DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CITY OF FORT PIERCE,

Appellant,

v.

AUSTRALIAN PROPERTIES, LLC; WTC, LLC; TED GLASRUD 

ASSOCIATES FL, LLC; WILLIAM D. MCKNIGHT and KATHRYN A. 

MCKNIGHT on behalf of themselves and all others similarly situated,

Appellees.

No. 4D14-2728

[November 12, 2015]

Appeal of non-final order from the Circuit Court for the Nineteenth 

Judicial Circuit, St. Lucie County; Dwight L. Geiger, Judge; L.T. Case No. 

562011CA003396.

Virginia B. Townes and Carrie Ann Wozniak of Akerman LLP, Orlando, 

for appellant.

Harold G. Melville of Melville & Sowerby, P.L., Fort Pierce, for appellees.

MAY, J.

The City of Fort Pierce (“City”) appeals a non-final order granting a

motion for class action certification. It argues the court erred in certifying 

the class for multiple reasons, including that the plaintiffs lacked standing 

because the statute of limitations had run. We agree with this argument 

and reverse the order certifying the class.

In 2005, the City adopted Ordinance No. K-390, codified as the 

Stormwater Management Utility (“SMU”). Section 20-71 established 

stormwater management services as a utility under section 403.0893, 

Florida Statutes, and provided for the levy of fees “against all property in

the city in proportion to the property’s contribution to the stormwater 

runoff as determined by the impervious surface of developed property and 

the runoff ratio for the future use of undeveloped property.” City of Fort 

Pierce Code of Ordinances, § 20-71 (2005). The code defined an 

“[e]quivalent residential unit (‘ERU’)” as “[t]he representative average 

impervious area of a single family residential property located in the city.” 
2

Id. § 20-72. All property within the city is “subject to SMU fees, unless

specifically exempted.” Id. § 20-74. A formula assigns ERUs to properties

with the fee per ERU established by separate resolution. See id. §§ 20-75, 

20-76. The only property exempted is “[p]ublic roads and rights-of-way.” 

Id. § 20-77. 

A property owner can request a fee adjustment from the SMU director. 

Id. § 20-79. If dissatisfied with the result, the owner can petition the city 

manager, whose decision is final. Id. § 20-80.1

In 2011, four owners of property within the City brought a class action 

for declaratory and injunctive relief, and damages against the City. The 

class representatives filed an amended complaint on their behalf and that 

of thousands of other owners, who had been assessed a SMU fee, but 

whose property was neither connected to, nor drained through, the City’s 

stormwater system. 

They alleged the City’s system consisted of nine drainage or basin areas 

located in the older, more densely populated, part of the City. The City 

also assessed numerous annexed properties outside of those basins,

which had never drained through the City’s system. They claimed sections 

20-71 through 20-81 were arbitrary, capricious, unreasonable, and invalid 

on their face because they assessed fees against unconnected properties. 

They alleged the fees were not legitimate user fees because the 

unconnected properties did not receive a benefit, resulting in an illegal tax. 

They sought a refund of assessed fees for the tax years of 2007-2012.

1 In November 2013, the City amended the SMU by Ordinance No. L-302, effective 

on passage. A whereas clause for Ordinance No. L-302 provided that it was the 

intent

of the City Commission that the SMU director, in responding to 

requests for adjustment of the stormwater utility fee, may adjust or 

waive payment [of the fee] to the extent the fees otherwise due are 

not reasonably commensurate with the benefits accruing to the 

property and/or the burdens the property imposes on the SMU.

The codified amendment also created a stormwater management fees and credits 

appeals board to hear appeals from any decision of the SMU director pursuant 

to section 20-79. City of Fort Pierce Code of Ordinances, § 20-80 (2013). Section 

20-79 now allows the SMU director to adjust the fee so it bears a reasonable 

relationship to the benefits received by the property, and may exempt the 

property. Id. The lawsuit concerns only tax years preceding the amendment.
3

Local governments like the City, the Department of Environmental 

Protection (“DEP”), and the water management districts are responsible for 

developing compatible stormwater management programs. § 408.0891, 

Fla. Stat. (2014). Section 403.0893(1) allows counties and municipalities 

to create one or more stormwater utilities and to adopt utility fees to 

construct, operate, and maintain these systems. Alternatively, they may 

create benefit areas and assess a per acreage fee upon all the property 

owners within a particular benefit area, assessing different subareas 

different per acreage fees based upon a reasonable relationship to benefits 

received. § 403.0893(3), Fla. Stat. Local government can use the non-ad 

valorem method to levy, collect, and enforce the fees assessed, pursuant 

to section 403.0893, whether the government chooses to create a utility 

under subsection (1) or benefit areas under subsection (3). Atl. Gulf Cmtys. 

Corp. v. City of Port St. Lucie, 764 So. 2d 14, 17 (Fla. 4th DCA 1999).

The City moved to dismiss the amended complaint, and argued:

(1) the facial constitutionality attack is barred by the 

applicable statute of limitations; and 

(2) the plaintiffs failed to exhaust their administrative 

remedies.

The trial court denied the motion. The City answered the complaint and 

asserted the following defenses, among others: (1) statute of limitations,

(2) failure to exhaust administrative remedies, and (3) failure to satisfy 

class action certification requirements.

The plaintiffs moved for class certification under Florida Rule of Civil 

Procedure 1.220. The proposed class was all owners of real property 

within the City, assessed an SMU fee from 2007 through 2012, and whose 

property was unconnected.

The City responded by asserting that:

(1) each representative plaintiff lacked standing because of the 

statute of limitations and their failure to exhaust 

administrative remedies; 

(2) the class was not readily ascertainable because each 

potential class member must prove the City’s liability, 

resulting in an improper fail-safe class; 

(3) there was no commonality of fact or law because the class 
4

definition required individual proof of class membership;

(4) none of the representative plaintiffs were typical or 

adequate to represent class members because of their lack 

of standing; and 

(5) the predominance of common questions of law or fact, and 

superiority of class representation over other methods of 

adjudication did not exist because of the necessity for 

individual proof as to potential class members.

The plaintiffs argued the SMU does not provide services to portions of 

the City that were formerly within the unincorporated sections of St. Lucie 

County. Those areas receive stormwater management services from the 

North St. Lucie River Water Control District, the South Florida Water 

Management District canal system, or natural drainage pathways or 

tributaries owned by the state and managed by the DEP. These properties 

pay fees to the other entities for stormwater management, but also pay the 

City for stormwater utility services they do not receive. 

The City replied that the SMU fee was neither a tax, as the revenues 

are kept separate for the SMU upkeep, nor a special assessment. The SMU 

fee was a user fee established under section 403.0893(1). See City of 

Gainesville v. State, 863 So. 2d 138, 144–46 (Fla. 2003) (discussing factors 

that assist in determining whether stormwater fees are user fees or special 

assessments). 

The plaintiffs claimed the SMU fees were annual assessments, and the 

statute of limitations began to run anew on the date of the assessment. 

Therefore, the statute of limitations had not run for the 2007 and 

subsequent tax years. They claimed it was futile to try to exhaust their 

administrative remedies because neither the city engineer nor the city 

manager could exempt a property from the SMU fee. The unfettered 

discretion of the city engineer and manager was an unconstitutional 

delegation of legislative authority. And, the proposed class was welldefined and objectively verifiable.

At the class certification hearing, testimony revealed that all four 

plaintiffs purchased their properties before 2007 and paid their SMU fees 

each year. One owner of two properties sought an adjustment for one of 

them, but had his paperwork rejected because it was not prepared by an 

engineer, and the property’s retention pond was not properly maintained. 

The owner never submitted the requested additional documentation so 

there was no decision and no appeal. The manager of that property did 
5

not bother seeking an adjustment for the other property because he was 

busy and had not succeeded with the original request.

The plaintiffs also called a senior pastor of Westside Baptist Church, a 

purported class member. He testified the church retained a professional 

engineer to advise the City that none of the church’s stormwater went 

through the City’s system. The City told him the maximum reduction was 

forty-eight percent regardless of whether the church’s stormwater drained

through its system.

The pastor then met with the city manager and each commissioner; he

wrote a letter to the mayor. At the subsequent commission meeting, the 

commissioners opposed the exemption because the City could potentially 

lose $1.1 million. Ultimately, the pastor received a letter advising him the 

City was evaluating ways to reduce the church’s assessment or exempt it. 

A few days later, the pastor learned the church was given an eighty percent 

credit, but not an exemption. The pastor found the answer unacceptable, 

but did not appeal.

The plaintiffs’ expert, a general civil consulting engineer, testified that 

he could determine which parcels drained into the Atlantic Ocean without 

going through the City’s system. The city engineer testified that the SMU 

was responsible for maintaining the existing city stormwater system, for 

planning projects for flood control and water quality, and for maintaining 

permits for the National Pollution Discharge Elimination System. It was 

responsible for water quality from all the parcels in the City, not only those

that drain through the original nine basins. 

The SMU participated in developing the Basin Management Action 

Plan, addressing water quality throughout the St. Lucie River Basin. Its 

goal was to reduce nutrient loading of stormwater discharge to improve 

water quality. The unconnected properties also drain into the Indian River 

Lagoon, and the SMU was obligated to remediate water quality caused by 

that drainage. 

The City’s expert testified that the water control districts were

responsible for flood control during the wet season and impoundment of 

stormwater runoff for agricultural purposes during the dry season, but not 

for water quality and nutrient reduction; the SMU was responsible for that.

The trial court granted the motion for class certification. The court 

found that a civil engineer in stormwater management could determine 

the properties within the City whose stormwater did not drain through the 

City’s facilities. The order noted the City creates a one-year assessment
6

for stormwater management fees with each new tax roll. The order 

concluded as a matter of law the plaintiffs’ claim was a facial constitutional 

attack, and that the fees were an illegal tax based on invalid special 

assessments levied on an annual basis. 

The trial court found the plaintiffs had established by clear and 

convincing evidence that further pursuit of administrative remedies was 

futile because the ordinance did not allow for an exemption. And, evidence 

established that the church essentially exhausted all administrative 

remedies without success. The court found that the action had been filed 

within the four-year statute of limitations under section 95.11(3)(p), 

Florida Statutes, based on the annual assessment for the relevant years.

Finally, the trial court found the plaintiffs met all the requirements for 

class certification, pursuant to Florida Rule of Civil Procedure 1.220. From 

the certification order, the City now appeals.

We review orders granting class certification for an abuse of discretion. 

Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 102 (Fla. 2011)

(explaining that whether a case meets the requirements for class 

certification is a factual finding).

In determining whether to certify a class, the trial court should focus 

on class certification rather than the merits of the case, except for 

considering evidence on the merits as they apply to class certification. Id.

at 105–06. The proponent carries the burden of pleading and proving the 

elements of class certification. Id. at 106 (citing InPhyNet Contracting 

Servs. v. Soria, 33 So. 3d 766, 771 (Fla. 4th DCA 2010)). 

While the City makes several attacks on the certification order, the 

statute of limitations argument is dispositive. If the statute of limitations 

bars the representative plaintiffs’ claims, they lack standing, cannot be a 

class member, and the class cannot be certified. Great Rivers Co-op. of Se. 

Iowa v. Farmland Indus., Inc., 120 F.3d 893, 899 (8th Cir. 1997) (affirming 

dismissal of count where representative plaintiff’s claim was barred by 

statute of limitations so the putative class lacked a representative for that 

count).

The parties agree that a four-year statute of limitations applies. They 

disagree on when the statute of limitations began to run. The City argues 

the statute began to run when the ordinance was enacted in November 

2005. The plaintiffs argue the statute runs anew with each annual 

assessment.
7

The City relies on three cases to support its position: Fredrick v. North 

Palm Beach County Improvement District, 971 So. 2d 974 (Fla. 4th DCA 

2008); H & B Builders, Inc. v. City of Sunrise, 727 So. 2d 1068 (Fla. 4th 

DCA 1999); and Keenan v. City of Edgewater, 684 So. 2d 226 (Fla. 5th 

DCA 1996).

In Keenan, property owners brought a class action to challenge a 

special assessment on their properties to build a water and sewer 

treatment plant. Keenan, 684 So. 2d at 227. The plant served the entire 

city, but only property owners in one portion of the city were specially 

assessed to pay for it. Id. The Fifth District held that the four-year statute 

began to run when the special assessment was approved by resolution,

not from the time the property owners became aware that other property 

owners were not being assessed. Id.

We relied on Keenan in H & B Builders, Inc. v. City of Sunrise, 727 So. 

2d 1068 (Fla. 4th DCA 1999). There, we affirmed the trial court’s 

application of the four-year statute of limitations to bar a property owner’s 

claim. H & B Builders, Inc., 727 So. 2d at 1071. The property owners paid

assessments over a period of years and sought to recover interest paid in 

certain later years when the interest rate had been reduced. Id. at 1068–

69. The trial court held the statute of limitations began to run when the 

government first assessed the property; it did not run from the date the 

property owners made their annual payments. Id. at 1069–70.

[The] installment payment argument would be persuasive 

if our decision were based upon the general proposition of 

contract law that in the case of contract obligations payable 

by installment, the statute of limitations does not begin to run 

against each installment until the day it becomes due. 

However, we reject the notion that this general proposition is 

analogous to payments due on special assessment liens. 

Special assessments are a method of funding local 

improvements and are “a creature of statute.” We note that 

Keenan specifically recognizes that section 95.11(3)(p) bars 

any challenge to a special assessment brought more than four 

years after the governing board of the municipality equalizes 

and approves the special assessment by resolution, even if the 

improvements have not been completed.

Id. at 1071 (internal citation omitted). We concluded the city’s assessment 

was not subject to annual review “simply because it chose to allow the 

landowners the convenience of paying their assessment obligations in 

equal annual installments.” Id.
8

We reached a similar result in Fredrick v. North Palm Beach County 

Improvement District, 971 So. 2d 974 (Fla. 4th DCA 2008). There, 

homeowners challenged impact fees and assessments imposed on their 

properties for the expansion of a road. Id. at 975. An improvement district 

had adopted a water management plan. Id. at 976. To pay for it, the 

district adopted a bond resolution in 1990 and authorized non-ad valorem 

annual assessments. Id. at 976–77. In an unrelated suit, a final judgment 

validated the bonds in 1990. Id. at 976. The documents were recorded in 

1990. Id. at 977.

In 1993, the Declaration of Covenants was recorded, including a 

provision that each owner acknowledged the assessment. Id. at 976–77. 

The homeowners bought their properties no later than 1998. Id. at 977. 

They filed suit in 2004 challenging the assessments because other nearby 

housing developments also benefitted from the improvements without 

being taxed. Id.

The district moved for summary judgment based in part on the statute 

of limitations. Id. at 977–78. The homeowners argued they did not learn 

until 2003 that other developments were not being assessed. Id. at 978. 

The trial court entered a summary judgment for the district. Id. The 

property owners appealed.

We concluded the statute of limitations began to run from the creation 

of assessments or the date of the city’s approval. Id. at 979. That decision

balanced the property owners’ right to adequate notice against the 

district’s need for certainty in its decisions and economic affairs. Id. at 

980. We held the property owners’ interests were outweighed by the 

district’s need. Id. We affirmed the summary judgment. Id.

The plaintiffs argue, however, that the utility fees are annual 

assessments, with each year starting the statute of limitations anew. See

Milan Inv. Grp., Inc. v. City of Miami, 50 So. 3d 662 (Fla. 3d DCA 2010). In 

Milan, a property owner challenged the establishment and boundaries of 

a downtown development authority and the imposition of an ad valorem 

tax on properties within those boundaries. Id. at 662–64. The Third 

District agreed the statute of limitations barred the plaintiff’s challenge to 

the establishment of the authority and its boundaries, but reversed an 

order dismissing the claim concerning the ordinance imposing the tax for 

fiscal year 2008. Id. at 664–65.

After discussing Keenan and Frederick, the Third District noted that 

the case did not involve the long-term financing of municipal 
9

improvements. Instead, the city decided annually whether to impose the 

optional special levy to fund the authority. Id. at 664. It allowed the 

challenge to the 2008 levy and the claim for refund to proceed. Id. We 

find Milan distinguishable. It did not involve policy considerations of longterm bonds or infrastructure projects, did not involve a singular 

assessment to be paid over time, and the fees were not dedicated to a 

specific capital project.

Because the utility fee is more akin to a special assessment, Fredrick, 

Keenan, and H & B Builders control. The trial court abused its discretion 

in finding the plaintiffs were not barred by the statute of limitations. As 

the statute of limitations bars the class representatives’ claims, they have 

no standing. We therefore reverse and remand the case to the trial court 

to decertify the class. It is unnecessary for us to address the other issues 

raised.

Reversed and Remanded.

GROSS and TAYLOR, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.