JUST IN: Schools win $5 million ruling against city of West Palm

3:53 a.m. Thursday, Dec. 28, 2017 Local
Attorney John J. Fumero, outside counsel for The School Board of Palm Beach County, argued successfully that schools are immune from city stormwater fees. (Taylor Jones / The Palm Beach Post)

A circuit court judge says the school district doesn’t owe West Palm Beach $5 million in stormwater drainage fees, dealing a blow to the city’s five-year-long attempt to collect.

Circuit Judge Lisa Small issued an order Dec. 22, backing the School Board of Palm Beach County argument that school districts have immunity from city stormwater fees.

The case resolves — for now — a dispute that began in 2012, when the school district stopped paying stormwater drainage fees to West Palm Beach and four other cities, saving it about $550,000 a year.

The city could appeal the order for partial summary judgment but schools attorney John Fumero said Wednesday the ruling is “crystal clear” that a city cannot sue to recover a fee from a school district unless the fee is exempted from the district’s sovereign immunity by the state Legislature, and stormwater fees are not.

“This is a decision that is within the purview of the Florida Legislature and until they decide to expressly exempt stormwater utility fees from sovereign immunity, there’s really, in our view, no further dispute,” Fumero said.

A city spokeswoman said the city does not comment on pending litigation.

West Palm is one of about three dozen Florida cities that have storm water utilities and charge fees to support them. The city formed its utility in 1993 and the school board paid fees to it until 2012.

The school district’s refusal to pay was prompted by a state appeals court ruling that the city of Key West could not force Florida Keys Community College to pay stormwater fees, ruling that it is exempt from such fees since it is a state entity.

At the time West Palm Beach was receiving roughly $280,000 a year from the school district in stormwater fees for services at 21 public schools operating within the city. City officials argued that, as with water and sewage fees, the public schools were required to pay stormwater drainage fees like any other property owner.

In response, West Palm Beach threatened to use balloons to block stormwater drainage at nine campuses that had their own dedicated drainage pipe, including Dreyfoos School of the Arts and Palm Beach Lakes High School.

Other cities receiving less in stormwater fees, including Jupiter and Boynton Beach, decided not to challenge the school district decision.

The school district sued West Palm Beach in state court in June 2013 to prevent it from cutting off service, saying that the city’s threat “creates the high likelihood of endangering the public health, safety and welfare and school closures.”

In 2016 both sides asked for a judge to render a summary judgment on how to interpret state law on sovereign immunity.

According to Fumero, the district has to pay water and sewage bills but the law does not exempt stormwater fees from sovereign immunity. If the district did have to pay, it would have owed the city about $5 million by now, he said.

But the judge agreed that since there’s no specific exemption in state law, and no contract between the school board and city regarding such fees, “the school board enjoys sovereign immunity from suit for nonpayment of the city’s stormwater fees.”

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