Title: Ronald J. Schultz, Citrus County Property Appraiser. Jun 03, 1994 STATE OF FLORIDA DEPARTMENT OF REVENUE

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1 Title: Ronald J. Schultz, Citrus County Property Appraiser Jun 03, 1994 STATE OF FLORIDA DEPARTMENT OF REVENUE ) IN RE: RONALD J. SCHULTZ, ) CITRUS COUNTY ) CASE NO.DOR 94-2-DS PROPERTY APPRAISER ) ) ORDER DISMISSING PETITION FOR DECLARATORY STATEMENT On February 24, 1994, Ronald J. Schultz, in his capacity as Citrus County Property Appraiser, filed a petition for declaratory statement with the Department of Revenue under the provisions of section , Florida Statutes. The petition requested "a determination as to the exemptability, under Chapter 196, Florida Statutes, and the Rules of the Department, of a portion of a particular parcel of real property, and a portion of a particular tangible personal property account from all ad valorem taxation on the official real and tangible personal property tax rolls of Citrus County." The petition identified the subject property (the "portion") as being the undivided 10% interest as tenants in common conveyed by warranty deed from the Florida Power Corporation as grantor together with a 10% interest in the structures, equipment and facilities constituting the Crystal River Nuclear Power Plant to the cities of Alachua, Bushnell, Gainesville, Kissimmee, Leesburg, New Smyrna Beach, Ocala, Orlando, and Tallahassee, Florida, as well as to the Orlando Utilities Commission, the Sebring Utilities Commission, and the Seminole Electric Cooperative. In his petition, the Appraiser questions the applicability of the provisions of Chapters 159, 361, and 196, Florida

2 Statutes, and sections 3(a) and 10(d), Florida Constitution, 1968, to the municipal interest in the electrical generating plant and "seeks assistance in determining if the use of the Plant supports any portion of the Plant being exempt on the tax rolls of Citrus County." He recognizes that the cities' use of their interest in the power plant serves a municipal or public purpose. There is no indication that the cities are not using their interest exclusively for municipal purposes. The Appraiser argues that since the State Constitution, Article VII, Section 3(a), exempts only municipal property used exclusively by the municipality for municipal or public purposes, the cities' interest in the plant cannot qualify for an exemption. He apparently reaches this conclusion because there is no express mechanism in the statutes for recognizing or assessing separate interests in real property or for creating a separate entry on the tax roll for the cities' interest in the plant. To the Appraiser, because the power plant cannot be partitioned so as to identify particular property owned exclusively by a city or the cities, the entire plant is subject to tax by the Citrus County taxing authorities, not just 90% of the plant. For the reasons outlined below, the Department is without jurisdiction to issue a Declaratory Statement under the circumstances presented by this request. JURISDICTION In unambiguous terms, the Appraiser is asking the Department to decide whether or not specific real and tangible personal property in his county should receive an exemption or partial exemption. Initially, it should be observed that there are over 7 million parcels and accounts of real and tangible personal property listed on the county tax rolls in this State. To determine the tax status of these parcels and accounts, the Florida Constitution provides for the elected Office of the Property Appraiser in every county. Determinations by these Constitutional officers are subject to review by county value adjustment Boards, and the circuit and appellate courts, under Chapter 194, Florida Statutes. Decisions of value adjustment

3 boards are reviewable under the provisions of section , Florida Statutes, Due to the similarity of declaratory statement proceedings under the Administrative Procedures Act and declaratory judgments under Chapter 86, Florida Statutes, the Department will be guided by decisions under the declaratory judgments statute, in determining the availability and scope of remedies under the declaratory statement statute. See Couch v. State, 377 So.2d 32, 33(Fla. 1st DCA, 1979). In May v. Holley, 59 So.2d 636(Fla. 1952), the Florida Supreme Court stated the elements which must be present before any proceeding for declaratory relief should be entertained.... it should be made to appear that there is a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice... Here, the antagonistic and adverse interest are represented by the Appraiser and the property owners/taxpayers, not by the Appraiser and the Department of Revenue. The availability and scope of the declaratory judgment act as applied to a petition brought by a property appraiser against the Department of Revenue has been considered by the Florida Supreme Court in Department of Revenue v. Markham, 396 So.2d 1120(Fla. 1981). The Court aligned itself with the dissent in Department of Revenue v. Markham, 381 So.2d 1101, 1111(Fla. 1st DCA, 1979) to determine that there was no jurisdiction to render a declaratory judgment. In Markham, the Property Appraiser disagreed with a Department rule providing that household goods

4 of non-residents were exempt and brought a declaratory judgment action against the Department to determine the question. The Court held that "the statute and the rule which the tax assessor challenges in this case does not place him and the DOR in adverse positions..." Markham, supra, 381 So.2d 1101, 1113(Fla. 1st DCA), Judge Ervin's dissenting opinion. Here, petitioner is seeking a binding determination as to whether property of persons who are not parties to this petition is subject to tax. In so doing, he is questioning the applicability of statutory, regulatory and constitutional provisions which do not place him and the Department in adverse positions, and thus, like in Markham, declaratory relief is improper. See Couch, supra. This ruling makes it unnecessary to consider whether a pending action in the Citrus County Circuit Court, Fifth Judicial Circuit, Ronald Schultz, as Property Appraiser of Citrus County v. the Citrus County Value Adjustment Board, case no CA, in which at least some of the affected cities have intervened, could adequately resolve the issues presented here. Couch v. State, 377 So.2d 32(Fla. 1st DCA, 1979). Therefore, it is ORDERED that the petition for Declaratory Statement filed by Ronald J. Schultz, as Citrus County Property Appraiser is hereby DISMISSED. This order constitutes final agency action by the Department. Any party to this Order has the right to seek judicial review of this Order in accordance with Section , Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with Judy Langston, Clerk of the Department of Revenue, Office of General Counsel, PO Box 6668, Tallahassee, Florida, , and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days from the Date this Declaratory Statement is filed with the Clerk of the Department of Revenue. Done AND ORDERED this 3rd day of June, 1994.

5 STATE OF FLORIDA DEPARTMENT OF REVENUE L.H. Fuchs Executive Director Filed with the Agency Clerk and served on the parties on this 3rd day of June, Judy Langston, Agency Clerk