Item J3BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: June 10, 2015
Bulk Item: Yes No X
Division: Engineering & Public Works
Department: Wastewater
Staff Contact Person/Phone #:Wilson (453-8797)_
AGENDA ITEM WORDING: Discussion, direction and possible approval of a policy for collection
of individual assessments for residential properties that were not developed and, therefore, not
included in the assessment program.
ITEM BACKGROUND: There are some properties that are within the CRWS service area, but not
included in the original design because they were undeveloped at the time. These properties were not
assessed and the cost of providing a service connection was not included in the construction project.
At the March BOCC meeting, staff was directed to review and report on the effect of allowing such
properties to voluntarily sign up to be assessed if they renounced the right to claim that such payment
could be used in a claim for development rights. This policy decision could affect other systems such
as Duck Key and Big Coppitt.
PREVIOUS RELEVANT BOCC ACTION: At its March 2015 meeting, BOCC directed staff to
produce this report for discussion.
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: N/A
TOTAL COST: TBD INDIRECT COST: Staff Time BUDGETED: Yes No X
DIFFERENTIAL OF LOCAL PREFERENCE: N/A
COST TO COUNTY: TBD SOURCE OF FUNDS: Infrastructure Sales taxes, Assessments
REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year
APPROVED BY: County Atty CR OMB/Purchasing Risk Management
DOCUMENTATION: Included X Not Required _
DISPOSITION: AGENDA ITEM #
Revised 7/09
Proposed Plan
MONROE COUNTY
PUBLIC WORKS & ENGINEERING DIVISION
DATE: 3 June 2015
TO: BOCC CC: Administrator
FROM: Kevin G. Wilson
SUBJECT: Payment of Sewer Assessments by Undeveloped Properties
Proposed Plan:
1. A one time "opt in" opportunity should be made available to property owners
ending at 5:00pm on 31 May 2016.
2. "Opt in" should be limited'to residential properties. .
3. "Opt in" should be for 1 EDU/parcel. If a later development on that parcel is
approved for a multiunit residential development the additional EDUs will be
added at that time.
A. Execution of a "Consent & Acknowledgement" agreement will be required to "opt
in and that document will contain the following conditions, at a minimum:
a. Acknowledgement that the assessment is $4,500/EDU
b. Waiver of Notice of imposition of a non -Ad Valorem Special Assessment
c. Acknowledgement that the property is specially benefited by this
opportunity
d. Waiver of the right to claim that this assessment provides any support for
a right to a development (i.e. a right to a ROGO allocation) or any other
rights from the County
e. Waiver of the right to claim a refund if no ROGO allocations are awarded
or if no development is pursued
f. Acknowledgement that an additional assessment will be levied if the
eventual development exceeds 1 EDU
g. Acknowledgement of the possible need for, and commitment to provide, -
an easement for installation of a low pressure grinder station
Current Situation:
All vacant properties without building permits at the time of the design completion were
not included in the assessment rolls. Connection points, or grinder stations were not
provided. When such properties are developed (i.e. building permit is issued), they are
assessed the system development fee (SDF) of $4,500. The property owner/developer
is responsible for the cost of providing the connection to the sewer collection main (or
grinder station, where applicable) and for the property's own property lateral to connect
to the system (to the property line for gravity or to the grinder station, as applicable).
The estimated costs of various connection options were provided by FKAA as follows:
1. Actual cost to provide a connection for
a. A gravity area property would be $2,500-$7,500 depending on how deep
the street main is in the area
b. A grinder station installation would cost $9,000 - $13,000/property
depending on the distances to the street and the amount of pavement to
be repaired.
2. If a single uniform cost were to be established for all properties (regardless of
whether it was in a gravity or low pressure area,' that amount would be in the
range of $6,900 - $11,225 (based on the mix of gravity & low pressure properties"
in the region).
Options Considered:
1. Newly developed properties pay the SDF of $4,500 when building permits are issued
plus
a. Actual costs [estimated at $9,000-$13,000 for a low pressure connection or
$2,500 - 7,500 for a new gravity connection
b. A set average amount as determined by FKAA [not yet determined but estimated
as $6,900 — $11,225]
c. A set amount separately calculated for LPS or gravity areas [$5,000 for gravity or
$11,000 for LPS connection](uses the middle of FKAA's range for each type of
connection).
2. Newly developed properties pay the SDF of $4,500 when building permits are issued
and County/FKAA pays for the connection(s) as needed.
3. All undeveloped properties are offered the option to "Opt In" by paying the SDF of
$4,500 and sign a waiver of "takings" liability and the system connection is provided at
no additional charge
Potential. Cost to County:
In the lower Keys the number of properties to which this is applied will be limited by permit
availability.
The numbers of permits`that can be issued in the ROGO subareas are:
Distribution of ROGO Allocations
subarea=>
Lower Keys
NNK/BPK
Upper Keys
type
Market Rate
570
85
605
Affordable
335
40
' 335
subtotal for Lower Keys & BPK/NNK = 1030
Total = 1970
Assuming that no more owners opt in than there are ROGO allocations available, the estimated
maximum cost to the County, under the above scenarios is:
1. a. Nothing
b. For 1,030 properties at $6,900 - $11,225 (minus $4,500) _ $2.5 - $6.9 million
c. For 1,030 properties comprised of 478 LIPS properties at $11,000 (minus $4,500 =
$3.1 million) and 552 gravity system properties at $$5,000 (minus $4,500 = $0.3 million)
or a total of $3.4 million.
2. There are 1,030 properties of which 478 could be LIPS (@ $10,000/property minus
$4,500) and 552 would be gravity (@. $5,000/property minus $4,500). The total cost to
the County (after reduction for the SDF payment) would be $2.9 million.
3. The maximum cost would be the same as #2 above
Worst Case Analysis: Even. if this applies to the entire lower Keys ROGO subarea including
Duck Key through Big Coppitt and all -of the opt in- properties are LIPS properties that maximum
out of pocket costs would be 1,030 properties at $13,000 (minus $4,500),would be $8.8 million.
Most Likely Case Analysis is #1:b. above. This will be spread over some time period which is
dependent on economic development, primarily.
If more properties opt in than there are ROGO allocations available, the out of pocket costs to
the County will be reduced as long as the Consent & Acknowledgement agreement entered
into by the property owners does not include an opt out & refund at a later date.
Legal Considerations:
A separate evaluation. of the legal issues by the County attorney is attached.
3
Legal Memo
MEMORANDUM
Office of the Monroe County Attorney
TO: Kevin G. Wilson, Division Director Public Works & Engineering
FROM: Cynthia L. Hall, Assistant County Attorney Cff
THRU: Bob Shillinger, County Attorney
DATE:-May.26, 2015 .
SUBJECT: Takings Liability, Adding Properties to CRWS
Vacant properties without building permits at the time of completion of design of the Cudjoe
Regional Wastewater System (CRWS) were not included in the assessment rolls for the purpose
of collecting special non -ad valorem assessments. Certain owners of those vacant properties
have asked whether they could pay the $4,500.00 system development fee (SDF), even though,
in some instances, the properties are still currently vacant.
At the March 2015 meeting, the County Attorney's Office indicated that it would provide advice
regarding the following legal issues:
1. Could the County be liable under a takings theory, if it allowed the owners of vacant,
undeveloped property to pay the SDF and ultimately the property owners were unable to
develop their property for any reason, including, for example, the property owner was
unable to receive a ROGO allocation or a building permit?
2. Would allowing a property owner of a vacant property give rise to a challenge to the
County's special assessment scheme, given that the property of the vacant property
would not be receiving a special benefit? - I
The brief answer is that in both instances there is some risk of legal liability. However, the
County should be able to manage its risk by having the property owners who wish to pay
the assessments sign a Consent and Acknowledgement (C&A) agreement.
I -
The C&A Agreement should include language in which the property owners acknowledges that
the ability to pay the special assessment now, thereby locking.in the SDF at current rates, does
not guarantee a ROGO allocation or a building permit or any other development rights in the
future that would give rise to a takings claim. The C&A agreement should include language
making it binding on heirs and assigns. In addition,. we should consider recording the document.
Although it adds a small additional cost, we would be able to point to the record notice imparted
by the recorded document, should a subsequent property owner deny actual notice.
The other legal issue that arose was whether imposing a special assessment on the property
without a current benefit Would give anyone a reason to argue that the special assessment as
applied to this property was invalid. Special assessments must meet two requirements: (1) the
property assessed must derive a special benefit from the service provided, and (2) the assessment
must be fairly and reasonably apportioned according to the benefit received. Sarasota County v.
Sarasota Church of Christ, Inc., 667 So. 2d 180 (Fla. 1996.) Assuming the property is within the
list of properties that could potentially be developed in the future and thus receive the special
benefit (although there is no guarantee that it will do so), it should qualify for the special
assessment. We should language in the C&A specifically waiving the right to raise this
argument if the property is not developed.
Please contact me should you have any questions. Thank you.
2
Maps showing Undeveloped Tier III & IIIA parcels
Date. 3/182015
Sugarloaf KeyAN-
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Private -Vacant Parcels4 ' fir' x r•
Tier III: 171 Parcels
Grinder Pump: 63 Parcels
GravitySystem: 108 Parcels
Tier III -A: 9 Parcels
Grinder Pump: 7 Parcels a
Gravity System2 Parcels
-
zVacant Parcels
- Tier III
x ' - Tier III -A
r LPS (Grinder Pump) Boundary
' O Data Source: Monroe County -Growth ManagemCudjoe Sewer District Boundary
e GIB }
Date: 3/182015
Date: 3/182015
Date: 3/182015
Ramrod Key],
a
Private-Vacant Parcels
Tier III: 234 Parcels
Grinder Pump: 92 Parcels
GravitySystem: 142 Parcels
Tier III -A: 2 Parcels
Grinder Pump: 2 Parcels
Gravity System: 0 Parcels
N'$1
S Data Source: Monroe County - Growth Management - GIS
Private -Vacant Parcels
- Tier III
_ Tier III -A
LPS (Grinder Pump) Boundary
OC.Wjce Sewer District Boundary
Date: 31182015
Date: 3/1WO15
Date: 3/182015
Dale: 311 W015