Agenda 01/13/2026 Item #12B (Proclamation declaring a Local State of Emergency to repair private, impassable roads in CLL) Proposed Agenda Changes
Board of County Commissioners Meeting
January 13,2026
Continue Item 16A13 to the January 27,2026,BCC Meeting: Recommendation to approve and authorize the
Chair to sign a Resolution adopting the inventory list of County-owned real property declared appropriate for use as
affordable housing and approve the publication of the inventory list to the County's website in compliance with
Section 125.379,Florida Statutes. (Commissioner McDaniel's Request)
Continue Item 17H to the January 27,2026,BCC Meeting: Recommendation to adopt an Ordinance amending
Ordinance No. 2003-37. as amended, cited in Chapter 110,Article II of the Collier County Code of Laws and
Ordinances,which regulates construction in the public rights-of-way,to add additional right-of-way permit
requirements and a section regulating excavation activities within the public right-of-way. (Staffs Request)
Move Item 16A15 to 11E: Recommendation to approve properties on the Conservation Collier Land Acquisition
Advisory Committee's November and December 2025 recommended Active Acquisition Lists and direct staff to
pursue the projects recommended within the A-Category, funded by the Conservation Collier Land Acquisition
Fund. (Commissioner McDaniel's and Commissioner Hall's Separate Requests)
Move Item 16K1 to 12A: Recommendation to appoint Thomas Sabourin to the Coastal Advisory Committee.
(C'ommissioner McDaniel's Request)
Move Item 16K19 to 12B: Recommendation to approve a Proclamation declaring a local state of emergency to
repair private, impassable roads within unincorporated Collier County which pose a threat to the health, safety,and
welfare of Collier County citizens and finding a valid public purpose for expending public funds to immediately
repair private, impassable roads.[Updated](Fiscal Impact: S1,238,800) (Commissioner LoCastro's Request)
Notes:
• A scrivener's error was realized in a resolution for 16K3 following the publication of the agenda. The
corrected resolution was uploaded the day after the initial publication.
• Replacement backup materials for Item 16B1 were uploaded on January 12. correcting the previously
uploaded Opinion of Probable Cost(OPC)and Bid Tabulation.
TIME CERTAIN ITEMS:
Item 9E to be heard at 10:00 AEI: Adoption of Updated Impact Fee Studies and Phased Amendments to the
Collier County Consolidated Impact Fee Ordinance.
Item 11B to be heard at 11:00 AM: Status Update and Direction on Proposed Camp Keais—Silver Strand Property
Exchange and Related Land Allocation Plan.
Items 9A& 9B to be heard at 1:00 PM: Growth Management Plan Amendment and Rezoning for the 341 Sabal
Palm Road Residential Development.
1i13,2O 61:4"Pit
1/13/2026
Item # 16.K.19
ID# 2026-15
Executive Summary
Recommendation to approve a Proclamation declaring a local state of emergency to repair private, impassable roads
within unincorporated Collier County which pose a threat to the health, safety, and welfare of Collier County citizens and
finding a valid public purpose for expending public funds to immediately repair private, impassable roads.
OBJECTIVE: To declare a local state of emergency regarding impassive private roads posing a threat to health, safety,
and welfare to ensure emergency vehicle access in the event of a catastrophic wildfire, hurricane, flood, or storm surge.
CONSIDERATIONS: Certain roads in the Unincorporated Area of Collier County are unpaved, private roads not
maintained by the County, and considered impassable for emergency vehicles. It is imperative that all roads in the
County are passable to emergency service vehicles to protect public health, safety, and welfare.
On December 12, 2023, Ordinance No. 2023-71 establishing the Private Road Emergency Repair MSTU was adopted
by the Board (Item #9F). The MSTU included 13.694 miles of private unpaved roads, which local fire districts, Collier
County Sheriff’s Office, or Collier County deemed impassable to emergency vehicles.
On December 10, 2024, Ordinance No. 2024-53 amending the Private Road Emergency Repair MSTU was adopted by
the Board (Item #9D). The amended ordinance removed roadways that were no longer unpaved; added all unpaved,
private roads in unincorporated Collier County not within gated communities or maintained by special districts,
homeowners associations, or like entities; required emergency repairs be identified by local fire districts or the Collier
County Sheriff's Office (CCSO); and included an opt-out provision.
On December 9, 2025, the Clerk of Court, Crystal K. Kinzel, objected to using public funds to pay for private roadway
improvements. The Board of County Commissioners (Board) directed the County Attorney’s Office to work with the
Clerk to draft a request for Attorney General Opinion regarding whether the Board can proceed with its proposed action
to remedy the impassable private roads to ensure the health, safety, and welfare of citizens.
Prior to proceeding with the request for AGO, it is recommended that the Board proceed with declaring a local state of
emergency. Absent a declared emergency, the AGO request may be rendered moot. During a declared state of
emergency, the Board’s authority is governed by Chapter 252, Florida Statutes, the State Emergency Management Act
(the “Act”), which provides that the Board may use public funds to keep private roads passable during a declared state
of emergency. Specifically, Section 252.34(5)(c), Florida Statutes, identifies emergency management responsibilities,
including “[r]esponse to emergencies using all systems, plans, and resources necessary to preserve adequately the health,
safety, and welfare of persons or property affected by the emergency.” Moreover, Section 252.38(3)(b)1., Florida
Statutes, expressly authorizes counties to appropriate and expend public funds to protect persons and property during an
emergency.” See also AGO 1998-22. The proclamation authorizes the County Manager to extend the local state of
emergency upon its expiration every seven days in compliance with Section 252.38(4)(c), Florida Statutes.
The Florida Attorney General has previously determined that public funds could be used to repair private roads to keep
them passable during a declared state of emergency. See AGO 1998-22. The Attorney General has also concluded that
public funds may be used to address hazardous conditions on private property, such as washouts and sinkholes, when
necessary to protect public safety under a declared emergency. See AGO 2012-33.
FISCAL IMPACT: There is no fiscal impact associated with this action.
GROWTH MANAGEMENT IMPACT: This item supports the transportation element objective to encourage safe and
efficient mobility for the rural public that remains consistent with the character of the rural areas of Collier County.
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney. The Florida Attorney General
has previously opined that, in light of the broad language contained in the Act authorizing local governments to act
swiftly to protect county citizens and property, a county can expend public funds to repair private roads to keep them
Page 12121 of 14062
1/13/2026
Item # 16.K.19
ID# 2026-15
passable during a declared state of emergency if the county first makes appropriate legislative findings as to the purpose
of the expenditure and the benefit accruing to the county. See AGO 1998-22, which we have included as a back-up.
With that noted, this item is approved as to form and legality, raises no issues at this time and requires a majority vote
for Board action. -JAK
RECOMMENDATION(S): To approve a Proclamation declaring a local state of emergency to repair private,
impassable roads within unincorporated Collier County which pose a threat to the health, safety, and welfare of Collier
County citizens and finding a valid public purpose for expending public funds to immediately repair private, impassable
roads.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney
ATTACHMENTS:
1. Proclamation of Emergency 010525
2. County funds to repair private roads during emergency _ My Florida Legal 16.K.19
3. Request for Attorney General Opinion 1.7.26
Page 12122 of 14062
[26-COA-00333/1993969/1]20 Page 1 of 3
PROCLAMATION/RESOLUTION NO. 2026- ____
PROCLAMATION OF THE BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY DECLARING A LOCAL STATE OF
EMERGENCY TO ADDRESS CERTAIN PRIVATE ROADS IN THE
UNINCORPORATED AREAS OF COLLIER COUNTY DEEMED
IMPASSABLE THAT JEOPARDIZE EMERGENCY RESPONSE AND
PUBLIC SAFETY.
WHEREAS, many roads in the unincorporated portion of Collier County are unpaved,
impassable private roads preventing safe and reliable access by emergency response vehicles;
and
WHEREAS, it is imperative that all roads in the County are passable to emergency
services vehicles to protect the public health, safety, and welfare in certain emergencies,
including fires, hurricanes and floods; and
WHEREAS, the private roads identified as impassable are primarily located within rural,
heavily wooded areas of the County which are subject to wildfire during dry season; and
WHEREAS, if the County’s first responders do not have proper access to these
impassable, unpaved private roads, wildfires cannot be mitigated and will travel toward and
threaten public roadways and infrastructure; and
WHEREAS, the County has also experienced several catastrophic hurricanes in the past
decade, namely Hurricanes Irma, Ian, Helene, and Milton, resulting in record-breaking flooding
and storm surges, which further emphasizes the importance of improving impassable roads for
emergency access and evacuation operations; and
WHEREAS, the inability of first responders to access properties via these impassable
private roads during emergencies poses an immediate and ongoing threat to life, property, and
critical infrastructure within Collier County; and
WHEREAS, Section 252.38 (3) (b) 5., Fla. Stat., and Collier County Ordinance Nos.
84-37, 2001-45, 2002-50, 2007-49 and 2017-38 (codified at Sections 38-56 through 38-71 in the
Collier County Code of Laws and Ordinances) provide for a political subdivision such as Collier
County to declare a State of Local Emergency and to waive the procedures and formalities
otherwise required of political subdivisions by law pertaining to:
1. Performance of public work and taking whatever prudent action is necessary to
ensure the health, safety and welfare of the community;
Page 12123 of 14062
[26-COA-00333/1993969/1]20 Page 2 of 3
2. Entering into contracts;
3. Incurring obligations;
4. Employment of permanent and temporary workers;
5. Utilization of volunteer workers;
6. Rental of equipment;
7. Acquisition and distribution, with or without compensation, of supplies, materials
and facilities;
8. Appropriation and expenditure of public funds; and
WHEREAS, Section 252.38 (3) (b) 1., Fla. Stat., and Collier County Ordinance Nos.
84-37, 2001-45, 2002-50, 2007-49 and 2017-38 (codified at Sections 38-56 through 38-71 in the
Collier County Code of Laws and Ordinances) also provide for a political subdivision such as
Collier County to appropriate and expend funds; make contracts; and obtain and distribute
equipment, materials, and supplies for emergency management purposes, among other powers
and authorities.
NOW THEREFORE, IT IS RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA, on this ___ day of January, 2026,
that the private, impassable roads included in Exhibit “A” attached hereto pose a serious and
immediate threat to the lives and property of residents of Collier County.
BE IT FURTHER RESOLVED, that the Board of County Commissioners finds that
the immediate repair and improvement of these private, impassable roads is necessary to ensure
effective emergency response by the local fire districts, EMS, and the Collier County Sheriff’s
Office, and constitutes a valid public purpose, justifying the expenditure of public funds to
protect the life, health, safety, and property of Collier County residents; and
BE IT FURTHER RESOLVED, that the Board of County Commissioners authorizes
the County Manager to extend this emergency order every seven (7) days in compliance with
Section 252.38(4)(c), Florida Statutes.
This Proclamation/Resolution adopted after motion, second and majority vote favoring
same this ___ day of January, 2026.
Page 12124 of 14062
[26-COA-00333/1993969/1]20 Page 3 of 3
ATTEST:
BOARD OF COUNTY COMMISSIONERS
CRYSTAL K. KINZEL, CLERK COLLIER COUNTY, FLORIDA
By: _____________________________ By: _____________________________
, Deputy Clerk Dan Kowal, Chairman
Approved as to form and legality:
_______________________________
Jeffrey A. Klatzkow, County Attorney CLDFor
Page 12125 of 14062
Private Unpaved Roads Emergency Repairs MSTU
Street Name Start End Miles Opt Out Final Miles
12th Street SE E Delaware Ave Dead End 0.116 0.116
14th Street SE E Delaware Ave Dead End 0.120 0.120
15th Street SE E Delaware Ave Dead End 0.123 0.123
16th Street SE E Delaware Ave Dead End 0.123 0.123
42nd Ave SE (West of…) Everglades Dead End 0.834 0.834
42nd Ave SE (East of…) Everglades Dead End 1.366 Yes 0.000
S 5th St (Immokalee)Breezewood Dr Arden Ave 0.092 0.092
S 8th St (Immokalee)Doak Ave Dead End 0.113 0.113
Acremaker Woodcrest Dr Dead End 0.476 0.476
Amity Rd Michel Delong Dead End 0.203 0.203
Angela Rd Sanctuary Rd Dead End 0.861 Yes 0.000
Anhinga Rd Rookery Ln Dead End 0.118 Yes 0.000
Arden Ave S 5th St SE Dead End 0.198 0.198
Beagle Lake Rd Sable Palm Rd Dead End 0.314 0.314
Benton Rd Woodland Estates Rd Dead End 1.406 1.406
Birdsong Ln Brantley Blvd Dead End 0.238 0.238
Botanical Dr Little League Rd Dead End 0.138 Yes 0.000
Cannon Blvd Krape Rd Dead End 0.253 0.253
Chickadee Ln Sanctuary Rd Honeybee Dr 0.251 0.251
Christian Terr Ext Christian Terr. W Dead End 0.108 0.108
Christian Terr West Christian Terr.Dead End 0.121 0.121
Corkscrew Ln Platt Rd Dead End 0.638 0.638
Cornerstone Dr Immokalee Rd Dead End 0.467 Yes 0.000
Crawford Ave Washburn Ave Dead End 0.699 Yes 0.000
Crews Rd Santa Barbara Blvd Dead End 0.470 0.470
Curry Rd Carson Rd Dead End 0.217 0.217
Daffodil Ct Lilac Ln Dead End 0.156 Yes 0.000
Della Dr Brantley Blvd Dead End 0.748 0.748
Dillon Ln Little League Rd Dead End 0.105 0.105
Doak Ave 8th St S S 9th St 0.086 0.086
Dove Tree Street Frangipani Ave Dead End 1.004 Yes 0.000
Eagle Island Rd Sanctuary Rd Dead End 0.197 0.000
East Delaware Ave 15th St 16th St 0.062 0.197
Everly Ave (west/east of) Smith Rd Dead End 0.904 0.062
Experimental Rd State St Dead End 0.217 0.904
Fawn Ln Platt Rd Dead End 0.626 Yes 0.217
Frangipani Ave 210 Frangiapani Ave Tobias St 0.202 0.000
Friendship Ln Immokalee Rd Dead End 0.879 Yes 0.202
Garland Rd Kearney Ave Markley Ave 0.529 Yes 0.000
Garthie Rd Dupree Grade Dead End 0.152 0.152
Gemmer Ln Trafford Farm Rd Dead End 0.117 0.117
Guevara Ave SW Smith Rd Dead End 0.266 Yes 0.000
Hall Rd Lake Trafford Rd Dead End 0.273 0.273
Hancock Hammock Rd Brantley Blvd Dead End 0.429 Yes 0.000
Harmon Terr Lake Gloria Rd Dead End 0.129 Yes 0.000
High Corner Rd (Lost Ln)Corkscrew Rd Dead End 0.217 Yes 0.000
Honeybee Dr Chickadee Ln Dead End 0.258 0.258
Inez Rd Keane Ave Markley Ave 1.019 Yes 0.000
Ivisa Ave Smith Rd Dead End 0.190 0.190
Ivy Way 1301 Ivy Way Dead End 0.600 0.600
Janes Scenic Dr State Rd 29 Lake Gloria Rd 0.819 Yes 0.000
Jenkins Way Garland Rd Dead End 0.250 Yes 0.000
Johns Rd Collier Blvd Dead End 0.485 Yes 0.000
Kam Luck Dr Black Burn Rd Dead End 0.809 Yes 0.000
Kapok St Frangipani Ave Dead End 0.558 Yes 0.000
Keane Ave East of Smith Rd (pavement ends)Hancock-Hammock Rd 1.240 Yes 0.000
Keane Ct Brantley Blvd Dead End 0.237 0.237
Krape Rd 2160 Krape Rd Dead End 0.523 Yes 0.000
Laakso Ln Sunnygrove Ave Dead End 0.883 0.883
Labrador Ln Sunnygrove Ave Dead End 0.959 0.959
Lacewing Ln Sunnygrove Ave Dead End 0.960 0.960
Ladybug Ln Sunnygrove Ave Dead End 0.999 0.999
Laertes Ln Sunnygrove Ave Dead End 0.940 0.940
Lafayette Ln Sunnygrove Ave Dead End 0.958 0.958
Lager Ln Sunnygrove Ave Dead End 0.938 0.938
Lake Gloria Rd Webb Rd Dead End 0.170 0.170
Lambs Ln Benton Rd Dead End 0.192 0.192
Le Buffs Rd 4865 Le Buffs Rd Dead End 0.694 0.694
Lightner Dr Little League Rd Dead End 0.113 0.113
Lilac Ln Platt Rd Sanctuary Rd 1.256 Yes 0.000
Limpkin Rd Sanctuary Rd (west to…)Dead End 0.753 0.753
Little League Rd Dillon Ln Trafford Farm Rd 0.539 0.539
Markley Ave Garland Rd Inez Rd 1.030 1.030
Mathews St Frangipani Dead End 0.253 Yes 0.000
Moulder Dr Cannon Blvd Dead End 0.661 Yes 0.000
Myers Rd Christian Terr Dead End 0.122 0.122
Oil Well Grade Rd Oil Well Rd (north of) Immokalee Rd 7.062 7.062
O'Quinn Rd Hwy 29 Dead End 0.477 0.477
Pacific Grade Rd Oil Well Rd Wyatt Ln 1.466 1.466
Palm Dr Lake Trafford Rd (north to…)Dead End 0.116 Yes 0.000
Pantera Ln (east & west of) Frienship Ln Dead End 0.525 Yes 0.000
Peach Place 20th St SE Dead End 0.182 0.182
Pioneer Trail Dove Tree St Dead End 0.211 Yes 0.000
Platt Rd (west of) Immokalee Rd east of 1080 Platt Rd 0.754 Yes 0.000
Platt Rd east of 1080 Platt Rd (east of) Friendship Ln 1.308 1.308
Pringle Ln Oil Well Rd Dead End 0.800 Yes 0.000
Purple Martin Dr (west of) Sanctuary Rd N (east of) Sanctuary Rd N 0.644 0.644
Rabbit Run Rd (west of) Immokalee Rd (east of) Immokalee Rd 0.675 Yes 0.000
Red Deer Rd Friendship Ln Dead End 0.262 Yes 0.000
Red Hawk Ln Sanctuary Rd W Dead End 0.515 0.515
Revello St State St Dead End 0.206 0.206
Rivers Rd Ramsey St Dead End 0.505 Yes 0.000
Rock Springs Rd Oil Well Rd Dead End 1.610 1.610
Sanctuary Rd Sanctuary Rd W Eagle Island Rd 0.377 Yes 0.000
Smith Rd Keane Ave 2736 Smith Rd 0.444 Yes 0.000
Smith Rd 2736 Smith Rd Ivisa Ave 0.387 0.387
Smith Rd Ivisa Ave Markley Ave 0.255 Yes 0.000
Smith Rd Markley Ave Dead End 0.990 0.990
Stable Way Newman Dr Dead End 0.639 Yes 0.000
State St 2824 State St Revello St 0.028 0.000
Stokes Ave S 5th St (Immokalee)Dead End 0.123 0.000
Sugarberry St Frangipani Ave to farm road split 0.740 0.740
Sundance St Richards St Grenadine Way 0.228 Yes 0.000
Sunnygrove Rd Six L's Farn Rd Tomato Rd 1.002 1.002
Thomas Farm Rd Cty Rd 846 Dead End 2.494 Yes 0.000
Thorp Rd Cty Rd 846 farm road split 2.477 2.477
Tobias St Frangipani Ave Dove St 1.014 No 1.014
Tomato Rd Sunnygrove Ave North to Dead End 1.017 1.017
Trafford Farm Rd Lake Trafford Rd Dead End 0.514 0.514
Turnstile Dr Lee Cypress Dr Dead End 0.119 Yes 0.000
Vireo Ln Little League Rd Little League Rd 0.100 0.100
Washburn Ave Crawford Ave Dead End 0.968 0.968
Webb Rd Lake Gloria Rd Dead End 0.308 Yes 0.000
Weeks Ter E Delaware Ave Dead End 0.121 0.121
Wild Turkey Dr (west of) Immokalee Rd (east of) Immokalee Rd 1.163 1.163
Woodland Estates Rd 28th St SE Dead End 0.993 0.993
Woodland Grade Rd Benton Rd 2275 Woodland Grade Rd 1.171 1.171
Total Miles 71.759 47.139
Exhibit A
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1
January __, 2026
Honorable James Uthmeier
Attorney General of the State of Florida
Department Legal Affairs
The Capital PL-01
Tallahassee, FL 32399-1050
Re: The Board of County Commissioners of Collier County, Florida and the Clerk of the
Circuit Court and Comptroller of Collier County, Florida – Joint Request for Opinion
Dear Attorney General Uthmeier:
The Board of County Commissioners of Collier County and Crystal K. Kinzel, the Clerk of the
Circuit Court and Comptroller of Collier County, Florida, requests an official opinion pursuant to
§ 16.01 (3), Fla. Stat.
QUESTIONS POSED
I. Does Collier County’s declaration of an ongoing public emergency to repair and
maintain in the future the unpassable unpaved private roads in the MSTU constitute
sufficient public purpose and legal authority to:
1) Allow for the creation of the Private Road Emergency Repair MSTU? and;
2) Authorize the advance of $1,500,000 from the County’s Capital Reserves to the
MSTU for use to repair such impassable private roads?
II. May Collier County, in response to an ongoing public emergency affecting access for
police, fire, emergency medical, and disaster-response vehicles, create a Private Road
Emergency Repair Municipal Services Taxing Unit for the limited purpose of
collecting funds to repair private unpaved roads deemed impassable to emergency
vehicles, thereby threatening public health, safety and welfare?
II. May Collier County utilize $1,500,000 of public funds from County-Wide Capital
Project Reserves to advance the costs of the emergency repairs and maintenance of the
private unpaved roads, where the advance is repaid over time through assessments
levied within the MSTU, including a minimum annual payback of $100,000 from the
MSTU?
FACTUAL BASIS
Certain roads in the Unincorporated Area of Collier County are unpaved private roads not
part of the county road system nor currently maintained by the County. These roads have been
identified as unpassable for emergency vehicle use. On December 12, 2023, Ordinance No. 2023-
Page 12132 of 14062
2
71 establishing the Private Road Emergency Repair Municipal Services Taxing Unit (MSTU) was
adopted by the Board of County Commissioners. (Attachment 1). The MSTU included 13.694
miles of private unpaved roads, which local fire districts, Collier County Sheriff’s Office, or
Collier County deemed unpassable for emergency vehicles.
On December 10, 2024, Ordinance No, 2024-53 amending the Private Road Emergency
Repair MSTU was adopted by the Board (Attachment 2). The amended ordinance removed
roadways that were no longer unpaved; added all unpaved, private roads in unincorporated Collier
County not within gated communities or maintained by special districts, homeowners’
associations, or like entities; required emergency repairs be identified by local fire districts or the
Collier County Sheriff’s Office (CCSO); and included an opt-out provision for residents within
the MSTU area who did not want to participate.
From March through June 3, 2025, the opt-out requests were reviewed, and 43 roads,
making up approximately 25 miles, opted out of the MSTU (list attached). The remaining 73 roads,
approximately 47 miles, were submitted to the Property Appraiser for inclusion in the MSTU.
The final list of roads included in the MSTU was shared with an ad-hoc committee
(“Committee”) comprised of representatives from the local fire districts, CCSO, and emergency
medical services, for assessment. On October 15, 2025, the Committee met to finalize the list of
included roads, ranked the top 3 areas in need of emergency repair, established a notification
process when a road is deemed impassable, and set assessment schedules. All opted-out roads will
be evaluated biennially after the rainy season to ensure they are being maintained. If an opt-out
road is deemed impassable, the homeowners will be notified. The Committee also discussed the
need to establish a reserve to address repairs on an ongoing basis.
The total estimated cost to repair all roads deemed impassable to emergency vehicles in
Phase One is $1,238,800.
Expected ad valorem tax revenue at the MSTU adopted millage rate of 1.0000 for FY26 is
$142,451. After transfers and overhead, there is only $124,000 available to fund the private road
repairs. To perform necessary repairs and establish a reserve for future emergency repairs, the
County’s Public Transit and Neighborhood Beautification Division (Division) is requesting to
borrow $1,500,000 from County-wide Capital Project Reserves, with a minimum annual payback
of $100,000. The payback amount will be reviewed annually during budget planning to determine
if a larger payback amount can be made.
Crystal K. Kinzel, Clerk of the Circuit Court and Comptroller raised objections to the
creation of the MSTU to the Board of County Commissioners. The Comptroller stated that the
creation of the MSTU to benefit private roads, as well as the requested use of County Capital
Project Reserves to perform the repairs and on-going maintenance of the roads, appear prohibited
by Florida’s Constitutional provision barring the use of public funds or taxation to benefit private
property, as reflected in numerous prior Opinions of the Florida Attorney General.
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3
The Board of County Commissioners and the Clerk of the Circuit Court and Comptroller
agreed to submit the issues to the Florida Attorney General’s Office to provide his opinion on the
constitutionality and legality of the County’s proposed actions.
CLERK OF THE CIRCUIT COURT AND COMPTROLLER’S ASSERTIONS
Questions II & III. Due to Collier County’s passage of the Private Road Emergency Repair
MSTU, and the pending loan of $ 1,500,000 by Collier County, Questions I and II have become
intertwined, and are presented as one.
Public funds may only be spent for the construction, maintenance or repair of public roads.
Article VII, sect. 10, Florida Constitution; Padgett v. Bay County, 187 So. 3d. 410 (Fla. 1st DCA
1966).
Neither the State nor any County; school district, municipality, special district, or agency
of any of them, shall become a joint owner with stockholder of or give, land or use its
taxing power or credit to aid any corporation, association, partnership or person; …
Art. VII, Sect. 10, Florida Constitution.
Article VII, Sect. 10 impliedly limits the imposition of taxes and the expenditure of tax
revenues to public purposes. AGO, 073-222. The Florida Attorney General, in answering whether
a county could provide minor work or repairs on private roads, opined that the repair or
maintenance of a private road does not serve a public or county purpose. AGO 73-222.
Consistently, Attorney General’s Opinion 79-14 followed AGO 073-222 in opining that a
municipality may not lawfully expend public funds to repair or maintain privately owned roads or
streets.
In Attorney General Opinion 92-42, the office stated that the fact that school buses used
private roads by agreement for the purpose of picking up children who lived along the private
roads, did not authorize a county to expend public county funds to repair and maintain the private
roads since members of the general public were not allowed to travel on those roads. AGO 92-42.
The Attorney General concluded that private driveways upon which the public does not have the
right to travel are not public roadways which may maintained or repaired by the county with the
expenditure of county funds for the stated purpose of allowing school buses to transport children.
AGO 92-42.
In Attorney General’s Opinion 99-15, the office was presented with the identical question
presented by this request—May the county repair private driveways and roads in order to assure
mail service, school buses and ambulances? The Attorney General explained that “the courts of
this state and this office have held that public funds may only be spent for the construction,
maintenance, or repair of public roads.” AGO 99-15.
Thus, in order for a county or other governmental unit to use public funds for the
construction, maintenance, or repair of the road, the road must be “public”, that is, one open
to and set apart for the public, as contrasted to a private road… Thus, if a board of county
Page 12134 of 14062
4
commissioners determines that it is in the county’s interest, it appears that the county
possesses the power to establish such a program. Provision, however, should be made to
ensure that payment of all actual costs of providing such service is undertaken by the private
landowner.
AGO 99-15.
A county’s use of special assessments does not avoid this Constitutional prohibition. In
Florida Attorney General Opinion 85-90, the Attorney General had to determine whether a
county’s levy of a special assessment on real property for a drainage project upon private land,
accessible only by private road, was constitutional. The levy of special assessments on real
property is subject to the Constitutional prohibition limiting the imposition of taxes for a public
purpose. AGO 85-90; 1185 WL 190070 P.2. See Jackson v. City of Lake Worth, 23 So. 2d. 526
(Fla. 1945) (assessment for benefit is a burden levied under the power of taxation).
Accordingly, a special assessment aimed at the paving of streets on private property
violates Art. VII, Sect 10, Florida Constitution. Atlantic Coast R.R. v. City of Lakeland, 115 So.
669,676 (Fla. 1927). The power to tax must be for a public purpose or it is not a legitimate exercise
of the taxing power. Atlantic Coast R.R., at 677; AGO 85-90. MSTUs, like special assessments,
are an exercise of the County’s taxing authority, AGO 92-31, and similarly the use of a MSTU
does not avoid the Constitutional prohibition of Art. VII, Sect. 10. AGO 92-31.
Directly on point is the Florida Attorney General’s Opinion 92-31. The opinion states that:
the City of Belle Isle does not have the authority to create a municipal service taxing
unit to cover the costs associated with private common areas such as maintenance costs,
liability insurance, and property taxes, even if the tax is imposed only upon those
homeowners who are primarily benefiting.
AGO 92-31.
The basis for this opinion is Article VII of the Florida State Constitution which implicitly
limits the exercise of the taxing power and the expenditure of revenues to public purposes. AGO
92-31.
The purpose of this constitutional prohibition is to protect public funds and resources from
being exploited in assisting or promoting private ventures when the public would be at
most only incidentally benefitted…
Bannon v. Port of Palm Beach Dist., 246 So. 2d 737, 741 (Fla. 1971); AGO 93-31.
Question I. The declaration of “emergency” by the Board of County Commissioners is
insufficient to avoid the prohibition of Article VII, Sect. 10, Florida Constitution. In order to allow
Collier County to use public funds or its taxing authority to repair private roads, a State of
Emergency must be declared pursuant to Sect. 252.38, Florida Statutes. AGO 2012-33; AGO 98-
22.
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In both of those opinions, the Attorney General opined that the respective County’s
declaration of a State of Emergency pursuant to Florida Emergency Management Act, Sect.
252.38, authorized each County to repair private roads with public funds. AGO 98-22; AGO 2012-
33.
Florida’s Emergency Management Act limits the emergencies that qualify under the act,
and lack of maintenance is not one that qualifies. Sect. 252.34, Fla. Stat. More importantly, a
declared State of Emergency under the Act is limited to a maximum of “not more than 42 days.”
Sect. 252.38 (4), Fla. Stat. Collier County’s “declaration” of emergency was not pursuant to Sect.
252.34, plus it was open ended and continuous in nature contrary to the Act.
As the Attorney General’s Opinion 2012-33 makes clear, the authority to repair private
roads “would not extend to the County in the absence of a declared local State of Emergency as is
required by the State Emergency Management Act”, Sect. 252.34, Fla. Stat. Collier County’s use
of public funds to improve private roads, and creation of the MSTU to achieve that purpose, are
illegal as they violate the prohibition of Article VII, sect. 10, of the Florida State Constitution.
COLLIER COUNTY’S ASSERTIONS
Question I.
The Board of County Commissioners intends to declare an ongoing public emergency with
respect to certain impassable, unpaved private roads affecting access to police, fire, emergency
medical, and disaster-response vehicles. 1 It is well established that Collier County may use county
funds to keep private roads passable during a declared state of emergency under Section 252.38,
Florida Statutes, if the Board of County Commissioners determines that such an expenditure
satisfies a County purpose. See AGO 98-22; AGO 2012-33. The legislative intent and purpose for
adoption of Chapter 252, Florida Statutes, “State of Emergency Management Act” (the “Act”)
was “to ensure that preparations of this state will be adequate to deal with, reduce vulnerability to,
and recover from such emergencies and disasters; to provide for the common defense and to protect
the public peace, health, and safety; and to preserve the lives and property of the people of the
state.” See AGO 98-22; Fla. Stat. § 252.32(1). Specifically, Section 252.34(4)(c), Florida Statutes,
identifies emergency management responsibilities, including “[r]esponse to emergencies using all
systems, plans, and resources necessary to preserve adequately the health, safety, and welfare of
persons or property affected by the emergency.” Moreover, Section 252.38(3)(a)1., Florida
Statutes, authorizes political subdivisions such as counties “[t]o appropriate and expend funds [and
to] provide for the health and safety of persons and property . . . .” See AGO 98-22. Further, a
political subdivision, in carrying out its emergency management powers may "assign and make
available for duty the offices and agencies of the political subdivision, including the employees,
property, or equipment thereof relating to . . . transportation, construction, and similar items or
services for emergency operation purposes . . . ." See AGO 98-22; Fla. Stat. § 252.38(3)(a)4.
Finally, in exercising its emergency management powers a county "has the power and authority to
waive the procedures and formalities otherwise required of the political subdivision by law
1 The Board of County Commissioners had occasion to vote to declare a state of emergency at the December 9, 2025,
public meeting, but decided to submit this letter requesting an opinion prior to taking up a formal vote.
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pertaining to . . . [p]erformance of public work and taking whatever prudent action is necessary to
ensure the health, safety, and welfare of the community." See AGO 98-22; Fla. Stat. §
252.38(3)(a)5.a. The county is also authorized to suspend the usual procedures and formalities
required for the "[a]ppropriation and expenditure of public funds." See AGO 98-22; Fla. Stat. §
252.38(3)(a)5.h.
In Florida Attorney General Opinion 98-22, the Attorney General concluded that, in light
of the broad language contained in the Act authorizing local governments to act swiftly to protect
county citizens and their property, Citrus County could expend public funds to repair private roads
to keep them passable during a declared state of emergency. See AGO 98-22.2 The Florida
Attorney General also determined that Suwannee County could dedicate public funds to the repair
of washouts on private non-roadway property and sinkholes that may have appeared on private
property under a declared state of emergency pursuant to Section 252.38, Florida Statutes. See
AGO 2012-33 (“As my conclusion is based on the extensive powers delegated to local
governments under the State Emergency Management Act, this authority would not extend to the
county in the absence of a declared local state of emergency.”) (emphasis added).
The Florida Attorney General Opinions cited by the Clerk are distinguishable. Specifically,
the AGOs cited by the Clerk do not address the use of public funds after a declared state of
emergency under the powers and authorities granted to Collier County under the Act. See AGO
73-222; AGO 79-14; AGO 92-42; AGO 99-15; AGO 85-90; AGO 92-31. Moreover, the
aforementioned AGOs are distinguishable because the governmental entities are not requesting to
expend public funds to address health, safety, and welfare concerns, such as fires and/or hurricane-
related floods. Indeed, the Clerk concedes that the Board of County Commissioners may use public
funds or its taxing authority to repair private roads after a declared state of emergency. See supra,
at p.5. For the reasons previously stated, the Board of County Commissioners is not declaring a
state of emergency based on “lack of maintenance,” but rather the current impassable conditions
of these private roadways poses an overall risk to the public’s health, safety, and welfare if first
responders are not able to properly respond to catastrophic events such as wildfires and floods. In
conclusion, the Board of County Commissioners has authority under the extensive powers
delegated by the Act to repair and maintain the impassable, private roadways at issue.
Questions II and III.
The Board of County Commissioners has the authority to create a Private Road Emergency
Repair Municipal Services Taxing Unit (MSTU) and provide a $1,500,000.00 loan to the MSTU
under its declared public emergency pursuant to the Act. As a threshold matter, the Board of
County Commissioners may establish a municipal services taxing unit by ordinance to provide fire
protection, law enforcement, and streets, among other services, from funds derived from service
charges, special assessments, or taxes within such unit only. See Fla. Stat. §125.01(q). The Board
of County Commissioners also has the authority to levy and collect taxes, both for county purposes
and for the providing of municipal services within any municipality service taxing unit, and special
assessments, and to borrow and spend money. See Fla. Stat. §125.01(r). The levy of special
2 The Attorney General also determined that Citrus County first needed to independently determine that the emergency
repair of these private roads accomplishes a valid public purpose as described in the Act—which the Board of County
Commissioners intends to do in the instant case. See AGO 98-22.
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assessments on real property is subject to constitutional proscriptions limiting the imposition of
taxes for public purposes. See AGO 85-90. The Board of County Commissioners has a compelling
public purpose for establishing the Private Road Emergency Repair Municipal Services Taxing
Unit to ensure the health, safety, and welfare of its citizens.
The Board of County Commissioners desires to repair and maintain certain impassable,
unpaved private roads affecting access to police, fire, emergency medical, and disaster-response
vehicles. The roads at issue are located within rural, heavily wooded areas of the County which
are subject to wildfire during dry season. If the County’s first responders do not have proper access
to these impassable, unpaved roads, wildfire will not be mitigated and will travel toward nearby
public roadways and infrastructure. In addition, Collier County has experienced several
catastrophic hurricanes in the past decade, namely Hurricanes Irma, Ian, Helene, and Milton,
resulting in floods and storm surges which further emphasizes the importance of improving and
maintaining impassable, unpaved roadways for emergency access.
The Clerk cites several distinguishable Florida Attorney General Opinions. None of the
AGOs cited by the Clerk dealt with this unique set of facts: a County seeking to repair impassable,
unpaved roads to provide access to emergency first responders to ensure effective access, response,
and mitigation to wildfires and floods which have a direct impact on adjacent public roads and
County citizens at large. Cf. AGO 73-222; AGO 79-14; AGO 92-42; AGO 99-15; AGO 85-90;
AGO 92-31. The purpose of the constitutional prohibition cited in Article VII, section 10 of the
Florida Constitution is to protect public funds from being exploited primarily for private purposes,
with only incidental benefits to the public. See AGO 96-50. “Under the constitution of 1968, it is
immaterial that the primary beneficiary of a project be a private party, if the public interest, even
though indirect, is present and sufficiently strong.” See State v. Hous. Fin. Auth., 376 So. 2d 1158,
1160 (Fla. 1979) (citing State v. Putnam County Development Authority, 249 So.2d 6 (Fla. 1971)).
The public interest in repairing these impassable roads is present and sufficiently strong to justify
the Board of County Commissioners’ loan to the MSTU to immediately repair the impassable
roads to ensure the health, safety, and welfare of Collier County citizens.
CONCLUSION
Thank you for your time and consideration of this request. The Board of County
Commissioners of Collier County and Crystal K. Kinzel, the Clerk of the Circuit Court and
Comptroller of Collier County, Florida, appreciate the Attorney General’s attention to this matter.
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