No Class Action on Illegal Impact and Building Fees - OR - Local Govenments Once Again Get a Free Ride to Abuse their Authority
In this opinion rendered by the 5th DCA in Seminole County v. Tivoli, the court overturned the trial court's certification of class status in a case that attacked the County's building and water/sewer fees.
The district court essentially found that each developer who paid allegedly illegal fees would have to establish the proper fee and damages on its own, and that the complaint therefore did not and could not establish a valid class action:
Three depositions and an amended complaint purportedly showed Tivoli paid too
much for building permit fees and impact fees. Tivoli's cause of action,
however, would require much more than that. It must also show, church by
mobile home by parking garage, whether developers subject to the County's
arbitrary and unreasonable calculation of fees were overcharged and, if so,
by how much and on what basis. These individual inquiries would predominate
and overwhelm any common issue. See Hoechst Celanese Corp. v. Fry, 753 So. 2d
626, 627-28 (Fla. 5th DCA 2000).
As a practical matter, because Florida law does not provide a developer with attorney's fees for challenging illegal and arbitrary regulatory fees, this decision means that local governments are economically free to charge illegal fees up to the effective cost of litigating against them. Just as the federal courts have evicerated section 1983 as a means of protecting our federal rights by evicerating the attorney's fee provisions, this ruling guts meaningful protection for our rights against illegal impact fees.
Going to show that
a) Senator Bennett is right, and we need a state statute governing local impact and building fee methodology and review; and
b) We need attorney's fee provisions for successful challenges to illegal local regulations