Keys RV Park Awaits Judge's Ruling on Sewer Case

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December 3, 2009 by   - () Leave a Comment

Condo associations up and down the Florida Keys are likely anxiously awaiting Acting Circuit Court Judge Ruth Becker's decision in a sewer-fees case pitting the city of Marathon against Keys RV.

Becker was expected to rule Tuesday (Dec. 1) on whether the charges are imposed fairly. But she delayed making a decision because she's been unable to review a recently filed motion for summary judgment against the city filed by Keys RV attorney David Paul Horan. The city has also filed a motion for summary judgment to get the case tossed, according to, Marathon, Fla.

Horan said that "after all this time, the court has to make a decision" on Keys RV's lawsuit, which was filed Oct. 21, 2008.

In the midst of constructing an $86 million sewer system, the city has assessed each of Keys RV's 200 property owners for one equivalent dwelling unit — totaling roughly $1 million.

Generally thought of as a low- or moderate-income RV park, owners sued the city, claiming they are being discriminated against based solely on form of ownership. The 200 property owners purchased the park in 2004, but doing so required them to form a condominium association to obtain bank loans.

Keys RV owners maintain that if they hadn't purchased the park, they'd be assessed on "historical [water] flow" like other mobile home and RV parks. That's determined by averaging a property's highest average three-month usage over a three-year period.

The city says the park's form of ownership has no bearing on the assessment and that residents are being charged what any individually owned property in Marathon is.

The difference is whether the park owners would pay for 74 equivalent units, or 200, which is what the city maintains is due.

Mark Solov, an attorney with Marathon's contracted legal department of Stearns Weaver in Miami, represented the city Tuesday. He argued an assessment method pleasing all residents is unlikely and that Keys RV owners have property rights other trailer park owners aren't afforded.

"Forty-nine of these lots … they are being declared as homesteaded properties. Each of the 200 parcels is owned, each has a bundle of rights all property owners have," he said. Those include the ability to lease, sell, mortgage or bequeath the property.

Solov also argued that municipalities must account for future redevelopment when figuring sewer assessments.

"Every property that is taxed is assessed in order to contribute to the whole. If the rule of law [was] you could only assess on what's there today, no local government would be able to plan a capital improvement," he said.

Finally, Solov stressed that city infrastructure funds and state and federal grant funding are footing approximately one-third of the entire $86 million sewer bill.

"The bottom line is there is no free lunch; this is a major capital improvement. It is providing a service and is based on a percentage of the cost, not the total cost," he said.

Horan's argument centered on one day, Sept. 7, 2004 — at 8:39 a.m. specifically. That's when Keys RV declared itself a condominium and set itself up for "arbitrary and capricious" sewer assessments, he said.

"What happened [that day]? Most important is what didn't happen. Ownership of the property did not change; the assessed value of the park did not change; there was no change in use and still has not been; the same people were in the same spaces before and after Sept. 7, 2004, at 8:39 a.m."

Horan also argued that determining Keys RV's rightful EDU count is simple, as the park has a single water meter. He said based on flow, the park's EDU count should be 74, not 200.

"That's how it's figured at all the other RV parks and trailer parks, but not us," he said.

Becker made no decision Tuesday, but did appear to question the city's take on the issue.

"I'm not understanding how there has been a use or impact change based on allowing these folks to be owners. Right now, there is no change in the outflow," she said.

Becker told attorneys she will review both motions for summary judgment and that more oral arguments are possible. She may render a decision based on the motions, as well.

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