1st DCA flaunts Supremes to create loophole in prohibition on special assessments for law enforcement purposes

The First DCA took it upon itself to create a new rule for law enforcement special assessments in this opinion, issued on January 5. Even though the Florida Supreme Court has clearly held that law enforcement services do NOT provide a special benefit to property and therefore should not be funded through special exceptions, the 1st upheld an Escambia County special assessment for law enforcement within an "MSBU" because the area is leased from the County and the lands are not subject to ad valorem taxes. A strong dissent clearly hit the law right.

So this (activist?) courts decides that if the property doesn't pay enough taxes to cover a service, the local government can make it up through special assessments? This logic was rejected in the Collier County case, where the imaginative approach was to assess property for which a new CO was issued after January 1 of any year, since the improved value of the property is not taxed in that first year. The simple fact that a property receives general governmental services (like police protection) without having to pay ad valorem taxes does NOT create an exception to the benefit rule.

The court cited the well-trodden rule that in determining whether a special assessment benefits property, "courts are required to give deference to the taxing authority's determination .. . [which] must be upheld unless the determination is 'palpably arbitrary'." citing Pembroke Pines.

The problem here is that this traditional rule was established to avoid judicial intervention in questions of whether, for example, a collector street that served but did not abut property was benefited. Using it as a shield for the basic determination of what services can or cannot be funded by special assessments is just wrong.

The Courts should add a 3d part to the traditional 2 part test (whether the property is benefited; whether the costs are properly apportioned) to included whether the facility or service benefits property generally, and this test should give no deference to the local legislative determination. The first test then becomes whether a particular property is benefited by the particular improvement or improvements to be funded; this could use the deferential rule.

In the absence of such an approach, local government will simply continue to push and push on the barriers of the proper use of special assessments to avoid actually having to identify general tax needs and issues. One must be sympathetic with the plight of rural counties, where property values are so low that even levying the full 10 mills for local government uses is insufficient to fund basic services. But the proper response is to address our tax assessment and distribution systems overall, not to flaunt the constitution's limits on local taxing authority by destroying the recognized limits on the proper use of special assessments.