By Greg McAloon, Esq.
Sachs Sax Caplan, P.L.

Homeowners’ associations (HOAs) and condominium boards are already under increasing financial pressure. Between rising insurance costs, post-Surfside safety requirements, and mounting special assessments, many communities are stretched thin. Yet a lesser-known issue is quietly adding another layer of financial strain: associations being required to maintain public roadways.

It sounds counterintuitive, but it is happening with increasing frequency across Florida.

How This Happens

When a developer seeks approval for a large-scale project, local governments impose conditions as part of the permitting process. These conditions often include roadway construction, improvements, or impact fees, and in many cases, these requirements are appropriate. New development increases density and intensity, which results in increased traffic impacts on public roadways. The increased density and intensity directly results in increased wear and tear, and requiring the developer to contribute financially to mitigate those impacts is fair and logical.

The problem arises when the obligation does not end with construction.

In several matters I am currently handling, local governments required developers, as a condition of approval, to not only build public roadways, but also shift permanent maintenance responsibilities onto the homeowners’ association after turnover. The developer agrees to these conditions not because they directly benefit future homeowners, but because they are necessary to secure project approval. Once the developer completes the project and exits the development, responsibility for maintenance of the public roadway — and any associated burden — shifts to the homeowners’ association.

This results in everyday homeowners paying to maintain infrastructure used by the general public.

A Real-World Example

In one instance, a homeowners’ association is obligated to maintain a roadway for which it cannot even directly access from its community. The road primarily serves a neighboring apartment complex that recently sold for over $100 million. The association receives no benefit, no direct access, and no control, yet bears the full cost of maintenance of the public roadway.

Put simply, in some instances homeowners’ associations are subsidizing roadways for large-scale developments that primarily benefit the public.

What Is the Legal Issue?

This practice raises serious concerns under a legal concept known as the “rational nexus” standard. In Florida, the rational nexus standard governing roadway construction requires local governments to establish two reasonable connections: (1) a nexus between the need for additional capital facilities and the growth generated by new development, and (2) a nexus between the expenditure of collected funds and the benefits accruing to the development paying the fees. This dual test applies to impact fees and to exactions imposed as conditions of development approval for transportation improvements.

Stated more plainly, the standard requires that:

Government-imposed conditions must relate directly to the impact of the development;
The burden imposed must be proportionate to those impacts;
The affected property owners must receive a meaningful and tangible benefit.

If a community does not use the road, does not benefit from it, and does not generate the traffic on the roadway, is there a “rational nexus” between the condition and the development?

When that “rational nexus” element is missing, the condition may become an impermissible exaction, essentially shifting a public responsibility onto private citizens.

Impact Fees vs. Perpetual Maintenance

To be clear, roadway impact fees serve a valid purpose. Additionally, this article does not contemplate the maintenance of private roadways, as this remains the responsibility of the association.

Road impact fees are one-time charges assessed to fund road expansions, maintain existing roadways, and improve pedestrian and bicycle infrastructure. These road impact fees ensure that the increased density and intensity of the proposed development on the transportation network are offset in relation to the development’s impacts.

But there is a major difference between a one-time contribution and a permanent obligation.

Asking a developer to fund construction is reasonable. Forcing homeowners to maintain a public road in perpetuity may not be.

Why This Matters Now

Associations fund these maintenance obligations through general and special assessments. That means fixed-income residents, young families, and retirees are required to incur thousands of dollars in unexpected costs for infrastructure they may not own and which may not serve a benefit to the association.

This issue is no longer theoretical. Local governments are continually reviewing budgets and seeking to reduce expenditures. Requiring an association to maintain a public roadway effectively shifts a core governmental responsibility to private property owners, freeing local government funds to be redirected toward other expenditures unrelated to roadway maintenance.

The Bigger Policy Question

This is ultimately a legislative issue. Local governments are struggling with budgets, and roadway maintenance is expensive. However, shifting the maintenance responsibility in perpetuity of public roadways onto private communities is not sustainable or fair.

The core question lawmakers must address is simple:

If a roadway is public, shouldn’t the public maintain it?

Clarity in the law would protect homeowners, prevent unfair cost shifting, reduce payment obligations for certain associations, and restore public roadway maintenance as a governmental responsibility.

What Associations Should Do

Boards should:

• Review governing documents
  • Determine roadway ownership
  • Understand maintenance obligations
  • Question unusual development conditions
  • Seek legal guidance before accepting responsibility

Many communities do not even realize what they own until the bill arrives.

Final Thoughts

This issue sits in a gray area of the law. But one thing is clear: asking individual homeowners to subsidize public roadways that primarily benefit multi-million-dollar developments is not sound public policy.

Infrastructure is a core government responsibility. It should remain that way.