Can a Florida county spend public money to maintain a private road that school buses use?

Plain-English summary

A lawyer asked, on behalf of a client, whether Columbia County could spend county funds to repair and maintain a private roadway after the landowner authorized school buses to use it to transport handicapped children. The Attorney General's office had asked for supporting authority on the lawyer's claim that state and federal disability-accommodation policy changed the answer, but none was provided.

In informal comments, a senior assistant attorney general pointed back to settled Florida law. Public funds may be spent on a road only if it is a "public" road, because spending public money must serve a public purpose. A private road, by its nature, is not open to the public and the public has no right to travel on it, so a county cannot lawfully spend public funds to maintain it, even under an agreement letting school buses travel on it. The opinion noted the roadway in question had not been dedicated to the public.

There is a lawful path the opinion identified. A county may, under its home-rule powers, set up a private-road maintenance program if it determines that doing so serves a county purpose and if the property owner pays all of the county's actual costs. Those costs include not just equipment use but depreciation of machinery and the salary and benefits of the county personnel providing the service.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why can't a county just maintain a private road that buses use?
A: Because public funds must serve a public purpose, and Florida law treats that as limited to public roads. The opinion explained that a private road is not open to the public and the public has no right to travel on it, so spending public money on it would not serve a public purpose.

Q: Does letting school buses use the road make it "public"?
A: No. The opinion concluded that an agreement allowing buses to travel on the road to transport the landowner's children did not convert the private road into a public one or supply the required public purpose.

Q: Is there any way a county can work on a private road?
A: Yes, through a reimbursement program. The AG noted that a county may, under its home-rule powers, maintain private roads if it finds a county purpose and the owner pays all actual costs, including equipment depreciation and the salary and benefits of the workers involved.

Q: What does "dedicated to the public" mean here?
A: A road becomes public when it is set apart for and open to the public. The opinion noted the road at issue had not been dedicated, and cited case law (Lovey v. Escambia County) where a county's maintaining a road for more than four years raised a presumption of dedication.

Background and statutory framework

The public-purpose limit on public spending is a longstanding rule in Florida. The opinion relied on cases including Padgett v. Bay County, 187 So. 2d 410 (Fla. 1st DCA 1966), and Collins v. Jackson County, 156 So. 2d 24 (Fla. 1st DCA 1963), along with a line of prior AG opinions, for the proposition that public funds may be used to build, maintain, or repair a road only when the road is public.

The reimbursement exception flows from county home-rule authority. Where a county determines a private-road maintenance program serves a county purpose, it may provide the service if the owner reimburses every actual cost. The opinion was careful to define "actual costs" broadly, citing earlier opinions that included equipment depreciation and personnel salary and benefits, so that no public subsidy slips through. Because the request raised these as informal comments, the office stressed they were the author's conclusions, not a formal opinion of the Attorney General.

Citations and references

Cases:

• Padgett v. Bay County, 187 So. 2d 410 (Fla. 1st DCA 1966), public funds for public roads only
• Collins v. Jackson County, 156 So. 2d 24 (Fla. 1st DCA 1963), public-purpose limit on road spending
• Lovey v. Escambia County, 141 So. 2d 761 (Fla. 1st DCA 1962), long maintenance raised presumption of dedication

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/counties-maintenance-of-private-road
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8152

Original opinion text

Mr. Marlin M. Feagle

Feagle & Feagle, Attorneys, P.A.

Post Office Box 1653

Lake City, Florida 32056-1653

Dear Mr. Feagle:

Thank you for contacting this office following our telephone conversation of September 2, 2011. During that conversation we discussed this office's request for additional information relating to your opinion request of July 12, 2011. You had submitted an Attorney General's Opinion request on the issue of whether the Columbia County Commission may expend county funds to repair and maintain a private roadway when the landowner has authorized county school buses to travel for the purpose of transporting handicapped children.

While your initial letter of inquiry suggests that "recent laws at both the state and federal levels promote a policy of providing accommodations and assistance to handicapped persons in their employment, travel, and every other respect," you have not provided this office with any citation to the laws upon which you rely for this statement or any analysis of how this public policy consideration would affect the conclusions of earlier Florida Attorney General Opinions.

As I indicated in my letter of August 1, 2011, this office has, on several occasions, addressed substantially the same question as the one you have posed. In Attorney General Opinion 92-42, the issue was whether public funds could be dedicated to repairing and maintaining private roads upon which county school buses were authorized to travel pursuant to agreements with the landowner/parents of children attending school. The opinion concluded that the county could not lawfully expend county funds to repair and maintain private roads, regardless of an agreement allowing school buses to travel upon the road to transport the children of the landowner/parent. This conclusion is based on the premise, developed in Florida case law, that public funds may only be spent for public roads since the expenditure of public funds must serve a public purpose.[1]

Thus, this office and the courts of Florida have determined that a governmental entity may use public funds for the construction, maintenance, or repair of a road only when the road is a "public" road. This office has concluded that a "public" road is one open to and set apart for the public, as opposed to a private road that by its nature is not open to the public and upon which the public has no right to travel.[2] From your letter, I understand that the roadway about which you inquire has not been dedicated to the public.

In the absence of any additional information from you providing citations to and discussing the public policy provisions your letter mentions and their application, this office will continue to suggest that these earlier opinions of both the courts and this office represent the current state of the law.

I would also call to your attention several recent Attorney General Opinions concluding that a county has the authority to enter a program of private road maintenance if the board of county commissioners, in the exercise of the county's home rule powers, determines that such a program serves a county purpose.[3] These opinions conclude that counties may enter such arrangements if provision is made for payment of all actual costs by the owner of the private property to the county. The opinions caution that all actual costs of providing such service must be reimbursed, "such costs to include not only the cost of using the equipment but the depreciation of the machinery, salary and employee benefits being accrued by the county personnel providing such services."[4]

I trust that these informal comments will provide some direction to you in advising your client. This informal advisory opinion has been prepared by the Department of Legal Affairs in an effort to be of assistance. The conclusions expressed herein are those of the author and should not be considered a formal opinion of the Attorney General.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

[1] See Padgett v. Bay County, 187 So. 2d 410 (Fla. 1st DCA 1966); Collins v. Jackson County, 156 So. 2d 24 (Fla. 1st DCA 1963); Ops. Att'y Gen. Fla. 06-24 (2006), 99-73 (1999), 99-15 (1999), 94-89 (1994), 78-88 (1978), 75-309 (1975), and 73-222 (1973). Cf. Lovey v. Escambia County, 141 So. 2d 761 (Fla. 1st DCA 1962) (county’s maintenance of road for more than four years raised presumption of dedication).

[2] Ops. Att'y Gen. Fla. 06-24 (2006), 99-73 (1999), and 99-15 (1999).

[3] Ops. Att'y Gen. Fla. 02-48 (2002), 99-73 (1999), and 99-15 (1999).

[4] See Ops. Att'y Gen. Fla. 99-73 (1999) and 02-48 (2002).