LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Using Concurrency for Extortion

Ok, so here's an example from my home town of how local leaders are managing the capital improvements program to extort money from developers.

The background: U.S. 301 through the City of Sarasota is, well, backlogged and constrained at best as it goes through downtown. It's failing concurrency and being managed under policies that deal with roads that need to be improved but without budgets. Just north of downtown, there's areas where there's sufficient right of way to 6-lane it, but in another area they will have to get more right of way (expensive) to complete a whole segment. So - the improvements had, but lost, funding and now after some kicking and screaming FDOT has re-funded the initial section.

More background -- Wal-Mart has applied to buy a city owned site that lies at the southern part of the area that already has right of way, but insufficient lanes. SO -- open to the discussions at the county commission level on how to communicate to FDOT what the local priorities on using these funds are. Here's what the Sarasota Herald Tribune reports:

Widening
of U.S. 301 to start early
: "After being briefed on the situation Friday by
Caan, city and county commissioners initially favored widening the southern
section of the road.

But that would boost the road's capacity on the stretch of U.S. 301 where Wal-Mart is planning a Supercenter. If the road is not improved, Wal-Mart would be forced to pay for future improvements because it will add traffic there.

If the road is improved, Wal-Mart could avoid paying.

County Commissioner Paul Mercier said he didn't want to let Wal-Mart off the hook and proposed improving the northern section of road.

'They're starting the problem. They should be solving the problem,' he
said.

Other city and county commissioners agreed and told Caan they'd
prefer the road work start at University Parkway. "


OK, let's look at this. The WalMart will pay extensive road impact fees to offset its costs - so (despite the knowing misrepresentation in the article) - Wal Mart WILL pay for its impacts. But that's not good enough. The County Commission WANTS the road to fail concurrency so that they can extract extra payments from WalMart for the road improvements. So they're directing FDOT to start work on other sections of the road, simply so that they can put WalMart on the hook.

Let's also say that this isn't the first time we've seen this. Locally, the entire development and land use law community knows that the County is managing its capital improvements program in order to create concurrency failures simply to extort developers into paying for improvements that mostly will benefit existing development. They're taking out funding for bringing existing roads up to current drainage, right of way and pavement width standards and pretending that all of the improvements needed to these roads are "capacity improvements" required by new development.

But this is the first time I've seen a local commission so brazenly admit that this is what they're doing.

This is exactly the kind of abusive, cynical, despotic thinking that local officials get into when they're confronted between the easy thing (abuse the rules to hit up a developer for funding) and the principled thing (raise taxes to fund improvements and apply the rules fairly).

And this is going on statewide as road improvement cost increases outpace the increases in gas tax revenues and the Legislature refuses to create adequate statewide funding for state roads, leaving locals in the lurch. AND we have what we can call a dominant political philosophy at the state and local level that sells anti-tax to the public, and in doing so desperately turns to any potential source of funds, regardless of the abuse of principle involved.

Local governments get away with it because they have huge home rule powers, little statutory guidance/restrictions, and lax (at best) judicial oversight. The developers have a lot on the line and few effective remedies, so they negotiate but play along. And the entire system degrades into something that's ultimately as cynical and corrupt as what we decry in 3d world countries - the fact that the money goes into the government's pocket rather than the commissioners doesn't change the fact that it's essentially lawless, free form abuse of power.

It's why we need statewide legislation with teeth on impact fees, concurrency management (that clarifies proportionate share pay and go rights), and better judicial review.

46 N. Washington Blvd, Suite 7, Sarasota, FL 34236      Phone (941) 681-8700

Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.