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Council grants Miller impact fee refund

After a lengthy and at times tense discussion, the Hendersonville City Council voted Thursday to grant council member Jeff Miller a refund of $10,875 for a water impact fee he had fought for three years.

The council voted 3-1 to grant the request. Councilman Jerry Smith voted no.
"On the surface this is a difficult situation because of my position now," said Miller, the new council member who presented his request from the floor after the council voted to excuse him from voting on the request. "I've just spent last few days in an ethics course and this one I think could be used to teach a class in it at some point but I personally believe this is an easy decision if you will listen to the facts and if the facts are reported to the public accurately."
Miller recounted a series of events in an "eight-year battle" with the city over water impact fees and the conversations he had had with former City Manager Bo Ferguson and some council members.
Miller made two different changes that involved impact fees for new water hookups. He moved a laundry business from Laurel Park Village shopping center across Brevard Road, and then he moved a big water-consuming operation from his King Street location to Laurel Park.
"I put in more efficient equipment," he said. "When I did that, I was charged $12,000 to have the water and sewer cut on. I was told it was a new business. I was told basically either pay it or not have water and it's kind of hard to have a coin laundry without water."
The next impact fee, Miller said, came when he decided to move the large laundry operation for summer camps from his King Street store to a warehouse building in Laurel Park next to his coin laundry.
Miller argued that his election to the council should not disqualify him from receiving the refund if the council would grant one to a business owner with the same appeal.
"I am a member of the City Council and because of this process it's no secret that's why I am in here," he said, referring to a campaign that focused in part on the commercial water impact fee as exorbitant and bad for business growth. "Once I got into the race, suddenly it became a priority and it was addressed.
"Immediately people start looking when a council member gets a favorable opinion on something like this, but this is an eight-year battle," he said. "I asked for the refund three years ago. I backed off at City Council's request and gave the city two years so y'all could watch my water use. I sit on City Council. Am I going to be punished because I'm on the council?"
One question that has come up, Miller said, is whether his refund would set a precedent. He said it wouldn't because there are no other pending requests like his.
"It's my understanding we could not find a similar case," City Manager John Connet said.
"The only precedent you're setting," Miller said, "is you're showing the City Council keeps its word. I know we have to worry about perception but if there's negative (from the council's action) that will come back to me. I feel totally justified in this request. Don't treat me different than someone else that would be here before you because I'm a council member."
Miller had the strong support of Councilman Ron Stephens and Mayor Pro Tem Ron Stephens.
"I think it's the right thing to do," Caraker said. The council will face criticism "no matter what we do. Before we did anything some of us were accused of being good old boys in the media. But I think this is absolutely the right thing to do. I personally hoped that this matter would be long over with before the last election. We've learned a pretty good lesson on the system development charge by not asking enough questions or not asking the proper questions."
Mayor Barbara Volk, too, said she regretted that the council had not handled the question before Miller was sworn into office.
"I guess I can set aside (Miller's) current position from the request," Mayor Barbara Volk said. "I wish this had been taken care of when the initial request was made. I do feel that whether it was said in so many words or not there was something of a promise from city staff that this would be taken care of."
Only Councilman Jerry Smith voted no, saying he could not vote in favor of an unprecedented refund of a commercial impact fee to a sitting council member.
"In my mind I cannot excuse the fact that a sitting member is asking the council to pay back a system development charge, which is something the council has never done before," Smith said, starting an exchange that became tense.
"What if I weren't?" Miller asked.
"I don't have that option today," Smith said.
Miller persisted. "I'm being treated different as a city council member," he said.
Smith was treating Miller differently, he said, "because you are asking something we have never done before and you are a sitting council member."
"As a member of city council since 2009 I'm just not aware of any commitment that the council has made," he said. "The statement of going against the commitment, I have to take issue with that because I don't think we made that commitment."

Miller produced an email from then-City Manager Ferguson on Oct. 4, 2011, in which Ferguson told Miller that the council would be taking up a change in how the city calculated system development charges. "I think this new system will address your greatest criticism — that the current system did not take into account how much water is used," he said.

"You made it clear you were interested in seeing if you could receive a refund of a portion of your recent charges if we made a change," Ferguson said in the email. "As we discussed several months ago, I consider that to be a decision for the Council to make if the new policy is implemented, and would remind you that you should discuss any possible refund with them. In accordance with North Carolina state law, we cannot adopt this new schedule until July 1, 2012, so your request would need to be for them to consider the refund at that time retroactive to the date you paid our fees."
After the 27-minute discussion, Caraker made the motion to reimburse Miller "for the wrongful in my opinion system development charge from 2011."
On the recommendation of City Manager John Connet, Caraker amended the motion to return the money as a credit to Miller's water account.