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PINELLAS COUNTY June 10, 2004 Mr. Biff Baker, Chairman Mr. Biff Baker, Chairman Feather Sound Community Services District, Inc. 2333 Ulmerton Road, Box 266 Clearwater, FL 33762 Re: Street Lights on Private Roads Within the Feather Sound MSTU Dear Mr. Baker: I have been asked by Susan Churuti, County Attorney, to respond to your recent correspondence requesting guidance on the placement and/or maintenance of street lights on private subdivision roads within the Feather Sound Municipal Services Taxing Unit. I apologize for the delay in responding to your request, however there have been ongoing discussions within this office regarding the Florida Constitutional limitations on expending public funds for maintaining/ repairing private roads and related infrastructure, such as street lights. Generally, it has been the consistent opinion of the County Attorney's Office that it is not legally permissible to expend public funds to construct or maintain private roads, and related infrastructure such as drainage facilities and street lights, because this violates Article VII, Section 10 of the Florida Constitution, which prohibits a local government from lending or using its taxing power or credit to aid any corporation, association, partnership, or person. The focus of these opinions is that such expenditures do not primarily serve a public purpose. Consistent with this position, a long line of Attorney General Opinions opine that such expenditures are not proper, such as AGO 92-42, for example, states that a county could not expend funds to repair and/or maintain private roads, regardless of an agreement allowing school buses to travel upon the roads to transport the children of the landowner/parent. Similar opinions were stated in AGO 79-14 and AGO 85-101, limiting the ability of local governments to expend public funds to maintain private roads. Of interest, however, is the fact that as established in these opinions, the public did not have the general right to travel over the private roads, which is apparently not the case in the Feather Sound MSTU, at least as to Egret Blvd., Lakepoint Drive, Heron Blvd., and Whisperwood Drive. Further, recent court decisions and attorney general opinions support the proposition that "... [t]he special taxing district mechanism exists to enable communities and neighborhoods to provide and pay for those additional facilities and services - - which they deem essential and desirable, and which especially benefit their property - - such as water, sanitary sewers, storm sewers, street lights, parks, landscaped green areas, better roads, sidewalks, and additional police and fire protection services." Rushfeldt v. Metropolitan Dade County, 630 So.2d 643 (Fla. 3`d DCA 1994). See also, Northern Palm Beach County Water Control District v. State, 604 So.2d 440 (Fla. 1992). Consistent with the reasoning expressed in these decisions, the attorney general opined in AGO 02-48 that a county may furnish such services as maintaining or repairing privately owned roads and related infrastructure, or privately owned water and sewer systems, if provision is made for the payment of all actual costs by the owner or owners of the private road or water and sewer system to the county, and it is determined that such a program serves a county purpose. See also, AGO 99-15 (County could enter into a private dirt road grading program whereby residents could request that their driveways and private property be graded for a set hourly rate). The Feather Sound MSTU is a "special tax district" as approved by referendum of the electors created, in part, to install and maintain street lights, and all the costs of installation, maintenance an operation is paid for by the property owners benefited by the street lighting through the MSTU. Therefore, based on the foregoing, I am of the opinion that it is permissible, but not required, for the Feather Sound Community Services District Inc. to locate and maintain street lights on private roads that are open to the public without restriction or limitation, and there is a determination made that such a program serves the public purpose. Private roads in gated communities, or which are otherwise not open to the public, would not qualify for street lights paid for by MSTU funds. If you have any questions, please contact me. Sincerely,
Dennis R. Long, Esq re :chm cc: Susan H. Churuti, County Attorney "PINELLAS COUNTY IS AN EQUAL OPPORTUNITY EMPLOYER" |
