The Association supports enhancements to impact fee laws that preserve county home rule authority and enhance, not prohibit growth and the resources necessary to support growth.
The Florida Constitution grants local governments broad home rule authority. Specifically, non-charter county governments may exercise those powers of self-government that are provided by general or special law. Those counties operating under a county charter have all powers of self-government not inconsistent with general law, or special law approved by the vote of the electors.
Impact fees are unique products of local government’s home rule powers and are imposed in conjunction with their power to regulate land use and their statutory responsibility to adopt and enforce comprehensive planning.
Impact fees are charges imposed against new development to provide for the cost of capital facilities made necessary by that growth. The purpose of the charge is to impose upon the newcomers, rather than the general public, the cost of new facilities necessitated by their arrival.
Impact fees are enacted by local home rule ordinance. These fees require total or partial payment to counties, municipalities, special districts, and school districts for the cost of additional infrastructure necessary as a result of new development. Impact fees are tailored to meet the infrastructure needs of new growth at the local level. As a result, impact fee calculations vary from jurisdiction to jurisdiction and from fee to fee. Impact fees also vary extensively depending on local costs, capacity needs, resources, and the local government’s determination to charge the full cost of the fee’s earmarked purposes.
Florida Impact Fee Review Task Force
In 2005, the Legislature created the Florida Impact Fee Review Task Force (Task Force). The 15-member Task Force was charged with surveying the current use of impact fees, reviewing current impact fee case law, and making recommendations as to whether statutory direction was necessary with respect to specific impact fee topics. The Task Force concluded that:
- Impact fees are a growing source of revenue for infrastructure in Florida;
- Local governments in Florida do not have adequate revenue generating resources with which to meet the demand for infrastructure within their jurisdictions;
- Without impact fees, Florida’s growth, vitality, and levels of service would be seriously compromised;
- Impact fees are a revenue option for Florida’s local governments to meet the infrastructure needs of their residents;
- Because Florida comprises a wide variety of local governments – small and large, urban and rural, high growth and stable, built out and vacant land – each with diverse infrastructure needs, a uniform impact fee statute would not serve the state;
- Impact fees must remain flexible to address the infrastructure needs of the specific jurisdiction; and
- Statutory direction on impact fees is needed to address and clarify certain issues regarding impact fees.
Statutory Authority for Impact Fees
In 2006, the Legislature enacted s. 163.31801, F.S., to provide requirements and procedures to be followed by a county, municipality, or special district when it adopts an impact fee. By statute, an impact fee ordinance adopted by local government must, at a minimum, include the following elements:
- Require that the calculation of the impact fee be based on the most recent and localized data;
- Provide for accounting and reporting of impact fee collections and expenditures so if a local government imposes an impact fee to address its infrastructure needs, the entity must account for the revenues and expenditures of such impact fee in a separate accounting fund;
- Limit administrative charges for the collection of impact fees to actual costs;
- Require that notice be provided at least 90 days before the effective date of a new or amended impact fee; and
- Address whether credits should be granted for future local tax payments for capital improvements, outside funding sources, and in-kind contributions from developers.
Dual Rational Nexus Test
As developed under Florida case law, impact fees must meet the “dual rational nexus” test. First, impact fees are valid when a reasonable connection, or rational nexus, exists between the anticipated need for additional capital facilities and the growth in population. Second, impact fees are valid when a reasonable connection, or rational nexus, exists between the expenditure of the impact fee proceeds and the benefits accruing from the growth of those proceeds.
Burden of Proof and Standard of Review
The obligation to prove a material fact in issue is known as the burden of proof. Generally, in a legal action the burden of proof is on the party who asserts the proposition to be established and the burden can shift between parties as the case progresses. The level or degree of proof that is required as to a particular issue is referred to as the standard of proof. In most civil actions, the party asserting a claim or affirmative defense must prove the claim or defense by a preponderance of the evidence. The preponderance of the evidence (also known as the “greater weight of evidence”) standard of proof requires that the fact finder determine whether a fact sought to be proved is more probable than not.
Concerning impact fees, although the challenger has to plead his or her case and allege a cause of action, it appears that beyond the pleading phase, the court has placed the burden of proof on the local government to satisfy the dual rational nexus test. Although the standard has not been previously clearly defined, the courts have generally not required a local government to defend its impact fee by a preponderance of the evidence.
However, during the 2009 legislative session, CS/CS/HB 227 by Aubuchon (CS/SB 580 by Haridopolos) was passed and signed into law on May 21, 2009 by Governor Crist. This legislation provides that, in any action challenging an impact fee, the government has the burden of proving by a preponderance of the evidence that the imposition or amount of the fee meets the requirements of Florida law. The bill also prohibits courts from using a deferential standard (towards local governments) when considering such cases. FAC strongly opposed the passage of this legislation and will continue to work towards any possible remedies to mitigate potential impacts to county governments.