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Fee battles already waged in Volusia and Seminole

Pasco County isn't the first place where city and county officials have squared off over the authority to collect transportation impact fees. The question already has been fought out in separate battles in Volusia and Seminole counties. The disputes arose after the county commission enacted countywide transportation impact fees.

In response, four cities in Volusia passed their own ordinances "opting out" of the county's plans. In Seminole, three cities declared a six-month moratorium on the fee collection.

In both instances, the controversies went to court and the counties won in the 5th District Court of Appeals. Along the way, though, the cities felt bullied and a considerable amount of good will was lost.

"It caused a complete breakdown between the cities that objected and the county government," recalls Donna McIntosh, an attorney who represented the cities of Sanford and Casselberry against Seminole County. "It got very heated and carried over into every aspect of the city-county relationship."

To Pasco officials, the cases leave little question about the county's authority to collect road impact fees in city limits. Several city officials see enough differences between Pasco, Volusia and Seminole to have their doubts. McIntosh agrees and notes that Pasco lies within the jurisdiction of the 2nd District Court of Appeals (DCA), which may not make the same ruling as the 5th.

"I personally think that the cities do have the power to put an opt-out ordinance into effect," she says. "I'm waiting for another DCA to say that."

Volusia County

The Volusia County Commission set its transportation impact fees in 1986. Four of Volusia's 14 municipalities tried to sidestep collecting the county's fees.

In nearly identical ordinances, the four made no secret that they were trying to block Volusia from collecting fees in city limits. Ormond Beach, for example, passed an ordinance stating that it was "in the best interest in the health, safety and welfare" of the city to exempt itself from the county's ordinance. Edgewater said no road impact fees would be collected within its limits no matter what the Volusia County Commission said.

Ormond Beach city attorney Fred Disselkoen Jr. says the city objected to the county's plan because Volusia _ a county 1 { times as big as Pasco _ had been split into four sprawling zones. The city feared that fees collected in his city could be spent "as much as 15 miles" away in another community.

But county officials contended that the impact fees should be collected countywide to distribute the cost of expanding roads among the new residents who create the need.

"If the law was that a city could decide that it didn't want to pay its fair share for growth, then all the other residents would have to pick up the difference through gas taxes," says Tallahassee lawyer Robert Nabors, who helped represent Seminole County and filed a brief on behalf of the Florida Association of Counties in the Volusia case.

Challenged in court, the cities' actions were declared invalid by a circuit judge. City officials appealed and lost again in the 5th District Court of Appeals.

A three-judge panel in the appellate court wrote that Florida's Constitution gives cities broad powers to act for municipal purposes. Ducking out of the county's road improvement plans, however, was not considered to be one of them.

"The cities, in essence, are attempting to veto an otherwise legitimate effort on the part of the county to raise funds to pay for the county road system, which traverses the municipalities as well as the unincorporated areas," Judge Winifred Sharp writes.

Sharp also notes that the cities' lawyers "candidly" admitted that the cities were trying "to force the county to consult them in planning county roads and expending funds within the county.

"This goal, however, is absolutely contrary to the scheme of general law in Florida, which gives the planning, building and maintaining function for county roads exclusively to the counties _ not to the cities," Sharp concludes.

At the end of the appellate court's ruling, though, is a concurrent opinion suggesting that the cities might have been able to press their objections more effectively.

"There is only one arguable basis to support the "opt-out' ordinances: encouragement of growth by curtailment of building costs within the city," Judge Warren H. Cobb writes.

Cobb did not say that the cities would have won, but he did say they could have presented a "much more difficult legal issue" by enacting flat prohibitions against the collection of all city and county impact fees "for the purpose of stimulating residential and commercial development."

Cobb's opinion has not gone unnoticed in Pasco County. On Dec. 11, the Zephyrhills City Council passed an emergency ordinance setting forth its reasons for charging transportation impact fees.

The new ordinance stakes out the authority to collect road impact fees as turf belonging exclusively to the City Council. Why?

"It is the intent of the city of Zephyrhills to encourage growth and development in the city by curtailing or reducing building costs," it states.

Seminole County

The controversy evolved similarly in Seminole County, but the cities won the first round in court. A circuit judge ruled that because Seminole (like Pasco) was not a chartered county, its ordinances were not effective in cities that had conflicting ordinances.

The county appealed, and the 5th District Court of Appeals used the Volusia case as a precedent when it ruled in Seminole's favor. The appellate court noted that the question of whether a county was a charter or non-charter county had no meaning in the Volusia and Seminole cases.

Instead, the appellate court sent the case back to the trial court for further consideration after lawyers for the cities brought up a new issue in their oral arguments.

Having won the point it wanted to make, Seminole County dropped its case. That, plus getting a say in determining where the fees would be spent, was enough to convince some city officials to drop their challenge.

"We made peace," says Frank A. Faison, Sanford's city manager. "You wouldn't believe the love affair going on over here."

In the end, negotiating an agreement gave Seminole and Sanford officials a chance to smooth over several points of friction between them.

Faison says his city ended up saying, in effect, "We'll get off this impact fee thing and even support it, if you'll put a road we want on the list."

"Hard knocks' lessons

Looking back on their disputes, officials in Volusia and Seminole say they probably could have avoided a lot of trouble by explaining their ideas clearly early on.

"We might have done a better job in hindsight of communicating our position," Volusia County Attorney Daniel D. Eckert concedes. "Once (it was) communicated, most of them accepted."

Though Ormond Beach still refuses to collect fees within city limits, Volusia officials get building permit records from the city and send out bills for the impact fees themselves. As often as not, the recipients pay, Eckert says.

In Seminole County, the cooperation has continued after the settlement of the lawsuit. The county has created a 24-member citizens advisory committee that helps set priorities on how the impact fee revenues are spent. The committee includes a variety of representatives _ including developers, members of homeowners associations and engineers _ and gives cities a say without turning planning decisions into emotionally charged political arguments.

"That puts cities in the loop," Seminole County Attorney Robert McMillan says. "They do a fairly good job of keeping it on the merits as opposed to how it might be done otherwise. It's worked out pretty well."