Judges: Jim Smith Attorney General
Filed Date: 10/30/1985
Status: Precedential
Modified Date: 7/5/2016
Mr. L. Michael Milbrath County Attorney Marion County 19 N.W. Pine Avenue Room 200 Ocala, Florida 32670
Dear Mr. Milbrath:
This is in response to your request for an opinion on substantially the following question:
WHETHER A NONCHARTER COUNTY CAN LEVY SPECIAL ASSESSMENTS AGAINST ALL TAXABLE REAL PROPERTY LOCATED IN AN UNRECORDED SUBDIVISION IN WHICH ACCESS TO ALL OR PORTIONS OF THE LOTS OR PARCELS OF LAND IS BY ROADS OR EASEMENTS NOT OWNED BY OR DEDICATED TO THE PUBLIC OR TO MARION COUNTY FOR THE PURPOSE OF MAKING ROAD AND DRAINAGE IMPROVEMENTS?
You state in your letter that there are several unrecorded subdivisions in Marion County in which access to all or portions of the lots or parcels of land is by roads or easements not owned by or dedicated to the public or to Marion County. You further state that the board of county commissioners has received several requests to perform road and drainage improvements on these private roads and easements.
Section
While special assessments are distinguishable from taxes, they are levied under the taxing power and are, in a broad sense, a peculiar species of taxes. See, Jackson v. City of Lake Worth,
There is in this state's Constitution no provision which may be construed or tortured into a construction authorizing a municipality to tax a citizen to make him build improvements for his own benefit merely. It must be for a public purpose or it is not a legitimate exercise of the taxing power, and it cannot be warranted under any other power known to constitutional government. . . .
It is necessary in order for such assessment to be valid that the project be a public not a private project. 70 Am.Jur.2d Special or Local Assessments s. 17.
This office has previously addressed the issue of whether a county could provide minor work or repairs on private roads and expend county funds therefor. It was stated in AGO 73-222 that "[a] private road is, by its very nature, not available to the public, and the public has no right to travel by motor vehicle thereon. This being the case, the repair or maintenance of such a road cannot serve a public or county purpose." See also, Brumby v. City of Clearwater,
Applying these constitutional principles and judicial decisions to the facts presented in your inquiry, it would not appear, in my opinion, that roads or easements and drainage improvements to such roads or easements in a subdivision to which access to all portions of the lots or parcels of lands is by roads or easements not owned by or dedicated to the public or to the county, would serve a public purpose, and that such improvements would benefit only the private landowners since the roads or easements are not owned by or dedicated to the public or Marion County. This conclusion is applicable to drainage improvements that are made as a concomitant to or an integral part of the road or easement improvements in question. No comment, however, is expressed herein as to any independent drainage improvements that are deemed necessary or expedient, for sanitary or agricultural purposes or conducive to the public health, convenience or welfare, or public utility, or for the benefit of any lands that are low, wet, submerged or liable to become submerged; for such projects the county may utilize the provisions of Ch.
Therefore, unless and until judicially determined to the contrary, it is my opinion that a county is not authorized to levy special assessments on all taxable real property located in an unrecorded subdivision in which access to all or portions of the lots or parcels of land is by roads or easements not owned by or dedicated to the public or to Marion County for the purpose of making road and drainage improvements to such private roads. However, if the county determines that a drainage project is necessary or expedient, for sanitary or agricultural purposes or conducive to public health, convenience or welfare, or public utility, or for the benefit of lands that are low, wet, submerged or liable to become submerged, the county may utilize the provisions of Ch.
Sincerely,
Jim Smith Attorney General
Prepared by:
Craig Willis Assistant Attorney General
Brumby v. City of Clearwater , 108 Fla. 633 ( 1933 )
Jackson v. City of Lake Worth , 156 Fla. 452 ( 1945 )
Rosche v. City of Hollywood , 1952 Fla. LEXIS 975 ( 1952 )
State Ex Rel. Board of Supervisors of South Florida ... , 160 Fla. 355 ( 1948 )
Speer v. Olson , 367 So. 2d 207 ( 1978 )
City of Treasure Island v. Strong , 215 So. 2d 473 ( 1968 )