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'Museum would not have gotten a dime if not for our efforts'

STORY BY STEVEN M. THOMAS, (Week of September 20, 2012)
Photo: Wilson seen prevailing in battle with Art Museum.

The recent lawsuit filed by Charlie Wilson’s company Impact Fee Consultants against the Vero Beach Museum of Art emerged out of a murky series of events in February and March that initially made it hard to determine if Wilson tried to take advantage of the museum or if the museum was trying to get out of a legitimate contract to avoid a $25,000 fee.

A review of public documents and new information provided since the suit was filed, including statements last week by Vero Beach City Manager Jim O’Connor and County Attorney Alan Polackwich, make it appear now Wilson is in the right and likely to prevail in his suit, either through pre-trial settlement or in court.

“The museum would not have gotten dime if not for our efforts,” Wilson says.

The crux of the issue is clear: museum Executive Director Lucinda H. Gedeon signed an agreement with IFC on March 19 authorizing the company to act on her behalf “locating and recovering any monies owed” to the museum from unused county impact fees.
At the same time, she signed a second contract agreeing to pay the company 30 percent of any refund.

When the contracts were signed, the museum was not eligible to receive a refund because the county had decided Feb. 21 that unspent fees would be returned to property owners – not fee payers – and the City of Vero Beach owns the land where the museum is located.

The next day, March 20, Wilson went before the Vero City Council to inform it a $97,000 impact fee refund was due the city. He then persuaded the council to give up its claim to the money and pass it on to museum.

On March 21, city officials signed paperwork officially ceding the refund to the museum and Impact fee Consultants filed that document and others with the county, securing $97,717.62 for the museum.

IFC had agreed to donate 15 percent of its fee to the museum as a charitable contribution, so it was due $24,917.99.

That would seem to have been a win-win, with Wilson and museum both walking away richer and happier, but for some reason Gedeon almost immediately objected to paying Impact Fee Consultants any share of the refund.

“We had the claim that came from Impact Fee Consultants signed by the museum and then the museum contacted us and took the position they were not recognizing the validity of the documents they had signed,” says Polackwich.

Gedeon’s reasons for attempting to renege on agreements she signed after lengthy consideration and consultation with museum attorney Ralph L. Evans remain cloudy because neither she nor Evans will comment.

It seems she misunderstood the refund process, and thought the money would have come to the museum without Wilson’s efforts, or felt she had been misled in some other way.

Part of the disagreement can be traced to the ambiguity of a form issued by the county on Feb. 22, the day after commissioners voted to refund money to current property owners instead of those who paid the impact fees and to inform those due refunds they had money coming.

Community Development Director Bob Keating sent a spread sheet to Impact Fee Consultants and a competing company listing all the individuals and entities due refunds and asked the companies to identify their clients.

The county agreed to hold off on notifying refundees who were clients of either company to give the companies time to file claims on the refundees’ behalf.

When that spread sheet was sent, Impact Fee Consultants did not have a signed contract with the art museum, but IFC considered the museum a client and claimed it as such.

“When someone asks us to research a claim, they become a client,” says Wilson.

He says his company first contacted the museum about the possibility of a refund in January and that he has documentation of several subsequent communications prior to March 19, including an e-mail informing Gedeon of the likely amount of the refund.

Without specifying it, the county had a different view: “We certainly understood client to mean people who had signed contracts with them,” says Polackwich.

Identifying the museum as a client caused a two-week delay in a letter being sent out about the refund due to the city, but did not change any material fact; nevertheless, it is possible hearing about the disputed term may have given Gedeon the idea she had been taken advantage of,.

The misunderstanding deepened when IFC Executive Vice President Tim Zorc acquiesced to Gedeon’s loud complaints and agreed to release her from her obligation.

Keating and Polackwich assumed Zorc spoke for the company, but Polackwich subsequently found only Wilson could make the decision.

When he contacted Wilson and asked for a contract release, Wilson said the agreement with the museum was valid and no such release would be forthcoming.

That left a situation where both the museum and IFC were applying for the same $97,000.

The county refused to pay either claimant until the dispute was resolved, and the stalemate dragged on through the spring and summer until Sept. 5 when IFC filed suit in Circuit Court.

“The agreement with the museum signed on March 19 was for six months,” says Wilson’s attorney Buck Vocelle. “We had to file within that time frame.”

Vocelle’s presence on Wilson’s team is meaningful. He is a Florida Superlawyer, a member of Florida Trend’s 2012 Legal Elite and a leading Vero Beach litigator. If he is taking the case on contingency, it means he likes the odds. If Wilson is paying him a fee, it still means he has a very good lawyer arguing his case.

Vocelle is negotiating with Evans to settle out of court. “We have a strong case,” he says.

O’Connor said last week the city did not know about the refund until informed by Wilson and that “if the refund money had come to the city, it would have gone into the general fund.”

“The city wouldn’t have had any reason to consider giving it on to the museum,” says Wilson. “It would have just been a line on one of the wires and warrants fund transfers that go between the city and county all the time.”

The nitpicking about when the art museum became an official client of Impact Fee Consultants ignores the powerful backstory of Wilson’s pioneering efforts to force the county to refund unspent impact fees.

The fees in question were collected by the county prior to 1999 on the barrier island south of Beachland Boulevard to pay for infrastructure improvements necessitated by new development.

The museum paid its fees in 1998 as part of the permitting process for a major renovation.

According to county ordinance, fees not spent within six years had to be refunded, but the same ordinance allowed only a one-year refund period and neither the museum nor anyone else applied before the window closed in 2005.

Last summer, Wilson began to appear at board meetings arguing the unspent money – approximately $1.2 million in fees and interest – should be returned to some 350 property owners on the barrier island.

Staff insisted no refunds were due and said the money in the fund was needed to improve the A1A/17th Street Causeway intersection.

At first, commissioners seemed to agree with staff.

But as Wilson kept up the pressure and County Attorney Alan Polackwich researched the question of impact fee refunds, which is not clearly addressed in Florida law, board sentiment began to shift.

As Wilson states in his complaint: “the Plaintiff has spent hundreds of hours researching county documents to determine if residents and/or property owners in Indian River County, Florida were entitled to impact free refunds ... Largely through the efforts of the Plaintiff, the Indian River County Commission reversed its previous decision in January and decided to allow a claim to refund all” of the principle and interest in the impact fee fund.

Without Wilson’s dogged efforts, including a dozen appearances before county commission during which he was sometimes mocked and verbally attacked as a confused or dishonest gadfly, no one on the barrier island would have received an impact fee refund.

“I believe in giving kudos where kudos belong,” said Annabel Robertson, manager of a rival fee recovery firm, when the museum controversy surfaced. “I don’t think this issue would have been addressed but for Charlie being very active pushing for it.”