What about those Land Use Impact Fees?

In the 1960's, Florida 's local governments began to look for ways to shift responsibility for funding infrastructure from the community in general to developers. For nearly 50 years Florida 's communities have found ways to legally require new development to partially or totally fund major items of infrastructure needed to service it as a prerequisite for obtaining of development permission. The emphasis on infrastructure availability as precondition for obtaining development permission is the major character of growth management programs. The developments of the concurrency management systems are a result of “adequate public facilities requirements” laid out in FS 163.3177 (10) (h).

In the 1970's several legal cases challenged these requirements but the Florida Supreme Court decision in Contractors & Builders Ass'n v. City of Dunedin found that an impact fee for sewer and water treatment facilities was not a tax but a valid land use regulation.

Currently, there are various approaches to a local government requiring developer funding of infrastructure. These include required dedication, in lieu fees, user fees, impact fees and rezoning conditions. Originally, developer funding requirements related to physical infrastructure items such as roads, parks, water and sewer treatment facilities and public safety facilities. Most judicial decisions in regard to required dedications, impact fees and in lieu fees center on these items of infrastructure. Roads, parks and schools are the obvious needs of Florida 's communities, but healthcare facilities and workforce housing are also essential and may well be the next infrastructural items to be required to be funded by impact fees. Due to the impacts of sprawl it is not inconceivable that the preservation of Florida 's green infrastructure may also be put on the list. Aquifer recharge areas, beaches and environmentally sensitive lands may soon require dedication, in lieu fees, user fees, impact fees and rezoning conditions.

Thus far, the land use control power has been largely used to require developers to fund infrastructure either by paying impact fees, user fees or in lieu fees or to dedicate or convey land to the local government which is obligated to use the money or land to provide infrastructure. Sometimes the developer is encouraged to builds infrastructure instead of making payments or dedications.

In the future, developers may desire to find creative way to mitigate these fees. One approach is for developers and local governments to enter into public-private partnerships in which the local government provides a portion or the entire infrastructure needed by the new development in return for an equity or profit sharing interest in the development. Or, developers may make use of Florida 's statutory provision for the creation of Community Development Districts (FS 190 2007). Developers may organize a Community Development District which has the power to tax property within the district to pay for construction and maintenance of infrastructure and provision of other government services. The Act provides an alternative, streamlined method for financing the construction of infrastructure needed by the new development.

MJA Consulting works with developers and communities to find new and equitable solutions to funding adequate infrastructure.