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Lawsuit filed in W.Va. impact fees dispute

June 11, 2004|by CANDICE BOSELY

martinsburg@herald-mail.com

CHARLES TOWN, W.Va. - The Jefferson County Commission has filed a lawsuit asking that a judge uphold the county's impact fee ordinance and require the City of Charles Town to abide by the ordinance.

The suit, filed Tuesday, alleges the city has been issuing building permits without collecting school impact fees as the ordinance requires. The suit alleges the town has instead been charging developers a "voluntary proffer" fee.

The County Commission is asking that a judge rule the impact fee ordinance is legal and applicable throughout the county and its municipalities. It also asks the judge to enforce the ordinance's provision that an impact fee must be collected before a building permit is issued.

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The suit, filed by Jefferson County Assistant Prosecutor J. Michael Cassell, names the City of Charles Town, Mayor Randolph Hilton and Building Permit Officer John Dick as defendants.

The suit does not seek revenue from the voluntary proffer fee it alleges the town has been collecting instead of the impact fee.

School impact fees are used to help pay for new schools needed because of population growth.

According to the nine-page lawsuit, Charles Town officials have issued more than 40 building permits since Jan. 26 without collecting impact fees. The fees were to be collected beginning Jan. 26.

Under the impact fee schedule, developers must pay $7,122 for every new single-family home and mobile home they put up, $5,562 for every townhouse or duplex and $4,040 for every multi-family dwelling.

City officials have no authority to collect a voluntary proffer fee instead of an impact fee, the lawsuit states.

"'Voluntary proffers' are 'negotiated' based upon a written offer of a landowner, not assessed routinely on a uniform schedule of fees. These 'voluntary proffers' are by their very nature not uniform," the lawsuit states.

Cassell said Thursday he did not know how much money was collected by Charles Town officials.

Hilton did not return phone messages left at his home Wednesday and Thursday. He has previously said he did not realize impact fees were not being forwarded to the county from Charles Town.

More than two months ago, after County Commission President Al Hooper said he wanted to meet with Hilton to discuss the matter, Hilton said he was encouraged.

"This is good. I think it's always preferable to work things out informally rather than through the courts," Hilton said at that time.

The county commissioners reported a similar impact fee collection problem with Ranson, W.Va., but were able to work out the matter in April before a lawsuit was filed.

Although the commissioners did not discuss the details of the agreement with Ranson during their April 8 meeting, after the meeting Commissioner Rusty Morgan said the issue revolved around a lack of understanding of the administrative process.

Ranson officials were going to collect the school impact fees themselves, but decided it was best to let the county handle the fee collection, Morgan said.

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