Litigation may be filed against Manatee County on impact fee increase

MANATEE -- With the approved increase of county impact fees, some representatives of the development and building industry are considering legal action against Manatee County over what they say are failings in the study on which the county based its decision.

Manatee County Commission voted this month to raise fees by 80 percent of the amount recommended by a consultant, then increase that to 90 percent in the second year and 100 percent in the third year. The new fees will go into effect April 18, 2016, and may include proposed school impact fees that go before the commission Jan. 7.

Developers and builders failed to persuade the commission to delay its Dec. 3 vote on impact fees. Morgan Bentley, who represents the Manatee Sarasota Building Industry Association, then wrote a letter to the commissioners highlighting what they see as "significant failings in the study," which was done by the consultant TischlerBise. In the letter dated Dec. 14, Bentley asks the commission to reconsider its action.

But on Dec. 15, the commission's next meeting when any action had to be taken on the vote, no commissioner on the prevailing side made a motion to reconsider the matter.

"I surely hope we have confidence in that report because it looks like we are going to be getting a legal challenge," Commission Chairwoman Betsy Benac said at the meeting. Benac was not on the prevailing side of the vote.

Carson Bise, president of TischlerBise, said TischlerBise has done more than 900 impact fee studies across the country including previous studies for Manatee County.

While not entirely against impact fees, Bentley said all they are asking for is to have both sides talk with each other.

"This isn't the typical developers and builders don't like to pay their fair share," he said. "They want to make sure it's the fair share instead of theirs plus someone else's fair share."

Bentley said last week that reconsideration would have been the "logical next step."

"I would hope that there could be some type of agreement between all the stakeholders," Bentley said. "I don't see that as a likely outcome anymore. It's not over until it's over. If they don't come to some kind of agreement, the only option would be some type of litigation."

But there will not be another chance for the commission to reconsider the county impact fee vote under the commission's approved procedures.

"The opportunity to reconsider a vote has to be taken in the meeting immediately following the vote," said Nick Azzara, the county's spokesman.

Rex Jensen, CEO of Schroeder-Manatee Ranch, the developer of Lakewood Ranch, sent an email to the commissioners and other county officials Dec. 10 asking for reconsideration, saying the "new fee schedule hurts the low end of the market."

In the email, Jensen says the impact fees levied on an apartment will now be the same amount per square foot as a single-family home as will a townhouse. In the past, apartments and townhomes were treated as separate fee categories, Jensen said.

"The only thing that goes down is a one-bedroom apartment," Jensen said in the email. "Everything else goes way up. You people at the county talk the talk of being sensitive to affordable housing, workforce housing and economic development, but when confronted with facts as I tried to convey to you, you turned a deaf ear. Well, I am not going away. I am trying again. I know what I am talking about on this issue."

Jensen declined any further comment on the topic last week.

While the exact amount the fees will increase depends on the size of the house or other building and its location in the county, the increase, at the 80 percent level, is projected to bring an additional $2.1 million in revenues, or 14.4 percent more, than what the current fees bring. For the first time, the county will have a library impact fee in addition to the parks, law enforcement, public safety and transportation impact fees. The commission also approved an administrative charge.

According to the letter from Bentley, the TischlerBise study's failings fall into three categories: incomplete data, patent lack of proportionality, and failure to account for credits and set-offs.

"Any one of these failings will invalidate the ordinance, and in any action challenging an impact fee, the Impact Fee Act places the burden of proof on the government," Bentley writes in the letter. "Again, we would prefer to avoid debating these matters outside of our otherwise good forum of communication with you. We would ask that you reconsider your prior decision so we can avoid any further actions and expense to all sides and be fair to both the building community, the public and the county as a whole."

County backs impact study

Dan Schlandt, deputy county administrator, has said the county believes the TischlerBise study is a good study.

"We believe it's a valid study," Schlandt said at the Dec. 3 meeting. Schlandt added that these fees are necessary to provide the infrastructure that's needed.

Since Manatee County currently relies on impact fees as the primary means to pay for infrastructure to serve new development, Schlandt said they must have impact fees at a level that will continue to pay for it.

"We have to provide the infrastructure that is going to be needed to serve new development," Schlandt said.

It is unclear how many parties may be pursuing litigation against the county, Bentley said.

"You would think you would have industry leaders for sure looking at it," Bentley said. "We wouldn't be filing before the end of the year. We would probably have to do something in January."

With the school impact fees slated to go before the commission at the beginning of January, it is likely that they will hold off on taking legal action until after that outcome. However, Bentley said there are fewer issues with the school impact fee study that are "more technical in nature."

But even if litigation is filed in January, a decision will likely come after the fees' April 18 implementation date.

"They would go into effect as is," Bentley said. "It would get dealt with in the end depending on what comes out."

Commissioner Robin DiSabatino said commissioners have to make decisions in the best interest of Manatee County residents.

"We are a community and every time we get sued for some one reason or another, then it costs us more money and then the taxpayers have to pay for it," DiSabatino said. "I'm just asking the groups out there that are behind the suit to wait and see what we come up with in the next six months. ... I really hope that they hold off. Give us six months or so to come up with a plan and program that we can live with. If anything they need to slow down is this potential of a suit."

A Citizens Financial Structure Advisory Board, which met for the first time last week, will make recommendations to the commission by May 1 about ways to help address Manatee County government's funding issues.

In the email to commissioners, Jensen of Schroeder-Manatee Ranch said the county's reliance on impact fees to fund the Capital Improvement Program is "why you are always behind the eight ball and Lakewood Ranch is not."

"By the time you save up your nickels through impact fees and finally build the roads you need (and have needed for years) they are already over run on the day you open them up," Jensen said. "You will never get ahead. You will never even keep up that way. You need a diversified funding program with a variety of sources. Please get off the nickels and dimes and come up with one."

Claire Aronson, Manatee County reporter, can be reached at 941-745-7024. Follow her on Twitter @Claire_Aronson.

This story was originally published December 26, 2015 at 11:08 PM with the headline "Litigation may be filed against Manatee County on impact fee increase ."