Agenda 09/15/2009 Item #16K12
Agenda Item No. 16K 12
September 15, 2009
Page 1 of 11
EXECUTIVE SUMMARY
Recommendation to authorize Collier County to join in an action if and when brought by
the Florida Association of Counties to challenge HB 227 (2209), which amended the Florida
Impact Fee Act, by: (1) placing the burden upon the government to prove by a
preponderance of the evidence the validity of its impact fee(s), and (2) forbidding the Court
to use the deferential standard afforded all legislative enactments. Funding for such a suit
would not exceed $7,000.
OBJECTIVE: To obtain the Board of County Commissioners (Board) authorization to join in
an action to be brought by the Florida Association of Counties with respect to HB 227.
CONSIDERATIONS: During the past Legislative Session, the Legislature enacted HB 227,
which amended the Florida Impact Fee Act as follows:
"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 state legal precedent or this section. The court may
not use a deferential standard."
-
The Florida Association of Counties ("F AC") has authorized the filing of a suit to challenge the
constitutionality of this legislation. They are soliciting support for this suit from local
governments and various local government associations. It is expected that legal representation
would be by Nabors Giblin & Nickerson, who is also expert outside counsel to Collier County,
and who recently successfully challenged the Regional Conflict Counsel legislation as an
unfunded mandate. Their analysis of why this legislation is unconstitutional is included in the
back-up to this agenda item, as is the Florida Impact Fee Act.
As I have previously advised the Board, I am not particularly concerned with the first part ofHB
227, which places the burden of proof on local government to justify its impact fees. Collier
County spends a great deal of money on quality impact fee studies from one of the foremost
impact fee experts in the State, which are reviewed and approved for legal suffIciency by both
this Office and by expert outside counsel before being presented to the Board. I am very
concerned, however, about the second portion of this legislation, which eliminates the deferential
standard in such suits, as I believe it constitutes a dangerous precedent.
There are two aspects to the deferential standard. The first is that all legislative acts of local
governments are presumed to be valid by the Courts. The second is that legislative findings of
fact of local governments are presumed to be valid. Eliminating the deferential standard in any
context diminishes the historic powers of local government. The traditional role is that
legislative bodies enact laws, which provided they are constitutional, are to be enforced by the
- judiciary. If a judge can set aside an ordinance by simply disregarding the legislative findings,
the historic separation of powers has been dramatically altered. Accordingly, it is my belief that
any erosion of this deferential standard needs to be vigorously contested.
Agenda Item No. 16K12
September 15, 2009
Page 2 of 11
LEGAL CONSIDERATIONS: This is a pure policy decision, and no legal issues are presented
by this proposal. This is a regular item requiring simple majority vote. -JAK
FISCAL IMPACT: As was done in the Regional Conflict Counsel litigation, I recommend that
Collier County's pro rata contribution be limited to $7,000. As I am advised that a number of
jurisdictions may join this suit, it is my expectation that the ultimate cost would be less than this.
GROWTH MANAGEMENT Il\1P ACT: None.
RECOMMENDATION: That the Board authorizes the County Attorney to advise the Florida
Association of Counties that Collier County will join as a named plaintiff in an action to
challenge the constitutionality ofHB 227, with costs not to exceed $7,000.
Prepared by: Jeffrey A. Klatzkow, County Attorney
.L u6\o"t ~ V~ ~
Agenda Item No. 16K12
September 15, 2009
Page 3 of 11
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
16K12
Recommendation to authorize Collier County to join in an action if and when brought by the
Florida Association of Counties to challenge HB 227 (2209), which amended the Florida
Impact Fee Act, by: (1) placing the burden upon the government to prove by a
preponderance of the evidence the validity of its impact fee(s), and (2) forbidding the Court to
use the deferential standard afforded all legislative enactments. Funding for such a suit
would not exceed $7,000.
Meeting Date:
9/15/2009 9:00:00 AM
Prepared By
Jeff Klatzkow
County Attorney
Date
County Attorney
County Attorney Office
8/4/200910:54:33 AM
Approved By
Jeff Klatzkow
County Attorney
Date
County Attorney
County Attorney Office
8/17/200911:03 AM
Approved By
OMB Coordinator
OMB Coordinator
Date
County Manager's Office
Office of Management & Budget
9/2/20099:53 AM
Approved By
Mark Isackson
Budget Analyst
Date
County Manager's Office
Office of Management & Budget
9/2/20093:53 PM
Approved By
Leo E. Ochs, Jr.
Board of County
Commissioners
Deputy County Manager
Date
County Manager's Office
9/2/20096:26 PM
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TAllAHASSEE
Suite 200
1500 Mahan Dri_e
Tallahassee, Florida 32308
(850) 2244070 Tel
(850) 2244073 Fax
N~b9rs)
GIblIn &L
Nickersonp.A.
Agenda Item No. 16K12
September 15, 2009
Page 4 of 11
FORT IAUDERDALE
208 S.E. Sixth Street
Fort Lauderdale. Aorlde 33301
(954) 525-8000 Tef
(954) 525.8331 Fax
^iTORNEY~; I~r l:\W
TAMPA
Suite 1060
2502 Rocky Point DrIve
Tampa. AorIcIa 33607
(813) 281.2222 Tel
(813) 281-<1129 Fall
Reply to Tallahassee
July 29, 2009
Jeffrey A. Klatzkow
Collier County Attorney
3301 E. Tamiami Trail
8th Floor
Naples, Florida 34112
Re: HB 227 (2009)
Dear Jeff:
As you are aware, recent legislation approved by the Legislature during the
last session has greatly restricted the ability of local governments to impose impact
fees. Our firm and the Florida Association of Counties (F AC) has been working
together to inform counties of the impacts of the legislation and discuss the
potential litigation as to its validity.
During the 2009 Legislative Session, the Legislature passed HB 227, and the
Governor signed the bill into law on May 21, 2009. The legislation amended
section 163.31801, Florida Statutes, and imposed significant restrictions on the
ability of local government to impose impact fees for the funding of growth related
infrastructure.
The language of HE 227 read as follows:
(5) 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
Agenda Item No. 16K 12
September 15, 2009
Page 5 of 11
Jeffrey A. Klatzkow
July 29, 2009
Page 2
requirements of state legal precedent or this section. The court
may not use a deferential standard.
Much of the intent behind the bill came from a recent Fifth District Court of
Appeal decision issued on January 30,2009, in St. Johns River Water Management
District v. Koontz, holding that a proposed development exaction was invalid in
that case, under a heightened level of judicial scrutiny. Proponents for the bill
argued that an impact fee is a development exaction and that a higher level of
judicial scrutiny would be good policy for the state, following the reasoning of the
Koontz decision. The bill was passed by the Senate with fewer than a 2/3 vote of
its membership, despite staff analysis which noted that the legislation was a local
government mandate that required a 2/3 vote.
This legislation greatly limits the ability of local governments to impose
impact fees to offset the costs of growth necessitated capital improvements. It
primarily does so in two ways.
First, the legislation shifts the burden of proof when any impact fee is
challenged to require that government prove by a preponderance of the evidence
that an impact fee is valid. This requirement is applied regardless if the fee is
recently adopted or has been on the books for many years. Normally, a plaintiff
that files an action challenging a particular enactment of a governmental entity
would have the burden of proof to show that the particular ordinance is invalid
under law. The language which has been incorporated within HB 227 now shifts
that burden entirely to the local government so that any time there is a challenge to
an impact fee, the complaining party would have no burden of proof and the
government would have the exclusive burden of proving that the fee was valid
under existing law.
The second aspect which is effected by HB 227 is contained in the last
sentence of the amendment. That language states that: "The court may not use a
deferential standard." There are two deferential standards that are normally
applied in the context of an impact fee challenge. The first is that an impact fee
ordinance, like any legislative act, is presumed to be valid by the courts. Under
this language, that presumption no longer exists and the court is not to give any
Agenda Item No. 16K12
September 15. 2009
Page 6 of 11
Jeffrey A. Klatzkow
July 29,2009
Page 3
presumption of validity to an impact fee ordinance. The second aspect of the
deferential standard deals with legislative findings of fact. Normally, when an
impact fee is adopted, a governmental entity will make various legislative findings
of fact as to the validity of that particular provision. The case law is clear that the
courts are required to give deference to these findings of fact. Under the
amendment contained in HE 227, no such deference will be provided relating to
the challenge of an impact fee ordinance.
Various local governments are discussing the potential of filing a lawsuit to
contest the validity of HB 227 as adopted. The challenges would be two fold.
First, the legislation reduces the authority of municipalities and counties to raise
revenues in the aggregate and, therefore, constitutes an unfunded mandate under
Article VII, section 18(b) of the Florida Constitution, which states as follows:
Except upon approval of each house of the legislature by two-
thirds of the membership, the legislature may not enact, amend,
or repeal any general law if the anticipated effect of doing so
would be to reduce the authority that municipalities or counties
that have to raise revenues in the aggregate, as such authority
exists on February 1,1989.
(emphasis added)
In particular, this legislation places severe limitations on the ability of local
governments to not only adopt impact fee ordinances but to defend previous
impact fees. As such, these restrictions would reduce the authority of
municipalities and counties to raise revenue. As previously indicated, staff
analysis for the bill reflected that this would constitute a mandate to local
governments and would require the requisite two-thirds vote. Yet, that vote was
not received in the Senate. Though the mandate issue is strong, it would only be
available to counties or municipalities, the governmental entities that adopt impact
fees, and would not apply to school boards.
Agenda Item No. 16K12
September 15, 2009
Page 7 of 11
Jeffrey A. Klatzkow
July 29,2009
Page 4
The second issue to be raised deals with the separation of powers. Under
Article V, section 2, Florida Constitution, the Supreme Court is the exclusive
province for the adoption of rules relating to practice and procedures in all state
courts. The determination as to the respective burdens of proof that apply in the
courts of the State of Florida appears to be a matter of procedure which, therefore,
may not be established by the Legislature. Though there are cases on both sides of
the issue, no case has directly addressed whether the establishment of burdens of
proof is procedural in nature.
The F AC is collaborating with other associations not only to join as parties
to the litigation, but also to share the cost and to assure extensive policy support.
The other associations include the Florida League of Cities, the Florida School
Board Association, and the Florida Association of School Superintendents. We are
also interested in the participation of specific local governments to this litig~tion,
which will strengthen FAC's legal position, particularly on issues related to
standing to bring suit and reduce the costs. The Lee County Board of County
Commissioners 'has recently authorized litigation to challenge this impact fee
legislation and discussions are ongoing with other cities, school boards and
counties to consider whether they are going to join in the litigation. This
cooperative approach has proven mutually successful to individual counties and to
F AC in recent years, most recently in the challenge to regional conflict counsel
funding by counties.
We would appreciate it if you could assess this matter to determine whether
there is any interest in participating in such litigation. To the extent that your
County would be interested in participating in litigation addressing the validity of
HB 227, I would ask that you contact me or Ginger Delegal, General Counsel of
FAC.
Jeffrey A. Klatzkow
July 29,2009
Page 5
Agenda Item No. 16K12
September 15, 2009
Page 8 of 11
Should you require any further information on the issue, please feel free to
contact me.
GTS:pad
cc: Ginger Delegal, Esquire
Statutes & Constitution :View Statutes :->2009->ChOI63->Section 31801 : Online ~~~~'l1e~~.11~?2
September 15, 2009
Page 9 of 11
Select Year: 2009 I Go I
The 2009 Florida Statutes
Title XI
COUNTY ORGANIZATION AND
INTERGOVERNMENTAL RELATIONS
Chapter 163
INTERGOVERNMENTAL
PROGRAMS
View Entire
Chapter
163.31801 Impact fees; short title; intent; definitions; ordinances levyins Impact fees."
(1) This section may be cited as the "Florida Impact Fee Act."
(2) The Legislature finds that impact fees are an important source of revenue for a local government to
use in funding the infrastructure necessitated by new growth. The Legislature further finds that impact
fees are an outgrowth of the home rule power of a local government to provide certain services within
its jurisdiction. Due to the growth of impact fee collections and local governments' reliance on impact
fees, it is the intent of the Legislature to ensure that, when a county or municipality adopts an impact
fee by ordinance or a special district adopts an impact fee by resolution, the governing authority
complies with this section.
(3) An impact fee adopted by ordinance of a county or municipality or by resolution of a special district
must, at minimum:
(a) Require that the calculation of the impact fee be based on the most recent and localized data.
(b) Provide for accounting and reporting of impact fee collections and expenditures. If a local
governmental entity imposes an impact fee to address its infrastructure needs, the entity shall account
for the revenues and expenditures of such impact fee in a separate accounting fund.
(c) Limit administrative charges for the collection of impact fees to actual costs.
(d) Require that notice be provided no less than 90 days before the effective date of an ordinance or
resolution imposing a new or increased impact fee. A county or municipality is not required to wait 90
days to decrease, suspend, or eliminate an impact fee.
(4) Audits of financial statements of local governmental entities and district school boards which are
performed by a certified public accountant pursuant to s. 2,18.32 and submitted to the Auditor General
must include an affidavit signed by the chief financial officer of the local governmental entity or district
school board stating that the local governmental entity or district school board has complied with this
section.
(5) In any action challenging an impact fee, the government has the burden of proving by a
http://www.1eg.state.f1.us/statutes/index.cfm?App _mode=Display _Statute&Search _ String=... 7/31/2009
Statutes & Constitution :View Statutes :->2009->Ch0163->Section 31801 : Online ~~~k.H~-1lg~2H~~~2
September 15, 2009
Page 10 of 11
preponderance of the evidence that the imposition or amount of the fee meets the requirements of
state legal precedent or this section. The court may not use a deferential standard.
History.--s. 9, ch. 2006-218; s. 1, ch. 2009-49; s. 5, ch. 2009-96.
Copyright <0 1995-2009 The Florida Legislature. Privacy Statement. Contact Us
http://www.leg.state.fl.us/statutes/index.cfm? App _ mode=Display _ Statute&Search_ String=... 7/31/2009
Agenda It~~.l~b
September 15, 2009
Page 11 of 11
KlatzkowJeff
From: Ginger Delegal [gdelegal@f1-counties.com]
Sent: Monday, August 03, 2009 2:23 PM
To: Ginger Delegal
Cc: Chris Holley; Stewart, Greg; Davin Suggs; John W. Smith
Subject: Impact Fees - HB 227
Hey county attorneys,
I just wanted to bring you up to date on where FAC is with any potential legal challenge to HB 227. There was a
conference call on Friday, attended by those county attorneys who had volunteered to be a part of a "steering
committee" for the counties' interest in the litigation. I participated in the call, along with Greg Stewart of
Nabors, Giblin & Nickerson. Many of you either have received (in the last two days or so) or will receive a letter
from NG&N, outlining the major arguments against HB 227 and setting forth a litigation strategy (essentially a
declaratory and injunctive action, filed in leon County, naming FAC and individual counties as plaintiffs, along
with other cities and school boards (although none of them have committed)).
The FAC Board of Directors has given FAC permission to file a declaratory action, challenging the
constitutionality of HB 227, to solicit additional plaintiffs, and to hire special counsel. FAC is in the process of
assembling the plaintiffs and the legal team on all our behalf. FAC has worked with NG&N on the letter that
Greg Stewart has sent to some of you. We do need additional plaintiffs -- counties, cities and schools. A very
rough estimate ofthe total fees and costs to litigate this matter, through any First DCA appeal would be around
$75,000. That amount would be split among all named plaintiffs, although not in equal shares. FAC, for
example would shoulder a disproportionate piece of the "county family share," as FAC would be representing
ALL counties in Florida, not just those participating. FAC cannot, however, absorb the totality of the costs.
If you have not received the NG&N letter and would like to, please let me know. Also, if you need additional
information from me, please let me know. Finally, if you have any news you'd like to report to me, please let me
know that as well.
"'Ginger Delegal
Virginia "Ginger" Delegal
General Counsel
Florida Association of Counties
gdelega I@fl-counties.com
1005. Monroe 5t · Tallahassee, FL 32301
P.O. Box 549 · Tallahassee, FL 32302
Phone: (850) 922-4300 · Fax: (8S0) 488-7501
www.fl-counties.com · All About Florida ·
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8/3/2009