City Cannot Levy Special Assessments Against Special District Absent Express Authority to Levy or Pay: B. North Port Road and Drainage District v. West Village Improvement District, 82 So. 3d 69 (Fla. 2012)

The City of North Port created a road improvement district to maintain and improve roads throughout the City.  The Court ruled that the City lacked home rule power to levy the assessments against various parcels of vacant land owned by West Villages, a CDD with special legislative powers:

In this case, NPRDD’s special assessments on West Village’s property fall within the limitations on home rule delineated in section 166.021(3) because (1) West Villages is not authorized by law to pass through the special assessments to property assessed separately by West Villages, and (ii) NPRDD is prohibited by the constitution from compelling payment by the Florida Legislature.  In other words, there is no way for West Villages to lawfully pay the assessments.

It is difficult to determine at this point whether the Court has created an exception that will swallow the more general rule that state agencies are liable to pay user fees and similar charges, unless specifically exempted by statute.  What is also interesting is that the fight here had to start as a certiorari challenge to the City’s levy of the special assessments under the Chapter 170 process.  This constrained West Village’s ability to argue that the assessments are patently unreasonable because West Villages (and the property within it) already maintains the roads within that area, and the funds would be used to improve roads in other areas of the City that would clearly not be used by, or benefit, the assessed parcels, or any lands within the West Villages.

Refusal to Maintain Road Could Create Cause of Action for Taking - Jordan et. al. v. St. John’s County, 36 Fla. L. Weekly D1095 (Fla. 5th DCA 2011).

The plaintiffs/appellants own lots that are accessible only by an “Old A1A,” which is a County road that runs along the beach.  Old A1A was originally a state road; the state deeded the road to the County when it relocated US 1A further west.  Given its location, the road was frequently damaged or washed out by storms and erosions.  The County’s answer to the problem was to limit maintenance of the road and to adopt an ordinance imposing a temporary moratorium on residential building permits for lands served by the road.  A group of landowners filed suit:  (1) asking for a declaration that the County had the obligation to maintain the road, (2) requesting an injunction to require the County to maintain the road, (3) inverse condemnation for loss of access, and (4) for declaratory relief and inverse condemnation for the moratorium.  The circuit court entered summary judgment for the County on all counts and the landowners appealed.

The District Court found that the circuit court erred in granting summary judgment to the County on the claims for declaratory relief and inverse condemnation that were based on the failure to maintain the road.  The District Court agreed with the First District’s opinion in Ecological Development Inc. v. Walton County, 548 So.2d 1069 (Fla. 1^st DCA 1990), that a local government cannot accept ownership of a road and then refuse to repair or maintain it, but cannot be ordered to repair or maintain it in a specific manner.  The District Court held that “the County must provide a reasonable level of maintenance that affords meaningful access, unless or until the County formally abandons the road.”  The District Court went on to hold that “government inaction – in the face of an affirmative duty to act – can support a claim for inverse condemnation.”  These issues were then remanded to the circuit court to determine: (1) whether the County had, de facto, abandoned the road, (2) whether the County’s maintenance of the road was reasonable, and (3) to determine damages if the County had failed to provide reasonable maintenance.  The holding of this case should have been predictable and in my opinion it is lamentable that the case was necessary

Fla Supremes Make REALLY Sure We'll Have Lots of Special Assessments - No Bonds for TIFs w/out Referendum

In my "local government law" class in law school - and in studying for the bar - I learned that you can't pledge ad valorem tax revenues for bonds without a referendum. I also learned the exception - you could pledge TIF revenues or combinations of revenues, so long as the core "ad valorem" taxing power was not implicated in the pledge.

Not any more. In Strand v. Escambia County, the Florida Supreme Court drove a stake into the heart of the Miami Beach case that established the "TIF exception" and loosed an arrow (not yet struck) into the "combination of revenues" exception established in the Sarasota County School Board case.

Not surprisingly, a local government had taken the TIF exception (carved out for CRA type improvements) to an extreme, funding a major road improvement ($135M) for Perdido Key solely from TIF-backed bonds. The TIF "area" is the "Southwest Escambia County Improvement District"-- which does NOT appear anywhere in the opinion as an MSTU/MSBU; instead it appears that the County tried to use its home rule powers to simply create a TIF-type area from whole cloth to segregate general-fund ad valorem tax dollars into the bond payments. [I'm sure I'll here from the principles if I've got this wrong or if the Court missed it.] The Court invalidated the bonds as being in violation of Article VII, s. 12.

The Court did a very scholarly job of reviewing the bad history of ad valorem-backed bonds in Florida and the two main "exception" cases. It also discussed (cogently) the Volusia County case that held that the County couldn't pledge a hodge podge of non-ad volorem revenues to back a bond if it appeared that the county might have to raise ad valorem taxes to replace the pledged revenues. The Court concluded that the Miami Beach and Sarasota School Board cases went too far and reeled them back in.

So, in the span of two weeks we find out that local governments get huge discretion to issue bonds backed by special assessments and have little or no discretion to issue bonds backed by ANY kind of ad valorem revenues. Two results are pretty much automatic:

1) HEELLLOOOO MSTUs and Special Districts with special assessments. I'm guessing we'll see lots and lots of these because its the only way left to raise funds to pay for infrastructure.

[Well, maybe we won't see so many in the short run. After over 25 years of Republican preaching about "no new taxes" and government waste, the citizenry thinks that it can get better roads and other infrastructure for free. It's all new development's fault, just use impact fees to do it, and if they don't work, screw around with concurrency to create moratoria and then make them pay for everything just to be able to do anything. In that climate, we probably won't see cities and counties establishing responsible ways to pay for infrastructure until they lose a few major cases.]

2) Bye, bye CRAs!!! No bonding for TIF revenues from CRAs, so why bother - straight into special assessment districts. First they lose the power to condemn for redevelopment, and now they lose the ability to bond TIF dollars - the two useful functions of CRAs are now pretty much toast.

Charter Control over Annexation- Provisions Must Be in Charter Itself

In Village of Wellington, et al, v Palm Beach County, here's the opinion, the 4th DCA upheld a circuit court's findings on the powers of charter counties to control and limit annexation. There's a good discussion of the interaction of the various constitutional and statutory provisions, but the bottom line is that the Charter provision itself must provide the actual annexation rules if they are to supersede the statutory provisions or municipal charters. The Charter can't just empower the County Commission to adopt later ordinances to govern annexation.