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Published: Tuesday, Apr. 08, 2008 / Updated: Tuesday, Apr. 08, 2008 03:24 PM

Builder appeals impact fee ruling

The developer of a Tega Cay retirement community wants the courts to give the project a pass on school impact fees.

The developer of Stonecrest Villas, a primarily 55-and-older community, has filed an appeal with the 16th Circuit Court of Common Pleas to the York County Council's decision to collect impact fees.

The developer, Fankhauser Property Group, argues its residents don't strain the schools. Council members worry that allowing this community to skip paying $225,000 in impact fees, which help offset the cost of district growth, could set a dangerous precedent.

The Villas, at the intersection of Dam Road and Hwy. 160, is in the same complex as the Tega Cay Wal-Mart. The community opened in 2006 and more than two-thirds of the 90 residences have been sold starting at $190,000 each, said Brock Fankhauser, spokesman for the developer.

The Villas qualify as housing for older persons under federal law with 80 percent of residents aged 55 and older. Fankhauser said no school-aged children currently live in the units.

Because Stonecrest Villas doesn't increase the demand for school facilities, it shouldn't have to pay the fee, said Daniel Unumb, the developer's attorney.

"We believe that requiring this older persons' development to pay the fees is unfair and does not comply with the law," Unumb said last week.

The York County Council in January unanimously rejected the development's request for fee exemption. The appeal to the county came after county staff determined the development wasn't exempt from paying the fees. Though the school district receives the proceeds from impact fees, York County collects the fees and can grant waivers.

Fort Mill is the only district in the state with the right to charge the one-time fees on new housing units. A 1996 ordinance established the local fees before the state eliminated school districts' rights to charge them.

An appeal filed in March to the courts says the county council committed six errors of fact and law when it decided the development has to pay these fees.

"This is not about people seeking to avoid paying their fair share of costs of schools," Unumb told the council in January. "This case is about an application of the law on impact fees."

Michael Kendree, assistant county attorney, said York County is expected to respond to the appeal by next week. He referred questions to County Attorney Melvin McKeown. Efforts to obtain comment from McKeown were unsuccessful.

Development impact fees for schools were banned by a 1999 state ruling. Until the courts explain the grandfathering policies of the rule, York County's fees will be presumed valid, according to an opinion released in February by S.C. Attorney General Henry McMaster. But McMaster recommended the courts judge whether changes in 2003 and 2005 to the county's impact fee ordinance are constitutional.

These ordinances eliminated waivers of the impact fees for retirement and low-income housing.

Since impact fees were enacted in 1996, the number of students in the Fort Mill district has more than doubled. The $2,500 per housing unit fee helps offset school needs created by additional students and can be used for capital projects to offset bonds or lower taxes.