Court sides with Fellsmere on hydrant issue, but fight might not be over

FELLSMERE – The appellate court has ruled in favor of the City of Fellsmere in its quest to get Indian River County to pay for the maintenance of the city’s fire hydrants.

The ruling, filed late last month, supports the city in its claim that the county is a customer of the water system – and as the user of the fire hydrants through Fire Rescue, allowed to be charged to cover the cost of maintaining the system as well as providing the capacity needed.

“We feel pretty good about it,” Fellsmere City Manager Jason Nunemaker said Tuesday afternoon, adding that the ruling is “not a real win” because taxpayer dollars are involved.

 

County Attorney Alan Polackwich said he plans to ask the Board of County Commissioners next Tuesday for permission to appeal the court’s decision.

“The problem created by the decision is that it sanctions different methods of paying fire hydrant expenses within the county,” Polackwich said in an e-mail to VeroNews.com. “If different methods are used, the burden of the expenses falls unevenly upon county residents.”

He explained that in most the county (only Fellsmere and Vero Beach have water departments outside the county’s system), expenses associated with the maintenance of the system are covered by the ratepayers.

As the City of Fellsmere has tried to charge the fees to the county’s Emergency Services District, all county taxpayers would pay the bill, according to Polackwich, meaning those who live outside the city would be paying for their own hydrants, as well as Fellsmere’s.

“Fellsmere residents pay only a small percentage of their own hydrants as a minority of district taxpayers,” Polackwich said. “We believe a uniform system which distributes the burden evenly upon all residents is more appropriate.”

In 2009, Fellsmere billed the county approximately $25,500 for maintenance and upkeep on the city’s fire hydrants, which the city contends are used only by Indian River County Fire Rescue and should be paid for by the county.

That year, the county paid half the bill and refused payment on the other half, which triggered a code enforcement hearing and a finding by the special master that the county was in the wrong.

The county was ordered to pay the remainder of the bill and another nearly $26,000 in legal fees and code enforcement fines.

Instead of paying, the county appealed the ruling to the Circuit Court Appellate Division.

In the meantime, the county was again found in violation of Fellsmere’s code in 2010 for the same issue – failure to pay the bill on the hydrants.

The county and city worked out an agreement that the county would pay the bill, but the city would have to refund it if the court ruled in county’s favor.

And, this year, the city again invoiced the county under the Fire Protection Charge, and, again, the county agreed to pay “under protest” with the same stipulations as that of the 2010 agreement.

Under the terms of the agreement between the two governments, either one could appeal the circuit court’s ruling.

If the county were to appeal the ruling, the issue would go to the Fourth District Court of Appeal.

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