Surging stormwater fees pits school district against West Palm Beach

6:46 p.m Tuesday, April 30, 2013 Local

A simmering feud between the Palm Beach County School District and city of West Palm Beach over hundreds of thousands of dollars in unpaid storm water fees threatens several schools’ grounds with flooding after heavy rainstorms this summer.

The dispute could soon spill over into court if the school board today approves a recommendation from its general counsel Sheryl Wood to sue the city seeking an injunction barring it from disconnecting 21 schools that depend on storm water drainage provided by West Palm Beach.

“Just like everyone else who is receiving a service, like a property owner,” West Palm Beach spokesman Elliot Cohen said, “they have to pay for that service.”

Since November, the city has been threatening to “disconnect the schools from the City’s storm water system” in June, unless the school district pays about $245,000 in storm water fees the city says it owes. The district stopped paying for storm water drainage service in April 2012.

In a Nov. 19 letter, West Palm Beach City Attorney Claudia McKenna argued that the bonds the city used to finance building the citywide storm water drainage system do not allow it to provide free services, nor was the city required to provide the district free drainage.

In April of last year, the district cited a state Third District Court of Appeal ruling on a lawsuit between the city of Key West and Florida Keys Community College as justification to stop paying a combined $550,000 per year in storm water fees to West Palm Beach, Boynton Beach, Riviera Beach, Jupiter and Boca Raton.

And in a May 18 letter to the city, Wood argued that the Key West decision establishes legal precedent that “state entities enjoy sovereign immunity from liability for municipal storm water fees.”

Boynton Beach Finance Director Tim Howard said that when the Florida Supreme Court in December refused to review the Key West decision, essentially upholding it, Boynton officials stopped trying to charge the district.

West Palm Beach has not been so forgiving, however.

School Board member Michael Murgio said if the district is not legally obligated, then paying those fees takes moneyfrom educating children. And Board Chairman Chuck Shaw called it “double taxation” since one government body would pay another with taxpayer dollars.

The district’s Cohen said there are 21 schools with a total enrollment of about 16,200 students where storm water would flow into West Palm Beach’s drainage system after heavy rains. Only 11 of them — including the Alexander W. Dreyfoos School of the Arts, Bak Middle School of the Arts and Palm Beach Lakes High School — are directly connected. That means there is a drainage pipe specifically for that school property.

To make good on its threat, Cohen said, the city would essentially inflate large balloons in those pipes to prevent drainage. The pipes servicing the other 10 schools, like Forest Hill High School, could not be blocked because they are “indirectly” connected. That means they share a pipe with neighboring non-school properties that are paying their bills.

School District spokesman Nat Harrington said that if drainage outfall was blocked after really heavy storms, water could flood fields and parking lots at those schools until water levels got so high it would run off onto surrounding properties. School officials said school buildings typically are on high ground and unlikely to be affected.

A lack of drainage and pumping capacity in rural western canals flooded streets in Loxahatchee and The Acreage last August after Tropical Storm Isaac’s heavy soaking. It forced the school district to close schools for several days because of flooding at schools like Loxahatchee Groves Elementary.

Wood, the district’s general counsel, argued in her staff report to the board that with the impending start of hurricane season the district should sue now to stop any disconnection.

Cohen said the school district is entitled to sue, but “it doesn’t change the fact they are receiving a service from us, and refusing to pay for it. It is a simple issue.”

Shaw said a current lawsuit by the city of Ocala against the Marion County School Board for stopping its storm water payments — using the same legal justification — could settle the legal arguments. He had hoped West Palm officials would wait for a decision in that case before threatening disconnection, he said.

Susan Seigle, attorney for Marion County Schools in that case, said it has been stalled in the state’s Fifth District Court of Appeal for about a year. Ocala threatened last year to cut off all utility service, including storm water and electric, over $700,000 storm water fees, Seigle said. But the district got an injunction against it.

The storm water fight in Ocala appears to be getting more bitter. The Ocala Star Banner reported last month that the city had briefly denied high school students permission to shadow city firefighters at work, and the city refused to let high school junior ROTC students use a city facility. Murgio hopes to avoid such infighting with West Palm Beach.

“We don’t want to get into an adversarial situation,” he said.