Legal opinion: Enclaves can't use taxes
Article Courtesy of The Palm Beach Post

By Michael Van Sickler
Palm Beach Post Staff Writer
Friday, July 19, 2002

Florida Attorney General Bob Butterworth says public money can't be used to pay for the upkeep of private developments, rebutting a mounting political movement to steer tax dollars into Palm Beach County's gated communities.

Citing a 1992 Florida Supreme Court decision and prior opinions from his office over the past 30 years, Butterworth concluded that the Florida Constitution forbids spending public dollars on private roads, sidewalks, water and sewer systems. The only way money can be spent on private roads and utilities is if there's a clear "public" purpose and the government is reimbursed by the private development, Butterworth said.

"I am of the opinion that county funds may not be used to maintain or repair privately owned roads and related infrastructure or privately owned water and sewer systems in private communities," Butterworth wrote. "The county, however, may furnish such services if provision is made for payment of all actual costs by the owner or owners of the private road or water or sewer system to the county and it is determined that such a program serves a county purpose."

Butterworth's position is the opposite of the stance of Mayor Joel Daves, who in March pressured City Attorney Pat Brown to resign after Brown voiced a legal opinion similar to Butterworth's. Daves has often scolded a majority of the city commissioners, who in January refused to accept the findings of a report asking for increased city spending in gated communities west of Florida's Turnpike.

Daves, a lawyer, dismissed Butterworth's opinion, and said that he'd continue to seek ways to get the issue resolved, even if that means encouraging a resident in a gated community to sue the city. 

"No matter what you think on this issue, you have to keep in mind that the opinion is just an opinion from another attorney," Daves said. "This isn't gospel. Let's get a judge to decide this once and for all. Some of the gated communities need to initiate a legal challenge."

Brown said he wasn't surprised by Butterworth's opinion.

"Does this put the issue to rest?" Brown said. "I would hope so."

Residents in gated communities make up a quarter of the city's tax base. While their taxes pay services such as road repair, parks and police and fire elsewhere in the city, they also must pay for the upkeep of roads and utilities in their private neighborhoods.

County Commissioner Karen Marcus requested the opinion in June after increased lobbying from gated communities. Marcus and County Attorney Denise Dytrych said Butterworth's opinion confirms the county's stance that public money shouldn't be spent in private communities.

"This just bolsters the way the county already operates," Dytrych said.

Gated communities have emerged as a hot political issue this summer, partly because one of their chief advocates, West Palm Beach City Commissioner Al Zucaro, has made it a key issue while stumping in his county commission campaign. For the past year, Zucaro was instrumental in elevating the issue in city political circles.

Zucaro, who practices law, said Butterworth doesn't rule out public spending in private developments. He points to a section of the opinion where Butterworth says the local legislative body is responsible for deciding how government money is spent.

"Butterworth does not go on as to what an appropriate public purpose for the money is," Zucaro said. "He leaves that to commissioners to decide. The commission needs to take these requests on a case by case basis, and only then can a public purpose be determined."

One of Zucaro's opponents in the county commission race, former city Commissioner Jeff Koons, said Butterworth's position is quite clear.

"We can plant trees out there, we can supply police and fire protection," Koons said. "But we can't spend money on their roads, sidewalks, and utility systems. Mr. Zucaro is a lawyer, he should know this."

Residents in gated communities pooh-poohed Butterworth's conclusions.

"This is just an opinion," said RiverWalk resident Jim Greene. "It means nothing. These weak-kneed individuals that we call commissioners need to get a backbone and make a decision. They rely too much on the opinions of others."

Butterworth answered the way he did because the question posed to him was so general, Ibis resident Jerry Greenfield said.

"If the city and the county really wanted to do things, they could do it," Greenfield said. "There's nothing stopping them."

Daves said he plans a commission workshop in September to discuss city spending in private communities. 

One of those communities, Ibis, is unfairly shouldered with paying the debt for a road, Northlake Boulevard, used by the rest of the county, Zucaro said. 

In addition, private developments want the city to pay $18,750 to maintain fire hydrants, $215,892 for streetlights, up to $698,197 a year to maintain streets and sidewalks and $1 million a year to maintain drainage systems and other infrastructure. In addition, the private communities want the city to "consider" assuming up to $3.7 million a year of homeowner associations' long-term debt for building their private roads and utilities.

With what the gated communities pay in taxes, those demands are just, Daves contends.

"Ibis pays more than $3 million in real estate taxes," Daves said. "All of Northwood pays $1 million. We spend a heck of a lot of money in Northwood. Is that fair? Why would anyone in Ibis want to be a part of the city if they don't get anything out of it? This opinion doesn't settle the fairness issue."

Daves opponent in March election, Lois Frankel, said the opinion came up short of resolving the issue.

"This opinion clearly doesn't unify this city," Frankel said. "That's going to take political leadership. The city needs to find a way around this."