IMPACT FEES, SPECIAL ASSESSMENTS AND STORMWATER UTILITIES

Transcription

1 IMPACT FEES, SPECIAL ASSESSMENTS AND STORMWATER UTILITIES Presented by: Mark T. Mustian Nabors, Giblin & Nickerson, P.A Mahan Drive, Suite 200 Tallahassee, Florida (850) Tel. (850) Fax

2 2

3 IMPACT FEES Fee paid by development (usually at the time of development) in order to obtain a building permit Fee designed to reimburse government for the additional impact a given improvement may have on the community 3

4 IMPACT FEES May be for transportation, water and sewer, other public infrastructure (in water and sewer, generally viewed as a capacity charge, repaying government for impact of taking capacity out of the system) In some instances impact can become tenuous: parks, sheriff s patrols 4

5 IMPACT FEES Must be direct relationship between development and impact fee charged Dual rational nexus test in Florida: reasonable connection required between Need for facilities and the proposed development; and Expenditure of fees and benefits accruing thereby 5

6 IMPACT FEES In Georgia, Georgia Development Impact Fee Act O.C.G.A , authorizes imposition and collection of impact fees for public facilities including stormwater 6

7 IMPACT FEES Issues with respect to timely expenditure of funds (Georgia six years) Doesn t necessary fit well with stormwater Used for capital, not maintenance Paid one-time up front, not over time, only paid on new construction Possible use for regional capital solutions 7

8 SPECIAL ASSESSMENTS Charge levied for benefit a given property receives for a specific public improvement Benefit must be related to property itself 8

9 SPECIAL ASSESSMENTS General governmental functions (courthouse, sheriff) don t lend themselves well to assessments Distinguishable from taxes which are generally seen as enforced contributions intended to produce revenue 9

10 SPECIAL ASSESSMENTS May be used generally to fund capital and operating costs See Sarasota County v. Sarasota Church of Christ, 667 So. 2d 180 (Fla. 1995) Although, see Fulton County Taxpayers Association v. City of Atlanta 1999 WL (trial court case) (holding that charges for stormwater utility maintenance services were a tax increase because they do not regulate anything, are required without regard to usage, do not relate to a benefit received, and become a tax lien on the property) 10

11 SPECIAL ASSESSMENTS May (in some states) be placed on tax roll and achieve same lien status as that of ad valorem taxes May be issues in some states of whether property that is not on the tax rolls (governmental property or property owned by not-for-profits) is subject to assessment and/or levy 11

12 STORMWATER UTILITY Generally seen as a separate governmental enterprise system similar to a water or sewer system All users of the system contribute for service rendered as a whole by the system 12

13 STORMWATER UTILITY Some systems don t work transportation utility struck down by Florida Supreme Court Reasonable relationship must exist between the amount of the fee and the value of the benefit 13

14 STORMWATER UTILITY Undeveloped property generally exempt from fee or receives a credit (important in being a choice to get out of the fee) 14

15 FLORIDA Issues on billing ability to compel to pay See City of Gainesville v. State Dep t of Transportation, 778 So. 2d 519, 526 (Fla. 1 st DCA 2001) (distinguishing between stormwater utility fees imposed pursuant to section and special assessments); and City of Gainesville v. State, 863 So. 2d 138 (Fla. 2003) (outlining factors for determining whether charge was a utility fee or an assessment and holding that fee was a valid user fee imposed by a stormwater utility authority). 15

16 GEORGIA Section , O.C.G.A. In McCleod v. Columbia County, 278 Ga. 242 (2004), the Georgia Supreme Court upheld the validity of a utility charge imposed by a stormwater utility pursuant to a stormwater management ordinance. The court first outlined the law relating to the ability to operate and maintain any undertaking, which was defined to include stormwater systems, which though included with the state s Revenue Bond Law, have been interpreted by the courts to be authority independent of the ability to issue bonds. Id. at 244. The court held that pursuant to this section and the Georgia constitution, the county was authorized to create the Stormwater Utility and to impose a utility charge for the stormwater services. The court further held that the charge was not a tax. 16

17 17 In sum, each impact fee, special assessment and stormwater utility system has a potential use in solving stormwater problems, depending on the actual situation