Centex wins impact fee refund at commission meeting

BRADENTON - The home builder Centex scored a victory Tuesday when the Manatee County Commission voted 6-0 to approve awarding impact fee credits to the company for the construction of Creekwood Boulevard in the Crossing Creek development.

According to county documents:

In August 2005, the county commission granted credits to Creekwood Estates LLC and M&S LLC for right-of-way dedication in the DRI and development. In September 2008, the commission authorized impact fee credits to Centex Homes for the construction of Creekwood Boulevard through the developments. Creekwood Estates and M&S also received impact fee credits in September 2008 for their contributions to the road work.

On Sept. 11, 2008, Creekwood Estates and M&S submitted impact fee refund requests to the Planning Department on the basis of the credits awarded to them in 2005 for 62 building permits. On Oct. 24, 2008, Centex submitted refund requests based on the same 62 permits, which had been pulled, paid for and built by Centex.

Staff felt that Centex had a more justifiable claim, but Creekwood Estates and M&S disagreed. After consulting with the County Attorney, the attorney agreed that Centex deserved the refunds. On March 17, attorney Edward Vogler, representing Creekwood Estates and M&S, challenged the administrative determination and requested an appeal on the grounds that his clients were awarded the fee credits before Centex received them; the road would not have been possible had Creekwood and M&S not dedicated the land to build the road; and based on the land development code, which said that they were entitled to refunds of impact fees within the Creekwood DRI and Crossing Creek developments paid by third parties.

Assistant County Attorney William Clague said that whatever decision the commission made, it would probably go to Circuit Court.

"This is a case of first impression," Vogler said. "It's an adversarial situation between competing interests for money." The ordinances in the land development code about impact fees, credits and refunds do not cover this situation, he said.

The circumstances justify an award to the applicant, Mobley Homes, for three reasons, he said. The dedication of land preceded the Centex claim by more than three years, and Centex knew someone else dedicated the land. The commission needed to use common sense and fair principles. "The fair principle that I feel applies is the commonly understood principle that first in time is first in right," Vogler said.

Also, he said, when there are competing claims, the claim for the right of way should precede the claim for the construction of the roadway. "If you don't have the right of way, you don't get to build the road or the bridge," Vogler said, referring to an earlier item on the commission's agenda and the debate it sparked.

The party that gave the road should be paid first, he said.

The third point is that the matter has been limited to refund dollars for 62 homes, and a portion of the land was conveyed for the DRI, and a portion of the refund should be applied to his clients because of all the impact fees paid.

Kevin Hennessey, representing Centex, asked, "Has any Mobley entity built a home in Crossing Creek? Has any Mobley entity paid impact fees associated with the construction of a home in Crossing Creek? Other than Crossing Creek, what other refund requests have Mobley entities submitted to Manatee County? Where in the land development code does it define 'first in time, first in right'? And finally, where in the land development code does it provide for a preference in dedication credits over construction credits?"

Mike Woolery, the director of land development for Centex, said the company has built 90 homes in the past two years, with 10 under construction now and seven or eight left to finish. The company built the infrastructure and the road, he said. They had to pay cash for the impact fees to get the permits to build the homes, had done so and then filed for a refund, finding that Mobley Homes had also filed for a refund.

Neither entity Vogler represents ever paid impact fees or built homes in Crossing Creek, Woolery said, and there was no deal between Centex and the companies. "In my over 10 years of development experience, I've never heard in this county or in other counties that I worked in of another developer trying to cash in on credit refunds against another builder's payments."

Hennessey added that giving the refund to Mobley could create a scramble as developers try to take each others' refunds.

Clague noted that this is part of a larger controversy between the developers. "This particular episode is one in the larger saga that we just had to deal with," he said. "The county attorney's office stands by the advice we gave to staff."

The standard practice, Clague said, you can only get refunds only if you've paid the fees unless you've made an agreement with the payer of the fees. "We didn't have that here," he said. First in time is not in the code, and might have to be added to it.

"This could open the door to other claims," Clague said. "I think there is a possibility there could be a free-for-all if we go the way the appellant is suggesting because others will come in and try to do the same thing and there would be a lot of disputes going to you, and ultimately to court."

Vogler said Mobley holds credits from August 2005, predating Centex's entitlement to credits. In the absence of the ordinance, everyone should be treated fairly. "It's important to know that Mobley Homes and the other companies contributed right of way land that is an important part of the thoroughfare," he said. His client might deserve a refund for the land delivered by Mobley, and that might be a fair resolution.