Article Courtesy of The Ocala Star Banner

By Bill Thompson

Published September 20, 2012

With nothing to lose, critics of Marion County’s special tax districts are taking their beef to the state’s highest court.

Residents of three west Marion subdivisions want the Supreme Court to accept — and ultimately overturn — an appellate court’s decision upholding the County Commission’s mandate for road-paving projects under the county’s Municipal Services Benefits Unit, or MSBU, program.

The case hinges on whether the justices will consider whether the board followed state law in implementing the projects, which cost each property owner between $900 and $4,900, depending on which subdivision they live in.

Richard Bennett, a Coral Gables lawyer representing the homeowners in the class-action lawsuits, offered mixed views about his clients’ chances of prevailing.

“If (the) supremes accept the case I am optimistic. But very, very few cases are accepted,” Bennett wrote in an email.

County Attorney Guy Minter said the county would stick to its past arguments, if the Supreme Court agrees to hear the case.

The odds are daunting for Bennett and his clients.

Bennett’s clients won early on, securing favorable rulings from Circuit Judges Jack Singbush and Brian Lambert. Both judges agreed that the County Commission had failed to follow a 1985 law specific to Marion County that said the tax districts could only be established with the support of 51 percent of all of the affected property owners, as rendered in a straw ballot.

County officials, since 1996, had cited an internal policy that defined the majority as 50-percent-plus-one of the landowners who actually returned ballots. That lowered the threshold for pushing through the projects, since, county officials have said, as many as 40 percent of property owners polled do not return their ballots.

In the cases handled by Bennett, the taxes were imposed even though fewer than 50 percent of the landowners supported them.

Both Singbush and Lambert determined that the county had miscalculated the results and ordered refunds.

Yet the county persisted.

The government countered that its authority to again impose the taxes was derived from a 2009 ordinance that created second charges called reassessments. If a judge nulls the first assessment, county commissioners, under the ordinance, may take “all steps necessary to impose a new assessment against any property” that benefits from a paving project.

Singbush and Judge Frances King upheld in separate decisions the county’s right to collect reassessments.

Last month, a three-judge panel from the Fifth District Court of Appeals in Daytona Beach backed those rulings, saying the state Constitution empowered the county to collect from the property owners, despite their being wrongfully assessed, because they had profited from the work.

Recently, the appellate court rejected Bennett’s request for a re-hearing before the entire Fifth DCA 10-judge panel.

Bennett said to go forward, he needs four of the five Supreme Court justices reviewing the case to accept it. To do that, the justices would have to say the case has “exceptional importance.”

Bennett had said after the Fifth DCA ruling that the appellate judges missed the main thrust of his argument: that the County Commission’s authority to impose the assessments was restricted by the law permitting the tax districts, which was not repealed until 2010.

County officials, since 1996, had cited an internal policy that defined the majority as 50-percent-plus-one of the landowners who actually returned ballots. That lowered the threshold for pushing through the projects, since, county officials have said, as many as 40 percent of property owners polled do not return their ballots.

In the cases handled by Bennett, the taxes were imposed even though fewer than 50 percent of the landowners supported them.

Both Singbush and Lambert determined that the county had miscalculated the results and ordered refunds.

Yet the county persisted.

The government countered that its authority to again impose the taxes was derived from a 2009 ordinance that created second charges called reassessments. If a judge nulls the first assessment, county commissioners, under the ordinance, may take “all steps necessary to impose a new assessment against any property” that benefits from a paving project.

Singbush and Judge Frances King upheld in separate decisions the county’s right to collect reassessments.

Last month, a three-judge panel from the Fifth District Court of Appeals in Daytona Beach backed those rulings, saying the state Constitution empowered the county to collect from the property owners, despite their being wrongfully assessed, because they had profited from the work.

Recently, the appellate court rejected Bennett’s request for a re-hearing before the entire Fifth DCA 10-judge panel.

Bennett said to go forward, he needs four of the five Supreme Court justices reviewing the case to accept it. To do that, the justices would have to say the case has “exceptional importance.”

Bennett had said after the Fifth DCA ruling that the appellate judges missed the main thrust of his argument: that the County Commission’s authority to impose the assessments was restricted by the law permitting the tax districts, which was not repealed until 2010.

Should the quest before Florida’s highest court fail, Bennett indicated he has another option. A resident, he said, has contacted him about drafting a petition for a state constitutional amendment that would require majority approval of landowners before assessments could be approved by local governments.