‘It shocks the conscience’: SC builders say Fort Mill school fees shouldn’t be legal

Home builders in South Carolina don’t just want impact fees dropped within the Fort Mill school district. They say fees statewide are unconstitutional.

The Home Builders Association of South Carolina, Home Builders Association of York County, Soni Construction and Shea Homes are listed as plaintiffs on a complaint to the state Supreme Court, arguing York County violated fundamental rights by increasing the school impact fee in July. Listed as defendants are the state, county and all seven York County Council members.

The complaint, dated Aug. 8, was served to council members Thursday.

An attorney for the plaintiffs said Friday afternoon the defendants had to be served before the case could be filed directly to S.C. Supreme. He expects it to be filed by Monday.

The Fort Mill Times reviewed copies of the complaint and the petition for why the state Supreme Court should hear the case directly.

The documents claim impact fees are “pretext for a moratorium on building” and “development in Fort Mill is adversely affected and the home buyers have been damaged.” Soni and Shea spent hundreds of thousand of dollars on infrastructure in the Fort Mill area and have been deprived “the economically viable use of their property” by what the suit claims is “illegal and unconstitutional action.”

Other school districts in the county are considering fees, documents state. The suit claims not just the school district fee, but the state law allowing fees in the first place is “so overbroad and vague as to be unconstitutional.”

Impact fees are charges on new construction. The idea is new development will pay its proportionate share of the costs that come with having more people. They can be charged for utilities, public service, schools, roads and more.

The Fort Mill school district has had a $2,500 fee in place since 1996. For a time, the state didn’t allow school impact fees, but Fort Mill’s continued because it was already in place. Now the town of Fort Mill, city of Tega Cay, city of Rock Hill and other municipalities statewide have fees. Others, including York, Lancaster and Chester counties, are looking at implement them.

The home builder case states development dropped 90 percent when Mount Pleasant raised impact fees by more than $4,000. The national average for school impact fees is less than $5,000 and only one county in the nation has a fee higher than in the Fort Mill district, the suit says. Montgomery County in Maryland charges almost $27,000, the document states.

When York County increased the Fort Mill school fee from it’s long-time $2,500 to more than $18,000 per new home and $12,000 per apartment, the move was “so unreasonable and excessive that it shocks the conscience” and violates due process, according to the complaint. Home builders argue “assumptions in that report are wrong” when it comes to the consultant study recommending the higher amount.

The plaintiffs say higher fees in the school district are an “arbitrarily selected amount.” It points to Councilman Michael Johnson, who serves part of Fort Mill and Tega Cay and whose entire constituent base falls within the school district, proposing a moratorium for the Fort Mill area in 2016.

After the moratorium was voted down, builders argue, Johnson “randomly suggested” a school district fee increase to $20,000.

“The ordinance ultimately passed by York County raised the fee to almost that amount, suggesting an improper motive and/or manipulation of the data by York County,” the complaint states.

It also points to the county planning commission recommending a much smaller increase, to about $5,000 per new home. That recommendation makes it “especially obvious,” according to the documents, what York County wants to accomplish.

“Since York County could not pass an official moratorium,” they say, “it has created one by raising the school district impact fee.”

Johnson said in a recent Facebook post about case that the county “will defend its actions.”

The home builders also say the state Supreme Court should rule because the question of whether fees or the ordinances allowing fees are constitutional impact residents statewide. Starting in lower courts could take years to resolve issues that are harming builders now, they say.

“The public interest is plainly involved here and the circumstances require the earliest determination possible by the court,” the lawsuit states.

This isn’t the first time court proceedings have been needed to settle an impact fee issue in York County. The developer of Stonecrest Villas of Tega Cay filed a suit in 2009 against county council, the county planning department and Susan Britt, then head of that department and now lead planner in Tega Cay.

That case sought to exclude the 90-unit project from impact fees by arguing the units were for retirees who wouldn’t cause an impact to the school district. The developer’s attorney in that case argued the county took out retiree housing in 2003 and low income housing in 2005 as exemptions to impact fees, then charged Stonecrest Villas beginning in 2007.

The case was dismissed in early 2010. Case records show there was a settlement between the parties.

While home builders and real estate groups opposed the recent school district increases, public support for them has been vocal. When Johnson posted on Facebook about being served Thursday, more than 200 comments followed in less than 24 hours. Many were in support of the higher fees.

Some posted of speaking with or even boycotting the builders listed in the suit.

Not all comments have supported higher fees, however.

There also has been concern about the pace of the new fees, which are charged when building permits are issued.

Details aren’t yet available on whether, or when, the case may be heard.

Let us know what you think about the lawsuit and the school district impact fee on Facebook or Twitter.

This story was originally published August 10, 2018 at 3:17 PM.