTENTION AND THE
CITY'S PLAN AND HOW THE CITY
IS GOING TO SPEND THE MANY.
>> WELL THE BOND DOCUMENTS
THEMSELVES --
>> ABSOLUTELY.
ABSOLUTELY, YOUR HONOR.
SO AGAIN, WE THINK THIS IS A
CLEAR CASE.
THERE IS NO NOVEL ISSUE OF
LAW IF THERE ARE ANY FACTUAL
ISSUES, THEY WERE RESOLVED
BY THE TRIAL COURT WHAT THE
CITY MAY DO IN THE FUTURE IS
NOT BEFORE THE COURT, AND
WHICH WOULD URGE THE COURT
TO SUSTAIN THE JUDGMENT ON
APPEAL.
>> THANK YOU.
>> REBUTTAL?
>> JUST BRIEFLY, I WOULD
ARGUING THAT THE MOST VALID
IN THE CASE IS THE CITY OF
EDEN CASE WHICH PROHIBITS
OLD USERS AN NEW USERS IN
INDICATES THAT IS IN OF
ITSELF ARBITRARY AND
IRRATIONAL.
WAY SO ASK THE COURT TO
UPHOLD AND CONTINUE TO
FOLLOW THE POLICY RATIONALS.
>> LET ME ASK YOU, WOULD YOU
HAVE TO AGREE THAT IF YOU
ARE EXPANDING SOMETHING, YOU
ARE PUTTING SOMETHING IN
THAT DOES NOT EXIST,
BASICALLY, THAT IS WHAT WE
ARE DOING.
WE ARE PUTTING THIS WOULD
PUT IN A SEWER SYSTEM
SOMEPLACE WHERE IT DOES NOT
EXIST, CORRECT?
>> RIGHT.
>> RIGHT.
>> SO WHY SHOULDN'T THOSE
PEOPLE WHO ARE GOING TO BE
USING THIS ITEM THAT DOES
NOT EXIST, WHY SHOULDN'T
THEY HAVE TO PAY FOR IT AND
NOT THE PEOPLE WHO ARE NOT
GOING TO BE USING THAT
PORTION OF THE SYSTEM.
>> SURE.
YES.
THEY OUGHT TO PAY THEIR FAIR
SHARE, BUT THEY SHOULD NOT
HAVE TO PAY FOR REPAIRING
THE DEGRADATION OF THE PLANT
THAT THEY HAD NOTHING TO DO
WITH
>> OKAY, LET'S GO BACK THEN.
WE HAVE CENTERED IN ON YOUR
QUESTION.
NOW THE EXPLANATION IS, THIS
IS ONLY THE PORTION OF THE
CAPACITY, THAT THE OTHER 30
MILLION AND UPGRADES OF YOUR
MODERNIZATION ARE NOT PART
OF THIS, NOW, THAT IS THE
RESPONSE.
NOW, WHAT IS WRONG WITH THE
RESPONSE THAT AS YOU SEE IT?
>> YEAH, AS ICYTED BEFORE TO
THE RECORD, I DON'T BELIEVE
THE RECORD BARES THAT OUT.
I ALSO BELIEVE THAT --
>> YOU HEARD TESTIMONY THAT
THIS IS GOING TO BE USED FOR
THAT?
>> GOING, YOU KNOW, GOING TO
BE USED.
>> IS THEIR TESTIMONY
CONTRARY TO WHAT HE SAYS?
THERE IS TESTIMONY THAT IT
IS GOING TO BE USED FOR
THAT, YES, YOUR HONOR.
>> OKAY.
>> BUT THAT IS JUST
PREDICTION INTO THE FUTURE.
I BELIEVE YOU BY MAKING A
DECISION CONSISTENT WITH THE
EDEN, WE CAN ACTUALLY HOLD
OFF FUTURE LAWSUITS.
I THINK THAT IS GOOD.
>> ALL RIGHT.
>> THANK YOU VERY MUCH.
>> THANK YOU.
>> YOU HAVE USED UP YOUR
TIME.
WE THANK YOU FOR YOUR
ARGUMENTS.
WE WILL TAKE IT UNDER
ADVISEMENT.