In a Feb. 5 motion to dismiss a lawsuit of municipal impact fees on new construction, the city of Orange Beach says the plaintiffs can’t ascertain who would be the “class” in the class-action suit.
Destin and Kim Williams, represented by Kris O. Anderson and the Clark Partington law firm in Orange Beach, say they were overcharged on the impact fee for their new home in October. They also claim the city did not use the money as directed by the 2006 state law enabling cities to collect the fees. It has been turned into a class-action suit to include anybody who has ever paid an impact fee in the city.
In a response from the Williamses’ attorney against dismissal of the lawsuit, they claim not only is the “class” identifiable, but it is spelled out in city documents.
“The defendants offer no explanation as to why the proposed class is not ‘readily ascertainable,’ and this contention is wholly without merit, especially in light of the city’s duty to maintain records and account separately for the impact fees it collects,” the response states. “[There] is a spreadsheet, produced by the city, which separately identifies most [if not all] impact fees imposed between 2006 and 2019.”
The filing contained two spreadsheets from city documents that the plaintiffs say clearly show who was charged impact fees during the span.
“Exhibit B indicates that the city is in possession of additional electronically stored information that will shed light on both who paid these unlawful fees, and how those fees were computed by the city between 2006 and the present time,” the response states. “Defendants do not cite any authority to establish what standard of pleading they contend is required for class allegations, and this is probably for good reason — the class allegations do not constitute ‘claims’ in their own right, but instead are meant to inform the court and the litigants that the matter is brought on behalf of a class, which the court will certify in future proceedings.”
Impact fees on new homes and developments are intended to pay for the extra infrastructure and services that are burdened by the new residents and traffic to new businesses. Those can include police and fire stations or recreational facilities.
The lawsuit claims not only are the impact fees not being used as intended, but the city won’t reveal how they calculate individual impact fees.
The fees are based on 1 percent of the value of the completed building, plus the land it sits on. The Williamses contend they were overcharged by $200 based on the 1 percent cost on the $243,000 value of their property. They expected to pay about $2,400 and were charged $2,600, the suit contends.
“As a result of these failures, defendants have failed to adjust impact fees to only fund or recoup the costs of governmental infrastructure necessitated by and attributable directly to the new development,” the original filing states. “Defendants do not publicize the formulae they use to calculate impact fees. Moreover, they do not produce the same in response to public records requests, likely in violation of Alabama public records laws.”
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