Does a 'local improvement' funded by a special assessment have to be a capital project, or can it cover services like garbage collection?

Plain-English summary

Special counsel for the City of Destin asked whether a city charter provision limiting special benefit assessments to "local improvements" would block an ordinance imposing a solid-waste services assessment. The Attorney General's office does not interpret local charters, so it declined to comment on Destin's specific charter language. Instead it offered a general discussion of what a special assessment is and what it can fund.

A special assessment is not a tax. It is a charge against property in a particular locality because that property derives a special benefit, beyond the general benefit to the public, from the money collected. The key point for Destin: Florida courts have recognized that a special assessment can fund a service like garbage collection even when no capital improvement is involved. In Charlotte County v. Fiske, the court held the "improvement" funded by an assessment may simply be the furnishing of a vital service, such as fire protection or garbage disposal.

From that, the office concluded there is no basis for reading "local improvement," where it is not otherwise defined, as limited to capital improvements. A non-ad valorem assessment (one not based on millage that can become a lien on homestead property under Article X, section 4 of the State Constitution) can be collected through the uniform method in section 197.3632 when the charge is based on a special benefit to the assessed property.

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: Can a Florida city use a special assessment to pay for garbage collection?
A: The opinion's informal comments said yes, where the service gives the assessed property a special benefit beyond the general public benefit. It cited Charlotte County v. Fiske and Gleason v. Dade County, where assessments for waste collection were upheld.

Q: Does a "local improvement" have to be construction or a capital project?
A: Not necessarily. The office found no basis to limit "local improvement" to capital works where the term is not otherwise defined. A vital service, like fire protection or garbage disposal, can qualify as the "improvement."

Q: What is the difference between a special assessment and a tax?
A: A tax is a charge for the general support of government, apportioned by a reasonable rule. A special assessment is a charge on particular property that derives a special benefit from the expenditure, in addition to the general benefit to the public. The two are distinct, though assessments are levied under the taxing power.

Q: When is a charge a non-ad valorem special assessment that can be collected under section 197.3632?
A: When it is not based on millage, is imposed on property based on the benefit to that property, and can become a lien against homestead as allowed under Article X, section 4 of the State Constitution. Then the uniform collection method in section 197.3632 is available.

Background and statutory framework

Florida law draws a firm line between taxes and special assessments. Cases like Jackson v. City of Lake Worth, 23 So. 2d 526 (Fla. 1945), recognize that an assessment for benefit, while levied under the taxing power, is not strictly a tax. The defining feature of a valid special assessment is the special benefit the assessed land receives beyond the general public benefit.

The capital-versus-service question was settled by Charlotte County v. Fiske, 350 So. 2d 578 (Fla. 2d DCA 1977), and reaffirmed in Madison County v. Foxx, 636 So. 2d 39 (Fla. 1st DCA 1994): special assessments are permitted even when no capital improvements are involved. Section 197.3632 supplies the uniform method for levying and collecting non-ad valorem assessments, defined in subsection (1)(d) as those not based on millage that can lien homestead property under Article X, section 4. The office's role here was limited to that general framework, leaving the charter interpretation to Destin's own counsel.

Citations and references

Statutes and constitutional provisions:

• § 197.3632, Fla. Stat. (Non-ad valorem assessments)
• Art. X, § 4, Fla. Const. (homestead lien exceptions)

Cases:

• Charlotte County v. Fiske, 350 So. 2d 578 (Fla. 2d DCA 1977), assessment may fund a service, not just capital works
• Gleason v. Dade County, 174 So. 2d 466 (Fla. 3d DCA 1965), waste-collection assessment upheld
• Madison County v. Foxx, 636 So. 2d 39 (Fla. 1st DCA 1994), assessments allowed without capital improvements
• Jackson v. City of Lake Worth, 23 So. 2d 526 (Fla. 1945), assessment for benefit is not strictly a tax

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/special-assessments-meaning-of-local-improvement
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8157

Original opinion text

Ms. Heather J. Encinosa

Special Counsel to the City of Destin

1500 Mahan Drive, Suite 200

Tallahassee, Florida 32308

Dear Ms. Encinosa:

As special counsel to the City of Destin, you have asked this office for assistance in determining whether a city charter provision limiting the levy of special benefit assessments for local improvements applies to the enactment of an ordinance imposing a solid waste services assessment.[1] This office does not interpret the provisions of local codes and ordinances, thus no comment will be made on the specific provisions of the Destin Charter. A general discussion of what constitutes a special assessment and the appropriate improvements funded by such assessment will hopefully provide direction in the resolution of this matter.

While there has been confusion regarding the terms tax, special assessment, and service or user charges, the courts of this state and this office have provided direction in what constitutes each of the terms. Generally, a tax is a forced burden or charge assessed by a reasonable rule of apportionment on persons or property for the support of the government.[2] Special assessments, while not taxes,[3] are "charges publicly assessed against the property of some particular locality because that property derives some special benefit from the expenditure of the money collected by the assessment in addition to the general benefit accruing to all property or citizens."[4] Unlike a tax, special assessments are a special charge on land justified by the land deriving a special benefit in addition to the general benefit to the public.[5]

The courts of this state have recognized that special assessments may be imposed for the furnishing of garbage collection.[6] In Charlotte County v. Fiske,[7] the district court found that waste collection could be provided through special assessments, even though no capital improvements were involved.[8] Thus, where the provision of a service such as garbage collection is shown to bestow some special or peculiar benefit to the property above the benefits generally derived by all property or the public, special assessments may be imposed to fund such service.

Section 197.3632, Florida Statutes, allows local governments authorized to impose non-ad valorem assessments to use the uniform method of collecting such assessments in that section.[9] Non-ad valorem assessments are only "those assessments which are not based upon millage and which can become a lien against a homestead as permitted in s. 4, Art. X of the State Constitution."[10] Thus, in the instance where a fee is imposed upon property based upon the benefit to the assessed property and it becomes a lien against such property, it is a non-ad valorem special assessment which may be collected pursuant to section 197.3632, Florida Statutes.

As found in Fiske, the benefit to the assessed property need not be a capital improvement in order to be funded by a special assessment.[11] The court clearly found that construction of a public improvement is not necessary and that the "'improvement' involved may well be simply the furnishing of or making available a vital service, e.g., fire protection or . . . garbage disposal."[12] Thus, there appears to be no basis for limiting the interpretation of a "local improvement," where it is not defined otherwise, to those involving capital improvements.

I trust that these informal comments will be of assistance to you.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsrh

[1] Section 1.01(i), Destin Charter, states: [T]he city shall have the following powers:

"(i)(1) To levy special benefit assessments for local improvements and to acquire a lien on real property for failure to pay the assessment for the improvements.

(2) No special assessment for local improvements shall be levied by the city against any private property unless the procedures to make such levy have been invoked by a petition submitted to the city council bearing the bona fide signatures of the majority of the owners of record, as of the date of such submission, of the property to be assessed."

[2] See generally 50 Fla. Jur. 2d Taxation s. 2.

[3] See, e.g., Marshall v. C. S. Young Construction Co., 113 So. 565 (Fla. 1927); Jackson v. City of Lake Worth, 23 So. 2d 526 (Fla. 1945) (assessment for benefit, although not strictly a tax, is a burden levied under the power of taxation); Atlantic Coast Line R. Co. v. City of Lakeland, 115 So. 669 (Fla. 1927) (assessment for local improvement is part of system of taxation); Anderson v. City of Ocala, 91 So. 182 (Fla. 1922) (power exerted in imposing and collecting special assessments is the taxing power of the state).

[4] 48 Fla. Jur. 2d Special Assessments s. 1

[5] Id. at s. 2.

[6] See Charlotte County v. Fiske, 350 So. 2d 578 (Fla. 2d DCA 1977); Gleason v. Dade County, 174 So. 2d 466 (Fla. 3d DCA 1965) (pursuant to ordinance, special assessments for waste collection which became liens against the realty upheld). Cf. Op. Att’y Gen. Fla. 89-85 (1989), concluding that a flat fee collected by a county for garbage collection provided to those county residents choosing to use the service was not a special assessment, but was a charge for the services rendered, unrelated to any peculiar or special benefit received by the property and did not satisfy the requirements for a non-ad valorem assessment.

[7] 350 So.2d 578 (Fla. 2d DCA 1977).

[8] Id. at 580.

[9] Section 197.3632(3)(a), Fla. Stat.

[10] Section 197.3632(1)(d), Fla. Stat. Section 4, Art. X, Fla. Const., provides:

"(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:

(1) a homestead . . .

(2) personal property to the value of one thousand dollars. . . ." (e.s.)

[11] See also Madison County v. Foxx, 636 So. 2d 39 (Fla. 1st DCA 1994) (special assessments are permitted, even when no capital improvements are involved).

[12] 350 So. 2d 578 at 580.