INDIAN RIVER COUNTY — According to County Attorney Alan Polackwich, the question of the county’s obligation to return unspent fees is not clearly answered by existing law. His findings come after weeks of in-depth research looking at statutes and legal decisions regarding impact fees in Florida.
“There are strong legal arguments in favor of refunds and strong arguments supporting the county if the board decides to retain the fees,” he told the Board of County Commissioners Tuesday. “However these arguments have not been tested and, without legal precedent one way of the other, any prediction of the outcome is a little more than speculation.”
Impact fee refunds have come before the council frequently in recent months mainly due to the efforts of Charlie Wilson, president of Asset Research and Recovery, who represents a number of island residents he says are due $1.2 million in refunds of impact fees that were collected in the 1990s and never spent.
County staff has argued against Wilson’s interpretation, saying most of the money has been spent and that the timeframe for refund of what remains has passed. The matter was confounding enough that commissioners asked Polackwich to research it and provide a legal opinion.
After his exhaustive investigation, which Wilson said had made him “the world’s greatest expert” on impact fees, Polackwich said he believes the decision to refund or not refund is more of a policy issue than a legal one.
He added that if the commission does decide to issue refunds “there is a serious question exactly what will be refunded to whom.”
When the county passed its original impact fee ordinance in 1986, the code said those who paid the fees would receive any refunds that became due. In 2005, the ordinance was changed, making refunds due to the current owners of impacting property.
“It could be argued that refund of impact fees paid in the1990s will, in many cases, amount to a windfall for current property owners – many of whom did not own their properties in the 1990s and are not the owners who paid the impact fees,” Polackwich wrote in a document submitted to the commission.
Wilson agreed that the county would be letting itself in for a wide range of complicated problems if it begins to refund money to people other than those who paid the fees originally.
“You will be opening up a can of worms,” he said.
The commission took a break and was due back this afternoon to continue the discussion.
