Judge puts brakes on Gardens mobility fee

Judge Gillman grants injunction requiring city to turn over millions from developer payments; appeal possible and full trial awaits.

Palm Beach Gardens

Palm Beach Gardens’ effort to pay for growth through a mobility fee suffered a setback Thursday when a Palm Beach County Circuit Court judge ruled that the city’s approach violated state law. 

Nearly five months after a five-day trial, Judge Paige Gillman granted Palm Beach County’s request for an injunction, ordering Gardens to return to its past practice of collecting impact fees on behalf of the county.

The ruling is likely to slow other cities, including Boynton Beach and Lake Park, that are pursuing similar approaches to collect “mobility” fees rather than county impact fees from developers to pay for roads, sidewalks and bike paths. The approach would upend of decades of county-controlled growth management.

The county sued Palm Beach Gardens in May 2021, saying Gardens can’t unilaterally end its agreement with the county to collect impact fees.  

The judge agreed, saying there was nothing in state law that permitted the city to “repeal” the county rules

“Indeed, the city offers no argument to the contrary; its entire case was based upon its attack on the county’s fees as an unconstitutional tax,” Gillman wrote. “The county has a very high probability of prevailing on this issue.”

County officials applauded the decision.

“The ruling confirms the county’s position all along,” Assistant County Administrator Patrick Rutter said. “What we’ve been doing is very legal. The judge has affirmed that.”

The city could appeal the ruling, as it did the judge’s earlier rejection of its motion to dismiss. 

“We’re certainly not happy about the result,” said City Attorney Max Lohman, who was assisted at trial by Scott Hawkins of JonesFoster. “We’re weighing our options.”

While granting the injunction indicates that the judge believes the county would prevail at trial, a full trial on all aspects of the dispute is still on the court’s books for November.

Judge Gillman
Palm Beach County Circuit Judge Paige Gillman presides Oct. 27, the first day of the five-day temporary injunction hearing. (Joel Engelhardt photo)

City must turn over millions

The city stopped sharing the fees with the county in January 2020, when it enacted a mobility plan that called for impact fee payments from developers to be rebranded as mobility fee payments and go toward city projects determined by the city. 

Under the county’s impact fee system, the county decided on road projects in a large zone that stretched from Singer Island through Palm Beach Gardens to Tequesta. 

During the trial, which ended Nov. 5, the county calculated the city had collected but not turned over $1.7 million in fees as of May 2021. That money and any more collected from developers since must now be paid by the city to the county, the judge ruled.

The city is directed to instruct all developers holding active permits issued after the city adopted its ordinances to submit their plans to the county within sixty (60) days of the date of this order for assessment of county road impact fees and to collect such fees from those developers and remit them to the county in accordance with the county’s procedures,” Gillman wrote in her 24-page order.

Before suing, the county had asked developers to pay the money. But developers objected, pointing out they already had paid the city.

To get the injunction, the county had to prove that it had a “high probability of prevailing,” Gillman wrote, a burden she said the county met. 

The city rested its approach on the argument that the county impact fee rules were unlawful, presenting five points in its favor. The judge rejected every point.

For instance, she said the city hadn’t proved that the county’s fees on a development in Gardens had no “rational nexus” to a road improvement in, for example, Tequesta. 

The county met its burden of demonstrating that today’s combination of growth, traffic patterns, usage, and trip length warrant the adoption of larger (and fewer) impact zones,” Gillman wrote.

She pointed to data presented by county expert witness James Nicholas, a retired University of Florida professor, showing that the average work trip in the county is 12 miles, that 88.7% of workers in the city do not live in the city and 84.5% of city residents do not work in the city. 

She also dismissed the city’s contention that the county relied on data that was not the “most recent and localized” to determine fees. She pointed out that the statute actually requires the “calculation” of the data to be the most recent. 

And because the calculation of the impact fees occurred in 2015 and was based upon the data available at that time, the fees were calculated based upon the ‘most recent and localized’ data,” she wrote.

Palm Beach Gardens
Palm Beach Gardens City Manager Ron Ferris, under questioning by county attorney Scott Hawkins, testifies Oct. 28. (Joel Engelhardt photo)

Get people out of cars

The city’s decision to move forward with a mobility plan, first spelled out in 2016 planning documents, emerged from discussions with the Treasure Coast Regional Planning Council over plans to add a Tri-Rail station in the city, City Manager Ron Ferris testified during the trial. 

“The city would be going vertical, increasing density, to provide additional housing,” Ferris said. That meant the need for alternative ways to move people to get them out of cars, not continued payment into a system designed to add road capacity far from the city center, he said.

“Instead of increasing capacity, we’re looking at ways of taking people out of their cars,” he said. “So, the concept is, like for instance … could we provide for bicycle paths? Bigger sidewalks to allow for golf carts or motorbikes? Landscape to provide shade?” 

The county’s impact fees historically do not pay for such expenses. They are typically tied to work that increases road capacity. But the city’s mobility plan focuses on just such improvements.

County attorneys argued the city misinterpreted a clause in the state law allowing mobility fees for its decision to stop paying impact fees to the county.

The state does not give one local government the right to repeal the rules of another local government, county attorneys argued.

“As long as they didn’t cross the Rubicon and come into the county’s own decision-making … for issues related to the county’s road network, we would not be here,” said Assistant County Attorney Scott Holtz, who tried the case with Assistant County Attorney Anaili Cure.

© 2022 Joel Engelhardt. All rights reserved.

More on the city-county dispute at OnGardens.org

Inside the courtroom: How to pay for roads to keep up with growth

Growth management revolt? Judge to hear Gardens-county clash

Palm Beach County sues Gardens over developer fees

‘County to the left of me, Gardens to the right, here I am stuck in the middle with you’ – Song of the Developers

Author: Joel Engelhardt

Joel Engelhardt is an award-winning newspaper reporter and editor based in Palm Beach Gardens. He spent more than 40 years in the newspaper business, including 28 years at The Palm Beach Post. As a reporter, he covered countywide growth, the 2000 election and the birth of Cityplace in West Palm Beach. As an editor, he oversaw probes into the opioid scourge, private prisons, police-involved shootings and more. For seven years, he worked on the paper’s editorial board. Joel left The Post in December 2020. He and his wife, Donna, have lived together in Palm Beach Gardens since 1992.

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