By Michael Howell
Attorney Dick Weber, representing Bitterroot Ranch LLC, came before the Commissioners last week asking that the subdivision plat the company created back in 2009 be vacated and their mitigation fees refunded. After much discussion the commissioners agreed to vacate the subdivision but were not willing to refund any of the fees. They gave the developers until August 28 to either go through with the decision to vacate the plat or withdraw the request.
The county approved the subdivision of a 15-and-a-half-acre parcel into eight lots in 2009 and the final plat was filed that same year, but no lots were sold and the road that was going to serve the subdivision was never constructed. A bond for road construction was required for final approval, however. The county also collected about $60,000 in mitigation fees which included about $38,670 in pro-rata share for access road improvements, $13,652 cash-in-lieu of park land, $4,000 to the fire district and $4,000 to the school district.
Attorney Dick Weber, speaking on behalf of the developers, told the commissioners that they were seeking to have the plat vacated and the bond requirement dissolved and some of the mitigation fees returned. He said the developers, Wayne LaBaron and Roger Russ, had agreed that they would not be asking the fire district or the school district to return any fees but they would like to lift the bond requirement and were seeking a refund of the $38,670 for pro-rata share for road improvements and the $13,652 for cash-in-lieu of park land.
Weber said that he was simply seeking a fair solution to the issue. He said the fees were paid to mitigate impacts that were never realized and would not be realized if the plat was vacated. He said that there was nothing in state law saying they must refund the fees, but on the other hand there was nothing in the law saying they couldn’t.
Deputy County Attorney Howard Recht agreed with Weber about the law but cautioned that he had some concerns from the legal perspective about the setting of a precedent that would have to be honored in the future. He said once a precedent was set the county could be saddled with creating a fund to hold mitigation fees in case they should have to be refunded at some future date.
“The county really has no process in place to consider these things,” said Recht.
John Kellogg, a consultant for the developers, suggested that rather than a cash refund the county could simply give the developers credit for future impact fees that could be used on some other development. He suggested the credits be transferable to some other developer as well. He called it a win/win situation.
Recht raised legal issues with the credit idea as well. He said once again that there was no process for transferring mitigation fees from one place to another or for handling different requests. Terry
Nelson, administrator of the county planning office, suggested that since there was no law for or against refunding fees it was just a matter of figuring out the right mechanism.
Recht said the issue still presented a few challenges, one of which was the issue of giving a government function over to a private entity.
Commissioner Greg Chilcott called the credit idea “an elegant solution to the fairness issue” but he doubted that the commissioners had the authority to do it. He said there is always a risk to development.
Commissioner JR Iman agreed, saying that every developer takes a risk but the public should not be asked to join in the risk. He said the subdivision and related fees were discussed and agreed to in advance.
“To come back a number of years later and say let’s undo it is not right,” said Iman.
Commissioner Ray Hawk said he wasn’t in favor because he doesn’t want to set a precedent and he questioned the legal authority of the county to create some sort of negotiable instrument that could later be sold to another party.
The Board of Commissioners voted to vacate the plat and lift the bond but declined to refund any of the mitigation fees. They gave the developer until August 28 to either agree to vacate the plat without a refund or withdraw their request to vacate the plat.