Effingham County Board of Commissioners v. Park West Effingham, L.P.
308 Ga. App. 680
| Ga. Ct. App. | 2011Background
- Park West filed a declaratory judgment challenge to a county-developer agreement imposing pre-issuance impact fee payments.
- DIFA OCGA 36-71-4(d) prohibits collecting development impact fees before issuance of a building permit, with limited exceptions.
- Effingham County obtained a GEFA loan for water/sewer expansion and required $6.5 million in nonrefundable impact fees and guarantees before contract execution.
- The 2006 agreement required the Developer to pay impact fees and guaranteed $1,245,360 with an irrevocable Letter of Credit, plus a fixed annual minimum payment for 10 years.
- In 2009 the county issued a Notice of Shortfall seeking ~ $700,000 based on contract percentages, even though no building permits had been issued.
- Trial court granted Park West summary judgment; on appeal the court affirmed, holding the agreement violated OCGA 36-71-4(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the agreement violates OCGA 36-71-4(d) | Park West argues the agreement pre-pays impact fees in violation of statute. | Effingham County contends parties may contract terms; any violation is collateral. | Yes; the agreement violates 36-71-4(d) and is void. |
Key Cases Cited
- City of Griffin v. McDaniel, 270 Ga.App. 349 (2004) (statutory limits on development exactions; interpretation of DIFA)
- Fulton Greens, L.P. v. City of Alpharetta, 272 Ga.App. 459 (2005) (contractual method of reimbursement; DIFA compliance)
- Shannondoah, Inc. v. Smith, 140 Ga. App. 200 (1976) (violation not required by contract; incidental to performance)
- Taylor v. Kennestone Hosp., 266 Ga.App. 14 (2004) (public policy/contract to violate law; unenforceable)
- Moore v. Dixon, 264 Ga. 797 (1994) (unlawful contract altering state law)
- Maner v. Chatham County, 246 Ga.App. 265 (2000) (contracts cannot alter statutory requirements)