FELLSMERE — The Fourth District Court of Appeals has tossed out Indian River County’s appeal of the City of Fellsmere’s bill for maintaining fire hydrants Indian River Fire Rescue uses within the city.
In the one-page ruling, the three-judge panel denied the appeal on its merits. No other information was provided in the court record.
“It ends there,” County Attorney Alan Polackwich said Thursday afternoon, adding that there is no other court to appeal the case to.
The county had asked the Fourth District Court of Appeals to review the case. The court declined to do so.
It took more than three months to get a ruling from the Fourth District Court of Appeals as to whether Indian River County would have to pay the remainder of the 2009 bill for fire hydrant maintenance.
“We hope this puts closure on this issue,” Fellsmere City Manager Jason Nunemaker said of the court’s ruling. “‘Without merit’ is pretty definitive.”
Polackwich argues that the City of Fellsmere should have to pay for its maintenance and upkeep of its fire hydrants, which serve city water customers.
The city, on the other hand, argues that Indian River Fire Rescue is a customer of the city’s water system and essentially the sole user of the hydrants and should, therefore, be required to pay for the hydrants’ upkeep and the capacity of water the system needs to hold in the event of a fire.
“The county residents are getting hit twice here,” Polackwich said of Fellsmere’s reasoning, explaining that all residents pay a tax for the Emergency Services District, which includes fire rescue.
“We need to find a fair solution,” he said.
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 then ordered to pay the remainder of the bill and another nearly $26,000 in legal fees and code enforcement fines – bringing the total at that time to more than $41,000. Since then, the county has been accruing a $30 daily fine.
According to Fellsmere Finance Director Larry Napier, the total – through Sept. 30 – the county owes the city is$58,860, including interest. Of that more than $38,800 covers the remaining 2009 balance and attorney fees – more than $20,000 accounts for the $30 daily fine and 6 percent interest.
Instead of paying, the county appealed the ruling to the Circuit Court Appellate Division. That court upheld Fellsmere’s position that Indian River County, being the end user of the hydrants, should be required to pay for the maintenance.
In 2010 and again in 2011, the county refused to pay the invoice from Fellsmere.
Instead of going through the code enforcement process, the county agreed to pay the bills under protest with the understanding that if the county won the 2009 appeal in court, the city would have to refund the money.
Polackwich said he wasn’t sure when the court’s decision would be brought before the Board of County Commissioners. The ruling came in after the county’s deadline for placing items on the agenda for next Tuesday’s meeting.
The following Tuesday, the Board of County Commissioners requested a light agenda because the meeting would be held at the City of Sebastian City Hall.
The next meeting would be in October.
Polackwich said there are two issues the county will need to address – what to do about the past invoices and what to do about future charges.
“We’ve got to solve that issue,” he said of the future charges.
It is possible that the county could seek to negotiate payment of the invoices from 2009, 2010 and 2011, Polackwich said, adding that he doubts the Board of County Commissioners would be willing to pay the $30 daily fine that continues to accrue without discussion.
And, in his opinion, if the City of Fellsmere were to enforce the $30 daily fine, it could create bad will.
“We’ll certainly sit down with the county and talk with them,” Nunemaker said.
Nunemaker said he believes the city needs to be made whole for the city’s expenses dealing with the issue, including attorney’s fees.
He said he expects to discuss with the county how to go about recovering those costs and how best to move forward.
