On January 15, 2021, Jay Small presented an update to the Eminent Domain Subcommittee of the Florida Bar on impact fees, development conditions, and property rights.

Local governments often grant development approvals on the condition that the developer make “contributions in aid of construction.”  These contributions can take the form of a developer building public water distribution and wastewater collection systems.  Local governments then require the developer to dedicate these new facilities to the public.  These dedications can also take the form of school impact fees, school capacity enhancement agreements, or dedications of private property for the construction of future roads, all at the developer’s cost.   But local governments do not have free reign to require a private property owner to dedicate land, pay impact fees, provide contributions in aid of construction, or pay money to the government in lieu of these dedications.  Florida and federal courts place important limitations on the ability of local governments to insist on these sorts of exactions.  Local governments must have a reasonable justification for requiring these dedications, and the dedications must be proportional to the impacts the proposed development has on schools, water and wastewater service, and roads.   A developer cannot be forced to fix a pre-existing infrastructure problem not caused by the development.

Jay Small presented materials to the Eminent Domain Subcommittee on important new developments in this area of the law and recent state and local court decisions.  He is a shareholder and heads Mateer Harbert’s Eminent Domain and Property Rights Practice Group. He has nearly 30 years of experience representing property owners, business owners, and condemning authorities in condemnation and inverse condemnation cases throughout the state of Florida and regularly prepares impact fee agreements for clients.  If you have any questions about this important area of the law, contact him at (407) 425 – 9044.

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