- April 19, 2024
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According Charlie Faulkner and Clint Smith, representatives of vacant-land owners, undeveloped land does not contribute to the need for a stormwater system and therefore should not have to pay.
On behalf of the vacant-land owners, Charlie Faulkner recently offered the city a compromise in the battle over stormwater fees.
Faulkner said the owners of these lands, which are undeveloped and have no swales, would agree to pay a nominal amount, which was $4.80 per acre per year, which works out to be about a 98% discount on its stormwater fee for undeveloped, vacant lands with no swales. (Single-family residential lots are charged $96 per year for one-quarter acre.)
Instead, the City Council voted 3-2 to approve a 95% discount for vacant lands, or about $14.20 per acre per year, on first reading. The next vote will be Tuesday, March 1.
But according to Faulkner and Palm Coast Holdings Vice President Clint Smith, even a 98% discount is unfair and likely would not hold up in a court of law.
Looking back on the history of stormwater utility ordinances, Faulkner said, helps to clarify the issue.
ITT v. DCA
In the 1970s, ITT decided to develop a portion of Flagler County that would eventually become Palm Coast. The company planned to pave 550 miles of roads around 45,000 single-family lots.
But during rainstorms, ITT knew that the miles of roads and thousands of rooftops that would eventually be built — the impervious surfaces — would create a great deal of stormwater runoff, and that if that wasn’t directed away from the houses, flooding would result.
To address that issue, the company built a network of shallow ditches, called swales, in front of all the residential lots. They were graded so that the water running off the driveways flowed into the swales, and then into ditches and eventually, into the canals, all of which are still maintained by the city.
The plan was working well until the late 1970s when the Department of Community Affairs put a stop to it. The DCA worried that digging canals was tampering with the environment in two critical ways: The water was running off too fast, and it was now loaded with nutrients, i.e., it was now polluted because of the asphalt, lawn fertilizer and pesticides, among other things introduced by development.
To fix those problems, the DCA said ITT had to analyze the land and develop a comprehensive land-use plan, which called for retention and detention ponds to be built, which would hold the water long enough for the extra nutrients to settle to the bottom and therefore not be conveyed to the ocean. It also required control structures within the canal system to further increase detention time and to raise groundwater elevations within the community so as to not adversely impact wetland systems.
Smith said that under current regulations, “You can’t change the drainage pattern. If before it seeped into a wetland, now, there’s runoff into a pond, which replicates the natural action into the wetland.”
Gainesville v. Florida
The state ultimately authorized municipalities to create stormwater utilities to fund the management of the system “by assessing the cost of the program to the beneficiaries based on their relative contribution to its need.”
That wording comes from a 2003 Florida Supreme Court case, City of Gainesville v. State of Florida, and it has caused much debate in the City Council during the past two years.
Faulkner and other vacant-land owners maintain that the historical need for the system was to address developed land, which altered the natural flow of the runoff and increased pollution in adjacent waters. Undeveloped land, Faulkner argues, doesn’t increase the volume or rate of runoff, elevate pollution levels or require any treatment and, therefore, does not contribute to the need for a stormwater system and should be exempt.
Also in the 2003 Florida Supreme Court case, the decision notes that Gainesville’s stormwater utility charges fees based on the area of impervious surface. It further states: “The vast majority of stormwater utilities across the country establish their rate structures by measuring impervious area.”
The city of Palm Coast charges developed residential lots $8 per month, while it charges undeveloped residential lots — lots without driveways or other impervious surfaces — at a lesser rate.
In the revised ordinance that was recently passed 3-2, vacant lands also get big discounts because there are no swales to maintain. The city estimates that of its $5.4 million stormwater budget, about 70% of that is used for maintaining swales, ditches and small pipes.
‘The problem’ v. ‘The solution’
But if any water from vacant lands does eventually drain into a city-maintained canal, those property owners do have to pay something.
“If you contribute to the problem, you should contribute to the solution,” Mayor Jon Netts said in a recent City Council meeting.
The implication of that statement is that any water, even if it flows at a natural rate and is unpolluted, contributes to the problem.
Not so, Faulkner said. “It may play well to the voters, but my clients don’t contribute to the problem,” he said.
One property that illustrates the point is located on either side of U.S. 1, at Matanzas Woods Parkway. Before ITT and Palm Coast built Matanzas Woods Parkway, stormwater drained naturally through Hulett Branch, a winding creek that eventually conveys water to other natural bodies of water to the ocean.
Now, however, a pipe, or culvert, has been placed in the middle of Hulett Branch to allow for cars to drive on Matanzas Woods above it. That culvert will eventually become worn out to the point that it must be replaced at a great cost to the city.
The new Palm Coast stormwater ordinance collects fees to pay for the culvert’s maintenance, regardless of where the water comes from.
But Faulkner says the origin of the water is a crucial point. If it’s from undeveloped land, it is flowing at a natural rate and is unpolluted. Therefore, it is not part of the problem, and it only flows through the city’s pipes because the natural stream was channelized and culverted. In other words, the pipe was built because of the need for a road at Matanzas Woods, not because of a need for stormwater management from the undeveloped land. Therefore, the undeveloped land does not contribute to the need of the system, is not benefited and should be exempt from any usage fee, Faulkner said.
“For over a year, we have been asking the city to explain how they think undeveloped lands are benefited, yet neither the mayor, staff nor consultants have attempted an answer,” he said.
Netts said in a recent City Council meeting that the undeveloped land is more valuable because it is adjacent to Palm Coast, which boasts a strong quality of life. Thus, the vacant lands benefit from the system.
But Faulkner rejects that answer and said: “There really is no answer because there is no benefit. My clients feel that they are being used to simply subsidize the real beneficiaries of this 40-plus-year-old drainage system … built before water management permits were required.”
Faulkner added that any future development has to follow even higher standards than before, with stricter anti-pollution regulations being considered. In other words, it’s against the law for developers to “contribute to the system.” Any water that leaves a developed piece of property must leave at a natural rate and in a natural state.
Smith praised the City Council for coming as far as it did, in agreeing to a 95% discount. Next, the vacant-land owners will wait for the final wording from the city, calculate their rates and decide whether it’s better to maintain their ground or accept the compromise.
