Palm Beach Gardens Land Development Regulations

A clash between Palm Beach County and the city of Palm Beach Gardens over financing transportation projects came to a head this month after county commissioners considered a proposal that would have allowed the county administrator to place liens on land owned by developers whose county road impact fees hadn't been turned over by the city.

County officials say that as of November, they are out $1.5 million in impact fees, which should have been collected and remitted by the city on behalf of the county. They are concerned that more dollars could be directed away from the county as the city's mobility fee, similar to the impact fee, has been in effect for more than a year.

Since voters approved the measure in 1988, developers pay a road impact fee to the county, which in turn is spent on projects associated with growth in the development's region, such as expanding existing roads or building new ones. Palm Beach County has collected $32 million in impact fees from Palm Beach Gardens between 2003 and 2018 but spent $42 million on projects in the city, said County Administrator Verdenia Baker.

More:County says Gardens' mobility fee 'unlawful.' The city says it's following state law.

Palm Beach Gardens had been working toward its own fee system since 2017 and officially stopped collecting county impact fees in January 2020. The cost of the county's impact fee and the city's mobility fee are close. Instead of collecting impact fees for the county, Palm Beach Gardens collects mobility fees to be put toward transportation projects in its urban core, with an emphasis on non-vehicle travel like walking, biking or public transit.

The county believes the city is in violation of its land development code by withholding impact fees that should be paid to the county. The city claims the county is violating state law, which allows municipalities to enact their own mobility fee.

The county sent letters to developers who had not paid the county's impact fee over the past year and was successful in recouping almost $72,000. The builder with the highest fees, LTF Construction Company, paid Gardens $719,175 in mobility fees but had not paid the county $842,389 in impact fees, according to records.

Brian Seymour, an attorney for several developers who own land in Palm Beach Gardens, said the letter never offered a way for his clients to appeal the impact fee, and that a lien could have detrimental effects like not being able to get a construction loan or not being able to execute a lease.

"If (the county is) right, we'll pay. If the city doesn't have the money already and the court doesn't say they have to give it to you … they'll pay," Seymour said. "They're not saying they're not going to pay. But what we're saying is we already have."

Developers have to pay the mobility fee to get their permit from the city and feel the lien proposal effectively forces them to pay twice, said Michele Jacobs, president and CEO of the Economic Council of Palm Beach County.

"Makes no sense to drag the development community into this dispute," Jacobs said, adding the proposal to put a lien on land "potentially could create a black eye for Palm Beach County and could be seen as unfriendly to business."

Jack Weir, president of Eastwinds Development and developer of the 136-unit Solera at City Centre, said paying another $417,000 to the county in impact fees, after having paid the Gardens mobility fee, was "not anything we budgeted."

County impact fees vary between municipalities and project types. In Palm Beach Gardens, the road impact fee for a multi-family residence is $2,929 per unit. The city charges a mobility fee of $3,137 per apartment unit less than 1,000 square feet and $3,835 for apartments greater than 1,000 square feet.

"We were aware of the intergovernmental dispute. Our expectation was the dispute would be resolved," Weir said. "What's been proposed by staff is a blunt instrument and would do a lot of damage."

In a statement to The Palm Beach Post, the city called the proposal a "ploy by Palm Beach County to use the business community to pressure our city council into abandoning mobility (fees)."

"These liens are nothing more than a means by the county to extort the payment of their illegal road impact fees," city spokeswoman Candice Temple said. "We oppose this resolution because it is bad for economic development, bad for business and simply bad policy."

More:Palm Beach Gardens closer to implementing city mobility fee

County commissioners balked at the inference that they were the "bad guys" in the situation.

"We're here because (Palm Beach Gardens has) taken action that is not on solid legal ground to the detriment of each and every constituent, whether they live in Gardens or not," County Mayor Dave Kerner said. "While the business community doesn't want to be in the middle of it, don't forget who put you in the middle of it."

Commissioners tabled the proposal and asked staff to bring back alternative ways to resolve the issue at their April 6 meeting.

"Liening a property is the very last thing we ever want to do. That's not our focus," said County Administrator Verdenia Baker, adding that when she was impact fee manager, she never placed a lien on a property. "We have to preserve the right because if people decide not to pay, that's a whole other issue."

Formal talks between the two local governments have not made any headway, and officials repeatedly acknowledged that getting a judge involved would lead them to a definitive answer.

The city's attorney, R. Max Lohman, said the city wanted to "genuinely have a discussion about how to resolve it. And every time it happened, what we got back from the county staff was, it's our way or the highway."

"This is not going to go away until we have an answer on that," added Commissioner Maria Marino, whose district encompasses Palm Beach Gardens.

Marino supported the mobility fee while on the Gardens city commission, placing her at odds with her current colleagues.

"I would much rather see us resolve this on a countywide basis, rather than involve property owners. Our dispute is with the Gardens. It's not with developers. Let's have a partnership instead of litigating that will cost us millions of dollars," she said.

Commissioner Melissa McKinlay didn't support the lien proposal but wanted to protect dollars the county uses for transportation projects.

"The majority of their workers don't reside in Palm Beach Gardens. They're coming from outside that area," McKinlay said. "A golf cart path is really not going to be a sufficient transportation option, nor a shaded sidewalk. I'm all for shaded sidewalks, but let's be real: The type of transportation is going to benefit very few people."

Gleaning a sense of "lack of willingness … to move towards a resolution" from the city's attorney, Vice Mayor Robert Weinroth questioned why the county should push the discussion back if the resolution still remains far from reach.

"I'm not hearing anything, not one iota from you, that makes it sound like we're going to get any further along than we have in the last two years, that you are of a position, this is our right, this is our money, keep your hands off of it," Weinroth said. "And I don't hear any concession to that there's going to be some way of us figuring out  how we're going to build out a road system and doing mobility."

After a back-and-forth, Kerner attempted a last ditch effort to sway the city's attorney.

"You know how you get the business community out of this. You exclusively have the power to do that. Just send the money to the county," he told the city's attorney.

"That's not going to happen, respectfully. I don't mean to be trite," Lohman said. "I don't think that putting a lien on the private property is going to get you the money, because it's not going to force us to give you the money."

Note: In an earlier version of this story, the use of road impact fees was incorrectly stated. The story has been updated.

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Source: https://www.palmbeachpost.com/story/news/local/2021/03/17/county-and-gardens-warring-over-transportation-fees-developers/4641872001/

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