Local governments in Florida can only tax through ad valorem taxes unless there is a general law allowing it. In the past, they mostly used public revenue to grow, but now they also use private revenue like impact fees on new developments. Impact fees are charged to the users of facilities like sewers and roads to help pay for the cost of providing those facilities. However, these fees must follow the laws and constitutions of Florida and the United States. Some early attempts to impose impact fees were challenged as illegal taxes, which led to a test that local governments must pass to impose these fees legally. The Florida Supreme Court in the Dunedin case said that new development should pay for the extra costs it creates, like expanding water and sewer systems. They also said that only the people who benefit from the expansion should have to pay for it. So, the city can’t charge too much for the fees, and they have to use the money for the specific purpose of expanding the public facilities. Impact fees are charges that new developments have to pay to cover the cost of public facilities they will use, like roads and schools. There are two main types of impact fees – consumption based and improvement based. Consumption based fees are based on how much public infrastructure a new development will use, while improvement based fees are based on specific improvement projects that the local government has planned. Another option is for the developer to actually build the new infrastructure needed for their development. In Florida, local governments can charge impact fees to new developments for things like roads and sewage. A court case in 1983 set a test that local governments have to pass to charge these fees. They have to show that the new development creates a need for the facilities the fees pay for, and that the fees benefit the new development. This test was later adopted by the Florida Supreme Court. The Dual Rational Nexus Test is used to make sure that local governments can require developers to pay fees or provide property for public facilities in a fair way. It has two parts: first, the government has to show that the new development will actually create a need for more public facilities, not just a possible or small need. Second, the government has to prove that the new development will benefit from the fees or property dedication. If the government can’t prove these things, then the requirement for the developer is not fair. The government needs to show that new development will get more than just a small benefit from impact fees or land dedication. The developer should only have to pay a fair share of the cost for public facilities. Impact fees should only be used to expand services in the area where the new development is. The fees should only pay for the extra capacity needed for the new development, not for any existing problems. The fees can’t be used to help other people or pay for growth that would happen anyway. And the fees need to be spent soon or given back to the person who paid them. The local government has to prove that they need the money from the affordable housing tax for specific things that will benefit the new development. If they can’t prove that, the developer can challenge it with more evidence. The government can’t just make up taxes without a clear reason, unless the state government says they can. So, the local government has to follow specific rules when making laws about affordable housing. The authors believe that mandatory affordable housing impact fees or exactions would have a hard time passing certain legal tests. It’s difficult to prove that these fees would directly benefit the developer or new residents. Additionally, it may not be fair to make the developer and future residents pay for an existing affordable housing problem. The availability of housing also depends on individual property owners, which makes it hard for local governments to measure their need for affordable housing.
The Florida Supreme Court has ruled that countywide needs cannot be the basis for an impact fee. This means that a fee must directly benefit the people who pay it, and cannot just be a general tax. Even if a local government believes in the importance of an affordable housing impact fee, they still have to meet certain legal requirements.
Therefore, the authors suggest that instead of mandatory programs, local governments should consider making affordable housing programs voluntary. They believe that voluntary programs, backed by clear and well-thought-out regulations, can achieve the same results without facing legal challenges. They also stress the importance of respect and cooperation between the public, the development community, and local governments in order to improve affordable housing. Impact fees are charges paid by people responsible for building new developments to help cover the costs of new infrastructure like roads and bridges. There have been legal cases about whether these fees are fair and how they should be used. The Florida Impact Fee Act was created to hold local governments accountable for impact fee collections. Impact fee ordinances must meet certain requirements, including using local data to calculate fees, reporting on fee collections and expenses, and giving notice before imposing new fees. Court cases have also addressed the validity of impact fees. Municipalities and counties have the authority to levy other taxes as well. This article is about affordable and work-force housing initiatives in Florida, and whether they are legal. It is written by two attorneys, J. Michael Marshall and Mark A. Rothenberg. They have education and experience in land use law. The article is submitted on behalf of a section of the Florida Bar.
In simple language: This article talks about whether affordable housing initiatives are legal in Florida. It’s written by two lawyers who know a lot about land use law. It’s approved by a section of the Florida Bar.
Source: https://www.floridabar.org/the-florida-bar-journal/an-analysis-of-affordable-work-force-housing-initiatives-and-their-legality-in-the-state-of-florida-part-ii/
Leave a Reply