Court blocks school impact fee for seniors development

By JULIE HAUSERMAN

© St. Petersburg Times, published May 19, 2000

TALLAHASSEE -- Should adults-only retirement communities be forced to pay impact fees to support local schools?

No, the Florida Supreme Court ruled Thursday in a Volusia County case that could affect senior citizen developments and school boards across the state, including those in Citrus, Hernando, Hillsborough and Pasco counties.

Noting that seniors in the Volusia County development don't have school-aged children, the justices unanimously ruled that "where there is no potential to generate students, there is no impact warranting the imposition of fees."

The Volusia County School Board must now pay back nearly $87,000 to Aberdeen at Ormond Beach, a community that allows people 55 or older and bans anyone under the age of 18.

Wayne Blanton of the Florida School Board Association predicted that other adults-only communities could use the Aberdeen case as a precedent to sue their local school boards for back taxes or future exemptions to school impact fees.

"It probably spreads chaos throughout all the counties that impose school impact fees," agreed Richard Gentry of the Florida Homebuilders Association. "As soon as next week, any new building permits that are pulled, if they are going to sell it as an older community, they'll ask to be exempt from impact fees. It means that the pool of those paying for impact fees to support schools just got smaller."

"I think this is a great victory for the taxpayers," countered Frank Shepherd, a Miami lawyer for the conservative Pacific Legal Foundation, which filed a friend-of-the-court brief to support the developer. "Impact fees are used as crutches by local governments who don't have the political backbone to raise taxes."

Volusia is among 15 counties across Florida that assess school impact fees on new developments. It's a one-time fee imposed on developers, who pass the cost on to buyers of new homes. Pasco County could soon become the 16th county to levy school impact fees, adding about $640 to the cost of a new home.

Statewide, school impact fees put $71.4-million into school district coffers last year, according to a Florida legislative analysis.

In a review of school-impact fees last fall, the Wall Street Journal reported that some counties have flexible arrangements when it comes to adult-only communities. Some counties, including Hernando and Citrus, allow developers of adult-only communities to appeal the fee. Broward County reduces the fee for retirement communities, the newspaper reported.

School impact fees came under fire during this year's legislative session, with some Republican leaders wanting to repeal them altogether. Developers lobbied to kill the fees, saying they are unfair because they apply only to new homes, not to resales of older homes.

"It really doesn't pick up the majority of the people at all," Gentry of the Florida Homebuilders Association said of the fees. "I think we should find a much broader-based source."

After political wrangling, lawmakers voted to ban any new school impact fees in Florida. And they voted to sharply curtail the amount that schools can collect from existing impact fees.

If Gov. Jeb Bush signs the bill into law, school boards could charge developers only about a third of the amount they collect now. The state will contribute tax dollars to make up the other two-thirds that the counties would have collected from developers during the 1998-1999 school year.

Now, the Supreme Court decision adds more uncertainty to school districts that rely on impact fees to keep pace with growing student populations.

Aberdeen at Ormond Beach Manufactured Housing Community, about 5 miles outside Daytona Beach, is open only to people who are at least 55. Park rules ban children and none have ever lived in Aberdeen. Of the 142 people living there last summer, 119 were over 60.

Aberdeen sued Volusia County in 1997, saying the development shouldn't pay the school impact fee because it had no children to impact the schools.

Thursday, after hearing about the School Board's loss at the Supreme Court, Volusia County school Superintendent Bill Hall issued a statement:

"With or without children, the people of Aberdeen will utilize Volusia County schools. It is a shame that the developer will not have participated equally in paying the costs."

Blanton of the Florida School Boards Association said the decision will hurt public schools.

"Everybody should chip in for public education," Blanton said. "A good educational system is not just for the good of certain people. It's for the good of society as a whole."

But Shepherd of the Pacific Legal Foundation said residents at Aberdeen and other senior citizen communities are already paying to support schools through their annual property tax assessments.

The developer's attorney, Frank Upchurch III of St. Augustine, did not return phone calls seeking comment.

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