§ 10-18

This Chapter is enacted pursuant to authority granted by California Government Code section 66000 et seq, and the general police power of the City. (Ord. 364 § 2 (part), 2001)

This Chapter applies to development impact fees charged as a condition of development to defray all or a portion of the cost of public services, facilities, improvements and amenities. The cost of developing and administering the City's development impact fee program may be included as a component of the established fees. This Chapter is not intended to and does not apply to regulatory and processing fees; fees required pursuant to a development agreement adopted pursuant to Government Code Title 7, Chapter 4, Article 2.5 commencing with Section 65864; fees collected pursuant to redevelopment agreements in furtherance or for the benefit of a redevelopment project for which a redevelopment plan has been adopted pursuant to the Community Redevelopment Law (Health and Safety Code Division 24, part 1 commencing with Section33000); or fees collected pursuant to a reimbursement agreement that exceed the developer's share of a public improvement, or to assessment district proceedings, assessments or taxes.

(Ord. 364 § 2 (part), 2001)

• (a) The City Manager or the City Manager's designee is authorized to credit development fees imposed pursuant to this chapter in consideration for certain on-site and off-site facilities or improvements constructed or paid for by the developer. A developer is entitled to credit for the value of improvements if the improvement is identified in the city's capital improvement program (CIP) and the developer (1) dedicates an appropriate site, (2) constructs the improvements, (3) finances an improvement by cash, assessment district or Mello-Roos Community Facilities District, or (4) a combination of the above.

• (b) A decision regarding a fee credit is appealable pursuant to Section 10-18.105. (Ord. 364 § 2 (part), 2001)

• (a) The developer of a project subject to a development fee pursuant to this chapter may apply to the City Manager or the City Manager's designee for an adjustment to or waiver of that fee or for a finding that the project is exempt from the fee. The waiver or adjustment of a fee shall be based upon the absence of any reasonable relationship (1) between the impact of that development on public facilities and either (i) the amount of fee charged or (ii) the type of facilities to be financed or (2) between that development project and the use of the fee or (3) between that development project and the need for related public facilities.

• (b) This application shall be made in writing and filed with the City Manager or the City Manager's designee no later than the time of the issuance of a building permit authorizing construction of new floor area or remodeling to accommodate a change or expansion in

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City of Hercules, CA

Sec. 10-18.104

LAND USE

Sec. 10-18.105

use. If no building permit is required, the application shall be filed prior to issuance of any permit or other City approval required for a change in use. The application shall state completely and in detail both the applicant's factual basis and legal theory for adjustment or waiver. The City Manager or the City Manager's designee may refuse to consider factual assertions or legal theories not set forth in the written application.

• (c) The City Manager or the City Manager's designee shall consider the application at an informal hearing, which may be continued from time to time, and which shall be held within sixty days after the filing of the complete application. The decision of the City Manager or the City Manager's designee is appealable pursuant to Section 10-18.105.

• (d) The applicant bears the burden of proof in presenting substantial evidence to support the application. The City Manager or the City Manager's designee shall consider the following factors in his or her determination:

  • (1) The factors identified in Government Code Section 66001;

  • (2) The purpose and proposed uses;

  • (3) The type of the fee;

  • (4) The type of development;

  • (5) The relationship between:

  • (6) The fee's use and type of development;

  • (7) The need for the improvements to be paid for by the fee and the type of development; and

  • (8) The amount of the fee and the portion of it attributable to the development.

  • (9) The substance and nature of the evidence, including the City's development fee technical reports, and any technical data submitted by the applicant supporting its request.

• (e) Staff time expended in processing the application shall be charged to and paid for by the applicant as a part of the fees chargeable for the project application.

• (Ord. 364 § 2 (part), 2001)

• (a) The City Manager or the City Manager's designee is responsible for administering, collecting, crediting, adjusting and refunding development fees. A decision by the City Manager or the City Manager's designee regarding a fee imposed under this ordinance and any implementing resolution shall be appealable in accordance with this section. A person appealing under this section shall have first sought a fee credit under section 1018.103, and adjustment or waiver, or a finding of fee exemption under section 10-18.104. A person seeking judicial review shall first complete an appeal under this section and shall pay all City charges for that appeal.

• (b) A person appealing a decision under this Chapter shall file an appeal with the City Manager or the City Manager's designee, who is responsible for processing the appeal toward a hearing. The appeal shall be in writing, stating completely and in detail the factual and legal

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City of Hercules, CA

Sec. 10-18.105

HERCULES CODE

Sec. 10-18.108

grounds, and shall be filed within ten calendar days after the decision being appealed.

• (c) The cost of the appeal shall be borne by the applicant, who shall pay a deposit against such costs at the time of filing the appeal. The amount of the deposit shall be established by resolution of the City Council, but may be reduced on a case by case basis when determined by the City Manager or the City Manager's designee to be substantially in excess of the probable cost of the appeal. Any part of the deposit not required to defray the cost of an appeal shall be refunded to the applicant. If the deposit is not adequate to defray the cost of an appeal, the applicant shall pay the difference between the cost of the appeal and the amount of the deposit. The cost of an appeal must be paid in full prior to issuance of any still to be issued building or occupancy permit or any other City permit that may be required in order to commence a new, changed or expanded land use and shall in any case constitute an enforceable obligation of the developer.

• (d) The City Manager or the City Manager's designee shall preside as the hearing officer for the appeal.

• (e) The appointed hearing officer shall set the time and place for the hearing, serve notice on the parties, conduct the hearing, prepare written findings of fact and a written decision on the matter, and shall preserve the complete administrative record of the proceeding. The hearing officer may issue directives, including but not limited to directives that legal briefs be submitted in accordance with an established briefing schedule, to the parties in order to facilitate resolution of the appeal. The hearing officer shall consider relevant evidence presented by the appellant and by the community development department.

• (f) The decision of the hearing officer is final and may not be further appealed. It is reviewable by a court under Code of Civil Procedure Section 1094.5.

• (Ord. 364 § 2 (part), 2001)

• (a) If a building permit or use permit is canceled or voided and the fees paid have not been committed, the City Manager or the City Manager's designee may, upon the written request of the applicant and provided that work has not progressed to a point that would permit commencement of a new, changed or expanded use for which a fee would be payable, order return of the fee and interest earned on it less administrative costs.

• (b) If a fee is not spent or committed five years or more after it was paid by the developer, the Hercules City Council may authorize a refund to the then owner of the property for which the fee was paid, under Government Code Section 66001.

• (c) A decision regarding refund of a fee is appealable pursuant to Section 10-18.105. (Ord. 364 § 2 (part), 2001)

The City Manager or the hearing officer appointed pursuant to Section 10-18.105 may require as a condition of adjustment or of a finding of exemption that the developer provide a recordable document in a form acceptable to the City Manager or the City Manager's designee acknowledging the factual basis of the waiver for adjustment and further acknowledging that a subsequent change of facts may result in the requirement that additional fees be paid. (Ord. 364 § 2 (part), 2001)

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City of Hercules, CA

Sec. 10-18.201

LAND USE

Sec. 10-18.201