BONITA DAILY NEWS
Impact fee issue continues for Estero's fire district

Monday, June 2, 2003

By CHARLIE WHITEHEAD, ckwhitehead@naplesnews.com


When the builders of Miromar Outlets went to Lee County and got permits to build the 1 million-square-foot mall, they did not have to pay fire impact fees. Likewise for the builders of TECO Arena, the 8,000-seat building next door to the mall.

Estero Fire Chief Dennis Merrifield said that doesn't make any difference in the way the day-to-day business of the district is handled. If the arena or the mall catches fire, his firefighters will respond and battle the blaze.

But Merrifield still remembers losing a case that he says has cost the district $3 million in uncollected fire impact fees on new homes and businesses in Estero. A change to the Land Development Code that county commissioners will consider in June could resurrect the old arguments in a very similar case.

"The basic issue is these properties are being built," Merrifield said. "We have a responsibility to provide fire rescue service to them. Everybody should pay their fair share. That's what public policy says. The expectation is that the new capital items, the stations and trucks, should be paid for by impact fees. If they exempt the impact fees, where does the money come from? It comes from the taxpayers."

Fire impact fees are assessed to new construction, and the money is used to pay for fire equipment and stations.

The roots of the dispute can be traced back to 1986, when five Corkscrew Road developments began wending their way through the county permitting process. They received zoning for thousands of acres of commercial and residential development.

Little actual development had taken place when the five owners struck formal agreements with the Estero Fire District in 1995 in which the developments would pay fire impact fees on a set schedule instead of as each residential or commercial permit was pulled.

When one of the developers requested building permits for the new mall in 1998, however, that agreement became the center of a dispute between the developers and the fire district.

The crux of the fight was that the developers argued the agreement meant they had fully paid all their fire impact fees for any construction relating to their development. The district, though, claimed the payments were only credit against any future impact fees. After the credit was used up, the developer would have to pay additional fees as new homes and businesses were built, the district argued.

The disagreement was over much more than the $150,000 the mall did not have to pay. Between the five landowners, the issue involves closer to $3 million.

Because the county collects impact fees for the various fire districts, it was up to the county to interpret the original agreement. The County Attorney's Office said the outlined payments were payment in full. The district launched an appeal to the county hearing examiner, and then to the Circuit Court. Both ruled they had no jurisdiction to rule because the county has sole responsibility to collect impact fees.

Frustrated on all fronts, the district proposed changing the rules to allow an appeal to the hearing examiner or to commissioners themselves. At public hearings on June 10 and June 24, commissioners will consider a slate of changes that includes a new appeal process.

County land use attorney Tim Jones said the appeal process won't re-open the mall case, but it could conceivably apply to others. The Habitat, for example, struck a similar payment agreement with the district at about the same time.

Estero Fire Chief Dennis Merrifield said creating an appeal process is a matter of simple fairness.

"What we have is a staff member making a decision unilaterally, a decision that can negatively affect another governmental entity," he said. "We couldn't even appeal it and have a neutral third party hear it. All we're looking for is simple basic fairness."

Mike Roeder is a planner who's worked for Corkscrew area developers, including the Habitat. He said the issue of the agreements has already been hashed out.

"They just won't give up on this," he said, "though the county's decided."

Roeder said the agreements were made at a time the district envisioned only a single station, and Habitat will likely have made every one of its payments ó around $31,000 a year for 10 years ó before the first home is built.

"We agreed in good faith," he said. "And at that point in time it was more than enough."

"It seems like they're changing the ground rules as they go along," Roeder said.

Bill Spikowski is the planner for the fire district. He said the district hasn't crunched the numbers to find out how much could be at stake in an appeal. There's also no guarantee of winning an appeal.

"Getting the right to appeal doesn't mean you win," he said.

The county's Fire Commissioner's Forum, a group comprised of elected board members from the nearly 20 independent districts, supports creating the appeal process.

Merrifield and fire commissioner Larry Westin penned a letter that's circulating in Estero, urging residents to contact their commissioners and asking them to support the change. The letter said the district is already losing millions.

"This bleeding continues today as each time a building permit is issued the previous unilateral decision of county staff is being relied on to further exempt developers from impact fees," it says. "Please let them know that there is a problem and that the (commissioners) need to fix it."