Gwinnett Impact Fees

At the Ebony Society candidates’ forum on June 1, responding to a question about impact fees, District 4 County Commissioner (and candidate for reelection) Kevin Kenerly replied (paraphrased):

“If Gwinnett had had impact fees when Hamilton Mill was built, we would have had to write the developer a check for $500,000 for all the stuff he did out there.”

I think that paying a developer $500,000 is a “bad” thing (with Kevin, you never know), so I assume that Kevin was attempting to make an argument against an impact fee ordinance, something that is currently being considered by a citizen committee.

“But Kevin is the Commissioner who proposed a study committee,” you might say. This is true, but keep in mind that he did so in a campaign year, just like he proposed the study committee for joint Board of Education / Board of Commissioners issues in 2002, when he was seeking his third term.

Kevin’s argument was that, if a county has an impact fee program, it is required to reimburse developers for infrastructure that they built voluntarily or as a requirement of a rezoning application approval. Kevin claimed that the value of infrastructure contributed by the Hamilton Mill developer was $500,000.

Kevin is wrong. Either he doesn’t understand or he lied to deceive. It must be one or the other.

Under the Georgia Development Impact Fee Act (DIFA), there is only one circumstance under which a government assessing impact fees must “write a check” to a developer. If the government does not build the public infrastructure for which an impact fee is collected and six years has passed since the fee was collected and the funds are not encumbered to be spent and the developer who paid the fee requests a refund, then the government may be required to “write a check.”

Under no circumstances must a government pay a developer in cash for public infrastructure voluntarily built by the developer. Likewise, government will not reimburse a developer for infrastructure built as a requirement of a rezoning.

Most likely, Kevin was arguing that the county would have been required to reimburse the impact fees paid by the developer who subsequently built the roads, the acceleration and deceleration lanes, the traffic lights and the like himself as part of the Hamilton Mill development.

Doesn’t matter; Kevin is still wrong.

1. Impact fees are collected within specific categories. If the county collected a fee for the construction of libraries and the developer builds a road, the county does not have to give the developer any credit for the road.

2. The county wouldn’t pay cash, anyway. If a developer builds infrastructure for which he would/did pay a fee, he would receive a credit against the fees for that development or for a future development, not cash.

3. Impact fees are charged to pay for system improvements, which is the expansion of infrastructure that serves the wider community (libraries, police and fire stations, major roads, water and sewer, etc.). DIFA makes it illegal to force developers to build this type of infrastructure as a condition of rezoning approval.

On the other hand, a developer can be required to build project improvements, which are facilities intended to serve the subject development only. The government has no obligation at all to reimburse in cash or give credit against impact fees paid for this type of infrastructure.

Project improvements may include interior roads, water and sewer lines, acceleration and deceleration lanes and sewer pump stations.

The bottom line is that Kevin is absolutely wrong. Now the question becomes: is his assertion the result of simple ignorance or a wilful intent to deceive?

Impact fees and their implementation can be a daunting topic for public discussion. There is very little information available to the public on this innovative way to finance infrastructure for new growth. Although DIFA has been around since 1990 and other states have had impact fee laws for much longer, very few Georgia governments have taken on the task of developing an impact fee ordinance until recently. Much “impact fee water” is still uncharted; for example, there is only one Georgia court case that provides any precedence on the subject.

The problem of lack of knowledge is compounded by the myths and misconceptions propounded by impact fee opponents, who are usually developers and the elected officials who cater to them. Although DIFA was originally promoted by the development community as a way to eliminate unreasonable exactions (the practice of local governments to require developers to build infrastructure as a condition of zoning and/or development approval), it has been that same development community that has disseminated most of the misinformation in their effort to dissuade local governments from enacting impact fee ordinances.

As we have shown above, Kevin either doesn’t understand how an impact fee ordinance would operate (as evidenced by his erroneous remarks) or he made a statement to the Ebony Society audience that he knew to be untrue. The only reason that he would purposely deceive the forum attendees would be to convince them that Gwinnett County should not have an impact fee program.

If he is simply ignorant on the topic, perhaps he should educate himself or refrain from speaking lest he deceive those as ill-informed as he. As a sitting Commissioner, he has an obligation to speak the truth if he purports to speak with authority.