Update following changes made to Florida SB 1077 after communication from attorney Dan Lobeck to Sen. Joe Gruters. The original Feb. 26, 2020 post is below this update.
Gone from the bill are measures to limit what impact fees can be charged for – prohibiting impact fees for many purposes now levied by Sarasota County such as libraries, courts and jails, and a requirement that local governments load their impact fee committees with members biased towards development interests. Also gone is a measure to remove the right of local governments to decide what roads and other facilities may be built by a developer to get an impact fee credit.
A very bad companion bill - in some ways worse than Gruters’ original bill (partly because of the powers it would give to the biased committee) remains pending in the Florida House. With the Senate and the House now on opposite tracks, the fate of the legislation remains uncertain. It seems unlikely to pass unless House and Senate leaders agree on the wording and it becomes a priority to the leader of either chamber. The legislation was initially drafted by the Florida Homebuilders Association, which prefers that the taxpaying public, rather than builders and developers, pay for the facilities needed to serve new growth.
The amended Senate bill.
Dan Lobeck
President, Control Growth Now
www.controlgrowthnow.org
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Senator Gruters:
This is to urge that you either pull your SB 1066 regarding impact fees or at least have it amended to correct serious flaws.
As it now stands, it is a very bad bill. The House companion, in the form of its current Committee Substitute (pending second reading in the House) is in some ways even worse.
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| Dan Lobeck |
As you know, this is a Homebuilders Association bill. Certainly, any attempt to tie the hands of local governments on impact fees paid by those homebuilders should be suspect as to whether it serves the public interest or instead serves that special interest contrary to the public interest.
Also, this is one in a long line of legislation in recent years (and before) which would subvert home rule, substituting state strictures for control of commissions closer to the communities they are elected to serve.
Your bill is up for consideration by the Appropriations Committee tomorrow morning at 9. That would be a good time – among others – to stop this train wreck in its tracks. I am copying the members of that Committee for their consideration.
Others have pointed out problems with the legislation, including with regard to the transfer of impact fee credits; limiting the discretion of School Boards and their professional consultants in formulating impact fee methodologies; and removing the right of local governments whether to agree to “contributions” (such as construction of a road) for which a developer will get an impact fee credit.
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| Joe Gruters |
This is to focus on two severe problems in the bills.
Eliminating Impact Fees for Some Public Facilities
Both bills limit impact fees to certain public facilities listed in what is now s.163.3164(39), Florida Statutes, that is “major capital improvements, including transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational facilities” and certain others. Those others in the Senate bill are “any fire and law enforcement facility.” The House bill adds “public libraries, parks” and “emergency medical services.”
Sarasota County, and perhaps other jurisdictions, levy impact fees for public facilities not on that list. In Sarasota County it is judicial facilities and public administration buildings.
For both of those purposes, Sarasota County has a severe funding shortfall, for both current and future needs. As such, both impact fees were recognized as inadequate and were increased.
The word “including” and “includes”, without the phrase “but not limited to” may be construed as words of limitation rather than of example.
As such, if your bill becomes law as now drafted, or in its House companion, it may be cited to eliminate Sarasota County’s impact fees for judicial facilities and public administration and (but for the House language) libraries and emergency medical services.
Other Counties and Cities will be similarly limited, for no good reason.
Two other problems with the wording in both bills: what is a “major capital improvement” is ambiguous and as such may be unduly limiting, and “fire and law enforcement facility” should be “fire or law enforcement facility.”
A Biased Impact Fee Committee
Both bills would require each County and City to form an Impact Fee Committee with a mandatory composition guaranteed to be biased towards the builders and developers who pay impact fees.
The Homebuilders Association knew what they were doing when they drafted this. By serving their special interest, it guarantees that the interests of the taxpayers – on whose backs the cost of public facilities to serve new growth will fall if growth is not made to pay its own way – that is the public interest, will be given short shrift.
The Senate bill states that the Committee shall consist of two persons “who represent the business community” (such as Chamber of Commerce representatives, who in my experience typically ally with builders) and two “local licensed general or residential contractors” (e.g. builders), together with one “at large member.”
The House Bill adds to the Committee two members employed by the County or City which levies the impact fee, one of which must be a School Board employee if there is a school impact fee.
The Senate bill has been amended to allow a local government to instead “use an existing committee which contains representation from the building or development community and reviews building or development projects.” Not only is that option oddly limited (for no apparent reason) to “existing” committees, the killer is the final clause: “and reviews building or development projects.” That eliminates any existing impact fee advisory committee which does not also perform that secondary function. As those are two different functions, it is unlikely that any committee does both. In Sarasota County for example, the Public Facilities Financing Advisory Board advises on impact fees but it does not review building or development projects. So that committee, whose members are selected to represent not only business interests but also civic organizations, would be replaced by the biased committee mandated by this new law.
In the Senate Bill, the Impact Fee Committee reviews and recommends not only the impact fee methodology but also the impact fee consultant, studies, calculation changes and expenditures – all of the significant determinations of the County or City on impact fees
The House bill goes even further. It would vest the power to “establish a policy and methodology for determining impact fees on new developments” in the Impact Fee Committee. Not “recommend” but “establish”, thereby stripping that important power from the local elected officials and instead giving it to a committee which is guaranteed to be biased in favor of those who pay impact fees. Also, the House bill would require that the Impact Fee Committee submit a recommendation to the governing body of the county or city each time that an impact fee on a “new development” will be discussed and voted upon (whatever that means).
An Albatross
This terrible legislation will be an albatross around the neck of any Senator or Representative who votes for it – providing clear and demonstrable evidence that person serves development interests contrary to the interests of this or her constituents, who will face higher taxes or inadequate public facilities (or both) when impact fees are too low to make growth pay its own way.
Please change course before it is too late, and kill or at least dramatically modify this very bad bill.
Thank you for your considerations.
Dan Lobeck, Esq.
Florida Bar Board Certified in
Condominium and Planned Development Law
Law Offices of Lobeck & Hanson, P.A.
2033 Main Street, Suite 403
Sarasota, FL 34237
Telephone: (941) 955-5622
Facsimile: (941) 951-1469
Questions regarding the wording of the bill were raised earlier by Mr. Lobeck and were posted here.
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