Florida has the second highest average impact fees of the 50 states after California.  But, even California caps their impact fees to the rate of inflation. 

Between 2003 and 2007 Florida saw a staggering 149 percent increase in impact fees. This adds to the cost of housing and hangs an “unwelcome” sign to businesses that might otherwise consider expanding in Florida.

In response to the extraordinary downturn in Florida’s economy, the Legislature should impose a two-year moratorium on any further local government impact fee increases. Additionally, the impact fee Burden of Proof standard must be changed. It should be amended so that government doesn’t have the upper hand in court when an increase or flawed methodology is challenged by a citizen.

Week of April 27 – Members of the House and Senate approved long-sought legislation that codifies constitutional principles placing the ultimate impact fee burden-of-proof appropriately on government to prove the validity of the fee, based on case law standards, by a preponderance of evidence. Additionally, it will finally provide for the challenger to have a level playing field in court. A special thank you is extended to Rep. Gary Aubuchon, R-Cape Coral, for sponsoring HB 227, and Sen. Mike Haridopolos, R-Melbourne, for sponsoring the Senate companion.

Week of April 13 – One of the Florida Home Builders Association’s 2009 Legislative Priorities, the impact fee burden of proof measure, passed out of the full House last week. HB 227 by Rep. Gary Aubuchon, R-Cape Coral, received a resounding 92-26 favorable passage when the measure was heard on final reading last Friday. The bill codifies constitutional principles which place the ultimate burden of proof to be placed appropriately on government to prove the validity of the fee, based on case law standards, by a preponderance of evidence based on case law standards. Additionally, the bill adds a two-year freeze on any impact fee increase. The Senate companion bill, SB 580 by Sen. Mike Haridopolos, R-Melbourne, passed unanimously out of the Senate Finance and Tax Committee. Prior to the committee taking a vote on this measure, FHBA President Jay Carlson testified in support. The Senate bill has one more committee stop before moving to the floor of the Senate.

Week of March 30 – HB 227 by Rep. Gary Aubuchon, R-Cape Coral, passed its final committee stop in the House. This measure contains important impact fee burden-of-proof legislation, and it also adds a two-year freeze on any impact fee increase. The measure is now prepared to move to the House floor.

Week of March 16 – The House of Representatives Civil Justice and Courts Policy Committee unanimously passed an impact fee burden of proof bill. For HB 277 by Rep. Aubuchon, R-Cape Coral, this is the second committee in which it has been heard favorably. The Senate companion bill, SB 580 by Sen. Mike Haridopolos, R-Melbourne, has been heard and passed out of one committee. Both bills must be heard by additional committees before making it to the House and Senate Chambers. A Florida Home Builders Association 2009 Top Legislative Priority, both bills shift the initial burden of proof from the challenger back to government. This would allow the ultimate burden of proof to be placed appropriately on government to prove the validity of the fee, based on case law standards, by a preponderance of evidence.

Week of March 9 – The House of Representatives Military and Local Affairs Committee passed a Proposed Committee Bill that would allow local governments to remove or reduce impact fees without waiting the required 90-days.

Week of March 3 – Impact fee burden of proof legislation passed its first test when it unanimously passed out of its first committees of reference in both the Florida Senate and House of Representatives. The bills (HB 277 by Rep. Aubuchon and SB 580 by Sen. Haridopolos) were amended, based on a recent 5th District Court of Appeal decision, to shift the initial burden of proof from the challenger back to the government. This would allow the ultimate burden of proof to be placed appropriately on government to prove the validity of the fee, based on case law standards, by a preponderance of evidence. Lobbyists representing the Florida League of Cities and Florida Association of Counties argued aggressively against the legislation, but were effectively countered by constitutional law and property rights expert, Amy Boulris, of Brigham Moore law firm. Boulris called the bill “an important codification of existing constitutional principals.”  According to FHBA General Counsel Keith Hetrick, this bill is needed to eliminate unwarranted confusion in trial courts as to how impact fee evidence in a legal challenge should be evaluated by the trial courts, and it restores proper legal checks and balances in the actual calculation of fees. While this legislation still has a long way to go, it’s a great step forward toward achieving our goal of meaningful impact fee reform.