Palm Beach County’s lawsuit against Palm Beach Gardens over impact fees is in its fifth year and showing no signs of abating.
Case in point: The county submitted a voluminous public records request to the city asking for copies of nearly every building permit the city has issued over the past six years.
The city responded by saying that’s 90,000 documents. It would take an $81-an-hour worker 7.5 years to fulfill the request. The cost would be $1.2 million, payable up front.
The county dropped the request. But the issue didn’t die and the courtroom drama is only heating up.
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The lawsuit revolves around how government keeps up with traffic in Palm Beach County. Cities have been pushing to break the county’s grip over road-building, which dates to growth management measures enacted in the 1980s when growth outpaced roads and traffic jams were constant.
Cities want the freedom to ease local traffic nightmares with alternatives such as mass transit, bike paths and wider sidewalks.
The county resists diluting its revenue, saying developments in cities draw from a wide area, requiring a robust road network crossing city lines that only it can provide.
Palm Beach Gardens has led the cities’ fight, enacting its own road impact fee, called a mobility fee, in 2019. Starting in January 2020, the city stopped collecting the county’s road impact fee for projects in most parts of the city.
In May 2021, the county sued.
The county won the first skirmish in court three years ago, when Circuit Judge Paige Gillman issued a temporary injunction ordering Palm Beach Gardens to return to its past practice of collecting road impact fees on behalf of the county.
“The city is directed to instruct all developers … to submit their plans to the county within sixty (60) days … for assessment of county road impact fees and to collect such fees from those developers and remit them to the county,” Gillman wrote in her 24-page order.
After an appellate court upheld the ruling, the county in 2023 asked the city to turn over $3.1 million in impact fees collected since 2020. The city resisted, filing a motion with the court to clarify Gillman’s order.
By that time, Gillman (now Kilbane) had been promoted to the Fifth District Court of Appeal. In June, Circuit Judge James Sherman, newly assigned to the case, granted the city a two-hour hearing on the matter, scheduled for Aug. 11.
He also scheduled the full matter for trial in November.
County objects to city’s new mobility fee
In the intervening years, Gardens officials went to Tallahassee and lobbied for a law to shift control over impact fees from counties to cities. House Bill 479, passed in 2024, called for cities and counties to agree to a plan on how to share a single fee by October 2025 or face penalties.
With that law on the books, the city didn’t let the court’s injunction stop it from passing a new mobility fee encompassing the whole city in April and to stop collecting a separate county impact fee.
The money would go to some county projects but also to priorities established by the city, such as a recently completed roundabout on Campus Drive, a new sidewalk along Kyoto Gardens Drive and bike paths along Burns Road.
The county objected, saying the city’s mobility fees violated the court’s temporary injunction.
“It is the county position that with the court’s current injunction in place, prohibits the city from proceeding with its proposed action,” then-County Administrator Verdenia Baker wrote to the city in April.
City ‘has the right’ to alternative system
The city’s consultant, Jonathan Paul of Nue Urban Concepts, told the City Council on April 3 that the recent change in state law gave that power to the city.
“There’s been back and forth with the county for the past five years now,” Paul told the council.
Using a term related to the county’s collection of fees concurrently with development, he said, “The Legislature this past session came out very definitively and said, once again, any local government — city or county — has the right to move beyond transportation concurrency and has the right to adopt an alternative transportation system.
“And they went even further, and said, ‘In addition, there’s only going to be one fee collected within a municipality, and it’s to be collected by the entity that issues building permits.’
“And lastly, that fee has to be based on a plan of improvements, i.e. a mobility plan.”
The city mobility plan and fees, which he unveiled, “will replace transportation concurrency administered by the county,” he said.
Gardens rips county proposal
After the council approved the mobility fee on second reading in May, the county sent an alternative approach to moving forward under the new state law. It’s a similar offer that the county is making with all municipalities.
Both sides agree, the county document said, “that the city’s mobility fees do not account for the impact … on county transportation facilities” and “that the county road impact fees do not account for the impact … on city transportation facilities.”
But the approach smacked too much of the old way to Palm Beach Gardens.
Saying he played a role in crafting the new law, City Attorney Max Lohman wrote in a memo shared with the county that County Administrator Baker “does not appear to comprehend the gravamen of the legislation or the proper and legally sufficient means of its implementation.”
The county’s proposals, Lohman wrote, are “nothing more than a meager attempt to rebrand the legacy (agreements) that many municipalities previously executed with the county, through which the municipalities were simply either collection agents or ticket takers for county impact fee payment vouchers.”
The proposals ignore provisions requiring the county to share its impact fee proceeds in some instances with cities and to assure developers are not charged twice for the same impact, he wrote.
“HB 479 no longer permits the county to charge and collect (or have the municipalities collect) a county transportation impact fee within the municipalities if the municipality charges its own fee,” Lohman wrote.
The county has not responded to his memo. Officials from both the city and the county would not discuss his interpretation because of ongoing litigation.
Tracking how much money is at stake
But as both sides head toward a courtroom showdown, the county has been trying to get the money it believes the judge ordered the city to pay. It put the amount at $3.1 million as of mid-2023.
To figure out how much the city owes for impact fees collected since 2020, the county wants to see detailed information about city building permits.
After dropping its $1.2 million public records request, the county filed basically the same request in court, as part of discovery.
Wary of paying more to receive printouts of the electronic records, the county added “Please do not send the records in paper form with a bill, as we will not pay for your copy charges.”
In a filing by the city’s outside counsel, Scott Hawkins, the city objected to the document requests, calling them “vague,” and “overly broad,” and saying the county is seeking irrelevant materials not proportional to the needs of the case.
Instead, Hawkins told the county it could buy a “‘read-only’ InterGov subscription, which would allow the county to review all permits issued by the city.” InterGov is a service operated by the AGA, formerly the Association of Government Accountants.
The county has not filed a response with the court.
This story was originally published by Stet News Palm Beach, a WLRN News partner.
