Impact fee exemption a sticky situation
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Editor,
The Polson City Council passed an ordinance on March 19, 2007, that assessed fees on new development. The city website states that after May 2007, each new homebuilder must pay “impact fees” of $7,174.
The original Council motion, however, exempted “those with preliminary approval.” The city attorney was present when the motion was made and, according to the minutes of the meeting, did not suggest alternative wording to make it less vague. One very apparent problem with the wording, as passed, is that all subdivisions that are eventually recorded have “preliminary approval.” Without preliminary approval, no subdivision could be presented to the council for a vote on final approval. So as passed, apparently all subdivisions are exempt from the assessment of fees.
The next step in the process, after a council vote, is for the city attorney to draft the actual ordinance language. Unfortunately, the drafted language failed to include the exemption established by the council.
Since May of 2007, the city website has stated that every new single-family homeowner is obligated to pay the impact fees. City Attorney James Raymond applied for a building permit for his new home on June 25, 2010. He was issued a permit on Sept. 24, 2010. He did not pay impact fees and paid for his building permit on June 30, 2011.
When an accounting report from the city did not show the attorney’s payment, Judy Preston asked the city manager to address the issue. He stated the attorney had a “grandfathered right,” but since it was not clear exactly what the right was, he retained Bob Long, an outside attorney, to answer the specific question, “Is the city attorney obligated to pay these fees?”
Long issued a letter on Jan. 16 that states, “Insofar as the written ordinance fails to contain the exemption, it does not reflect what the council enacted and to that limited extent is in violation of MCA 7-5-4201[2] and is not enforceable.”
The exemption made by the council appears to be very inclusive and the city’s attorney did not advise the council before the motion was passed. Then he drafted the ordinance and failed to include the exemption but apparently was aware of its existence, since he used the exemption when it benefited him.
There has been no attempt by the attorney or the manager to correct the language, which was understood to be in error when the attorney applied for his own building permit.
It seems that thousands of dollars of impact fees will need to be refunded to those eligible for the exemption.
Bob Fulton
Polson
