Does a Florida water control district need a voter referendum to levy a non-ad valorem assessment for park maintenance on leased county land?

Plain-English summary

The Indian Trail Improvement District, an independent special district in Palm Beach County, planned to build park improvements on land leased from the county at no cost. Construction would not be funded by non-ad valorem assessments. After the park was built, the district intended to levy non-ad valorem assessments on taxable property within the district to fund park maintenance going forward.

Counsel for the district asked the AG whether Chapter 189 (the Uniform Special District Accountability Act) or Chapter 298 (governing water control districts) required the district to hold a voter referendum before levying those maintenance assessments. The AG answered no. Neither chapter, nor the district's enabling act (Chapter 2002-330, Laws of Florida), conditions non-ad valorem assessments on a referendum. Chapter 298 contains a notice-and-public-hearing requirement and requires an amended water control plan with an engineer's report (section 298.301), but those are administrative steps, not ballot questions. Section 298.54 authorizes a "maintenance tax" to operate and maintain improvements made under the chapter without referendum.

Currency note

This opinion was issued in 2016. 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: What's a non-ad valorem assessment?
A: A charge on real property based on a special benefit conferred (like park access, drainage, lighting) rather than the property's taxable value. Florida collects them on the same tax bill as ad valorem taxes under section 197.3632, but the legal basis is different.

Q: Why was the district worried about needing a referendum?
A: Because Florida special districts often confuse multiple authorities. Some special-district programs require referendum (debt issuance under specific charter provisions, certain bond questions, some service-area expansions). Counsel wanted to make sure the routine maintenance assessment was not one of them.

Q: What does Chapter 298 require instead of a referendum?
A: A water control plan or plan amendment. The board adopts a resolution to consider the amendment, gives the statutory notice, holds a public hearing, directs the engineer to file a report with benefits and damages, gives a second round of notice, and holds a final hearing 25-60 days later. Only then can the board levy the assessment. It is process-heavy but it does not involve a ballot.

Q: Does it matter that the park sits on county-owned land?
A: Not for the referendum question. The land's ownership and the lease terms affect the district's right to occupy and improve, but the source of the maintenance assessment authority sits in Chapter 298 and the district's charter, neither of which conditions the assessment on land ownership. The maintenance is benefit-based: parcels in the district get the benefit of an improved park, the district charges them for the cost.

Q: Could the Legislature add a referendum requirement?
A: Yes, by amending the relevant chapter or the district's enabling act. As of the opinion, neither contained such a requirement.

Q: What's the rule about "implied powers" the AG mentions?
A: Special districts are statutory creatures. Unlike counties and municipalities, they have no inherent home rule. They have only the powers their statute and charter give them. That cuts both ways: it limits the district from inventing authority, and it limits anyone from inventing extra procedural requirements that the statute does not contain.

Background and statutory framework

The Indian Trail Improvement District was codified into a single act in Chapter 2002-330, Laws of Florida, as section 189.019 requires for all special districts (codification deadline December 1, 2004). The codification preserves the district's authority "to annually assess and levy taxes or non-ad valorem assessments against all assessable property in the district." The charter's revenue-raising authority cross-references Chapters 189, 197, and 298, Florida Statutes.

Section 189.031(3)(b) requires a special district's charter to address "powers, functions, and duties of the district regarding ad valorem taxation, bond issuance, other revenue-raising capabilities, budget preparation and approval, liens and foreclosure of liens, use of tax deeds and tax certificates as appropriate for non-ad valorem assessments, and contractual agreements." The list does not include a referendum requirement. Section 189.03(3) says the Legislature intended Part III, Chapter 189, to "provide by general law for the uniform operation, exercise of power, and procedure for termination of any such independent special district."

Section 298.301 governs water control plans and plan amendments: the board adopts a resolution, holds a public hearing, the engineer files a report, the board holds a final hearing 25-60 days after notice of the report's filing. Section 298.305(1) authorizes the board to levy a non-ad valorem assessment "on all lands in the district to which benefits have been assessed" once the plan amendment is finally adopted. Section 298.54 provides for a maintenance tax to operate and maintain improvements and defray current expenses.

The AG's bottom line: lots of procedural steps, no referendum.

Citations and references

Statutes and laws:

• Ch. 189, Fla. Stat. (Uniform Special District Accountability Act)
• Ch. 197, Fla. Stat. (Tax collection)
• Ch. 298, Fla. Stat. (Water control districts)
• Ch. 2002-330, Laws of Fla. (Indian Trail Improvement District codification)

Cases and prior AG opinions:

• Forbes Pioneer Boat Line v. Board of Commissioners of Everglades Drainage District, 82 So. 346 (Fla. 1919), statutory entities have only granted powers
• Op. Att'y Gen. Fla. 90-63 (1990), no recall procedure for water control district supervisor absent statutory authorization
• Op. Att'y Gen. Fla. 81-17 (1981), special district authority

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/special-districts-assessments-referendum
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1509

Original opinion text

Ms. Mary M. Viator

Caldwell Pacetti Edwards

Schoech & Viator, LLP

250 South Australian Avenue

Suite 600

West Palm Beach, Florida 33401

RE: SPECIAL DISTRICTS – ASSESSMENTS – REFERENDUM – whether special district must hold referendum before levying non-ad valorem assessment. Chs. 189 and 298, Fla. Stat; s. 298.301, Fla. Stat.

Dear Ms. Viator:

On behalf of the Indian Trail Improvement District, an independent special district located in Palm Beach County, you have asked for my opinion on substantially the following question:

Does Chapter 189 or 298, Florida Statutes, require a referendum in order for the Indian Trail Improvement District to levy non-ad valorem assessments to maintain park improvements constructed by the district using no non-ad valorem assessments and located on county-owned land leased to the district at no cost?

In sum:

Chapters 189 and 298, Florida Statutes, do not require a referendum in order for the Indian Trail Improvement District to levy non-ad valorem assessments to maintain park improvements constructed by the district using no non-ad valorem assessments and located on county-owned land leased to the district at no cost.

The Indian Trail Water Control District (the district) is an independent special district operating in Palm Beach County, Florida. The district operates in accordance with its enabling legislation, Chapter 2002-330, Laws of Florida, and applicable provisions of Chapters 189 and 298, Florida Statutes.

According to information you have supplied to this office, in 2001, Palm Beach County leased certain land to the district under a long term lease for use as a district park. The property is leased to the district at no annual cost. The district proposes to construct park improvements on the leased site using no non-ad valorem assessments. The park is currently maintained for the benefit of district residents. After construction is complete, special benefit non-ad valorem assessments will be levied against taxable real property within the district for park maintenance costs.

Chapter 2002-330, Laws of Florida, codifies the previously enacted special acts relating to the Indian Trail Improvement District.[1] The codification re-creates the district and re-creates and reenacts the district charter. The district's charter, section 3 et seq., Chapter 2002-330, Laws of Florida, provides that the powers of the district include "to construct and maintain recreation areas and facilities, including the authority to provide for the construction, operation, and maintenance of such recreation areas and facilities; provide recreation and playground equipment; . . . and provide any other programs and elements of recreation areas and facilities[.]"[2]

Chapter 2002-330, Laws of Florida, also "preserve[s] all district authority, including the authority to annually assess and levy taxes or non-ad valorem assessments against all assessable property in the district."[3] The powers, functions, and duties of the district regarding non-ad valorem assessments and other revenue-raising capabilities "shall be as set forth in chapters 189, 197, and 298, Florida Statutes, this act, or any other applicable general or special law, as they may be amended from time to time."[4] The charter requires that non-ad valorem assessments be collected as provided in Chapters 197 and 298, Florida Statutes.[5]

As a statutorily created entity, the district may only exercise such powers as have been expressly granted by statute or ordinance or must necessarily be exercised in order to carry out an express power. Unlike counties and municipalities, which have been granted home rule powers, water control districts possess no inherent or home rule powers. Created by statute for specific limited purposes, such districts may exercise only those powers and authority as have been granted by law.[6] Thus, you ask whether Chapters 189 and 298, Florida Statutes, require the district to conduct a referendum to approve the levy of any special assessments.

Chapter 298, Florida Statutes, requires that special districts subject to the terms of the chapter implement district infrastructure and works projects pursuant to a water control plan.[7] The notice, hearing, and final adoption of any amendment to a water control plan must comply with the provisions of Chapter 298, Florida Statutes.[8] You advise that the district's existing Water Control Plan will be amended as required by section 298.301, Florida Statutes, to incorporate the county lease land and improvements.

Before adopting a water district plan amendment, the statutes require that the board of supervisors of the district adopt a resolution to consider the proposed plan amendment and hold a public hearing on the plan amendment. Section 298.301(2), Florida Statutes, provides the form for the public notice to be given and prescribes the length of time such notice must be published.[9] At the conclusion of the public hearing, the board of supervisors may determine to proceed with the process for a plan amendment and direct the district engineer to prepare an engineer's report outlining the property involved, determining benefits and damages, and estimating the cost of implementing the improvements associated with the plan amendment. A final hearing on approval of the proposed plan amendment shall be held at a regularly-scheduled board of supervisors meeting 25 - 60 days after the last scheduled publication of the notice of filing the engineer's report with the district secretary.[10]

After approval of the engineer's report by the board of supervisors, and the proposed plan amendment has been finally adopted, the board of supervisors is authorized to levy a non-ad valorem assessment on all lands in the district to which benefits have been assessed "to pay the costs of the completion of the proposed works and improvements, as shown in the adopted plan or plan amendment and in carrying out the objectives of the district[.]"[11] The district is also authorized to levy a maintenance assessment:

"Under s. 298.54, the board of supervisors may also levy a maintenance assessment on all lands in the district to which benefits have been assessed as may be necessary to operate and maintain the district works and activities and to defray the current expenses of the district."[12]

Section 298.54, Florida Statutes, provides for a "maintenance tax" to maintain and preserve the improvements made pursuant to this chapter and to repair and restore the same.

Nothing in the statutes discussed above imposes a referendum requirement on the district for the levy of non-ad valorem assessments to maintain the park improvements outlined in your request.

You also ask whether provisions of Chapter 189, Florida Statutes (the "Uniform Special District Accountability Act"),[13] impose a referendum requirement on the district for the levy of non-ad valorem assessments to maintain park improvements. As an independent special district, the Indian Trail Improvement District is subject to the provisions of Part III, Chapter 189, Florida Statutes, and to the general provisions in Part I of that chapter. Section 189.03(3), Florida Statutes, makes it clear that the Legislature intended, with the adoption of Part III of Chapter 189, to "provide by general law for the uniform operation, exercise of power, and procedure for termination of any such independent special district." As provided in the act, the charter of an independent special district must address:

"The powers, functions, and duties of the district regarding ad valorem taxation, bond issuance, other revenue-raising capabilities, budget preparation and approval, liens and foreclosure of liens, use of tax deeds and tax certificates as appropriate for non-ad valorem assessments, and contractual agreements."[14]

As discussed herein, the charter for the Indian Trail Improvement District includes no requirement that the levy of non-ad valorem assessments be subject to a referendum and nothing in either Part I or Part III, Chapter 189, Florida Statutes, establishes such a requirement.

In sum, it is my opinion that Chapters 189 and 298, Florida Statutes, do not require a referendum in order for the Indian Trail Improvement District to levy non-ad valorem assessments to maintain park improvements constructed by the district using no non-ad valorem assessments and located on county-owned land leased to the district at no cost.

Sincerely,

Pam Bondi

Attorney General

PB/tgh

[1] Pursuant to s. 189.019, Fla. Stat., each special district must codify its special acts into a single act for reenactment by the Legislature by Dec. 1, 2004.

[2] Section 3, s. 5(1), Ch. 2002-330, Laws of Fla.

[3] Section 1, supra n.2.

[4] Section 3, s. 1(2), id.

[5] Section 3, s. 1(13), supra n.2; Ch. 197, Fla. Stat., deals with tax collections, sales, and liens, and provides, in s. 197.3632, Fla. Stat., the method for imposing and collecting non-ad valorem taxes. Nothing in ss. 197.3631, 197.3632, or 197.3635, Fla. Stat., dealing with non-ad valorem taxes requires a referendum.

[6] See, e.g., Op. Att'y Gen. Fla. 90-63 (1990) (in the absence of a statute authorizing the recall of a supervisor of a water control district, the landowners of such a district are not authorized to establish procedures for the recall of a supervisor); Op. Att'y Gen. Fla. 81-17 (1981). And see Forbes Pioneer Boat Line v. Bd. of Comm'rs of Everglades Drainage Dist., 82 So. 346 (Fla. 1919).

[7] Section 298.301(1), Fla. Stat.

[8] Id.

[9] Section 298.301(2), Fla. Stat.

[10] Id.

[11] Section 298.305(1), Fla. Stat.

[12] Id.

[13] See s. 189.01, Fla. Stat., providing the title for the act.

[14] Section 189.031(3)(b), Fla. Stat.