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Groups Say Legislation Regarding Impact Fees is Unconstitutional

By Gina Jordan


Tallahassee, FL – Impact fees are charged to developers by local governments to cover the cost of growth. A bill regarding impact fees was passed in Florida last year, and now various counties and associations are suing to have it overturned. They want it ruled unconstitutional.

House Bill 227 changed the way courts handle legal challenges to impact fees. Representative Alan Hays was a co-sponsor.

"Before this bill became law, it was up to the plaintiff to prove that the fee was incorrect, and I feel like that we needed to switch it around and make the government prove their case."

That might seem reasonable, but Cragin Mosteller with the Florida Association of Counties says the bill came with unintended consequences.

"I think, you know, folks that don't necessarily agree with us would say that's how it's supposed to be, you know, the government should have to do the burden of the work. While we certainly understand that position, unfortunately, when it comes to this bill, it allows the judge to play armchair quarterback rather than the elected officials who did their job in the first place."

The bill says that if anyone challenges an impact fee, the local government that enacted the ordinance must show, by a preponderance of evidence, that the amount of the fee is reasonable and correct. The Florida Association of Counties, the Florida League of Cities, the Florida School Boards Association, and nine individual counties joined forces to file suit. Ultimately, Mosteller says the bill is unconstitutional.

"They didn't get the two-third majority that they needed in order to pass an unfunded mandate, which at the end of the day, according to their staff analysis, this is an unfunded mandate."

The measure easily passed the House, but it passed the Senate 26 to 11. The plaintiffs say it needed 27 votes to pass. Representative Hays says they were trying to help the little guy.

"We all know that governmental agencies seem to have unlimited resources, and for them to be the 900-pound gorilla that imposes these fees, and then for the person who objects to the fee to have to come in and spend all their time and money proving that the fee is incorrect, is not a good balance."

But Mosteller says the bill takes the presumption of correctness away from local elected officials and puts it in the hands of a judge. Another big problem, she says, is that there is no statute of limitations on when a fee can be challenged, so someone could potentially sue ten years after completing a development.

"Do we want to give that money back to a developer or should we be giving that money back to the taxpayer, and should we be paying for the growth that we incur? As taxpayers, when you and I go into our house, we pay those impact fees when we bought the house. Our developer passed them on to us. So why then should you have to pay for the impact fees of another neighborhood because that developer didn't like it? So I hope at the end of the day taxpayers will see that this will benefit them."

Hays says the legislation was intended only for current and future events. Instead of a lawsuit, he thinks a cheaper, easier fix would be to simply ask the Legislature to file a bill that would amend any concerns they have. The plaintiffs include Lake County, his home district.

"I hate to see anybody, any government agency suing someone else using taxpayers' dollars to pay lawyers, you know? So from that standpoint, I'm disappointed that they have chosen to do this. The best thing to have done would have been for them to have been present in Tallahassee when this legislation was being considered."

Mosteller says they were present, and they did their best to reach lawmakers about the bill, which she says came in at the last minute under the radar. She says they would be open to going before lawmakers during the upcoming session if members agree to address the legislation.