The Sun of a Beach Mouse

Sept 11, 2018 | Street Lawyer

[street_lawyer]

The Sun of a Beach Mouse

If you own a house on the beach on Perdido Key you just got screwed to the wall by Escambia County in sunny Florida, sometimes referred to as LA (Lower Alabama). It’s a shame how the liberals have begun to pollute a once conservative enclave in Sunny Florida. Escambia County is proposing a non-ad valorem (NAV) levy on the rich residents of Perdido Key for the protection of the Perdido Key Beach Mouse. It’s basically a soak the rich levy and it’s illegal. They could use tax revenue but in Florida local governments have a cap on taxes for all practical purposes. There is no cap on soaking the rich with a NAV levy, and the money they raise is not a tax, so it’s all free money, except for the well to do on Perdido Key, for them it’s not so free. The rest of the county unfortunately is dirt poor, but the environment is rich with animals and crawling creatures.

The Beach Mouse is listed as an endangered species, and according to the U.S. Fish & Wildlife Service (FWS) “Since life began on Earth, countless creatures have come and gone, rendered extinct by naturally changing physical and biological conditions”. The FWS askes “Why save endangered species?” and “How do we benefit?” The answer given is that “Endangered and threatened species of wildlife and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” Can’t you just feel the love?

I have never walked on the beach on Perdido Key, but I’m told that so far only the government officials have ever seen the little rat. But you can find a picture of what the cute little squatter is supposed to look like. Who wouldn’t want to take care of this little rodent?

The question posed by this article is not whether or not the Beach Mouse is worth protecting. The question is not even how much of our tax dollars should be devoted to protecting the cute little animal? The issue is that Escambia County must use tax revenue and not a NAV levy on the rich residents of Perdido Key to fund its animal protection program.

Traditional use of non-ad valorem (NAV) assessments is to raise money for infrastructure, sometimes referred to as a “special assessment”. Special assessments are NOT taxes. City of Boca Raton v. State. The nature of the NAV levy is subject to challenge as an issue of fact because; first, there must be a special benefit to the property assessed. I underlined that because I’m going to come back to that issue. The second prong doesn’t matter so we will just skip over it. You don’t get to the second prong if the NAV levy is illegal.

Escambia County is proposing a NAV levy to protect the “Perdido Key Beach Mouse”. To be valid a NAV levy must pay for public improvements proposed to be made therein, on the theory that such property thereby derives a special benefit .... Board of Supervisors v. Caldwell. On the other hand, general sovereign functions, such as “(1) the Office of the Sheriff; (2) elections; (3) code enforcement; (4) courts and related agencies; (5) animal control; (6) libraries; (7) parks and recreation; (8) public health; (9) medical examiner; (10) public works; and (11) support services,” may not be funded by a special assessment. Desiderio Corporation v. City of Boynton Beach. For a special assessment to be valid it must satisfy the two-prong test:

First, “the property burdened by the assessment must derive a ‘special benefit’ from the service provided by the assessment” and second, “the assessment for the services must be properly apportioned.” Collier County, 733 So.2d at 1017 (citing Lake County v. Water Oak Mgmt. Corp., 695 So.2d 667, 669 (Fla.1997)). The touchstone for a special benefit is “whether there is a ‘logical relationship’ between the services provided and the benefit to real property.” Lake County, 695 So.2d at 669. Desiderio, supra. at 493

We think of the “dog catcher” as the face of animal control, but this is but a part of what animal control is authorized to do. According to myescambia.com “Animal Services works in partnership with the community to create a safe, healthy and caring environment for both citizens and animals. The division promotes citizen safety, responsible pet ownership and education in the reduction of animal overpopulation.” Case law clearly holds that “animal control” is not an appropriate subject for a NAV levy. Despite what I learned in Biology class, certain mice may not actually “animals. Only in law can such nonsense be accepted as fact. And I thought that it was conservatives and Christians who didn’t believe in science?

Enacted January 23, 2002, Title X, Subtitle D of the Farm Security and Rural Investment Act, changed the definition of 'animal' in the Animal Welfare Act, specifically excluding birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research." Unless the Beach Mouse is used in research (God Forbid) it would appear that the Beach Mouse is an animal within the meaning of the law. I bet you already knew that the little while mouse was also an animal. But I digress. The proposed NAV levy is basically an animal control function of government and therefore must be funded by a tax and not a NAV levy.

A NAV levy is not a tax. Taxes are levied to distribute the burden of government among those who enjoy its benefits. Like taxing the rich to support the unemployed men and woman the environment put out of work to save the little rat. Taxes are supposed to serve a lawful public purpose, (they rarely serve the public interest). Taxes are supposed to be levied equally among all classes, (that’s a total joke), and levied at a uniform rate throughout each taxing unit. On the other hand, NAV levies must confer a “special benefit” to the burdened property, as explained in the Boca Raton case. Saving the Beach Mouse can hardly be a benefit to the burdened property. In fact, exactly the opposite is the case. If anyone is benefited it is not the property owner whose property rights are severely restricted. The Beach Mouse benefits but the property owners on Perdido Key do not. The assessment to save the Beach Mouse does not meet the basic requirement for NAV levy, no matter how laudable the purpose might be. The protection of the Beach Mouse according to the Federal Government is a “value to the Nation and its people”. It would be difficult to find a broader purpose to justify funding the protection of the Beach Mouse. The broader the purpose the more obvious is the legal prohibition for using a NAV levy. To protect the Beach Mouse Escambia County must find its program with tax revenues. Avoiding the cap on tax revenue by funding animal protection with a NAV levy is not a valid governmental purpose.

History of NAV Levies and the Power to Tax

I know this is all so boring, but for those who want to know more, the 1885 Florida Constitution did not provide for NAV levies. The United States Supreme Court suggested that the authority to impose a NAV levy is grounded in the “power of the state to require local improvements to be made which are essential to the health and prosperity of any community within its borders." Hagar V Reclamation Dist. No. 108. The 1968 Florida Constitution grants charter counties inherent powers of self-government as long as their ordinances are not inconsistent with general or special law enacted by the State Legislature. Escambia is not a charter county and is governed by Chapter 125, Florida Statutes. A non-charter county desiring to impose a NAV levy, should consider 125.01(1), (1)(q), and (5)(a). The power to impose a NAV levy is expressly limited to “fire protection, ambulance service, and waste collection and disposal”. 125.01 (1)(d), (e), (k).

Escambia County has established a Municipal Services Benefit Unit (MSBU), sometimes referred to as “financing units”. MSBU’s may be funded by either NAV levies, service charges, or taxes. The purpose of a MSBU is to provide listed municipal services including other essential facilities and municipal services. Given that the State of Florida and the Federal Government each have environmental agencies regulating endangered species, arguably saving the Beach Mouse was not included in the listed municipal services, nor it is saving the Beach Mouse an essential facility, (although a million dollars was spent on a tunnel under a road for the little mouse, but alas, that got filled up with beautiful white sand no surprise right?) nor does saving the Beach Mouse provide a benefit to the residents, and therefore is not a municipal “service”. Assuming that there are no statutorily granted powers to Escambia to protect endangered species, the power to do so must be derived by implication from other municipal powers that the county might exercise. Whether or not protecting the Beach Mouse is a “valid municipal purpose” remains to be seen. To be clear, NSBU’s are not special districts. NSBU’s do not levy taxes. There is no requirement that taxes provide any specific benefit to the property. Such is not the case for NAV levies. NAV levies must provide a specific benefit to the burdened property according to the Boca Raton case. In addition, a NAV levy must be fairly and reasonably apportioned.

The NAV levy must confer a “special and peculiar benefit” upon the burdened real estate. Boca at 29. The “benefit” must accrue to the property because of the improvement, system, facility, or service the assessment funds. The funding sought by the county will result in a benefit only to the Beach Mouse but will become an economic burden upon beach residents. The protection sought for the Beach Mouse will result in a limitation of the real property rights of the Condominium Associations that line up along the waterfront, and the owners of the units they get to pay for the privilege of being able to see the water. Traditional notions of benefits are improvements that abut the property levied such as streets and drainage of wetlands. There is no such “improvement” unless you ask the Beach Mouse. I’m sure the little thing will be much happier at the expense of its neighbors.

Failing a special and peculiar benefit to beach front owners renders the levy unenforceable because without a special benefit the ordinance would be an attempt at a general tax. Normally a county would conduct research and employ financial experts and consulting engineers to establish the special benefit to be conferred on the property levied. Furthermore, the county must determine what special benefits will receive, or indeed what special benefits any real estate or developer on Perdido Key would receive over and above the benefit receive by the entire community. Just the opposite is the case. Whereas the landowners on Perdido Key are severely restricted as to how they might legally use their property given the protection to which the Beach Mouse has become accustomed, almost like being entitled to alimony, the Beach Mouse and most of the residents of Escambia county are not limited as to how they might enjoy their land. If a “special benefit” is conferred it will be enjoyed by the Beach Mouse and other members of the community who are not being assessed. This clearly would make the proposed levy unenforceable, don’t you think?

For the proposed levy to be a special benefit the county must articulate how the NAV levy will result in an actual and potential added use and enjoyment of the residents of property owners who must pay the levy. See: Meyer v. City of Oakland Park. Other special benefits that have been recognized by the courts include decreases in insurance premiums, increases in rental value enhanced protection of public safety, and enhancement in the value of business property. See: Fire Dist. No.1 v. Jenkins. Applying those examples, protecting the Beach Mouse has not resulted an any benefit to the levied properties.

Escambia County should be made to disclose how a determination was made to levy beach property owners. Did the County determine that the levy would increase the market value of the levied properties or how the levy will add to the use and enjoyment of the properties levied. See: Meyer v. City of Oakland Park Did the county determine the need for the infrastructure to be financed by special assessment as opposed to other financing mechanisms. Did the county identify the “special benefit” to the beach property owners? Would it be interesting to see how the County might be able to spin not being able to build out your expensive lot because you might impinge upon the land of the Beach Mouse, and make that into a benefit?

Legal Remedies

A beach front property owner could file suit, or a really smart attorney might have class action approved and filed in the circuit court challenging the NAV levy by seeking a declaratory judgement as to the enforceability of the levy, or seek a restraining order, and demand refunds. Although refunds are not available in every case. See: Colding v. Herzog. The challenge should seek to determine if the county had authority to levy the beach property owner or owners. Was a special benefit ascertainable to each parcel levied, and whether the levy is direct and immediate? Would the levy enhance market values, or add use or enjoyment, affect the future use and enjoyment of the property, enhance public safety? It is difficult to comprehend how protecting the Beach Mouse could possibly satisfy any of these requirements.

Basically, the Sun of a Beach Mouse is more important than sunning yourself on its property.

Your Friend the StreetLawyer

[Bommer]

Start bringing in crazy cat ladies. Mice won’t be an issue

[mabarker1]

[Beowulf9]

[DuncanWaring]

[mewzilla]

Awwwww! The little guy’s adorable! Why don’t they just crowd fund it? Tshirt sales alone would cover the budget.

[mewzilla]

Seriously, though: Are these li’l fellers Lyme disease vectors? And if so, should the cash-grabbing local pols really be trying to breed them?

[bk1000]

They say you can’t fight city hall, but I’ll be damned if I would pay this.