by Naja Girard…….
Circuit Judge Bonnie Helms disqualified herself last Friday, without explanation, from a case she had ordered dismissed just 2 days earlier.
The case, a petition for declaratory judgment, was brought by Louise Delaney and Gail Kulikowsky, two Big Pine Key area property owners who are challenging Monroe County and FKAA over the agencies’ insistence that they sign over an easement for a portion of their yards and provide an expensive high-powered electrical connection so an onsite grinder sewage pump system can be installed on their properties.
They say they want to hook up to the Cudjoe Regional Wastewater System [CRWS] and they understand they are required to do so by law, but they want to hook-up to a gravity connection supplied by the county in the right-of-way, at the property line in front of their homes – just like the majority of homeowners in the county – and just like it says in the county code.
In their Complaint they are asking a Judge to determine the meaning of several sections of the code of ordinances that they say give them the absolute right to a connection that can be accessed via a gravity system and that they can tie into at a location on public land adjacent to their property line.
Here’s some of the County Code they are asking the Judge to interpret:
Section 20-105(e)(1) that states:
“The utility shall provide a means of connection within the public right-of-way, whether by vacuum pit or other, that abuts the property and can be accessed via a gravity system;”
Section 20-105(a) (Residential and Commercial Users) that states:
“Utility facility availability. Every user, either residential or commercial, shall have utility facilities made available to him for connection of his system in the public right-of-way, abutting his property.”
Delaney and Kulikowsky claim the county and FKAA are demanding that they give up their property rights as a condition to being connected to the CRWS system and that they are being coerced into doing that under the threat of code enforcement proceedings including $100 a day fines and liens being placed on their property.
They also argue the county can only use someone’s private property, instead of the right-of-way, when the property owner requests it. Delaney and Kulikowsky say they did not make such a request and any requirement for an easement amounts to a government taking of their property that must be compensated for under constitutional law.
Their lawsuit, which is a declaratory judgment action, is a special type of proceeding meant to determine the rights of parties that are involved in a controversy before anyone’s rights are actually violated.
Judge Helms’ Order came after the county and FKAA asked for dismissal, stating the complaint violated a procedural rule that requires “short and plain” allegations.
In her Order of Dismissal Judge Helms refers to the facts being “too well hidden by and irretrievably intertwined with surplusage.” (irrelevant to the cause of action) and said the Complaint was written more in the form of a legal brief than a Complaint and was not plain and simple enough to be in conformity with the rule.
Delaney and Kulikowsky’s attorney, Kevin Michael Hoyes, filed a Motion for Rehearing on Wednesday arguing that Judge Helms was mistaken. He says declaratory judgment actions are unlike other forms of litigation and require very precise elements and allegations in the Complaint. He says the Complaint as drafted contains precisely the type of allegations that are required by the rules of procedure and by Florida Supreme Court jurisprudence for declaratory judgment actions.
He asks that Judge Helm’s Order be vacated and that the county and FKAA be required to file their Answer within 10 days.
In the alternative, he asks that the new Judge, yet to be assigned to the case, amend the Order of Dismissal. He argues that Judge Helm’s Order lacks specific criteria and should be amended to include information on exactly what rule has been offended and what element has been omitted so that an amended Complaint can be successfully drafted.
Here is the complaint that was dismissed by Judge Helms: