INDIAN RIVER COUNTY – The Board of Indian River County Commissioners voted Tuesday morning to appeal a court’s decision that would have the county pay the City of Fellsmere for the maintenance of the city’s fire hydrants.
County Attorney Alan Polackwich told commissioners that it is his opinion that the county could successfully argue that Fellsmere’s water ratepayers should pay for the maintenance of the hydrants – not the county’s taxpayers. Along with appealing the circuit court’s ruling, County Commissioners agreed with Polackwich’s recommendation that the county’s staff should sit down with the municipalities to work out a consistent fire hydrant system.
“We’ve got a patchwork quilt” of hydrants, Polackwich said, noting that some hydrants are located in the municipalities, some in the county and some in cities that are on county water.
Only Vero Beach and Fellsmere have their own water systems. The City of Sebastian once had its own system but it has since been merged with the county’s system.
Polackwich told commissioners that one of the larger issues arising from Fellsmere’s fire hydrant fees is that if the lower court’s ruling stands, the fees would not be assessed fairly amongst residents.
Instead of Fellsmere water customers – the ratepayers – paying for the maintenance, it would be the county’s residents as a whole – the taxpayers – through the Emergency Services District fund.
The appeal is on the 2009 assessed fees for which the city invoiced the county. In 2010 and 2011, Fellsmere and the county reached an agreement that kept $30-daily fines from accruing in exchange for the county paying under protest the invoiced fees.
As part of that agreement, once the case is finally resolved – when no more appeals can be made – if the county is victorious, the city would have to pay back the fees the county had paid up front. If the city is victorious, Fellsmere would not have to pay back the 2010 or 2011 fees and would be able to recoup the fees from 2009, including the penalties and attorney fees.
No agreement was reached regarding the 2009 fees, according to Polackwich, which means that the county continues to accrue a $30 fine daily.
“It’s ridiculous to be paying that,” Commissioner Wesley Davis said.
The circuit court, which heard the county’s appeal of Fellsmere’s Special Master’s ruling, noted that the city could charge up to more than $200 a day. The court found that a $30-daily fee was not unreasonable.
Commissioner Gary Wheeler said that if the county didn’t appeal the ruling, there would be nothing keeping Fellsmere from again charging the county for the hydrants’ maintenance.
“They saw an opportunity to feather their nest,” Wheeler said.
Polackwich told commissioners that he is “reasonably confident” that the Fourth District Court of Appeals would allow him to expound on an argument that had been brought up in the lower court but not adequately argued.
That argument, he said, would focus on who the “customer” is of Fellsmere water. Polackwich said it is his opinion that the owner of the property served by the fire hydrant is the customer – not Indian River Fire Rescue, the user of the water.
The City of Fellsmere has argued that the customer is the one who utilizes the hydrant and its water – Indian River Fire Rescue. The city has also argued previously that there are times when the city’s hydrants and water have been used to fight fires on land that are not tied to the city’s water system and therefore aren’t a rate-paying customer.
The fire hydrant maintenance issue started before 2009, when the county contested the amount Fellsmere was charging per hydrant for maintenance and upkeep. At the county’s request, the city commissioned a study from a consultant which reported that city wasn’t charging enough to recoup the expenses associated with maintaining the hydrants.
Per the consultant’s recommendation, the City of Fellsmere increased its hydrant fee and sent a revised invoice to the county.
The county then paid what amounted to roughly half that invoice and declined payment on the remainder, which resulted in the code enforcement charges and subsequent court battle.
