A judge hearing additional testimony in the continuing Cape Coral fire assessment bond validation proceeding was told again Wednesday that the city's methodology is arbitrary.
Talan Corporation attorney Mark Lawson called into question the way the city determined the fire assessment amounts since the methodology uses data from the county appraiser's web site.
The interveners - those opposed to the proposed fee - also said the methodology was not transparent and is fraught with errors, something the city council knew when it passed an ordinance amendment Monday to clear up those errors.
Lawson's concerns were admitted in a fourth and separate day of testimony although the judge, Keith Kyle, was distressed by the late entry of another defendant after allowing three previous days of testimony to residents opposed to the new tax.
"Why didn't Talan step forward before? What's to say in three weeks another person wants to give evidence?" Kyle asked. "This gets finished today."
Kyle warned that Lawson could speak, provided he did not bring up new testimony.
Kyle also didn't regard the city council decision on Monday to amend its "tier 2 methodology" after the city determined 114 parcels had been undervalued as reason as an admission.
Lawson called the method of assessment "structurally and facially arbitrary," and expressed concern regarding due process.
Using a demonstrative aid given to all parties, Lawson said the Cape Coral methodology was an attempt to mimic the form and format, but not the substance, of the term "improvement value."
He also questioned the city's use of data from the county appraiser's web site.
Lawson said Cape Coral's ordinances and resolutions are concerning the few "devoid of any process on how to determine the building cost value and extra features which makes up the structural value, abdicating it to the property appraiser."
"Cape Coral has burdened an independent public official with a responsibility beyond his pale. As much as the property appraiser may be competent and held in high esteem, Cape Coral's methodology is now subjected to the individual will or judgment that will drive the admittedly imprecise concept of structure value solely upon his discretion," Lawson said.
As for being "facially arbitrary," Lawson argued the $5,000 increments per equivalent billing unit in the Tier 2 assessment is too substantial. He argued that someone with a structure value of $165,999 would pay the same as someone with a $169,999 value, since both would be rounded down to $165,000.
"One owner would receive a $999 adjustment while the other would receive a $4,999 adjustment, or five times the difference," Lawson argued. "It unnecessarily creates winners and losers for no clear reason to all parcels in the city."
Lawson said the other cities that use the "ready to serve" methodology Cape Coral is trying to use incorporate $1,000 increments, just as how millage rates are set.
"Without any metric that removes the potential of capricious, unreasonable and unsupported action, the city has adopted a program on its face that begs to be struck down as arbitrary," Lawson said.
Camilla Augustine testified for Talan as an expert in tax and assessment roll analysis. She said she saw nearly thousands of discrepancies with the fire rolls as compared to the appraiser's, nearly 80 percent of which were undervalued.
BryantMillerOlive, which is representing the city, said errors can be made, even by herself.
James Sherron testified that data on values of land can change on a daily basis, but that the property appraiser's office does not handle fire assessments.
Mike Burton of Burton & Associates testified again on behalf of the city, saying his firm gave its best attempt at making sure the data was as accurate as possible.
He was questioned heavily on why he chose to use $5,000 increments in his EBUs.
"The $1,000 rate is associated with a mil. Such ranges for rates are common," Burton said. "It's simple and transparent."
Former Cape councilman Bill Deile, who opposes the assessment, challenged the transparency claim, saying he had to call the appraiser's office to find out how to get the structural value and had to use three extra keystrokes.
All parties were told by the judge they have until Wednesday to submit proposed final judgments before he makes a decision on validating the bond in question, which could come after the new year.
The bond is to be paid back from the new tax and the city chose to go to court ahead of time rather than levy the assessment and then have it challenged.
"The judge has a lot of latitude. It could be two weeks, he could wait until the start of the year if he wanted to," Morris said. "The main issue is they knew they had some problems and did that resolution Monday night. If they go by the original resolution, I think they lose. Why fix a problem unless you have serious problems?"
"The judge bent over backwards to get everyone's viewpoint. There's plenty of opportunity to deny the assessment and to tell them to do it right," Deile said. "Ten-thousand errors seems to be a significant number and other anomalies and the structure leads to another ad valorem tax and it is not transparent