Nassau County, Florida
This week Florida's Attorney General said Nassau County's population growth cannot be used to exceed the limit on Impact Fees and it does not qualify as an “extraordinary circumstance," and "therefore, Nassau County may not increase its impact fees above 50% of the statutory cap."
In his letter, the attorney general says raising impact fees beyond the limit without extraordinary circumstance "appears to be a tax disguised as an impact fee."
Florida's Attorney General James Uthmeier sent the letter to Florida Rep. Richard Gentry, who had reached out to Uthmeier in December, asking for his legal opinion on whether Nassau County's 17% population increase over the previous five years qualifies as "extraordinary circumstances."
"In short, my answer to your question is no," Uthmeier wrote. "The steady, albeit heightened, increase in population of 17% over the previous five years does not qualify 'extraordinary circumstances' under the exception found in section 163.31801 for exceeding the statutory cap on impact fees."
In his letter, Uthmeier states the reason for the imposition of impact fees is to fund infrastructure needed to expand local services to meet the demands of population growth caused by development.
He said Florida statutes provide "certain limitations on impact fee increases proposed by governing authorities. These restrictions include, among other things, that '[a]n impact fee increase may not exceed 50 percent of the current impact fee rate.' And any increase may not occur 'more than once every 4 years.' There is an exception, however, to the 50 percent statutory cap."
In his letter he includes a definition of "extraordinary circumstances," not directly defined in the statute.
"Black's Law Dictionary defines 'extraordinary circumstances' as '[a] highly unusual set of facts that are not commonly associated with a particular thing or event.' This is a commonsense definition and consistent with how the phrase is defined in other Florida statutes," the letter states.
The letter says that Florida has experienced "considerable statewide population growth over the last several years" so therefore "a 3.4% year-over-year growth rate in one jurisdiction cannot, therefore, be fairly construed as 'extraordinary.'"
He confirmed that Nassau County's population growth over a five-year period is higher than in some other Florida counties, "but Nassau County's population increases over that period are lower than other Florida counties - counties that have not sought to levy extraordinary impact fee increases" and said "these observations undercut the existence of a set of facts that would justify a departure from the statutorily allotted 50% increases."