Sunday, October 19, 2008

In separate lawsuits, Cheeca Lodge and three Lower Matecumbe Key residents are seeking to block the village's planned $631 per developed parcel wastewater assessment before tax bills are sent this fall.

The cases are among a spree of new suits the village faces.

Cheeca Lodge parent company Cheeca Holdings filed a class-action suit on Oct. 1 objecting to the assessment for failing to differentiate between various types of properties, which are certain to use widely disparate amounts of water.

The resort is heavily affected by the assessment, in part because many of its units have been sold off as hotel-condominiums, thereby making them subject to individual payments. All told, Cheeca and its condo owners must pay 156 assessments, while traditional hotels on one parcel would pay just one.

"The assessment program fails to differentiate between the owner of a single mobile home in one tax parcel as against the owner of a 400-bed hotel assessed within a single tax parcel," the suit says. "This assessment program fails to differentiate between the owner of an apartment complex as against the owner of a single condominium unit."

The Village Council passed the wastewater assessment on Sept. 11 to raise $2.5 million for planning and design of central sewer systems on southern Plantation Key, Windley Key, Upper Matecumbe and southern Lower Matecumbe. The assessment does not apply to north Plantation Key property owners, who paid $5,700 in 2005 ahead of that area's sewer construction.

While the uniform assessment raised objections from some residential property owners, especially condo residents, council members said they had little choice. The city has not yet compiled data on how much water each local business uses, a necessary step before the town charges big water-users, like restaurants, more than small water-users, like retail shops.

Meanwhile, the clock is ticking. The village already acknowledged it will miss the state's July 2010 deadline for upgrading wastewater treatment by at least 18 months. Further delay would jeopardize an extension agreement the town is negotiating with the Florida Department of Environmental Protection.

In the other lawsuit filed to block the assessment, Lower Matecumbe residents Arthur Gasser, Richard Greenfield and Bill Parker are asking the court to compel the village to conduct a water usage analysis before going forward with an assessment.

The Village Council, the suit says, has breached its duty to be fair and reasonable to constituents by ordering the assessment, "despite the admissions of each of its members in attendance on record that the assessment was arbitrary in nature and not based on any legally sufficient study, rate matrix or any other methodology whatsoever."

Before passing the uniform $631 assessment, village officials, as well as the town's sewer rates consultant, Government Services Group, expressed confidence that it is legal. Last week, village attorney Nina Boniske echoed that sentiment.

"We are not surprised in these difficult economic times that residents are challenging anything that has an economic impact on them, but we are confident that the planning assessment is legal and that the court will uphold it," she said.

The city says the $631 will be treated as a down payment toward the much larger assessment properties outside north Plantation Key face within two years to finance construction of the planned systems. Those assessments will vary on water usage and correct any inequities caused by this payment, officials say.

Rental challenge

The Cheeca and Gasser lawsuits aren't the only new legal challenges brought against the village.

On Oct. 2, 16 anonymous village residents filed the latest in a series of challenges to Islamorada's vacation rental ordinance, which took effect at the beginning of the month.

The regulations require all homeowners who wish to rent their properties for fewer than 28 days to be licensed annually. The law also bans vacation rentals in ordinary single-family neighborhoods, unless they have been there since before 2002 -- late 2001, to be exact. The suit argues that the grandfather date limit is discriminatory and unconstitutional.

The litigants are asking that the cutoff date be changed to April 13, 2007, the day the village's vacation rental ordinance became effective. They also say that other portions of the law, such as a regulation blocking vacation rentals in homesteaded properties, violate the Florida Constitution.

This latest suit comes on the heels of a Sept. 11 challenge to the new vacation rental regulations by three Lower Matecumbe vacation rental owners. The village already fended off two lawsuits while it was developing the vacation rental ordinance earlier this decade.

Village attorney Boniske said residents had many chances to object to the law when it was being developed.

"It appears that although there were numerous public hearings on this, folks are now coming forward through litigating when they didn't come forward through the adoption process," she said.

rsilk@keysnews.com