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• The development approved in 1990 never went forward, and the site plan approval ultimately expired: • In the spring of 1995, under contract with the County, Atlantic Coastal Title Corporation produced a compendium of state designated roads and applicable Murphy Act road reservations. That document showed that Tract 16 at the northwest comer of 2r Avenue and Oslo Road was subject to Murphy Deed reservations. • On December 12, 1995 Public Works Director Davis wrote Community Development Director Keating to "not issue nor approve a traffic impact fee credit for this site°. • On March 7, 1996 Karen Sass of West & Associates wrote Public Works Director Jim Davis requesting that he confirm in writing that no traffic impact fee credits would be issued since the Murphy Deed reservation applied to the property. • By letter dated March 11, 1996, Mr. Davis confirmed that the County and the State already had road reservations of record, and for that reason on December 12, 1995 he requested the Community Development Department to remove the traffic impact fee credit for the property. • On April 9, 1996 1 was informed by an attorney for Natwest Bank, N.A. that they had acquired title to the property in November of 1995 through mortgage foreclosure. • The property was transferred from Natwest Bank to Oslo Plaza Associates, Inc. in May, 1996. Both parties had knowledge of the County's position on the traffic impact fee credit. • On October 24, 1996 attorney Bruce Barkett on behalf of Oslo Plaza Associates, Inc. demanded that impact fee credits be restored to the property or that the County file an action in court for declaratory relief °rather than unilaterally breach the contracr. • Subsequently I, along with Public Works Director Davis, met with Mr. Barkett to discuss the matter. At that time Mr. Barkett produced a partial release of the reservation. The County Surveyor subsequently calculated that the amount of right-of-way that the County actually needed to purchase (less the part already subject to road reservations) would have cost $60,070.50 based on the $2.25 per square foot purchase price ultimately approved by the Board of County Commissioners. Thus, it appears that the County overpaid for the right-of-way not already reserved for road purposes by $17,380, in addition to authorizing a $119,536 traffic impact fee credit.. CONCLUSION: The basis for a lawsuit is outlined in Mr. Melville's letter of March 14, 1997. The title insurance company would need to be noted of any loss due to the encumbrance on the insured property. The County staffs position is that it is inequitable for the County to pay for something that it already had. That is, to pay for road right-of-way when the property conveyed was already subject to a reservation and easement for road right-of-way purposes. The staff requests that the Board of County Commissioners direct whether the traffic impact fee credit should be allowed to the property as previously approved by the County Commission on December 11, 1990, or whether the staff should defend any forthcoming lawsuits based on principles of equity, unjust enrichment, failure of consideration, nonexistence of a contract and mutual mistake of material fact. RECOMMENDATION 1. Ratify staff decision to rescind traffic impact fee credits. 2. Notify title insurer of pending claim and litigation. 3. Authorize defense of any forthcoming suit seeking declaratory and injunctive relief including filing counterclaims and impleader. APRIL 1, 1997 48