Agenda - Planning Commission - 07/07/2011

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May 10, 2011 I Volume 5 I No. 9 Zoning Bulletin On March 18, 2009, the County served upon Park West a "No- tice of Shortfall" seeking payment of approximately $700,000 for impact fee payments. The notice sought payment of impact fees on the basis of the percentage provided for in the Agreement. It did not consider whether building permits had been issued. In fact, no building permits had been issued corresponding with the amount sought in the Notice of Shortfall. Park West filed an action in court, challenging the County's No- tice of Shortfall. Pa:tk West asked the court to declare that Park West did not owe any prepayment of impact fees pursuant to the Agreement. In support of its position, Park West contended that the Agreement violated the provision of the Georgia Development Impact Fee Act, OCGA % 36-71-4(d) ("DIFA"). Section 36-71- 4(d) prohibits the collection of impact fees before the issuance of a building permit. The trial court agreed with Park West. Finding there was no mate- rial issue of fact in dispute and deciding the matter on the law alone, the court granted summary judgment in favor of Park West. The court found the Agreement was void because it violated § 36-71-4(d). The County appealed. DECISION: Affirmed. The Court of Appeals of Georgia held that the fact that the County and DJ had agreed to the Agreement and impact fee sched- ule did not render the Agreement valid and enforceable. The court found that the Agreement violated OCGA § 36-71-d(4) and there- fore was void. On appeal, the County had argued that, absent a limiting statute or controlling public policy, it could contract with a developer "on any terms agreeable to both." The court said that was true, but not- ed that the County was "overlook[ing] the controlling issue here: a limiting statue [was] present. OCGA § 36-71-4(d) forbid[] the pre- payment of impact fees." "An agreement to violate [a statute] [was] unlawful and against the public policy ... [and] unenforceable," said the court. "Parties to a contract [could] not agree to alter state law." The court found that the Agreement was in violation of § 36-71- 4(d) "in its basic purpose: the collection of impact fees to repay the [C]ounty's loan from [the Georgia Environmental Facilities Author- ity ("GEFA")]." The Agreement calculated the payment of impact fees not in reference to the issuance of building permits, as required by the statute, but as sum certain. The Agreement further provided for a guarantee of payment of a minimum stated amount on a year- 10 © 2011 Thomson Reuters