Limitations on Establishing Unsafe Structures Liens and Special Assessments: Homestead Exemption, Special Benefit to Land, and Public Purpose and Facility Doctrine
Unsafe structures are deteriorated, unsanitary, lacking in egress, vacant and unsecured, improperly designed and without a permit or under an expired permit, termite and rodent infested, windstorm and fire damaged, and a nuisance to the public.1 Violations are prosecuted by a building official before a quasi-judicial2 unsafe structures board after notice and must be substantiated by evidence at a public hearing.3 Jurisdiction rests in the local government in which the unsafe structure is located. If adjudication occurs, an order is entered to repair or demolish an unsafe structure.4 Amounts due for expenditures in the performance of work, labor, and materials are paid by the local government. The charges are later taxed against the owner of the real property or the person who caused or maintained the violation. After a building official executes and records an affidavit of expenditures in the county where the real property is located, an order is entered that constitutes a lien and encumbers the owner’s real property. If the amount of the order remains unpaid, a foreclosure action can be filed according to established procedures.5
Many local government code provisions and the Florida Building Code (FBC), as amended and adopted by local jurisdictions, use “lien” and “special assessment” interchangeably, thereby permitting an unsafe structures board to enter an order for the amount owed to the local government for repair or demolition of an unsafe structure.6 The use of “lien” and “special assessment” interchangeably in code provisions raises a number of questions. If a lien on an unsafe structure homestead real property is entered, will the lien fall within an exemption from forced sale pursuant to Fla. Const. art. X, §4(a)(1) for collection purposes?7 May a special assessment be entered on specific real property by an unsafe structures board pursuant to F.S. Ch. 170? Does the public purpose and facility doctrine apply to enactment of a special assessment on an unsafe structure? If a special assessment is imposed in error against specific real property and neighboring property, what are the consequences? Is a special assessment by a local government unsafe structures board a legitimate way to assess real property, or will it constitute an unlawful ad valorem tax? This article discusses the ramifications of unsafe structures boards’ liens and special assessments on homestead and nonhomestead real property for repair and demolition expenditures of an unsafe structure.
Unsafe Structures Liens and Homestead Real Property
After a local government records a certified copy of an order imposing a fine, it will thereafter constitute a lien upon real property owned by the violator.8 However, what effect will the lien have on homestead real property located in the county in which the lien has been recorded? Homestead real property is protected from forced sale regardless of illegal, immoral, fraudulent, egregious, or bad faith acts of an owner.9 The courts have long emphasized that Fla. Const. art. X, §4(a)(1) must be strictly followed10 and liberally construed in favor of protecting the family’s home from forced sale.11 Florida’s homestead exemption grants nearly absolute protection from forced sale from claims of creditors, except in three limited circumstances: 1) payment of taxes and assessments owed to state or local governments ( e.g., real property taxes); 2) obligations contracted for the purchase, improvement, or repair of real property ( e.g., mortgage pledge); 3) obligations contracted with persons to repair or improve real property for materials and labor performed ( e.g., construction liens).12
Homestead exemption from forced sale can only be lost if the homeowner permanently abandons its use as a residence.13 Failure to reside in the residence once occupied by the owner does not necessarily constitute abandonment. Even if a homeowner temporarily leaves his or her residence, the homestead exemption from forced sale remains intact.14 If a homeowner leaves his or her home due to economic, health, or family reasons, he or she will not be considered to have permanently abandoned the homestead.15
When an individual is compelled to move from his or her homestead after an unsafe structures board adjudicates a lien and accordingly files a foreclosure action, this should not amount to permanent, voluntary abandonment.16 Even if the homestead unsafe structure is demolished, the homestead status of the land should remain intact because the homeowner was required to leave, and he or she did not intend to permanently abandon the home. When a creditor questions an owner’s homestead exemption, a verified notice of homestead should be filed by the owner in the public records. An action seeking a declaratory judgment should be filed in court alleging that the residence and its land is homestead and exempt from forced sale.17
There is no express statute prohibiting foreclosure of a lien on homestead realty when an unsafe structures board enters an order and a lien is recorded. However, F.S. §162.09(3) expressly prohibits enforcement and foreclosure of a code enforcement lien on homestead real property under Fla. Const. art. X, §4(a).18 Even if F.S. §162.09(3) was silent about homestead protection from forced sale, a local government cannot foreclose a code enforcement lien, because it does not fall within one of the three limited exceptions of Fla. Const. art. X, §4(a). Although the FBC, as amended, and local government code provisions are silent about homestead protection from an unsafe structures lien,19 this activity should not fall within one of the three exemptions of Fla. Const. art. X, §4(a).
Special Assessments: History and Background
Statutory authority for municipalities to impose special assessments is currently located in F.S. Ch. 170. Special assessments have been revenue producers in Florida since the early 20th century and were limited to capital expenditures that enhanced the value of benefited properties for installation of public functions, facilities, and infrastructure.20 Later decisions by the courts expanded the use of special assessments to include service assessments to plan, construct, and operate public facilities and functions benefiting specific real property in a special district.21
A special assessment has been defined as a fair and reasonably apportioned charge against specific real property of a particular district which derives a direct and special benefit from local government expenditures for construction and operation of a public function, facility, or infrastructure.22 F. S. Ch. 170 authorizes local governments to assess real property, “only on benefited real property at a rate of assessment based on the special benefit accruing to such property from such improvements when the improvements funded by the special assessment provide a benefit which is different in type or degree from benefits provided to the community as a whole.”23 this chapter also provides that these provisions are “supplemental, additional, and [an] alternative method of procedure for the benefit of all cities, towns, and municipal corporations of the state….”24 The procedure for imposition of a special assessment must be strictly followed, or a challenge by affected real property owners may be successful.25 A special assessment must confer a specific benefit on the portion of the community burdened in a special district, or it will constitute an invalid ad valorem tax.26
Requisites, Funding, and the “Logical Relationship” Test
Florida courts have attempted to define what may be funded by a special assessment, but their holdings result in uncertainty. The decisions suggest that fire protection services, rescue services, waste and recycling services, solid waste disposal, and storm water services may be funded by a special assessment, as long as these expenditures are fairly and reasonably apportioned among specifically benefited property of a special district.27 Funding improvements to subdivision district entrances, boundaries for new signs, landscaping, street lighting, security guardhouse and gate, community walls, security guard services used to supplement police services and provide neighborhood crime watch, and off duty police patrols are permitted special assessments if provided for specially benefited district real property.28 On the other hand, services for general and enhanced law enforcement activities, the provision of the courts, indigent health care and hospital services, emergency medical services (EMS), code enforcement, an interim government services fee to recoup costs for services to newly developed property, and a citywide assessment for maintenance of streets and ongoing expenses of local street maintenance are personal benefits to individuals. The courts have stated that such general sovereign activity fails to confer a direct benefit to specific district land, and, therefore, such expenditures constitute an unlawful ad valorem tax.29
The Florida Supreme Court has adopted the “logical relationship” test between a local government’s expenditures and any benefit to assessed real property in a special district. In City of North Lauderdale v. SMM Properties, Inc. , 825 So. 2d 343 (Fla. 2002), the high court concluded that EMS provided by a city did not confer a special benefit to real property, and, therefore, the special assessment for those services was an invalid ad valorem tax clothed as a special assessment. In reaffirming the “logical relationship” test, the high court stated that a tax need not provide any specific benefit to real property because it is used to carry out a function of a local government for the general benefit of residents’ real property and the community at large. On the other hand, a special assessment is charged to specific district real property and is supposed to provide a unique, specific benefit to land burdened by an assessment.30
The principles emanating from the Florida Statutes and court decisions suggest that there are four requirements for a special assessment. First, there must be a “special benefit” to assessed real property in a special district. Second, the assessment must be “fair and reasonably apportioned” among benefited properties. Third, funding must be applied to public functions, facilities, or infrastructure. Fourth, findings must be made during the enactment process that specify how real property will be benefited, including any potential increase in value and enhancement of the land benefited.31
Enhancement in Value of Real Property in a Special District
Every local government function benefits the use and enjoyment of real property, but the question is how much?32 It is generally assumed that repair or demolition of an unsafe structure will make real property more valuable and marketable.33 But it is virtually impossible to say how much, if any, benefit is provided from government activity. Can a local government claim that eliminating an unsafe structure enhances the subject real property as well as neighboring realty, and if so, prorate a fair and reasonable special assessment to specific lots in a district?34
Repair and demolition of an unsafe structure is a normal and routine function of a local government. Such activity does not necessarily improve actual use, enjoyment, and value of real property.35 Even if a local government enacts a resolution or ordinance prorating expenditures to a lot or lots in a district, there must still be proof of a logical relationship between expenditures for repair or demolition of an unsafe structure and any benefit. This can only be accomplished after studies and supporting data are evaluated suggesting that expenditures benefit real property, or the local commission’s activity could be considered an arbitrary and unlawful tax.36 Even if it can be shown that there is a logical relationship between expenditures to repair and demolish an unsafe structure, there must still be a benefit to the property and enhancement in its value. Likewise, before a community redevelopment agency (CRA) is identified and established, there are hearings and research studies to determine their community benefit.37 If a special assessment is enacted, a local government will have to ascertain if the subject lot or district real property benefits from repair or demolition of an unsafe structure and how much.38
Some concerns have to be addressed, and they include the geographic size and identification of an affected special district, measurement of any benefit to neighboring district real property, provisions to fairly prorate expenditures to applicable lots, and any increase in value to a particular lot and neighboring lots as a result of repair and demolition of an unsafe structure.39 Local government and neighboring real property experts may be asked to hypothesize on the effect of repair or demolition of an unsafe structure on a particular lot and neighboring real property. A battle of costly experts could result in diverse and conflicting opinions to questions concerning increased, status quo, or lower real property values, the size of any affected geographic area, and pro rata costs and apportionment among benefited lots.40
Evaluating Appropriateness of an Ordinance and Resolution
A local government cannot enact an ordinance or resolution by arbitrarily deciding that certain activity will specially benefit real property if the benefit is unknown.41 Even if a local government’s code provides that repair or demolition of an unsafe structure enhances the real property’s value, there must still be quantifiable evidence that the designated real property will be specially benefited.42 An ordinance or resolution without more than an inference or assumption of a special benefit on real property may constitute an unlawful tax and be a violation of the Florida Statutes.43
Public Purpose and Facility Doctrine
In Kelo v. Town of New London, 545 U.S. 469 (2005), the Supreme Court approved the use of eminent domain under the U.S. Constitution to promote economic development as a public purpose when a local government as part of a comprehensive economic plan of development condemns private property to transfer it to a private party to enhance the local government’s tax base and provide jobs. There is a parallel between eminent domain and special assessment principles, because both encompass use of local government revenue for public purposes and functions.44 Is repair or demolition of a private unsafe structure considered a public purpose and function if it is funded by a special assessment? Local government expenditures to eliminate an unsafe structure relate to public funding of a private activity in a private neighborhood. F.S. Ch. 170 and court decisions permit a special assessment for capital costs and services to construct and improve public functions, facilities, and infrastructure activities of a special district.45 A local government may argue that repair or demolition of an unsafe structure will increase a local government’s tax base, or enhance the value and marketability of district real property,46 But such a conclusion without careful investigation and research studies is guesswork.
Kelo held that condemning private property to enhance a local government’s tax base by enhancing the value of the condemned and nearby real property as part of a comprehensive economic plan of development is a public purpose.47 A goal of a special assessment and eminent domain is to eliminate “blight” and rid neighborhoods of deteriorating and unsafe structures that can lead to economic distress and endanger quality of life. It is a stretch, however, to conclude that repair or demolition of a private unsafe structure constitutes a public function or purpose. There is nothing in F.S. Ch. 170 and court decisions permitting a special assessment on only one lot or neighboring district real property when an unsafe structure has been repaired or demolished. These statutes permit special assessments against benefited real property, as long as the expenditures involve public functions, facilities, and infrastructure.48
Enacting a Special Assessment for Expenditures to Repair and Demolish an Unsafe Structure
A local government can argue that a special assessment is permissible for repair and demolition expenditures of an unsafe structure on account of enacted code provisions.49 It must be established, however, that expenditures benefit specific real property and are used for public facilities, functions, or infrastructure. A local government must also demonstrate that the assessment is fairly apportioned among benefited properties, and that repair and demolition increases the value of the lot and neighboring lots.50 Many local governments have specifically amended their own special assessment code provisions concerning the repair and demolition of unsafe structures, but they have failed to specifically state necessary elements to sustain enforcement of the code provisions.51 Whether unsafe structure expenditures are subject to special assessments is open to question. F.S. Chs. 170 and 197 and the case law raise questions about the legitimacy of special assessments in unsafe structures. If a local government’s resolution or ordinance is found to be legitimate, a special assessment should be valid against unsafe structure homestead and nonhomestead realty alike.52 On the other hand, if not lawful, then a special assessment will constitute an unlawful tax, and no enforcement proceeding through foreclosure can be filed.53
Conclusion
The FBC as amended and local government code provisions provide for liens on repaired or demolished unsafe structures without specifically excluding them from Florida’s homestead exemption from forced sale. Fla. Const. art X, §4(a)(1) cannot be avoided by enactment of a code provision that provides for a lien on an unsafe structure that is homestead. The silence of local government code provisions should not be relied upon to permit a forced sale of homestead real property encumbered by a lien.
Special assessments are strictly limited by F.S. Ch. 170 and 197 and court decisions. Yet local governments have adopted amendments to the FBC, and many have enacted their own code provisions by labeling expenditures to repair and demolish an unsafe structure a special assessment. If these special assessments are illegitimate, then they will constitute an unlawful ad valorem tax, making foreclosure of liens on homestead real property invalid. Questions remain whether a local government can enact a special assessment to fund expenditures to repair and demolish an unsafe structure. These include whether such expenditures specially benefit and increase the value of specific and district real property; whether the special assessment provides a public function and purpose; and whether public funding can be applied to rid neighborhoods of private unsafe structures.
1 See Florida Building Code (FBC) (2007), http://www.floridabuilding.org/BCISOld/bc/default.asp; FBC (2007), Broward County Amendments, §115.1 (2009), http://www.broward.org/CodeAppeals/Documents/2007chapter1.pdf and http://www.broward.org/CodeAppeals/Pages/AmendmentsFormalInterpretations.aspx.; Fla. Stat. §§553.70 – 553.898 (2009). The FBC provides for a valuation criteria. If completion, alteration, repair, and/or replacement of an unsafe building or structure are greater than 50 percent of its value, then demolition is required. If the cost of structural repair exceeds 33 percent of the structural value, then such building must be demolished. FBC, Broward County Amendments, §115.2.2.2 (2009); Edco Enterprises, Inc. v. Metropolitan Dade County Unsafe Structures Board, 458 So. 2d 18 (Fla. 3rd D.C.A. 1984). The FBC is part of the Florida Administrative Code adopted through rulemaking governed by
Fla. Stat. Ch. 120. The adoption of the FBC by the Florida Building Commission as a rule is mandated by the Florida Legislature. The FBC went into effect automatically when the 2007 edition became effective on March 1, 2009. Local governments do not need to adopt the code locally. FBC (2007), http://www2.iccsafe.org/states/florida_codes/; FBC, Broward County Amendments (March 1, 2009), http://broward.org/codeappeals/2007chapter1.pdf. Florida law allows the Board of Rules and Appeals of a local government to make changes in the FBC, which results in equal or greater, not less restrictive, public safety and welfare. See Fla. Stat. §553.73(4)(a)(b) (2009).
2 Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838 (Fla. 2001); DeGroot v. Sheffield, 95 So. 2d 912 (Fla. 1957).
3 FBC, Broward County Amendments §§115.1–115.15 (2009); Miami-Dade County v. Wilson, 44 So. 3d 1266 (Fla. 3d D.C.A. 2010); Goodman v. Metropolitan Dade County Unsafe Structures Board, 480 So. 2d 217 (Fla. 3d D.C.A. 1985); Edco Enterprises, Inc. v. Metropolitan Dade County Unsafe Structures Board, 458 So. 2d 18 (Fla. 3d D.C.A. 1984).
4 FBC, Broward County Amendments §115.10.4 (2009).
5 Broward County Amendments §115.11 FBC (2009). Local government ordinances provide for foreclosure of real property if an unsafe structures lien is recorded and remains unpaid. E.g. art. II, §18-35, City of Sanford (2009); art. VI, Division 2, §§9-258-260, City of Fort Lauderdale (2009); art. II Property Standards. §8-24, City of Dania Beach; Ch. 5, art. 3, §5-112, City of Plantation (2009); see also City of Panama City v. Head , 797 So. 2d 1265, 1267 (Fla. 1st D.C.A. 2001). The reader can review Municode.com, Multiple Code Search Service (2010), http://www.municode.com/resources/code_list.asp?stateID=9. Florida local government ordinances can be reviewed to determine what remedies exist to collect the lien amount.
6 The FBC, as amended and adopted by local jurisdictions and their ordinances, is based on a national model building code (International Building Code) and national standards, which can be adopted or amended by local jurisdictions to meet local and prevailing administrative necessities and standards. See The Florida Department of Community Affairs Building Code Information System, Building Codes, available at http://www.floridabuilding.org/BCISOld/bc/default.asp; Florida Building Commission Local Amendments to the 2007 Florida Building Code, available at http://www.dca.state.fl.us/fbc/local_amendments/2007_Local_Amendments/2007_Local_Amendments.htm. Many local governments use lien and special assessment interchangeably. E.g., art. III, §16-55 City of Ft. Pierce (2009); §§19-128 and 19-129 (b), City of Tampa (2009); Ch. 5, art. 3, §5-112, City of Plantation (2009); §§2-303(b), and 2-304, City of Vero Beach (2009); §18-35, City of Sanford (2009); §40-16, City of Port St. Lucie (2009); §§518.518.302 and 518.306, City of Jacksonville (2009); Ordinance No. 2009-4155, City of Sanford (2009). The reader can review Municode.com Multiple Code Search Service, 2010, available at http://www.municode.com/resources/code_list.asp?stateID=9. This is where local government ordinances can be reviewed to determine which local governments interchangeably use lien and special assessment.
7 Fla. Const. art. X, §4(a)(1) provides three exemptions from forced sale, and a tax and assessment on homestead real property is subject to forced sale upon nonpayment.
8 City of Panama City v. Head, 797 So. 2d 1265, 1267 (Fla. 1st D.C.A. 2001).
9 Havoco of America v. Hill, 790 So. 2d 1018 (Fla. 2001); Ilkanic v. City of Fort Lauderdale, 705 So. 2d 1351 (Fla. 1998); Stewart v. Tramel, 697
So. 2d 821 (Fla. 1997); Butterworth v. Caggiano, 605 So. 2d 56 (Fla. 1992); State v. Robinson, 343 So. 2d 35 (Fla. 1974); Quigley v. Kennedy & Ins., Inc., 207 So. 2d 431 (Fla. 1968); Robbins v. Robbins, 360 So. 2d 10 (Fla. 2d D.C.A. 1978).
10 Chames v. Demayo, 972 So. 2d 850 (Fla. 2007); Havoco of America v. Hill, 790 So. 2d 1018 (Fla. 2001); Ilkanic v. City of Fort Lauderdale, 705 So. 2d 1351 (Fla. 1998); Stewart v. Tramel, 697 So. 2d 821 (Fla. 1997); Butterworth v. Caggiano, 605 So. 2d 56 (Fla. 1992); State v. Robinson, 343 So. 2d 35 (Fla. 1974); Quigley v. Kennedy & Ins., Inc., 207 So. 2d 431 (Fla. 1968); Robbins v. Robbins, 360 So. 2d 10 (Fla. 2d D.C.A. 1978).
11 Fla. Const. art. X, §4(a)(1) (2009). Florida’s homestead exemption protection is intended to prevent families from losing their homes on account of unpaid debts. See Hill v. First National Bank of Marianna, 75 So. 614 (Fla. 1917); Milton v. Milton, 58 So. 718 (1912); Palmer v. Palmer, 47 Fla. 200, 35 So. 983 (1904); Miller v. Finegan, 26 Fla. 29, 7 So. 140 (1890); Drucker v. Rosenstein, 19 Fla. 191 (1882); Davis v. Davis, 864 So. 2d 458 (Fla. 1st D.C.A. 2003); Bank Leumi v. Lang, 883 F. Supp. 883 (S.D. Fla. 1995).
12 Fla. Const. art. X, §4(a)(1) (2009).
13 Whether property is homestead is an issue of fact. See Hillsborough Inv. Co. v. Wilcox, 13 So. 2d 448, 452 (Fla. 1943); Barton v. Oculina Bank, 26 So. 3d 640 (Fla. 4th D.C.A. 2010). Similarly, the issue of abandonment is a question of fact. Decisions have held that permanent abandonment of homestead does not occur where an owner involuntarily changes his or her residence caused by infirmity or a court order. See City of Jacksonville v. Bailey, 30 So. 2d 529 (Fla. 1947); Saint-Gaudins v. Bull, 74 So. 2d 693 (Fla. 1954); Cain v. Cain, 549 So. 2d 1161 (Fla. 4th D.C.A. 1989); McGann v. Halker, 530 So. 2d 440 (Fla. 3d D.C.A. 1988); In re Estate of Melisi, 440 So. 2d 584 (Fla. 4th D.C.A. 1983); Dean v. Heimbach, 409 So. 2d 157 (Fla. 1st D.C.A. 1982); Marsh v. Hartley, 109 So. 2d 34 (Fla. 2d D.C.A. 1959).
14 See Saint-Gaudins v. Bull, 74 So. 2d 693 (Fla. 1954); City of Jacksonville v. Bailey, 30 So. 2d 529 (Fla. 1947); Semple v. Semple,
89 So. 638
(1921); Novoa v. Amerisource Corp., 860 So. 2d 506 (Fla. 3d D.C.A. 2003); Cain v. Cain, 549 So. 2d 1161 (Fla. 4th D.C.A. 1989); McGann v. Halker, 530 So. 2d 440 (Fla. 3d D.C.A. 1988); In re Estate of Melisi, 440 So. 2d 584 (Fla. 4th D.C.A. 1983); Dean v. Heimbach, 409 So. 2d 157 (Fla. 1st D.C.A. 1982); In re: Estate of Ritter, 407 So. 2d 386 (Fla. 3d D.C.A. 1981); Poppell v. Padrick, 117 So. 2d 435 (Fla. 2d D.C.A. 1959); Marsh v. Hartley, 109 So. 2d 34 (Fla. 2d D.C.A. 1959). In the bankruptcy context, see Matter of Betancourt, 154 B.R. 90 (S.D. Fla. 1993); In re Imprasert, 86 B.R. 721 (M.D. Fla. 1988). For a discussion of exceptions to Florida’s Homestead Exemption, see Barry A. Nelson & Kevin E. Packman, Florida’s Unlimited Homestead Exemption Does Have Some Limits, Part I, 77
Fla. B. J. 60 (Jan. 2003).
15 In re Herr, 197 B.R. 939 (S.D. Fla. 1996); Nelson & Packman, Florida’s Unlimited Homestead Exemption Does Have Some Limits, Part I, 77
Fla. B. J.
60 (Jan. 2003).
16 See Saint-Gaudins v. Bull, 74 So. 2d 693 (Fla. 1954); City of Jacksonville v. Bailey, 30 So. 2d 529 (Fla. 1947); Cain v. Cain, 549 So. 2d 1161 (Fla. 4th D.C.A. 1989); McGann v. Halker, 530 So. 2d 440 (Fla. 3d D.C.A. 1988); In re Estate of Melisi, 440 So. 2d 584 (Fla. 4th D.C.A. 1983); Dean v. Heimbach, 409 So. 2d 157 (Fla. 1st D.C.A. 1982); Marsh v. Hartley, 109 So. 2d 34 (Fla. 2d D.C.A. 1959).
17 Fla. Stat. §222.01 (2009) provides a manner to establish homestead for purposes of debt protection prior to a levy, and
Fla. Stat. §222.02 (2009) provides for filing of an affidavit to establish homestead for purposes of debt protection after a levy has been made. See Schaller v. Bruce N. Balk, A.I.A., P.A., 708 So. 2d 299 (Fla. 2d D.C.A. 1998).
18 See Fla. Stat. §162.09 (3) (2009). Code enforcement liens are not one of the specified exceptions of
Fla. Const. art. X, §4 (a)(1) (2009). Mathieu v. City of Lauderdale Lakes , 961 So. 2d 363 (Fla. 4th D.C.A. 2007); Pelacanos v. City of Hallandale Beach , 914 So. 2d 1044 (Fla. 4th D.C.A. 2005); Miskin v. City of Ft. Lauderdale , 661 So. 2d 415 (Fla. 4th D.C.A. 1995); Demura v. County of Volusia , 618 So. 2d 754 (Fla. 5th D.C.A. 1993).
19 At least one local government ordinance provides that an owner’s failure to comply with code enforcement violations and unsafe structure remedies will constitute a special assessment lien for costs incurred by the local government that may result in loss of title to homestead property. See Ar. II, §40.16, City of Port St. Lucie (2009). In light of Florida law, enforcing this ordinance to homestead property is questionable. See Fla. Const. art. X, §4(a)(1) (2009);
Fla. Stat. §162.09(3) (2009); and the case law cited in this article.
20 See Lake County v. Water Oak Management Corp., 695 So. 2d 667 (Fla. 1997); Harris v. Wilson, 693 So. 2d 945 (Fla. 1997); Sarasota County v. Sarasota Church of Christ, Inc., 667 So. 2d 180 (Fla. 1996); Kurt Spitzer, Establishing a Stormwater Utility in Florida, Ch. 2.4 Special Assessments, Florida Stormwater Association (2003), available at http://www.florida-stormwater.org/manual/chapter2/2-4.html and http://www.florida-stormwater.org/manual.html.
21 Id.
22 City of Boca Raton v. State, 595 So. 2d 25 (Fla. 1992). The terms “special assessment,” “non-ad valorem assessment,” and “assessment” have equivalent meanings, and local governments use them interchangeably.
Fla. Stat. §170.01 (2009) authorizes special assessments for construction or repair of streets, sidewalk, lighting, landscaping, greenbelts, swales, culverts, sewers, drainage structures, water supply systems, parks, recreational facilities, and other infrastructure. See Kurt Spitzer, Establishing a Stormwater Utility in Florida, Ch. 2.4 Special Assessments, Florida Stormwater Association (2003), available at http://www.florida-stormwater.org/manual/chapter2/2-4.html and http://www.florida-stormwater.org/manual.html.
23 Fla. Stat. §§170.01(2) and 170.02 (2009). Ch. 170 provides for a special assessment on benefited property to recover capital costs of constructing, improving, or maintaining public facilities and functions, such as streets, roads, alleys, public sidewalks and lighting, drainage, water and sewer facilities, parks and other public recreational facilities, seawalls, mass transportation, off-street parking, utilities relocation, among other public infrastructure.
24 Fla. Stat. §170.21 (2009).
25 Harris v. Wilson, 693 So. 2d 945 (Fla. 1997); Sarasota County v. Sarasota Church of Christ, Inc., 667 So. 2d 180 (Fla. 1995); Fisher v. Board of County Com’rs of Dade County, 84 So. 2d 572 (Fla. 1956); City of Miami Beach v. Adams, 153 So. 85 (Fla. 1934); Nelson v. Wakulla County, 905 So. 2d 936 (Fla. 1st D.C.A. 2005); Hanna v. City of Palm Bay, 579 So. 2d 320 (Fla. 4th D.C.A. 1991).
Fla. Stat. §§197.3632(1)(d) and 197.3635 (2009) require local governments to publish notice, adopt a resolution at a public hearing that states why the levy is necessary, and include a legal description of the property subject to the levy. In one instance, City of Port St. Lucie v. Zlinkoff, 821 So. 2d 1130 (Fla. 4th D.C.A. 2002), challenging parties were entitled to receive a retroactive refund of their assessments for all years in which inadequate notice of assessments were given by the local government. See also Rafkin v. City of Miami Beach, 38 So. 2d 836 (Fla. 1949); City of Ft. Myers v. State, 95 Fla. 704, 117 So. 97 (1928); Atlantic Gulf Communities Corp. v. City of Port St. Lucie, 764 So. 2d 14 (Fla. 4th D.C.A. 1999). On the other hand, if a special assessment is not timely challenged, waiver and estoppel principles can apply precluding assessed owners from challenging a questionable special assessment. See City of Treasure Island v. Strong, 215 So. 2d 473 (Fla. 1968).
26 Id. Special assessments by municipalities having home rule authority are not restricted to the statutory procedure in Ch. 170 for imposing special assessments. Local governments can enact their own special assessments by local ordinance. In apportioning “benefits” against assessed properties for expenditures of a special district, the local government can charge the assessed property on account of the special assessment activity with an incremental increase. This manner of financing is similar to Tax Increment Financing (TIF), which is employed by local governments for redevelopment purposes. See Fla. Stat. §§163.330–163.450 (2009). Florida counties have statutory authority under the provisions of
Fla. Stat. §125.01(1)(q) (2009). Local government municipalities and counties depend on such powers for special assessments pursuant to
Fla. Const. art. VIII, §2 (2009), and charter counties have such powers under
Fla. Const. art. VIII, §1(g)(2009). Noncharter counties have broad powers established by the state legislature under Chapter 125 of the Florida Statutes that include the power to enact special assessments. Harris v. Wilson, 693 So. 2d 945 (Fla. 1997); City of Boca Raton v. State, 595 So. 2d 25 (Fla. 1992); Kurt Spitzer, Establishing a Stormwater Utility in Florida, Ch. 2.4 Special Assessments, Florida Stormwater Association (2003), available at http://www.florida-stormwater.org/manual.html and http://www.florida-stormwater.org/manual/sitemap.html.
27 Lake County v. Water Oak Management Corp., 695 So. 2d 667 (Fla. 1997); Harris v. Wilson, 693 So. 2d 945 (Fla. 1997); Sarasota County v. Sarasota Church of Christ, Inc. , 667 So. 2d 180 (Fla. 1995); Workman Enters., Inc., v. Hernando County, 790 So. 2d 598 (Fla. 5th D.C.A. 2001); Sockol v. Kimmins Recycling Corp., 729 So. 2d 998 (Fla. 4th D.C.A. 1999).
28 See Quietwater Entertainment, Inc. v. Escambia County, 890 So. 2d 525 (Fla. 1st D.C.A. 2005); Rushfeldt v. Metropolitan Dade County, 630 So. 2d 643, 644-5 (Fla. 3d D.C.A. 1994).
29 City of North Lauderdale v. SMM Props., Inc. , 825 So. 2d 343 (Fla. 2002); Collier County v. State, 733 So. 2d 1012 (Fla. 1999); State v. City of Port Orange, 650 So. 2d 1 (Fla. 1994); Fisher v. Board of County Com’rs of Dade County, 84 So. 2d 572 (Fla. 1956); Whisnant v. Stringfellow, 50 So. 2d 885 (Fla. 1951); Crowder v. Phillips, 1 So. 2d 629 (Fla. 1941); Desiderio Corporation v. City of Boyton Beach, 39 So. 3d 487, 494 (Fla. 4th D.C.A. 2010); Donnelly v. Marion County, 851 So. 2d 256 (Fla. 5th D.C.A. 2003); Hanna v. City of Palm Bay, 579 So. 2d 320 (Fla. 5th D.C.A. 1991).
30 City of North Lauderdale v. SMM Properties, Inc., 825 So. 2d 343, 350 (Fla. 2002); Sarasota County v. Sarasota Church of Christ, Inc. , 667 So. 2d 180 (Fla. 1995).
31 Citizens Advocating Responsible Environmental Solutions, Inc. v. City of Marco Island, 959 So. 2d 203 (Fla. 2007); City of North Lauderdale v. SMM Properties, Inc. , 825 So. 2d 343 (Fla. 2002); Lake County v. Water Oak Management Corp., 695 So. 2d 667 (Fla. 1997); Harris v. Wilson, 693 So. 2d 945 (Fla. 1997); Sarasota County v. Sarasota Church of Christ, Inc., 667 So. 2d 180 (Fla. 1995); Water Oak Management Corp. v. Lake County, 673 So. 2d 135 (Fla. 1997); City of Boca Raton v. State, 595 So. 2d 25 (Fla. 1992); Atlantic Coast Line R.R. v. City of Gainesville, 83 Fla. 275, 91 So. 118 (Fla. 1922); Desiderio Corporation v. City of Boyton Beach, 39 So. 3d 487 (Fla. 4th D.C.A. 2010).
32 See Meyer v. City of Oakland Park, 219 So. 2d 417 (Fla. 1969 ); City of Ft. Myers v. State, 95 Fla. 704, 117 So. 97 (1928); Donnelly v. Marion County, 851 So. 2d 256 (Fla. 5th D.C.A. 2003).
33 Donnelly v. Marion County, 851 So. 2d 256, 265-6 (Fla. 5th D.C.A. 2003).
34 See Fla. Stat. §170.02 (2009). See also Ocean Beach Hotel Co. v. Town of Atlantic Beach, 2 So. 2d 879 (Fla. 1941); Atlantic Coast Line R. Co. v. City of Lakeland, 115 So. 2d 669 (1927); City of Hallandale v. Meekins, 237 So. 2d 318 (Fla. 4th D.C.A. 1970), adopted 245 So. 2d 252 (Fla. 1971); Donnelly v. Marion County, 851 So. 2d 256, 265-6 (Fla. 5th D.C.A. 2003).
35 See City of Panama City v. Head, 797 So. 2d 1265, 1268 (Fla. 1st D.C.A. 2001); Donnelly v. Marion County, 851 So. 2d 256 (Fla. 5th D.C.A. 2003).
36 City of North Lauderdale v. SMM Properties, Inc. , 825 So. 2d 343 (Fla. 2002); Fisher v. Board of County Com’rs of Dade County, 84 So. 2d 572 (Fla. 1956); Atlantic Coast Line R. Co. v. City of Lakeland, 115 So. 669 (Fla. 1927).
37 Fla. Stat. §§163.330-163.450 (2009) grants local governments the power to set up redevelopment agencies in their community and TIF.
38 See Fla. Stat. §§170.01 (2), 170.02, 170.03, and 170.04 (2009).
39 Donnelly v. Marion County, 851 So. 2d 256, 265-6 (Fla. 5th D.C.A. 2003); Hanna v. City of Palm Bay, 579 So. 2d 320 (Fla. 4th D.C.A. 1991).
40 City of Treasure Island v. Strong, 215 So. 2d 473 (Fla. 1968); Rafkin v. City of Miami Beach, 38 So. 2d 836 (Fla. 1949); Fisher v. Board of County Com’rs of Dade County, 84 So. 2d 572 (Fla. 1956); Blake v. City of Tampa, 156 So. 97 (Fla.1934); City of Ft. Myers v. State, 95 Fla. 704, 117 So. 97 (Fla. 1928); Desiderio Corporation v. City of Boyton Beach, 39 So. 3d 487, 496 (Fla. 4th D.C.A. 2010); Donnelly v. Marion County, 851 So. 2d 256, 265-6 (Fla. 5th D.C.A. 2003); Hanna v. City of Palm Bay, 579 So. 2d 320 (Fla. 5th D.C.A. 1991); Hallandale v. Meekins, 237 So. 2d 318 (Fla. 4th D.C.A. 1970), adopted 245 So. 2d 252 (Fla. 1971).
41 Fla. Stat. §§170.03 and 170.04 (2009).
42 Fisher v. Board of County Com’rs of Dade County, 84 So. 2d 572 (Fla. 1956); Rafkin v. City of Miami Beach, 38 So. 2d 836 (Fla. 1949); Blake v. City of Tampa, 156 So. 97 (Fla.1934); Donnelly v. Marion County, 851 So. 2d 256, 265-6 (Fla. 5th D.C.A. 2003); Hanna v. City of Palm Bay, 579 So. 2d 320 (Fla. 5th D.C.A. 1991); Hallandale v. Meekins, 237 So. 2d 318 (Fla. 4th D.C.A. 1970), adopted 245 So. 2d 252 (Fla. 1971).
43 Atlantic Coast Line R. Co. v. City of Gainesville, 91 So. 118 (Fla. 1922).
44 Stockman v. City of Trenton, 181 So. 383 (1938); City of Miami Beach v. Adams, 153 So 85 (1934). Florida Statutes and court decisions provide that a local government can enact a special assessment if expenditures are made for a public function or facility benefiting specific real property that is fairly and reasonably apportioned.
Fla. Stat. §170.01 (2009); City of North Lauderdale v. SMM Properties, Inc., 825 So. 2d 343 (Fla. 2002 ) ; Lake County v. Water Oak Management Corp., 695 So. 2d 667 (Fla. 1997); Water Oak Management Corp., v. Lake County, 673 So. 2d 135 (Fla. 1997); City of Boca Raton v. State, 595 So. 2d 25 (Fla. 1992); Atlantic Coast Line RR v. City of Gainesville, 91 So.118 (1922). Similarly, eminent domain requires a public purpose and function. Kelo v.Town of New London, 545 U.S. 469 (2005);
Fla Stat. §§73.013, 73.014, 163.335 (7), and 163.340 (7)(8)(9)(10) (2009);
Fla. Const. amend. X, §6 (2009). Both a special assessment and eminent domain require a public purpose and function for the use of public funds. Both require strict compliance with the Florida Statutes.
45 Fla. Stat. §170.01 (2009); Stockman v. City of Trenton, 181 So. 383 (Fla. 1938); City of Miami Beach v. Adams, 153 So. 85 (Fla. 1934); Atlantic Coast Line RR v. City of Gainesville, 91 So. 118 (Fla. 1922). See also Attorney General Opinion 2006-45; Attorney General Opinion 1999-40; Attorney General Opinion 1994-87. Thus, if removal of an unsafe structure constitutes a public purpose and improvement and is specifically provided for by the Florida Statutes, then costs may be specially assessed against the demolished unsafe structure and neighboring real property. On the other hand, if demolition only benefits the subject real property containing the unsafe structure, then no special assessment should be permitted, as there is no public purpose or function.
46 Id. Donnelly v. Marion County, 851 So. 2d 256 (Fla. 5th D.C.A. 2003).
47 Kelo v. Town of New London, 545 U.S. 469 (2005).
48 Fla. Stat. §§170.01, 170.02, 170.03 (2010); Harris v. Wilson, 693 So. 2d 945 (Fla. 1997); Sarasota County v. Sarasota Church of Christ, Inc., 667 So. 2d 180 (Fla. 1995); Fisher v. Board of County Com’rs of Dade County, 84 So. 2d 572 (Fla. 1956); City of Miami Beach v. Adams, 153 So. 85 (Fla. 1934); Hanna v. City of Palm Bay, 579 So. 2d 320 (Fla. 4th D.C.A. 1991).
49 FBC, 2007; FBC, Broward County Amendments, §115.1 (2009);
Fla. Stat. §§553.70 – 553.898 (2009);
Fla. Stat. §170.21 (2008).
50 Harris v. Wilson, 693 So. 2d 945 (Fla. 1997); City of Boca Raton v. State, 595 So. 2d 25 (Fla. 1992); Fla. Stat. §§170.01 and 170.02 (2009).
51 See art. IV. §1-4.1 City of Casselberry (2009); art. III, §16-55, City of Fort Pierce (2009); art. III, §16-55, City of Fort Pierce (2009); art. III, Ch. 5, Division 5. §5-112 City of Plantation (2009); Ch. 14, art. III, §§14-85, 14-86, City of Hallandale Beach; art. II, Property Standards; art. II, §8-24, City of Dania Beach (2009); art. VII, Division 3, §§2-303(b), 2-304, City of Vero Beach (2009); Part 3, Subpart A, §§518.102, 518.133, 518.30–304.308, City of Jacksonville (2009); art. II, Ch. 18, §§18-31–32, §§18-206 – 212, City of West Palm Beach (2010); art. II, Ch. 40, §§40-16 to 40-24, Port St. Lucie (2010); Ordinance No. 2009-4155, City of Sanford code (2009), available at http://www.sanfordfl.gov/media/pdf/community_improvement/ord_4155_20090203.pdf; art. II, §94-41, City of Miami Beach code (2010). If the reader is interested in a particular local government ordinance concerning unsafe structures and remedies for a lien or special assessment, see Municode.com, Multiple Code Search Service (2010), http://www.municode.com/resources/code_list.asp?stateID=9.
52 Sarasota County v. Sarasota Church of Christ, Inc. , 667 So. 2d 180, 186-188 (Fla. 1995); Meyer v. City of Oakland Park, 219 So. 2d 417 (Fla. 1969); Fisher v. Board of County Com’rs of Dade County, 84 So. 2d 572 (Fla. 1956); City of Ft. Lauderdale v. Carter, 71 So. 2d 260 (Fla. 1954).
53 Fla. Stat. §173.01 (2009); Harris v. Wilson, 693 So. 2d 945 (Fla. 1997); Fisher v. Board of County Com’rs of Dade County, 84 So. 2d 572 (Fla. 1956); City of Miami Beach v. Adams, 153 So. 85 (1934); Hanna v. City of Palm Bay, 579 So. 2d 320 (Fla. 4th D.C.A. 1991).
Harry M. Hipler is a sole practitioner in Dania Beach and practices primarily in the areas of local government law, family law, and commercial litigation. He received his J.D. in 1975 from the University of Florida, an LL.M. in taxation from the University of Miami in 1981, and a masters in urban and regional planning from Florida Atlantic University in 2007.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Brian J. Felcoski, chair, and William P. Sklar and Kristen Lynch, editors.
