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.

County Could Impose Special Assessments for Recently Completed Projects Using Reassessment: A. Davis et al v. Marion County, 93 So. 3d 113 (Fla. 5th DCA 2012).

The Fifth District upheld the trial court determination that Marion County could impose a special assessment on property specially benefited by recently completed roadway improvements within MSBUs, through the reassessment process.

While not stated in the opinion, it appears that the County established the MSBUs or the assessment methodologies after making the road improvements.  Based on the opinion, it does not appear that the plaintiffs claimed there was no special benefit or that the benefits were unreasonably apportioned to the property.  Instead, the argument was that the County could not assess because it did not have “jurisdiction” to assess when the improvements were made.  The District Court rejected this argument based on earlier decisions allowing reassessment where benefitted property was not properly or fully assessed.

This decision could have significant impact and create new avenues for broad based funding for future improvements by confirming that local governments can recover from existing development the costs for improvements that benefit that development.  In other words, local governments can use special assessments to recover “sunk” costs in existing improvements, allowing them to use that revenue to maintain, replace or expand other improvements or to repay general obligation bonds and free up other funds.

Illegal Exactions Protected by Bond Validation

In Frederick et al v. Northern Palm Beach County Improvement District et al, the District Court upheld the circuit court's dismissal of claims raised by various homeowners who claimed that they were subjected to unconstitutional exactions.

The homeowner's predecessors in interest (the developer) cut a deal with the county to set up an improvement district to fund not only the roads internal to the project, but also to build a major section of arterial road. While the project was still under the developer's control, an assessment was levied (for 20 years) against property in the development and the bonds were validated.

None of the other developments who benefit from the improved major road were assessed. Later, homeowners subject to the assessment -- understandably annoyed when they realized they were paying for infrastructure for the entire area, and effectively subsidizing the other developments-- sued to establish that the assessments were illegal because they were not proportionate to the impacts of the paying development.

The circuit court dismissed, holding that the statute of limitations had run the validation of the bonds precluded later challenges to the assessments. The District Court affirmed, holding that the homeowners were bound by their predecessor's knowledge of the date of the validation/action.

In the case now before us, we must balance the interests of the Homeowners in
receiving notice of the exclusive nature of the Unit 18 assessments against the
public policy concerns highlighted in H&B Builders. Weighing these competing
interests, we find that, on these facts, the Homeowners interests are outweighed
by the need of the District for certainty in creating water management plans and
funding those plans. As a result, the approval and creation of the assessments
and impact fees here by the District provided sufficient notice to then existing
and future homeowners of their obligations. This is true even if the assessments
and impact fees were improperly levied. See Ves Carpenter, 422 So. 2d 342;
Spring Lake Improvement District, 814 So. 2d 1077.

So, clearly, sue before you buy - or at least be sure that your developer did.

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.

The Fla Supremes Dodge the Real Question and Approve a Bond Issue

In Citizens Advocating Responsible Environmental Solutions v. City of Marco Island, the Supreme Court validated a bond issue for wastewater improvements backed by special assessments on existing and future development in currently unserved areas of the City. The real challenge was to the improvements funded by the assessments.

Here's the problem: CARES claimed that the City was playing a major funding shell game and mixing up the costs of rehabilitating its aging 3.5 MGD existing plant with the costs of expanding the plant to 5 MGD.

The circuit court and Supremes found that there was enough evidence before the City Commission to support its legislative finding that the assessments reasonably benefit the properties to be served and were reasonably attributable and assigned to those properties.

And of course there was testimony that (a) the plant would not have had to be expanded (or new lines run) absent service to the new areas; (b) the bond proceeds were pledged to "expansion costs" for lines and treatment capacity; and (c) the existing users would get no special benefits from the expansion. The Supremes found that to be enough to meet the 2 part test for a valid special assessment in a bond validation proceeding where the bonds are funded by the assessments.

The problem, of course, is that we don't know (from this kind of appellate opinion) how much the local government was hiding, and what CARES was really asking for was meaningful cost accounting to distinguish between capacity improvements and rehabilitation of the plant. If the City had been charging pure impact or hookup fees instead of special assessments, that kind of inquiry would have been required (see the Sarasota County case from a couple months back, or the Volusia County school impact fee case). But by playing a switcheroo game, labeling the charges "special assessments" and pledging them to bonds, the City gets away with minimal scrutiny of its cost accounting.

This is wrong. Maybe the City is playing fair, but based on what I've seen of public finance lately, I don't believe it. All over the state, local governments are refusing to hand existing residents the bill for the service upgrades they want (wider roads, better drainage, better equipped parks) and pretending that the "need" for additional capital investment is entirely attributable to new development.

The Supreme Court, whether intentionally or not, made this problem worse with this decision. The Court -- and the abusive local governments - are simply daring the legislature to adopt meaningful legislation to provide minimal, uniform standards of accounting for capital improvements, and a standard approach for impact fees and other exactions.

Charter Schools Must Pay Special Assessments

Despite that fact that they are publicly funded, established by statute, and otherwise must have open enrollement, the 5th DCA held that charter schools while are not public schools their exemption from Chapter 1013 means that they do not enjoy the statutory exemption from the payment of special assessments and other capacity fees that public schools enjoy, becuase it is provided in that chapter.

Seems like a silly piece of legislative oversight that could have dramatic impact on the fiscal viability of charter schools.

The case is Remington v. Education Foundation, here's the link to the opinion.