Appellate ruling favors county over Gardens on road-building

At stake: Who controls money developers pay for road improvements, Palm Beach Gardens or Palm Beach County?

RCA Center Drive

An appellate court has rejected Palm Beach Gardens’ arguments in its fight with Palm Beach County over how to pay for growth from new development.

The ruling forces the city to resume collecting impact fees from developers for the county, which decides how to spend the money. 

It imperils the city’s new mobility fee program, which was designed to collect money from developers for projects determined by the city. 

The city stopped collecting the money on behalf of the county in January 2020, an amount that added up to $1.7 million by May 2021, when the county sued. With all the new construction in Palm Beach Gardens, it could be double that now. 

The appellate court, which received its first brief on the case in June, issued a one-line affirmation of the trial court ruling Thursday signed by Chief Judge Mark Klingensmith and Judges Robert Gross and Melanie May.

The city has 15 days to ask the court to rehear the case or issue a written opinion.

Once final, the ruling grants the injunction the county first sought in May 2021 to stop the city from ending its decades-long participation in the county impact fee program and creating one of its own. It calls for the city to resume payments to the county.

impact fees

The next step would be a full trial on the arguments, which were first aired during a five-day hearing in late 2021 before Palm Beach County Circuit Judge Paige Gillman. She ruled in favor of Palm Beach County in March, granting an injunction, and the city appealed.

City Attorney Max Lohman, who could not be reached for comment, told the City Council on Sept. 8 that he and his legal team underwent “excruciating deliberation” over whether to request oral arguments in front of the appellate court before a Sept. 1 deadline.

“It was very hard for me not to at least ask for it,” Lohman told the council. “But based on the quality or lack of quality in the county’s brief, we deemed it more prudent not to request oral argument and give them an opportunity to stand up in front of the court and potentially rehabilitate some of the ridiculousness in their brief.”

County appellate practice chief Helene Hvizd, one of four assistant county attorneys listed on the appeal, laughed when she heard Lohman’s comments. 

“Our trial attorneys did an outstanding job and created an appellate record that was so favorable to the county that the appellate attorneys had an easy time presenting this case on appeal,” she said.

The other county attorneys on the case were Darren Leiser, Anaili Cure and Scott Holtz.

Aside from Lohman and his associate, Walter Porr, the city was represented at the appellate level by Scott Hawkins of Jones Foster and attorneys Kenneth Bell, Michael Tanner and Megan Moon of Gunster Yoakley & Stewart.

Judge Gillman
Palm Beach County Circuit Judge Paige Gillman presides Oct. 27, 2021, the first day of the five-day temporary injunction hearing. (Joel Engelhardt photo)

‘Taking people out of their cars’

The ruling comes as relations deteriorate further between the city and county. Earlier this month, City Manager Ron Ferris told the Gardens City Council that the county engineer had refused to meet with him to discuss a study of eight-laning Northlake Boulevard, blaming “higher-ups” for his last-minute cancellation.

City Manager Ron Ferris

As the impact fee lawsuit loomed in April 2021, County Commissioner Maria Marino brought Ferris together with County Administrator Verdenia Baker for face-to-face talks. But they proved fruitless and the county filed suit on May 18, 2021.

Ferris testified at the trial that the city wanted to spend the fees paid by developers on more non-road options to improve transportation for pedestrians, bikers and golf carts. 

It is part of a movement among cities objecting to the county’s priorities for road-building under a system put in place in the 1980s.

“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?”

Several other cities, including Lake Park, Boynton Beach and West Palm Beach, have contemplated mobility fees to pay for projects they desire. The county counters that they can have their mobility fee but they still have to collect the county’s impact fee, a move that would greatly increase costs for developers. 

With gas tax revenues dropping, the county is becoming more reliant on impact fees to meet the demand for new and wider roads. But many of the roads financed with Gardens construction dollars do nothing to help the residents of Palm Beach Gardens, the city countered.

© 2022 Joel Engelhardt. All rights reserved.

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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