tax that that ad valorem tax is going to be passed by state two thirds of the citizenry in that local government the other promise that florida makes is that in the event that the local government is going to  impose a special assessment on property that the local government will establish that the property will be receiving a special benefit commensurate with that special recess and from those two promises this case arrives p v t has alleged a substantive due process claim and equal protection claim and florida's tak claim so i'm going to dress those in turn and because there's several issues i'm not exactly sure what might interest the court so i'll go i'll go through them in order unless the court has a different direction of like me to go so st substantive due process the th circuit has made decisions especially with the rest of the case which is cited by the town that says that a local government can pursue a special i'm sorry can can engage in a legislative act that's for a legitimate government purpose so long as it's seeking to achieve a goal that the town could achieve now don't think there would be any dispute that a local government cannot seek to impose an assessment that doesn't also confer a special benefit i think that would be pretty p n from the way the law is in florida florida state law florida state law so so substitute process after the mckinney case is decided by this court is if the substantive due process claim requires there be a legislative act and the p b t and the town don't dispute that the special session in this case constitutes a legislative out so therefore we move on to the next level which is is that a legitimate government interest in the district court decided that the question wasn't the genuine issues of fact that we laid out in response to the motion for summary judgment regarding different benefits that purportedly were conferred upon the property and in this matter but instead is it a legitimate government interest to confer a special benefit i'm sorry is it a legitimate government interest to institute a special assessment that is going to rata allocate the cost associated with the project to the different property owners in the town the answer to that has to be no because the test under florida law requires that there be a special benefit co property so the court never analyze whether there would be genuine issues of fact regarding the special assessment and the special benefits that we disputed are conferred on the property but instead the court said as a matter of law you haven't you haven't gotten past that question of whether there is a legitimate government interest and i will tell you that the state of florida has not decided this issue the lemon circuit really hasn't either as a district court case  georgia other states have addressed this issue and said that it cannot be a legitimate government interest to take and impose an assessment on property that would also violate those state law from which that power to assess arises so the issue on the substantive due process case as it relates to genuine issues of fact on this motion for summary judgment was never really decided the court skipped past that the next point is the equal protection case now the supreme court in the allegheny coal matter decided an issue regarding taxation in a state on property related to the town's valuation of that property and the town only reassess property for purposes of taxes in allegheny when property sole the supreme court said that no that doesn't cut it the passive act by the by the executive not trying to evaluate the property was not sufficient to protect the the equal protection rights of the property owners here the special assessment that was and i did specifically identify the what we identify what we call the comparative hours several communities that had their property under their utility lines in a property underground him specifically identifies those properties as receiving the same or similar benefits as every other property that's located in the town but instead of allowing the instead of enforcing the legislation that it's an ordinance instead of enforcing the ordinance as written the town decided we're not going to impose a special assessment on these properties on these communities because they're already getting a special assessment for those communities themselves but that was not in that back right there yet that they're not similarly situated a compared to us already have a special assessment against them with your client is not well so there's two points i'd like to make in a sponsor to the court that tells me that there is some difference but whether that difference is so substantial as it relates to the analysis is going to join us as well or not an objective decision maker would take that into account well that would be true except the legislation specifically identifies those properties those communities as receiving a special benefit the same type of indirect special benefit that p b t is receiving the idea of drawing similarly situated boundaries means that you can in the allegheny case the court could have drawn the boundary as properties that were sold but when you talk about florida law and it says that under florida law especially assessment has to come for a benefit and now you're saying that the special that these comparative years have the same special benefit that p v t receives but now you want to say that there's a special assessment imposed on those properties and therefore that makes them different the bottom line is that special assessment didn't account for any payment to cover the cost of the benefit that the special assessment for the project was being conferred so there is nothing in the legislation that accounts for that special benefit and you can always draw the the the purpose of the similar scituate you c always draw the boundary very narrowly or you can draw it very broadly the difference is that here the legislation specifically drew the boundary around those communities and said they're receiving benefits and they should pay this matter fact pay more right because the findings of fact as the town's going to argue have to be deferred to by this court the court specifically i'm sorry the town specifically identifies that those communities receive this benefit separate from whatever benefits that they were paying for in the special session because if they were paying more for the special assessment then the benefit they were receiving it would be under florida unconstitutional because you do get the benefit has to be equal to or greater than the amount you're being assessed so they're not paying more in fact they're actually paying less because they're receiving a benefit from the community that they're not having to pay for which the legislation specifically finds as a matter of legislative fact finding and therefore your honor i would say that they're not paying more i guess your answer would be they're getting more they're getting more  should have to pay more well i don't i don't think they should have to pay but i don't think they should have to pay their your honor so the fact of the decision by the by the town to not have them pay means that they treated p b t differently then those communities that are having their lines underground or just like the beauty did the only difference is p b b the property the condominium association had it done through their own costs of whenever they did it to a private action and the town is paying in advancing the work to do it for those other communities and so based on that your honor we would say that the disputed issues of fact regarding what benefits were conferred and what issues arise related to those properties mean that there is a genuine issue of fact regarding the equal protection cla and finally the court disposed of the state law claim and the state law claim the court didn't find that we allege that p v t failed to allege facts sufficient the court fell the court found that p v t failed to allege a legal theory and the united states supreme court says that's really not the burden from an allegation standpoint and instead you have to allege facts efficient to state a claim and that claim is stated we cite the statutes and the constitution we also cite the expert's report which recites the war that it relied on for instituting a special assessment and therefore the court disposing of that matter on the motion to dismiss despite meeting the claim it's and it seems to be an interpreted throughout the litigation as a takings claim is that basically what it is ok yeah it's a takings claim under florida law which is a unique takings claim where  special assessment is imposed on property where the benefit is not going for it but is there some case law those special susman cannot cost to do taking my wrong about that not in florida law my understanding is that  understanding of florida law is that when a special assessment is imposed on property and it doesn't have a commensurate benefit either a benefit at all special benefit recognized under florida law in other words a adelong reserved and right answer unless you have any other questions i will be having hear from you thank you stuart it please the court my name is greg steward on behalf of the town of palm beach this litigation is unusual it is basically a state court challenge of a home rule revenue source adopted by the town of palm beach but packaged under as substantive due process federal claim met what with the appellate has sought to do throughout this litigation is to utilize the state court test or valid special assessment as a substitute for the federal standard of a substantive due process claim as the trial court repeatedly indicated through its orders the test for of substantive due process is does the legislative act rationally related to a legitimate governmental purpose and conceivably does the legislative action fulfill that or how or could fulfill that legislative purpose the test for subs and due process is not whether there is a special benefit and it's fairly apportioned does the special assessment if that's the case that every home rule revenue source in the state of florida from impact these to fees to special assessments is now a federal case and that is not the law in the present case interrupt you just  to do so with when you say that then talk about legislative acts obviously the st question is the legislation that just established for everybody that there's going to be a susman so we can harden our utilities and and improve them but somehow that seems to have gotten transitioned into the question of whether or not as it impacts this one particular person is a legislative act and i'm not sure that's the question well there is you agree it is well there that was an issue within the at the trial court in terms of what is the nature of the special assessment in this case  and as you stated the town has adopted various ordinances and then those are in fact implemented by specific resolutions that in fact would dictate how that assessment would be applied to different types and categories of properties and so the issue frankly from our perspective at the trial court was it it appears that it may be executive and function yes it is adopted the actual determination as to what p b t should pay is adopted by the town council through resolution but it is more of the application mode as opposed to the authorization to impose this susman it you know when you see litigation of similar nature pretty generally involving zoning activities when you start looking at how the route general rule of law as to the individual property that is more frequently characterized as an executive decision although in this case it doesn't fit neatly well and i think that was the concern that we had is that we felt that yes it may be an executive action it's possibly could be however we felt on a legislative level itself it was not a something to do process claim and so we were trying to kind of walk that line to be honest well it's hard to answer that last question without somehow distinguishing or or defining exactly what we're looking ahead to answer the question well there is no dare is no question that at a property level analysis is the application of a legislative policy and adoption to that property which has been and frequently is classified as executive action but but but it's that line is a little gray t judge but in this particular case though as far as the legislation itself the actual adoption what is intended to be accomplished here is the underground ing of the utilities and clearly legislation the adoption of a wouldn't that would require mandatory under grounding of and fund to assessment isn't fulfillment of a legitimate government purpose there were numerous studies of record of showing safety benefits that would be derived there would be efficiencies and reliability would be enhanced by underground and a statics within the town all of those factors have been deemed to constitute legitimate subjects of legislative action in the past similarly the method of funding through a special assessment is really part and parcel of the underground and they it is consistent with that approach the intent of a special assessment is that properties that receive a benefit should pay for it as opposed to the community as a whole now that finally a council would reference that  the town council made numerous legislative findings both as to these benefits which will be derived from this program and the benefits to the property such as p b t those are entitled to deference by the court orchard not nd guess the legislative function of the town council of of palm beach now i don't think that appellant contests the legitimate government function or purpose from the ordinance i think ultimately they just don't want to pay the assessment but even under state law standards and it's important that we distinguish the state law standard from what is subject to due process claim should be analyzed under allez the constitutional or statutory provision giving rise to this cause of action but when i look at count three maybe i guess you know particularly paragraph eighty seven it is pretty clear to me what the cause of action is the legal theory for their cause of action well let me let me address the question of count three and that the state taking now contrary well i think that the way i would look at count three is that in florida they have adopted the same federal standards for taking as the federal courts and we cited the case of st john's water management versus cuts that eventually went to the u s supreme court and in that case the court held that you cannot have a taking where there is a system general wide add one taxes  assessment program that cannot be a basis for taking under fifty men claims it is also not a basis under state court what we're really looking at is that if you have a special assessment and you are contesting it as failing to meet the special benefit test or the fair portion whatever it may be your remedy is to contest the the little of the assessment itself it does not constitute a taking that is a separate and distinct analysis and so all of this discussion concerning you know if we were contesting the special benefit and therefore that's the taking that's not the case in florida because if in florida just as it is in the federal court you're going to have to have a deprivation of all economic viable use on vestment backed activities those are not the standards that are analyzed in a special benefit so if you contest a special benefit and you prevail there is no taking because the assessment goes away if you contest the assessment and you lose then you you lose on the taking because the standard in florida is that in fact the benefits cannot exceed  for a special assessment and if you can show that they do there is no take so we would suggest under count three that it is it's trying again to package an assessment challenge in the  eight constitution and the home rule power that has been granted to counties and cities under the one thousand nine hundred and sixty eight constitution so frankly there is no taking for it invalid special assessment contrary to what counsel s me ask you procedural question about that is count three in the rd amended complaint was there a motion made by you to eliminate that count in the words argument i think i remember he was that the motion was for summary judgment on the federal claims but there was not a motion pending on that count three state law you know there was a motion to dismiss filed on the state on this when the rd amended complaint was filed and there was a little bit of a gap that the court had dismissed the nd amended complaint dispositive motions were due three days but it gave counsel till seven days to do the amended so when the  amended complaint was filed we immediately filed the summary judgment we then followed a separate motion directed to the motion to dismiss account thank you one thing i go i no i do want to kind of get back a little bit to the special assessment that why we believe that that clearly satisfies the standard under state law even if an elector per a property has undergone utilities for its on site or the line that is that going to that property is underground there is a benefit from redundancy by having all of the systems and there were four separate lines to the town of palm beach within it were stablish that showed power was provide and that just having all of those access lines into the grid available provides the ability to provide capital turns of services in the event that the primary line serving p b t fails that's a benefit that's a special benefit safety is enhanced even if there are no poles immediately adjacent to the property emergency vehicles have to get to that property provide service and so the fact that there is a broad area that has no poles that could be down in a storm to keep emergency vehicles that is a real benefit to the pro particular case there were poles within two blocks of p b t as a stablished in the record so the idea that they are this island with no poles is simply not true they also be a statics which is that a significant component our enhanced by the elimination of these poles so the problem that appellant has in his special benefit analysis is that he seeks to analyze himself as an island and if it is not solely related to his property and on site that special benefits do not count that's not the law in florida you look at the totality of benefits that are applied in that extends far beyond and so all of the benefits  special benefit from a variety of removal of the poles or under grounding of lines that are not on his property but he still gets a real subspecialty benefit the other aspect of it is that the methodology adopted by the city or the town scuse me for the funding of the special session takes into account the fact that he is on site underground and that's why his assessment is so low it's two hundred and ninety three dollars thirty three cents a year because that is factored in they recognize a town recognizes that certain properties have under grounding and they address that in the calculation of the form on equal the city has been working of the town has been working on this however they have elected not to go forward immediately on the town wide project but they offered individual areas if they wanted to and their property owners within that area agreed they were willing to impact go forward and these areas that are cited as comparable do in fact they requested service they pay the same assessment they pay the same methodology it is on their tax bill on the breeze up jand at that time that the whole town was going to be assessed and after i've heard that i misspoke because what their assessment was done on the same calculation but the cost that was applied to those properties was what for under grounding of those problems it didn't it didn't it didn't calculate what each property within the town would pay if you took the total cost and spread it across all of the properties within this within the town it looked at what the cost what it would cost to actually underground that area's utilities and they paid only that cost it would nestle into me that what they're this may not it may not even be relevant there but they're paying an insignificant amount compared to what other well they're splitting it among us a little or number of properties so if it's a one million dollars and that's being spread among twenty properties and with the rights substantially different well i know you're not substantially at the way it worked out as they were close but there was a separate calculation and and on the last point in terms of  there was a distinction in terms of some of those costs which were not included simply because the benefit of the town wide system could not be derived by those properties within a short period of time so that and that is a legitimate policy distinction by the town council we would ask that you affirm the judge's order in all regards thank you thank you really may please the court counsel identified that there are benefits such as redundancy for the utilities the challenge for the town is that's not part of the legislative findings right so those benefits that they are proportioning to confer are specifically issues of fact that are outlined in our papers the whether there's redundancy is disputed by eighteen teams one of the providers of utilities so is a disputed issue of fact as it relates to this p b t property whose utility lines were underground in two thousand and five as to whether any of the town wide project to its under grounding and said it's lines directly service through the through the flagler lagoon property so it doesn't get service from the rest of the community and again as council suggested the other benefits safety in a statics i would dispute with two blocks means flagler lagoon is on one side of us the breakers hotel is on the other side with its golf course north is a shopping center  the flagler bridge and south is the flagler museum which is in a state property so from not within eyeshot are there any lines and access to this community comes from the flag woodbridge those are facts in the record and they raise genuine issues a fact which the disk your district court never got to because it decided these issues as a matter of law and therefore we would request that the court remand the takings result in invalidating the assessment that's how it works in florida there's no compensation thank you i went a little over i apologize