Land Use and Local Government Law and Litigation

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A Very Interesting Case: Tolls are User Fees and Subject to Circuit Court Review

In a very interesting opinion in Gargano v. Lee County, here's the opinion, the 2d DCA overturned a circuit court's dismissal with prejudice of a multi-count complaint attacking Lee County's longstanding failure to adequately maintain the Sanibel Causeway Bridge while still collecting (and then raising) tolls -- the revenue of which then went to other county roads and project.

Yes, in another example of local commissions rampantly disregarding fairness and safety in order to avoid raising taxes to address existing infrastructure deficits, the Lee County Commission for years has helped to balance its road program on the backs of Sanibel Island residents, workers and visitors by charging tolls for the only route on and off the island. Those revenues far exceeded those necessary to retire the cost of the bridge, and were clearly not used (exclusively or even significantly) to maintain the bridge. The tolls simply subsidized other users of the county road system.

The suit claimed that this violated Florida law by being an excessive toll and essentially an unauthorized tax (which Lee County can't levy). While the tolls were authorized by a statute, taxes were not, and the suit claimed that by being unreasonable and improperly used, the tolls were unauthorized taxes and therefore unconstitutional.

The County claimed, and the lower court held, that this issue was beyond the jurisdiction of the court - essentially that tolls are unreviewable if authorized at all. The 2d rejected this, finding that the "savings" appendix to Article V preserved the previous constitution's explicit grant of jurisdiction in the circuit court to review tolls.

The Court also rejected the circuit court's determination that the plaintiff, a resident of Sanibel, did not have standing. Applying the "special injury" test, it found that a resident of the island, while sharing this injury with other residents, was specially injured in comparison to the community as a whole (presumably the entire county). This is an important precedent because it establishes that an injury need not be unique or even limited to a few people in order to be "special" in the context of this standing rule.

Once it found that tolls could be reviewed, and that the plaintiff had standing, the court got stuck (see footnote 1 for a judicial admission that I've never seen before, the candor of which is one of the reasons I deeply respect Judge Altenbernd). It could not find a clear basis in law to determine when a toll is unconstitutional, given that the the constitutional right to challenge tolls indicates that they could be.

[the court also found that there was not a basis for recovering improperly charged tolls, but only a right to prospective relief; it also found that a count trying to establish that the tolls created excess costs for garbage collection paid by the plaintiff did not establish a cause of action]

But the court then lead the lower court to a possible resolution. It rejected the plaintiff's claim that the toll was a tax; instead it found that the toll is a user fee. It is a user fee despite the fact that anyone who is a resident of the island must pay it because there is an option not to live on the island. The toll is therefore like garbage and other "mandatory" user fees.

But the court did not "get" that this determination closes the circle. Under Florida law, user fees must be reasonable, AND THEY MUST BE APPLIED TO DEFRAY THE COSTS OF THE SERVICE FOR WHICH THE FEE IS CHARGED, AND ONLY THOSE COSTS. If a user fee is in excess of the costs of delivering the service, it is an unconstitutional tax. That is, while local governments and municipalities are authorized under home rule and various statutes to charge user fees, if they charge more than a "reasonable fee" (measured by the cost of delivery), the fee is unreasonable and a tax. Which is then unconstitutional.

Moreover, a fee payer has standing to bring a Chapter 86 declaratory action to determine whether a user fee is authorized and reasonable. Even more, longstanding rules on fees and special exceptions demonstrate that with certain exceptions, those who paid such unconstitutional fees are entitled to reimbursement.

SO - it will be very interesting to see what happens to this on remand.

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