The city is authorized by the Florida Constitution and the provisions of F.S. Chapter 166 and F.S. § 403.0893 to construct, reconstruct, improve, maintain and extend its stormwater systems and to issue revenue bonds or other authorized sources of financing if needed to finance, in whole or part, the cost of the stormwater system and to establish just and equitable rates, fees and charges for the services and facilities provided by the stormwater system and to use the non-ad valorem levy, collection and enforcement method as provided for in F.S. Chapter 197.

(Deleted per Ord. 42-04, 4-19-2004)

For the purpose of this chapter, the following definitions shall apply; words used in the singular shall include the plural, and the plural, the singular; words used in the present tense shall include the future tense. The word "shall" is mandatory and not discretionary. The word "may" is permissive. Words not defined herein shall be construed to have the meaning given by common and ordinary use, as defined in the latest edition of Webster's Dictionary.

ANNUAL STORMWATER COMPONENT. The amount computed for each parcel pursuant to § 22-5(f)(1) hereof.

CITY. The City of Cape Coral.

CLERK. The City Clerk of the Council or such other person as may be duly authorized to act on the person's behalf.

COLLECTION COST. The estimated cost to be incurred by the city during any fiscal year in connection with the collection of stormwater user fees.

(Ord. 42-04, 4-19-2004)

COLLECTION COST COMPONENT. The amount computed for each parcel, pursuant to § 22-5(f)(2) hereof.

COUNCIL. The City Council for the city.

DEVELOPED PROPERTY. Any parcel which contains impervious area.

DEVELOPMENT PROJECT. A geographical area which provides and maintains stormwater facilities/structures in accordance with requirements of the State of Florida and the City and meets the requirements set forth in either § 22-5(e)(1) or (2) hereof in accordance with the procedures set forth in § 22-5(e)(4) hereof. The geographic area includes all parcels contributing run-off to a privately maintained master stormwater system or which are part of a State of Florida or City-permitted stormwater facility discharging into a privately maintained master stormwater system.

(Ord. No. 43-17, § 1, 1-8-2018)

DWELLING UNIT (DU). Any residential space identified for habitation by members of the same family or as classified by the city's Building Code. Multi-unit residential structures or complexes shall be deemed to consist of multiple single-family residential units regardless of whether or not such are served by a single water or sewer connection.

EQUIVALENT DWELLING UNIT (EDU). The equivalent number of dwelling units represented by total amount of impervious area of nonresidential developed property, computed as follows:

(Impervious Area)
EDU Value

EDU VALUE. The statistical average impervious area for residential parcels as established by the city by resolution.

(Ord. 42-04, 4-19-2004)

EQUIVALENT RESIDENTIAL UNIT (ERU). The standard unit used to express the stormwater burden expected to be generated by each property. The ERU is calculated based on the number of DUs or EDUs and parcel size of each property. When calculating equivalent residential units for a particular parcel of property, the final figure shall be rounded to the nearest tenth of an ERU.

ERU RATE. A rate per year established by the city by resolution, and modified from time to time by subsequent resolution.

FISCAL YEAR. The period commencing on October 1 of each year and continuing through the next succeeding September 30, or such other period as may be prescribed by law as the fiscal year for the city.

GOVERNMENT PROPERTY. Property owned by the United States of America or any agency thereof, the State of Florida or any agency thereof, a county, a special district or a municipal corporation.

HIGH DENSITY MULTI-FAMILY. A multi-family parcel which is not otherwise classified as low density multi-family.

IMPERVIOUS AREA or IMPERVIOUS SURFACE. A horizontal surface which has been compacted or covered with a layer of material so that it is highly resistant to infiltration by water. It includes, but is not limited to, streets, driveways, roofs, sidewalks, patios, parking areas, athletic courts, other impervious surfaces and semi-impervious surfaces such as compacted clay, shell, limerock, stone, or any pervious pavement product.

(Ord. No. 43-17, § 1, 1-8-2018)

LOW DENSITY MULTI-FAMILY. A parcel on which a single-story building containing more than one dwelling unit but less than five dwelling units per 10,000 square feet has been constructed.

MASTER STORMWATER SYSTEM. A facility constructed by the City of Cape Coral that collects, stores and provides water quality treatment of stormwater runoff. Volume into the system recovers through evaporation, percolation into the natural ground and/or discharge into a receiving system.

MULTI-FAMILY PARCEL. A parcel that is classified as either low density multi-family or high density multi-family.

(Ord. 7-03, 1-29-2003; Ord. No. 43-17, § 1, 1-8-2018)

NONRESIDENTIAL DEVELOPED PROPERTY. Any developed property not otherwise classified as residential developed property, including transient rentals such as hotels, motels and recreational vehicle parks as defined in F.S. Chapter 513, as amended from time to time.

PARCEL. A tract of land, or one or more lots or portions of lots which are contiguous and under single ownership and to which the property appraiser has assigned a distinct ad valorem property tax identification number (STRAP number).

PETITIONER. The property owner, in the case of the hearing process described in § 22-8(f) hereof, and the city, in the case of the review process described in § 22-8(g) hereof.

PRIOR PAYMENT CREDIT. The amount, if any, attributable to a particular parcel for which the city has a credit recorded in its accounting records relating to the prior payment or adjustment of stormwater user fees imposed pursuant to Chapter 22.

PROPERTY APPRAISER. The Lee County Property Appraiser.

RESIDENTIAL DEVELOPED PROPERTY. Any parcel developed exclusively for residential purposes including, but not limited to, single-family parcels and multi-family parcels.

RESOLUTION OF INTENT. The resolution expressing the Council's intent to collect stormwater user fees on the ad valorem tax bill required by the Uniform Assessment Collection Act.

RESPONDENT. The city, in the case of the hearing process described in § 22-8(f) hereof, and the property owner, in the case of the review process described in § 22-8(g) hereof.

SFWMD. The South Florida Water Management District or any successor entity thereto.

SFWMD PERMIT. A Surface Water Management or Environmental Resource Permit issued by SFWMD authorizing the construction of a surface water management system.

(Ord. No. 43-17, § 1, 1-8-2018)

SINGLE-FAMILY PARCEL. A parcel on which a building containing a single dwelling unit has been constructed.

SPECIAL MASTER. A person authorized by the Council to hold hearings and render decisions concerning corrections, adjustments and exemptions under this Chapter 22.

STATUTORY DISCOUNT AMOUNT. The amount computed for each parcel pursuant to § 22-5(f)(3) hereof.

STORMWATER. The flow of water which results from, and which occurs following, a rainfall event.

STORMWATER USER FEE. A user fee imposed by the city against property to fund the stormwater program cost.

STORMWATER USER FEE ROLL. The user fee roll relating to the stormwater program approved by City Council.

STORMWATER DIRECTOR. The City Manager or his or her designees.

STORMWATER IMPROVEMENT. Land, capital facilities and improvements acquired or provided to detain, retain, convey or treat stormwater that are part of a stormwater system designed to provide a uniform level of stormwater management services within the city.

STORMWATER PROGRAM.

(1)

Stormwater engineering;

(2)

Stormwater planning;

(3)

Stormwater improvements to be acquired or constructed;

(4)

Operating and maintaining the city's stormwater system, including necessary repairs, replacements, improvements, extraordinary maintenance and extension thereof;

(5)

Funding of pollution abatement and peak flow attenuation devices constructed on stormwater systems discharging to the surface water of the city;

(6)

Billing and collection of stormwater user fees, including customer information services; and

(7)

Administrative, legal, engineering and other consultant services related to the above.

STORMWATER PROGRAM COST. The estimated amount for any fiscal year of all expenditures and reasonable reserves that are properly attributable to the stormwater program under generally accepted accounting principles, including, without limiting the generality of the foregoing, reimbursement to the city for any moneys advanced for the stormwater program, payment of stormwater revenue bonds and interest on any interfund or intrafund loan for such purpose.

STORMWATER REVENUE BONDS. A series of bonds or other evidence of indebtedness including but not limited to, notes, commercial paper, capital leases or any other obligations of the city issued or incurred to finance any portion of the stormwater program cost and secured, in whole or in part, by proceeds of the stormwater user fees.

STORMWATER SYSTEM. The facilities owned or operated by the city for stormwater management.

TAX COLLECTOR. The Lee County Tax Collector.

TAX ROLL. The real property ad valorem tax assessment roll maintained by the property appraiser for the purpose of the levy and collection of ad valorem taxes.

UNDEVELOPED PROPERTY. Property which has not been altered by the addition of any improvement(s) such as building(s), structure(s), impervious surface(s), which alter the stormwater drainage flow which existed on the property prior to the addition of the improvements(s).

UNDISTURBED PARCEL. A parcel which has not been altered from its natural state by dredging, filling, removal of trees and vegetation or other activities which have disturbed or altered the topography or soils on the property.

UNIFORM ASSESSMENT COLLECTION ACT. F.S. §§ 197.3632 and 197.3635 or any successor statutes authorizing the collection of non-ad valorem assessments and services charges on the same bill as ad valorem taxes, and any applicable regulations promulgated thereunder.

WATERWAY. A canal, slough, lake or basin, any or all of which connect to the city drainage system and which are maintained by the city.

(Ord. 65-15, 1-25-2016)

(a)

Stormwater user fees. The Council is hereby authorized to impose stormwater user fees against property that utilizes the city's stormwater system.

(b)

Annual stormwater resolution. During its budget adoption process and prior to September 15 of each year, the Council shall adopt an annual stormwater resolution for each fiscal year. If the proposed stormwater user fee for any parcel exceeds the maximum amount established in the previous year's annual stormwater resolution or if a stormwater user fee is imposed against property not previously subject thereto, the Council shall provide notice to the owner of the property and conduct a public hearing prior to adoption of the annual stormwater resolution. Failure to adopt an annual stormwater resolution during the budget adoption process for a fiscal year may be cured at any time.

(c)

Lien of stormwater user fees.

(1)

Upon adoption of the annual stormwater user fee resolution for each fiscal year, stormwater user fees to be collected under the Uniform Assessment Collection Act shall constitute a lien against the property equal in rank and dignity with the liens of all state, county, district or municipal taxes and other non-ad valorem assessments. Except as otherwise provided by law, the lien shall be superior in dignity to all other prior liens, titles and claims, until paid. The lien shall be deemed perfected upon adoption by the Council of the annual stormwater resolution and shall attach to the property included on the stormwater roll as of the prior January 1, the lien date for ad valorem taxes.

(2)

Stormwater user fees to be collected under the alternative method of collection provided in § 22-6(b) hereof shall constitute a lien against the property equal in rank and dignity with the liens of all state, county, district or municipal taxes and other non-ad valorem assessments. Except as otherwise provided by law, the lien shall be superior in dignity to all other prior liens, titles and claims, until paid. The lien shall be deemed perfected on the date notice thereof is recorded in the official records of Lee County, Florida.

(d)

Procedural irregularities. Any irregularity in the proceedings in connection with the levy of any stormwater user fee under the provisions of this Chapter 22 shall not affect the validity of the same after the approval thereof, and any stormwater user fee as finally approved shall be competent and sufficient evidence that the stormwater user fee was duly levied, that the stormwater user fee was duly made and adopted, and that all other proceedings adequate to the stormwater user fee were duly had, taken and performed as required by this Chapter 22; and no variance from the directions hereunder shall be held material unless it be clearly shown that the party objecting was materially injured thereby. Notwithstanding the provisions of this section, any party objecting to a stormwater use fee imposed pursuant to this Chapter 22 must file an objection with a court of competent jurisdiction within the time periods prescribed herein.

(e)

Correction of errors and omissions.

(1)

No act of error or omission on the part of the Council, Stormwater Director, Property Appraiser, Tax Collector, Clerk or their respective deputies, employees or designees shall operate to release or discharge any obligation for payment of any stormwater user fee imposed by the Council under the provisions of this Chapter 22.

(2)

The number of ERUs attributed to a parcel of property may be corrected for the current fiscal year's assessed stormwater user fee in the manner prescribed in § 22-7 hereof. Any such correction which reduces a stormwater user fee shall be considered valid for the current year, and subsequent years, assessed stormwater user fee and shall in no way affect the enforcement of the stormwater user fee imposed under the provisions of this Chapter 22. Any such correction which increases a stormwater user fee or imposes a stormwater user fee on omitted property shall first require notice to the affected owner in the manner described in § 22-4(b) hereof, providing the date, time and place that the Council will consider confirming the correction and offering the owner an opportunity to be heard.

(Ord. No. 43-17, § 1, 1-8-2018)

(3)

After the stormwater user fee roll has been delivered to the Tax Collector in accordance with the Uniform Assessment Collection Act, any changes, modifications or corrections thereto shall be made in accordance with the procedures applicable to errors and insolvencies for ad valorem taxes.

(4)

In the event any change, modification or correction is made in accordance with this section and the property owner shall have paid the stormwater user fee for the current fiscal year, then the city shall refund the difference between stormwater user fee paid and the stormwater user fee after the change, modification or correction is made for the current fiscal year assessed stormwater user fee.

(Ord. No. 43-17, § 1, 1-8-2018)

(a)

Classification of parcels. Each parcel of property subject to the user fee shall first be assigned to one of the following classifications: residential developed property, nonresidential developed property and undeveloped property. The calculation of ERUs for each parcel shall then be made pursuant to the classification and in accordance with subsections (b), (c) or (d) below. After the initial calculation of ERUs pursuant to the sections, then a determination shall be made as to whether or not each parcel is located within a development project and should receive the adjustment described in § 22-5(e) below.

(b)

Residential developed property. Each parcel of residential developed property shall be further classified as either a single-family parcel or a multi-family parcel.

(1)

Single-family parcels.

a.

Since the cost of measuring and computing the impervious area for each individual single-family parcel greatly exceeds any benefit derived from individual measurement and computation, the area of each single-family parcel constitutes a reasonable proxy for impervious area using the following formula for calculating the number of ERUs attributable to each parcel.

Total ERUs  =  1.0+0.87  (Total Parcel Area - 10,000) 
    (10,000)

b.

In no case shall the total number of ERUs for any single-family parcel be less than one.

(2)

Multi-family parcels.

a.

The city shall classify each multi-family parcel as either low density multi-family or high density multi-family and calculate the total ERUs for each multi-family parcel in the following manner:

1.

Since low density multi-family parcels are considered analogous to single-family parcels of the same size with respect to their impact on the stormwater system, those parcels that constitute low density multi-family shall use the following calculation:

Total ERUs  =  Total DUs+0.87   (Total Parcel Area - DUs(10,000)) 
      (10,000)

2.

In no case shall the total number of ERUs for any multi-family parcel calculated under this § 22-5(b)(2)a.1. above be less than the result of multiplying one by the number of DUs located on the parcel.

3.

Since high density multi-family parcels are considered analogous to nonresidential developed property with respect to their impact on the stormwater system, those parcels that constitute high density multi-family shall use the following calculation:

Total EDUs  =  ;hg; Impervious Surface Area 
    EDU Value

Total ERUs  =  Total EDUs+0.87  ;hg; (Total Parcel Area - EDUs(10,000)) 
      (10,000)

4.

In no case shall the total number of ERUs for any multi-family parcel calculated under this § 22-5(b)(2)a.3. above be less than the result of multiplying one by the number of EDUs located on the parcel.

(c)

Nonresidential developed property.

(1)

Parcels that are classified as nonresidential developed property shall use the following formula to calculate the number of ERUs:

Total EDUs  =   Impervious Surface Area 
    EDU Value

Total ERUs  =  Total EDUs+0.87   (Total Parcel Area - EDUs(10,000)) 
      (10,000)

(2)

In no case shall the total ERUs be less than the total EDUs.

(d)

Undeveloped property.

(1)

Total exemption property. Undeveloped property, no part of which abuts public street(s), paved private street(s) or waterway(s), shall be exempt from payment of a stormwater user fee provided that the owner complies with the procedures identified in § 22-7.

(2)

Partial exemption property. Except as otherwise provided herein, for undeveloped property all or part of which abuts public street(s), paved private street(s) or waterway(s), the area of the property abutting the public streets, paved private streets or waterways to a depth of not more than 125 feet, for purposes of this Chapter 22, shall first be calculated as follows: The abutting property area ("APA") shall be determined by calculating an area 125 feet from each abutting public street, paved private street or waterway. However, in calculating the APA, overlap area(s) shall be included only once. Then, the following formula shall be applied:

 (APA) 
 (10,000)

(3)

Determination of exemption. In determining whether a parcel falls within subsections (d)(1) or (2) above, the following provisions shall apply:

a.

The city shall presume that all parcels of undeveloped property abut public street(s), paved private street(s) or waterway(s) and shall calculate the stormwater user fee for the undeveloped property according to the following formula:

Total ERUs  =  0.87   (Total Parcel Area) 
   (10,000)

However, the owner(s) of any undeveloped property may apply for either a correction for the current fiscal year's stormwater user fee, providing conditions were the same between October 1 and November 1 of the fiscal year in which application is made, or, if conditions are different than the conditions for which the current fiscal year's stormwater user fee was based, the owner(s) of any undeveloped property may apply for the correction of the subsequent fiscal year's stormwater user fee.

b.

The evidence submitted to the city by the property owner(s) shall consist of a survey, plat or notarized affidavit of the property owner(s), which shall identify the subject property by STRAP number and such other legal description requested by the city. In addition, the property owner(s) shall submit a topographic survey prepared by a Florida Registered Professional Land Surveyor, obtained within one year of the application and calculations prepared by a Florida Registered Professional Engineer demonstrating that the property retains all the stormwater run-off generated from the entire property during a 25 year, 3-day storm event. The city shall promptly review all such evidence submitted by the owner(s) of undeveloped property and shall notify the property owner(s) of any defects in the evidence submitted, including but not limited to, the failure to provide the STRAP number of a parcel.

c.

In the event the property owner(s) fail to correct the noted defect within 30 days of notification of the defect, or if the city determines that the evidence submitted does not warrant total or partial exemption from the stormwater user fee, the city shall deny the request by the property owner(s) for the exemption from the stormwater user fee. However, if, based on its review of the evidence submitted, the city finds that all or part of the subject property abuts public street(s), paved private street(s) and/or waterway(s), then the city shall promptly calculate the ERUs for the property pursuant to § 22-5(d)(2) above and revise the stormwater user fee for the property accordingly.

d.

In the event a property owner's request for total or partial exemption is denied by the city, the property owner may appeal to the Special Master for review of the denial. In order to request the review of the denial, the property owner shall, within 30 days from receipt of the written denial of the exemption request, file with the Stormwater Director a written application and notice of appeal specifying the grounds for the appeal. Upon receipt of the appeal application, the Special Master shall fix a reasonable time for the hearing of the application, and provide due notice to the party who requested the appeal. The owner may appear in person and/or by agent or by attorney at the hearing of the appeal. In exercising his or her power, the Special Master, upon appeal and in conformity with the provisions of this Chapter 22, may reverse or affirm, wholly or partly, the denial of the exemption. However, a total or partial exemption to the stormwater user fee shall be granted by the Special Master during the appeal process only if the owner first establishes by a preponderance of the evidence that an error has occurred in the calculation of the stormwater user fee for his or her property.

e.

For years following the year in which the total or partial exemption is approved, stormwater user fee for parcels of undeveloped property shall reflect the exemption, if any, made by the city pursuant to this section. Once a total or partial exemption from a stormwater user fee for undeveloped property has been approved by the city, the exemption shall continue in full force and effect for each following year's stormwater user fee for the property unless a change material to the calculation of the stormwater user fee occurs which would render the exemption inappropriate.

(e)

Development projects. All property located within a development project is eligible for a credit/incentive. Because development projects are required by the State of Florida and by the city to provide and to maintain private stormwater facilities on the development projects, up to a 60% credit/incentive is available in the calculation of the number of equivalent residential units for all parcels located in development projects as follows:

(1)

SFWMD permit parcels. All parcels located in development projects for which development requires a SFWMD permit shall be eligible for the credit/incentive if all of the following conditions are met:

a.

The required SFWMD permit has been obtained for the development project and is in full force and effect as evidenced by a letter from SFWMD stating that all conditions of the permit have been met; and

b.

The private stormwater facilities located in the development project are fully functioning and operating throughout the year in a satisfactory condition and in accordance with the SFWMD permit as determined and certified by a registered professional engineer licensed in the State of Florida. A private stormwater facility shall be determined by a registered professional engineer licensed in the State of Florida to be in satisfactory operating condition so long as the stormwater facility is maintained throughout the year and operating in a manner such that the stormwater runoff from the development project in which the stormwater facility is located is not contributing to stormwater problems in the local area in which the development project is located. The development project shall be required to provide an annual report recertified by a registered professional engineer licensed in the State of Florida that the private stormwater facilities located in the development project are functioning and operating in a satisfactory condition and in accordance with the SFWMD permit. In addition, the engineer shall certify the system is maintained throughout the year by conducting two inspections per year, one inspection within the months of November thru April, and the second within the months of July thru September. The results of said inspections shall be submitted to the Stormwater Director. If the Stormwater Director determines at any time during a fiscal year that the private stormwater facility is not satisfactorily maintained on or is no longer located in the development project, then the development project shall be required to remedy situation and shall forfeit the aforesaid credit for the subsequent fiscal year(s) during which time the subject properties shall be treated for purposes of this Chapter 22 in the same manner as other properties which do not meet all of the conditions necessary for the credit until such time as the situation has been remedied to the satisfaction of a registered professional engineer licensed in the State of Florida.

c.

The certification submitted by the Florida Registered Professional Engineer shall include, but is not limited to, the following information: Date of inspection, name of person conducting the inspection, location map, SFWMD permit number, the development project plan depicting existing improvements, and documentation of the condition of the stormwater features including, but not limited to, perimeter berms, detention or retention ponds, control structures, weirs, catch basins/inlets, trench drains, swales, pipes, exfiltration systems, oil/water separator, littoral zones, rain gardens, and wetland storage systems.

(2)

Non-SFWMD permit parcels. All parcels located in development projects for which development does not require a SFWMD permit shall be eligible for the credit/incentive if all of the following conditions are met:

a.

The owner(s) of the parcel in the development project provides a letter from a registered professional engineer licensed in the State of Florida which certifies both that the construction on the subject development project is in compliance with the SFWMD "basis of review" in effect on the date of application for the credit/incentive and that the private stormwater facilities located in the development project are functioning as designed; and

b.

The private stormwater facilities located in the development project in which the subject property is located are fully functioning and operating throughout the year in a satisfactory condition and in accordance with the City permit as determined by a registered professional engineer licensed in the State of Florida. A private stormwater facility shall be determined by a registered professional engineer licensed in the State of Florida to be in satisfactory operating condition so long as the stormwater facility is maintained throughout the year and operating in a manner such that the stormwater runoff from the development project is not contributing to stormwater problems in the local area in which the development project is located. The development project shall be required to provide annual report recertified by a registered professional engineer licensed in the State of Florida that the private stormwater facilities located in the development project are functioning and operating in a satisfactory condition and in accordance with the City permit. In addition, the engineer shall certify the system is maintained throughout the year by conducting two inspections per year, one inspection within the months of November thru April, and the second within the months of July thru September. The results of said inspections shall be submitted to the Stormwater Director. If the Stormwater Director determines at any time during a fiscal year that the private stormwater facility is not satisfactorily maintained on or is no longer located in the development project, then the development project shall be required to remedy situation and shall forfeit the aforesaid credit for the current and subsequent fiscal year(s) during which time the subject properties shall be treated for purposes of this Chapter 22 in the same manner as properties which do not meet all of the conditions necessary for the credit until such time as the situation has been remedied to the satisfaction of a registered professional engineer licensed in the State of Florida.

c.

The certification submitted by the Florida Registered Professional Engineer shall include, but is not limited to, the following information: Date of inspection, name of person conducting the inspection, location map, date of City permit, the development project plan depicting existing improvements, and documentation of the condition of the stormwater features including, but not limited to, perimeter berms, detention or retention ponds, control structures, weirs, catch basins/inlets, trench drains, swales, pipes, exfiltration systems, oil/water separator, littoral zones, rain gardens, and wetland storage systems.

(3)

Calculation. If a parcel is located in a development project that meets all of the conditions of either subsection (e)(1) or subsection (e)(2) above, then the total ERUs for that Parcel shall be calculated by multiplying (a) total ERUs calculated for the parcel using the formulas identified in § 22-5(b), (c) or (d) above depending on the initial classification of the parcel, by (b) the factor of 0.40.

(4)

Procedure. In determining whether the ERUs for all of the parcels in a development project should be calculated in accordance with this section, the following provisions shall apply:

a.

The city shall presume that all parcels located in development projects are ineligible for up to a 60% credit/incentive and shall calculate the stormwater user fees for the parcel accordingly. However, the owner(s) of any parcel in a development project may apply for either a correction for the current fiscal year stormwater user fee, providing conditions were the same between October 1 and November 1 of the fiscal year in which application is made, or, if conditions are different than the conditions for which the current fiscal year's stormwater user fee was based, the owner(s) of any parcel within a development project may apply for correction of the subsequent fiscal year stormwater user fee.

b.

The evidence submitted to the city by the property owner(s) as required in this section shall identify the subject property by STRAP number and such other legal description as requested by the city. The city shall promptly review all of the evidence of eligibility for the credit/incentive submitted by the owner(s) of parcels located in development projects and shall notify the property owner(s) of any defects in the evidence submitted, including but not limited to, the failure to provide the STRAP number of a parcel.

c.

In the event the property owner(s) fail to correct the noted defect within 30 days of notification of the defect, or if the city determines that the evidence submitted does not prove eligibility for the credit/incentive so as to warrant correction of the stormwater, user fee the city shall deny the request by the property owner(s) for correction of the stormwater user fee. However, if, based on its review of the evidence submitted, the city finds that the subject property is eligible for the credit/incentive, then the city shall promptly calculate the ERUs for the property pursuant to § 22-5(e)(3) and correct the stormwater user fee for the property accordingly.

d.

In the event a property owner's request for correction is denied by the city, the property owner may appeal to the Special Master for review of the denial provided that the property owner first pays in full the disputed stormwater user fee for the subject property. In order to request the review of the denial, the property owner shall, within 30 days from receipt of the written denial by the city of the correction request, file with the Stormwater Director a written application and notice of appeal specifying the grounds for the appeal. Upon receipt of the appeal application, the Special Master shall fix a reasonable time for the hearing of the application, and provide due notice to the party who requested the appeal. The owner may appear in person, by agent or by attorney at the hearing of the appeal. In exercising his or her power, the Special Master, upon appeal and in conformity with the provisions of this Chapter 22, may reverse or affirm, wholly or partly, the denial of the correction. However, a correction to the stormwater user fee shall be granted by the Special Master during the appeal process only if the owner first establishes by a preponderance of the evidence that an error has occurred in the calculation of the stormwater user fee for his or her property.

e.

For years following the year in which the correction is approved, stormwater user fees for parcels located in development projects shall reflect the corrections, if any, made by the city pursuant to this § 22-5(e) once a correction of a stormwater user fee for a parcel located in a development project has been performed by the city, the correction shall continue in full force and effect for each following year's stormwater user fee for the property unless a change material to the calculation of the stormwater user fee occurs which would render the correction inappropriate.

(f)

Calculation of stormwater user fee components. The annual stormwater user fee shall be computed for each parcel in the manner set forth in this subsection (f).

(1)

Annual stormwater component. The "Annual stormwater component" shall be calculated for each fiscal year for each parcel by:

a.

Multiplying:

1.

The total number of ERUs attributable to the parcel, by;

2.

The ERU rate for such fiscal year.

b.

Subtracting from such amount the prior payment credit, if any attributable to the parcel.

(2)

Collection cost component. The "Collection Cost Component" shall be computed each fiscal year for each parcel by:

a.

Dividing:

1.

The collection cost, by:

2.

The total number of ERUs attributable to the user of the property.

b.

Multiplying the result by the number of ERUs attributable to the parcel.

(3)

Statutory discount amount. The "Statutory Discount Amount" shall be calculated for each fiscal year for each parcel as the amount allowed by law as the maximum discount for early payment of ad valorem taxes and non-ad valorem assessments, the amount to be calculated by deducting:

a.

The sum of:

1.

The annual stormwater component; and

2.

The collection cost component, from:

b.

The amount computed by dividing:

1.

The sum of subsection a. the annual stormwater component and subsection b. the collection cost component, by:

2.

The factor of 0.96.

(4)

Stormwater user fee. The annual stormwater user fee for each parcel shall be computed as the sum of:

a.

The annual stormwater component;

b.

The collection cost component; and

c.

The statutory discount amount.

(Ord. No. 43-17, § 1, 1-8-2018)

(a)

Method of collection.

(1)

Unless directed otherwise by the Council, stormwater user fees shall be collected pursuant to the Uniform Assessment Collection Act, and the city shall comply with all applicable provisions thereof, including but not limited to:

a.

Entering into a written agreement with the Property Appraiser and the Tax Collector for reimbursement of necessary expenses to the extent required by law or deemed appropriate by the Stormwater Director; and

b.

Adopting a resolution of intent. The resolution of intent must be adopted prior to January 1 (or March 1 with consent of the Property Appraiser and Tax Collector) of the year in which the stormwater user fees are first collected on the ad valorem tax bill.

(2)

Any hearing or notice required by this Chapter 22 may be combined with any other hearing or notice required by the Uniform Assessment Collection Act.

(b)

Alternative method of collection.

(1)

The city shall, on an annual basis, bill each property owner for all properties subject to the stormwater user fee. Bills shall be delivered to or obtained by the owner, or mailed via U.S. mail to the owner of record for the property as determined from the latest tax roll. Nonreceipt of bills by the owner shall not release or diminish the obligation of the owner with respect to payment thereof.

(2)

The stormwater user fee shall be considered delinquent if payment is not received within 30 days of the date of the bill. If the stormwater user fee is paid within 30 days of the date of the bill, the property owner shall receive a 4% discount on the stormwater user fee.

(3)

The city shall, on a monthly basis, apply to all delinquent accounts (except accounts for city owned property) a penalty in an amount equal to 1-1/2% of the balance considered to be delinquent.

(4)

In lieu of foreclosure, any delinquent stormwater user fee and the costs, fees and expenses attributable thereto, may be collected pursuant to the Uniform Assessment Collection Act; provided however, that:

a.

Notice is provided to the owner in the manner required by law and this Chapter 22; and

b.

Any existing lien of record on the affected parcel for the delinquent stormwater user fee is supplanted by the lien resulting from certification of the stormwater user fee roll to the Tax Collector.

(a)

Exemptions. Parcels that constitute state- owned department of natural resources mangrove wetlands shall be exempt from the stormwater user fees. In addition, the following properties shall be exempt from the stormwater user fees provided the owner(s) of the properties comply with the provisions of § 22-8 and prove by a preponderance of the evidence that the subject parcel falls into one of the following categories:

(1)

Undeveloped property no part of which abuts public street(s), paved private street(s) and/or waterway(s); or

(2)

Property which has no impact on any city stormwater facilities because it falls into one of the following categories:

a.

Property from which any and all runoff drains directly and exclusively into state waters without impacting the city stormwater systems; or

b.

Property that retains all run-off generated from the entire property during a 25-year, 3-day storm event.

(Ord. No. 43-17, § 1, 1-8-2018)

(b)

Adjustments. Owners of properties which are not eligible for exemption from the stormwater user fees, but which are characterized by such unusual feature(s) or circumstance(s) so as to substantially affect the impact of the property on the stormwater system and/or the benefit received by the property from the stormwater system may be eligible to receive adjustments of their stormwater user fees for properties in accordance with § 22-8(c)(4).

(c)

Corrections. In addition to utilizing the correction procedures articulated in §§ 22-4 and 22-5, any property owner who believes that his or her stormwater user fee has been calculated incorrectly under the provisions of this chapter shall have the right to request a correction of the stormwater user fee. Except as provided in §§ 22-4 and 22-5 and as provided herein, no revision or correction of the stormwater user fee shall occur or be available.

(Ord. No. 43-17, § 1, 1-8-2018)

(a)

Procedures. Except as otherwise provided in §§ 22-4 and 22-5 concerning certain corrections to the stormwater user fee, the following procedures shall apply to all requests for correction of, adjustment of or exemption from the stormwater user fee:

(1)

Any property owner who has paid his or her stormwater user fee and who believes the calculation or determination of his or her stormwater user fee to be incorrect may, subject to the restrictions set forth in this article, submit a correction request to the Stormwater Director.

(2)

Requests by an owner of property for adjustment of, correction of or exemption from stormwater user fee shall be in writing and shall set forth, in detail, the grounds upon which relief is sought. The requests shall include the STRAP number for each parcel for which the request is being made and such other legal description requested by the city. By making the request, the owner of property grants the city the limited right to inspect the subject property to determine the validity of any facts set forth in the request for adjustment, correction or exemption.

(3)

Corrections or exemptions to a stormwater user fee shall be made only if the property owner has demonstrated that an error in the calculation of the stormwater user fee has occurred with respect to his or her property. Denials of the correction or exemption requests shall be made in writing by the Stormwater Director. Property owners whose requests for correction or exemption have been denied may appeal the denial in accordance with § 22-8(b).

(4)

Requests for adjustments to a stormwater user fee shall be forwarded by the Stormwater Director to the Special Master in accordance with § 22-7(b) hereof.

(b)

Appeal to Special Master. Upon receipt of the written denial of the correction request or of the request for exemption pursuant to § 22-7(a)(1) or (2), the owner, who initially requested the correction or exemption may, within 30 days of receipt of the denial, appeal to the Special Master for review of the denial by filing with the Stormwater Director an application and notice of appeal specifying the grounds for the appeal, the owner(s) name, the STRAP number and any other pertinent information. The Stormwater Director shall promptly forward such appeal request to the Special Master for hearing. The Special Master shall fix a reasonable time for the hearing of the application, and provide due notice to the party who requested the appeal. The owner may appear in person and/or by agent or by attorney.

(c)

Powers of Special Master. In exercising his or her powers, the Special Master, in conformity with the provisions of this Chapter 22 may reverse or affirm, wholly or partly, the decision of the Stormwater Director with respect to corrections or exemptions in accordance with the provisions of this Chapter 22 and the following criteria. With respect to adjustment pursuant to § 22-7(b), the Special Master may determine adjustments in accordance with the provisions of this Chapter 22 and the following criteria.

(1)

Corrections. Except as provided in §§ 22-4 and 22-5, a correction to the stormwater user fee shall be granted by the Special Master during the appeal process only if the owner first establishes by a preponderance of the evidence that an error has occurred in the calculation of the stormwater user fee for his or her property.

(Ord. No. 43-17, § 1, 1-8-2018)

(2)

Exemptions pursuant to § 22-7(a)(1). An exemption to the stormwater user fee pursuant to § 22-7(a)(1) shall be granted by the Special Master during the appeal process only if the property owner first establishes that the property meets the criteria established by § 22-7(a)(1) of this Chapter 22 for the exemption.

(Ord. No. 43-17, § 1, 1-8-2018)

(3)

Exemptions pursuant to § 22-7(a)(2). An exemption to the stormwater user fee pursuant to § 22-7(a)(2) shall be granted by the Special Master during the appeal process only if the property owner proves by a preponderance of the evidence that the property meets the criteria established by § 22-7(a)(2)a. or b.

(Ord. No. 43-17, § 1, 1-8-2018)

(4)

Adjustments pursuant to § 22-7(b). An adjustment to the stormwater user fee pursuant to § 22-7(b) of this Chapter 22 shall be granted by the Special Master during a hearing on the issue only if the property owner proves by a preponderance of the evidence that without the adjustment the stormwater user fee which would be applicable to the subject property under this Chapter 22 would be unduly burdensome and inequitable in light of the impact of the property on and the benefit received by the property from the stormwater system. Factors the Special Master may consider in determining whether the aforesaid circumstance(s) exist with respect to a particular parcel, include, but are not limited to, the following:

a.

The existing drainage patterns on the property;

b.

The nature of the use which is extant on the property;

c.

The drainage structure(s), retention ponds or other retention or drainage devices, if any, extant on the property;

d.

The place and manner in which stormwater drainage occurs on the subject property;

e.

The topography of the property including, but not limited to, the slope and elevation of the property;

f.

The proximity of the property from roads, canals or other waterways;

g.

The composition of the soil(s) on the property;

h.

The extent and type of natural vegetation extant on the property; and

i.

Other factors resulting from the application of drainage engineering principles which are prevailing in the community.

(d)

Due notice by the Special Master. Due notice for the notice of hearing by the Special Master shall be by certified mail return receipt requested (or its equivalent for foreign countries) ten days prior to the hearing for those with mailing addresses within the State of Florida, or 14 days prior to the hearing for those with mailing addresses in Canada or Mexico, or 21 days prior to the hearing for mailing addresses in all foreign countries. If no return receipt is received by the hearing date, the case will be continued for a period of 60 days pending notification from the Lee County Property appraiser of a change in address or owner.

(Ord. No. 43-17, § 1, 1-8-2018)

(1)

No change in address or owner. In the event there is no change in address or owner submitted to the Property Appraiser and transmitted to the city, the case will be scheduled for the next regularly scheduled hearing and shall be considered withdrawn.

(2)

Change in address. If the city has received transmittal from the Property Appraiser of a change in the address of the owner, a notice of hearing shall be sent by certified mail return receipt requested (or its equivalent for foreign countries) shall be forwarded to the owner utilizing the mailing schedule identified in this § 22-8(e).

(3)

Change in owner. If the city has received transmittal from the Property Appraiser of a change in the ownership of the property such that the owner submitting the application is no longer an owner of the subject property, the case will be scheduled for the next regularly scheduled Special Master hearing and shall be withdrawn. The application or request shall be forwarded to the Stormwater Director who will notify, by regular U.S. mail, the current owner of the request of the previous owner and provide an opportunity to the new owner to make application. If the Stormwater Director does not receive a response from the new owner within 30 days of the notification sent, the application will be considered withdrawn.

(e)

Special Master qualifications and Special Master hearings.

(Ord. No. 43-17, § 1, 1-8-2018)

(1)

The city shall utilize the services of one or more Special Masters to conduct hearings concerning adjustments to and exemptions from the stormwater user fee. The Stormwater Director shall, at least annually, recruit qualified persons to serve as Special Masters. The Council shall, on an annual basis, appoint at least one qualified person to serve as the Special Master and if possible, at least one qualified person to serve as an alternate Special Master in the event the Special Master is unable to attend a meeting. No person shall be appointed to the position of "Stormwater Special Master" unless he or she possesses at least a Bachelor's degree in civil engineering or environmental engineering and is a registered professional engineer holding an active license in good standing with the State of Florida. In making the aforesaid appointment(s), preference shall be given to applicants who have prior experience dealing with surface water in a design or management capacity. The appointment(s) shall be in the sole discretion of the Council. Each Special Master shall serve for a term of one year though Special Masters may be reappointed for consecutive one year terms. Although appointed for one year terms, Special Masters shall be subject to removal, with or without cause, from their positions at any time during their term by the Council in its sole discretion. Special Masters shall not be considered to be city employees though, if authorized by the Council, they may receive compensation for their service and also may be reimbursed for the travel, mileage and per diem expenses as may be authorized by the Council.

(2)

The Stormwater Director shall provide clerical and administrative personnel as may be reasonably required by the Special Master for the proper performance of his or her duties.

(3)

Minutes shall be kept of all Special Master hearings.

(4)

All Special Master hearings shall be open to the public.

(5)

The city shall have the right to provide testimony or evidence at the Special Master hearing.

(6)

The property owner, as petitioner, or the city, as respondent, shall have the right to request postponement of a decision for up to 60 days for the purpose of providing additional testimony or evidence to the Special Master.

(7)

It is the responsibility of the petitioner to provide a preponderance of evidence. The Special Master shall consider the educational background, technical expertise and any active license of any witness giving testimony (verbal or written) during the hearing. Written or verbal testimony given by the city's Public Works Director shall be considered expert testimony. The Special Master shall have the right to request additional evidence from the petitioner. The request must be necessary in order for the Special Master to render a decision in the petitioner's favor. Special Master will reschedule hearing of the case for up to 90 days in order to provide time for the petitioner to obtain the requested evidence. Failure of the petitioner to provide such necessary evidence will cause the Special Master to deny the petitioner's request.

(Ord. No. 43-17, § 1, 1-8-2018)

(8)

All decisions of the Special Master shall have the caveat that the decision is valid so long as the conditions upon which the decision was made remain the same. All decisions of the Special Master shall be reduced to a formal written document within 30 days of the date of the hearing. A copy of the formal written document shall be provided to the property owner and to the Stormwater Director for implementation. Administrative reviews shall be conducted in accordance with § 22-8(f).

(Ord. No. 43-17, § 1, 1-8-2018)

(f)

Inspections. The city retains the right to inspect properties that have previously applied for and been granted a correction, adjustment or exemption because of private stormwater facilities on the property to determine that the stormwater facilities are in compliance with the conditions for which the correction, adjustment or exemption was approved. If the conditions for which the correction, adjustment or exemption was approved have changed or no longer exist, the city will notify the property owner that he or she has 30 days to correct the problem. If the problem is not corrected within that 30 day period, the city will submit to the Special Master a request for the Special Master to revoke the correction, adjustment or exemption. All such administrative reviews by the Special Master shall be reviewed prior to any scheduled hearing and a decision rendered at the scheduled hearing. A summary document of the administrative decisions shall be prepared and forwarded to the Stormwater Director for implementation. If in the future the property qualifies for a correction, adjustment or exemption, the property owner may reapply following the guidelines set forth in this Chapter 22.

(Ord. No. 43-17, § 1, 1-8-2018)

(a)

The Stormwater Director shall be responsible for preparation of a city-wide stormwater management master plan, for approval by the Council. This plan shall be updated on an annual basis no later than December 31 of each calendar year. It shall be the duty of the Stormwater Director to administer the Stormwater Program, to keep an accurate record of all properties benefitting from the services and facilities of the Stormwater Program, and to make changes in accordance with the methodologies, rates and charges established in this chapter and in subsequent resolutions of the Council.

(b)

The Stormwater Director shall be responsible for determining impervious area of developed property and total parcel area based on data obtained from the Property Appraiser. If the information is unavailable from the Property Appraiser, the property owner, tenant or developer may submit a certified survey and/or a foundation survey to assist the Stormwater Director in determining impervious area and total parcel area. The Stormwater Director may require additional information as necessary to make the determination. The amount of any stormwater user fee shall be revised by the Stormwater Director based on any additions to or reductions in the impervious area as approved through the building permit process.

(c)

The Stormwater Director shall prepare a checklist for use by the Florida Registered Professional Engineer during the inspection and certifying of the private stormwater facilities. The checklist shall include, but not be limited to, the items contained in §§ 22-5(e)(1)c and 22-5(e)(2)c.

(Ord. No. 43-17, § 1, 1-8-2018)

There is hereby established a stormwater management trust fund. All stormwater user fees collected for the stormwater management utility shall be deposited into this fund, and shall be used exclusively for payment of the stormwater program cost.

The following procedure shall be used by the city to establish liens for delinquent stormwater user fees.

(a)

Initiation of lien process. From time to time the Stormwater Director may compile a list of properties whose stormwater user fees have remained delinquent for more than 30 days. That list of delinquent stormwater user fees shall constitute a preliminary roll and the Stormwater Director shall present that roll to the Council at a duly advertised and noticed hearing.

(b)

Notice. Approximately four weeks prior to the hearing, the Clerk shall publish, once a week for two consecutive weeks in a newspaper of general circulation, a notice of the time and place of the hearing when the Council will meet to hear and consider any objections or defenses to the imposition of a lien against the delinquent properties. The date of the meeting so noticed shall not be less than 15 days from the date of publication of the second notice. The Stormwater Director shall also send individual notices of the date and time of the hearing to all owners of record of property proposed to be liened not less than 15 days prior to the date of the hearing.

(c)

Public hearing. The owner of record of any property proposed to be liened for delinquent stormwater user fees, or any person having an interest therein, may appear at the public hearing and voice any objections to the proposed lien or the amount thereof. Objections may also be submitted in writing either prior to or at the time of the public hearing. At the hearing, the City Council may modify or correct any proposed lien amount, provided that no lien amount may be increased over the amount in the proposed roll. After consideration of all objections, the Council shall, by resolution, approve the roll and from the date of the adoption of the resolution the amounts shall constitute a lien against the property. The lien shall be of the same nature and to the same extent as a lien for general county and municipal taxes falling due in the same year or years the stormwater charges were due. The lien shall be superior in dignity to all other liens, titles and claims, until paid.

(d)

Limitation on time to contest lien. Any person aggrieved by the action of the Council in adopting the delinquent stormwater user fee roll must commence an action in Circuit Court within 30 days of the date the resolution is adopted. Unless the action is begun within this 30 day period, all objections of that person to the imposition of the lien shall be deemed to have been waived.

(e)

Prepayment and recording of lien. For a period of 30 days after the date of adoption of the resolution of the Council imposing the lien, the delinquent user fees may be paid without additional penalty. Properties for which payments are received or postmarked within 30 days from the date the resolution is adopted will be deleted from the roll prior to recording. After the expiration of the prepayment period, a certified copy of the resolution and roll shall be recorded in the office of the Clerk of the Circuit Court in Lee County.

(f)

Release of lien. Owners who have paid the delinquent amount in full after the recording of the resolution and roll shall be entitled, upon request, to a release of lien from the city. The recording of the release of lien and any charges therefor shall be the responsibility of the property owner.

(g)

Foreclosure. Liens for delinquent stormwater user fees may be foreclosed in the same manner as liens for special assessments. Owners of property against whom a foreclosure action is commenced shall be liable for all fees, costs and expenses incurred by the city or its agents, including reasonable attorney's fees and the same may be assessed as cost in the foreclosure action.

(h)

Validity. Any informality or irregularity in the proceedings to impose a lien for delinquent stormwater user fees shall not affect the validity of the same after the resolution imposing the lien has been adopted, and no deviation from the procedures prescribed hereunder shall affect the validity of the lien unless it can be clearly shown that the party objecting was materially injured thereby.

(i)

Other means. Nothing herein shall prohibit the city from utilizing other means to collect delinquent stormwater user fees including, but not limited to, an action for damages filed with the appropriate court in Lee County.

(Ord. 42-04, 4-19-2004)

As an alternative to onsite stormwater improvements, a property owner may apply to the city for approval to discharge into a master stormwater system. The property owner shall pay an in lieu of user fee to the city to use available cubic feet of storage applied for by the property owner in the master stormwater system. The owner's property must be in the geographic area of the master stormwater system as established within the permit issued to the City of Cape Coral by the South Florida Water Management District (SFWMD) for a particular master stormwater system. The city shall deposit the in lieu of user fee into a stormwater management trust fund to be used exclusively for payment of the stormwater program cost. Utilizing the data in the study, the City Council shall, by resolution, establish the in lieu of user fee. The study shall calculate the cost of each cubic foot of storage in the master stormwater system based upon, but is not limited to, components such as the storage capacity of the master stormwater system, and the construction, engineering, administration, and maintenance cost of the master stormwater system.

(Ord. 65-15, 1-25-2016)