A fight over control of millions of dollars in developer money has morphed into a rebellion that could blow up the system that has helped pay for growth in Palm Beach County since the 1980s.
At its center is Palm Beach Gardens, which alone among the county’s 39 cities is fighting in court for the right to collect a state-sanctioned “mobility fee” from developers and spend it on projects of the city’s choice.
Until now, the county collects a road “impact fee” from developers and spends it on projects of the county’s choice. The two fees are nearly identical, with the mobility fee distinguished by its emphasis on providing alternatives to car travel.
Aside from roads, the county charges developers impact fees to help pay for parks, libraries, schools, fire protection and law enforcement.
The city says the county failed to follow state rules in 2019, when it updated the schedule for how much developers would pay, making all of its impact fees unconstitutional and unenforceable.
“It’s about whether the data … was localized and (was) the most recent (data),” Scott Hawkins, a Jones Foster attorney, argued for the city in court on Oct. 1. “And if it wasn’t, the ordinance is flawed. If it’s flawed, it’s unconstitutional. If it’s unconstitutional, the fees are (an) improper tax.”
The county counters that its impact fee calculations are fine but the city went too far in January 2020 when it stopped handing over impact fee money it collected from developers, replacing it with a mobility fee that the city pocketed.
“Our objection is based upon the fact that a municipality cannot unilaterally repeal these laws” which apply in every city, including Gardens, County Administrator Verdenia Baker warned in July 2019. “We find no reading of the law that would support otherwise.”
When the county filed suit May 18, it calculated the city owed $1.7 million in fees and interest, which would have gone toward county road projects to help counter growth, such as improvements to the intersection of Donald Ross Road and Military Trail.
“The longer these road capacity improvement projects on county roads are delayed, the longer the public must drive on congested and less safe roads, increasing their travel time and travel cost,” county attorneys wrote.
After five months of hearings, bickering motions and two failed appeals, the county’s initial request for a temporary injunction to block the city’s actions will be heard in a 2½-day trial starting Wednesday before Palm Beach County Circuit Court Judge Paige Gillman.
Palm Beach Gardens, behind City Attorney Max Lohman, is pursuing the suit vigorously, adding past-Florida Bar President Hawkins to its litigation team.
When the court ruled against the city’s motion to dismiss the case, the city appealed and lost. The 4th District Court of Appeal also rejected a second city request for review.
And both sides have argued testily for months over document production, which the city says is essential to revealing the flaws in the county’s impact fee law but the county says is unnecessary at this stage.
“I understand you have diabolically different positions on this,” Judge Gillman said at an Aug. 6 hearing. “That is one thing that is crystal clear to the court.”
1980s-style growth management
The suit takes aim at a system that city officials call obsolete, foreshadowing a jarring shift in how the government pays for growth in Palm Beach County.
As South Florida’s population soared in the 1960s and 1970s, Palm Beach County, particularly west of Boca Raton, faced such rapid growth that it couldn’t widen roads fast enough to handle the traffic.
The county began an experiment that would form the backbone of the state’s vaunted growth management system by conditioning zoning approval on developers putting up money to pay to expand nearby roads. The county would withhold building permits until the road work was underway, an approach dubbed concurrency.
In the late 1980s, the county took the question of requiring developers to pay impact fees to voters twice: the second time bringing in cities to make the program countywide.
Rather than spend city development money specifically in that city, the county created zones that allowed the money to be spent throughout the region. The money could be used only for road projects, not sidewalks, transit or bike paths.
The idea was that an office building or housing development in Palm Beach Gardens would generate traffic not just in the city but in neighboring areas as well.
In 2013, after the Legislature dismantled the growth management laws, including concurrency, it passed a law encouraging local governments to adopt alternative “mobility” systems.
The county continued to practice its 1980s-style approach, absent the ability to halt development if roads were insufficient.
The pieces were in place for a clash.
‘Robust’ focus on mobility
Buoyed by the new state law, the city began working on its mobility plan in 2016, even meeting with county officials in October 2017 to outline its approach. The Palm Beach Gardens City Council approved the mobility plan in 2019 to pay for roads but also sidewalks, bike paths, trolleys and even rail.
The state “intended to transition community planning from a narrow and outdated focus on ‘transportation concurrency’ (cars on roads) to a more fulsome and robust focus on ‘mobility’ (people and any and all methods of moving them),” the city wrote in an Aug. 9 court filing.
City officials argued the county’s way of doing things is obsolete in a world where major roads can’t get any wider and cities have new demands not met strictly by making room for more cars.
“We hope our mobility plan and mobility fee may serve as an example to Palm Beach County and other municipalities of how to creatively and responsibly address the current and future mobility needs of their residents and the public at-large,” City Manager Ron Ferris wrote to the county in July 2019.
‘An obsolete model’
At a March 2020 conflict resolution session, both sides hashed out their arguments.
“We can’t just continue to focus on moving cars and that’s all you can do on road impact fees,” City Attorney Lohman told county officials.
The idea is to “focus away” from “an obsolete model,” City Planning Director Natalie Crowley said, drawing a defense from County Administrator Verdenia Baker, who said the county also “significantly” funds Tri-Rail.
Ferris explained that the city’s mobility fee didn’t draw from the entire city. The city continued collecting impact fees for the county at its two biggest developments, Alton and Avenir, where thousands of homes are rising, as well as other projects west of the Beeline Highway. Those two giant communities promised to generate $46 million in impact fees, Ferris said.
Additionally, the city agreed to keep its door open to building projects identified by the county in its long-range road plan.
“There is nothing in there that says our roadway when we need the funding that it will be No. 1 and will be provided to us in order to make the improvement at the time that we need,” County Administrator Baker said. “What does that really mean, your door open? When we need the roadway improved?”
“It means that if you express to us that you would like to have a specific improvement included in our mobility plan, we are willing to look at our ordinance and include that,” Crowley replied. “And we mean it with sincerity. We are not just saying it.”
Lohman added that state rules guiding mobility plans require the city to fully “mitigate” the transportation impact from development.
“So if there is a development in the city of Palm Beach Gardens that creates an impact, a legitimate impact, even outside our boundaries, we would be required by law to work with you to try and fund that improvement.”
Those assurances weren’t good enough for the county.
Thirty-four minutes after the meeting started, the county declared an impasse in the talks, paving the way more than a year later for the lawsuit.
All impact fees in jeopardy
County officials expressed surprise that the city planned to attack the county’s entire impact fee ordinance, first approved in 1989, and not just the roads portion of it. That means the city is asking the judge to strike down impact fees that go toward parks, libraries, schools, fire protection and law enforcement.
The city argues that the impact fee rules are not based on the most recent data, as required by state law, because the 2018 study by consultants Tindale Oliver says the fees were based on research and analysis from 2014 and 2015. Much of the research predates 2012, the city said.
The county countered, saying the data are the most recently available, which makes it sufficient. “Luckily, the city agrees as it cites the ITE (Institute of Transportation Engineers) Trip Generation Report as the basis for the trip generation rates in its own Mobility Fee Technical Report,” Assistant County Attorneys Scott Holtz and Anaili Cure wrote in an August filing.
The city also argues that the county’s five zones are too large to make a connection between a development and its traffic. It’s specious to say that a “development in Tequesta puts substantial trips as far south as Palm Beach Shores or 45th Street,” Lohman argued at the March 2020 meeting.
A list of county projects that could be stopped by the city’s failure to pay includes work in Jupiter on Center Street from Loxahatchee River Road to Alternate A1A and on Central Boulevard north of Indiantown Road to Church Street. Also, intersection improvements at Ellison Wilson Road and Universe Boulevard in Juno Beach and at Donald Ross Road and Military Trail on the Gardens-Jupiter border.
In July, to make time to hear the city’s arguments to dismiss the case, Judge Gillman agreed to set back the temporary injunction hearing from mid-August to late August, warning that she certainly didn’t want the hearing delayed until October.
But the city’s motion to dismiss went nowhere, discovery went slowly and the temporary injunction hearing, which the city said in a court filing “may very well be the whole ball game,” starts Wednesday.
© 2021 Joel Engelhardt. All rights reserved.