THE NEWS SERVICE OF FLORIDA: Local governments get tougher impact fee
Mar 17, 2009
THE CAPITAL, TALLAHASSEE, MARCH 17, 2009 — Local governments would be held to a higher standard when property owners challenge impact fees under a measure that unanimously passed a House committee on Tuesday.
Saying the current system is vulnerable to abuse and impact fee rates are skyrocketing, Rep. Gary Aubuchon, R-Cape Coral, told members of the House Civil Justice & Courts Policy Committee that the measure (HB 227) is needed to provide a check to cash-strapped local governments that are increasingly looking at impact fees to raise money.
“The bottom line is this bill creates fairness and puts the burden of proof on government, where it belongs,” Aubuchon said.
If approved, the measure would require local governments to prove by a “preponderance of evidence” that an impact fee is justified and will be used for the intended purposes. Courts now are given wide discretion in determining a local government’s burden of proof and often have allowed impact fees to stand if governments can offer a reasonable argument. A companion measure (SB 580) is traveling in the Senate.
Representatives from local government associations were cautious in their criticism of the measure, but said they have fundamental concerns with raising the bar for local governments to justify impact fees.
“We have concerns over the burden of proof being shifted over the cities,” said Tim Stanfield, legislative representative for the Florida League of Cities.
Builders, developers and property rights attorneys called the measure necessary to clarify murky legal territory and bolster the rights of property owners, who they say now have little recourse to challenge impact fee assessments.
“It’s very difficult,” said Ron Adams, an attorney representing property owners. “The deck can often be stacked against us.”
A 2006 report by the Legislature’s Florida Impact Fee Review Task Force found impact fees had grown 505 percent from 1993 to 2004 and were continuing to rise as communities sought to respond to explosive growth throughout the state.
Florida now has the second highest impact fees in the country, according to data compiled by the Florida Home Builders Association. Between 2002 and 2007, local fees more than doubled, the association reports.
David Hart, vice president for the Florida Home Builders, said he’s seen a shift in the use of impact fees to fund local programs. Though many communities are calculating their impact fees correctly, some are overreaching.
Another factor was the passage in January 2008 of Amendment 1, which limited the ability of local governments to raise property taxes. Hart said the amendment’s passage prompted a surge in impact fee levies as local governments scrambled for new funding sources to pay for local infrastructure, schools and other programs.
“The reason is pretty simple to understand,” Hart said. “They quickly looked for other avenues for that revenue. Impact fees were an easy target.”