§ 15.72

For the purposes of this chapter, the following terms shall have the meanings set forth herein:

"Area plan" means the sixteen areas designated for purposes of providing an organizational framework for the criteria area, and for purposes of developing specific design criteria that will be utilized in assembling land within the criteria area that will become a part of the MSHCP conservation area.

"City" means the City of Banning, California.

"City council" means the city council of the City of Banning, California.

"Criteria area" means the general area designated and denoted on the MSHCP plan map as the "criteria area," comprised of approximately three hundred ten thousand acres (approximately ninety acres of which are located in the City of Banning) from which new habitat conservation within the MSHCP conservation area will be assembled.

"MSHCP" means the western Riverside County multiple species habitat conservation plan.

"MSHCP plan map" means the map of the area encompassed by the MSHCP set forth in the ordinance codified in this chapter in the attached Exhibit 1.

"Ordinance" means chapter 15.72 of title 15, of this Code.

"Project" means any action or activity that is subject to the city's ministerial or discretionary approval, or any action or activity undertaken directly by the city, for the purpose of developing or improving real property, including, but not limited to, the following: the sale, purchase, or lease of city-owned property; the approval of a tentative subdivision map; the issuance of a license, permit, certificate, variance, or other entitlement for the development or improvement of real property, including the clearing of grading of real property (except for weed or fire hazard abatement); and the construction or improvement of streets, water, sewer, or other public facilities or public works.

(Code 1965, § 33-5.)

• (Ord. No. 152, § 1, 5-22-18; Ord. No. 1551, §§ 10, 11, 9-24-2019)

Except as provided in section 15.72.040, this chapter shall apply to all land within the city shown on the MSHCP plan map, attached to the ordinance codified in this chapter as Exhibit 1. Upon application to the city for a development project, an applicant shall be required to comply with the procedures set forth in this chapter. Upon the city's initiation of a project that is subject to CEQA, the city shall be required to comply with the procedures set forth in this chapter. No project requiring a discretionary, or certain ministerial permits or approvals that could have adverse impacts to species covered under the MSHCP, shall be approved by the city, and no city-initiated public project shall be undertaken, unless the project is consistent with the MSHCP and this chapter.

(Code 1965, § 33-2.)

(Ord. No. 1551, §§ 10, 12, 9-24-2019)

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15.72.040 - Exemptions.

This chapter shall not apply to the following:

A.

The adoption or amendment of the city's general plan;

B.

The adoption or amendment of any land use or zoning ordinance;

C.

Any project for which and to the extent that a vesting tentative map pursuant to the Subdivision Map Act, or a development agreement pursuant to Government Code Sections 65864 et. seq., approved or executed prior to adoption of this chapter, confers vested rights under the city's ordinances or state law to proceed with the project notwithstanding the enactment of this chapter. Projects subject to this exemption must comply with all provisions of any applicable state and federal law;

D.

Any project for which the city council determines that application of this chapter would result in the property owner being deprived of all reasonable economic use of the property in violation of federal or state constitutional prohibitions against the taking of property without just compensation.

(Code 1965, § 33-3.)

(Ord. No. 1551, § 10, 9-24-2019)

A.

The city shall implement the requirements for private and public project contributions to the MSHCP conservation area as set forth in MSHCP, by electing to comply with one of the following:

1.

The city shall implement the property owner initiated habitat evaluation and acquisition negotiation process ("HANS"); or

2.

Upon receipt of a completed application for a project that is subject to this chapter, or prior to the city's initiation of a project, the city shall determine whether all or a portion of the real property for the project is located within the boundaries of the criteria area. If the city determines that all or a portion of the real property for the project is located within the criteria area, then the city shall perform the following:

a.

Determine the design criteria applicable to the project based on the particular USGS section, quadrant, and/or cell grouping in which the project property is located, as set forth in Section 3.2 of the MSHCP, and

b.

Impose as a condition to the city's approval of the project such conditions as are necessary to ensure the project complies with and implements the design criteria applicable to the project.

B.

The city shall implement the requirements for the protection of riparian/riverine areas and vernal pools as set forth in Section 6.1.2 of the MSHCP in the following manner:

1.

As part of the CEQA review of the project, the property owner shall comply, or the city shall comply if the project is city-initiated, with the surveying, mapping, and documentation procedures set forth in Section 6.1.2 of the MSHCP for riparian/riverine areas and vernal pools on the project property; and

2.

Based on the documentation prepared for the project, the city shall impose as a condition to the city's approval of the project such conditions as are necessary to ensure the project complies with and implements the policies for the protection of riparian/riverine areas and vernal pools set forth in Section 6.1.2 of the MSHCP.

C.

The city shall implement the requirements for the protection of narrow endemic plan species set forth in Section 6.1.3 of the MSHCP in the following manner:

1.

As part of the CEQA review of the project, the property owner shall comply, or the city shall comply if the project is city-initiated, with the site-specific focused survey procedures set forth in Section 6.1.3 of the MSHCP; and

2.

Based on the site-specific focused surveys prepared for the project, the city shall impose as a condition to the city's approval of the project such conditions as are necessary to ensure the project complies with and implements the narrow endemic plant species policies set forth in Section 6.1.3 of the MSHCP.

D.

The city shall impose as a condition to the city's approval of a project such conditions as are necessary to ensure the project complies with and implements the urban/wildlands interface guidelines set forth in Section 6.1.4 of the MSHCP.

E.

The city shall impose as a condition to the city's approval of a project such conditions as are necessary to ensure surveys are prepared for the project as required by Section 6.3.2 of the MSHCP.

F.

Pursuant to this section and the MSHCP, the city may transfer any property interest acquired or obtained in fee title or as a conservation easement to the western Riverside County regional conservation authority for management. The city may also grant a conservation easement to the California Department of Fish and Game for any property interest obtained pursuant to this section.

(Code 1965, § 33-4.)

(Ord. No. 1551, § 10, 9-24-2019)

Article II. - MSHCP Mitigation Fee

A.

The preservation of vegetation communities and natural areas within the city and western Riverside County which support species covered by the MSHCP is necessary to protect and promote the health, safety, and welfare of all the citizens of the city by reducing the adverse direct, indirect, and cumulative effects of urbanization and development and providing for permanent conservation of habitat for species covered by the MSHCP.

B.

It is necessary to update certain development impact fees to ensure that all new development within the city pays its fair share of the costs of acquiring and preserving vegetation communities and natural areas within the city and the region which are known to support plant and wildlife species covered by the MSHCP.

C.

A proper funding source to pay the costs associated with mitigating the direct, indirect, and cumulative impacts of development to the natural ecosystems within the city and the region, as identified in the MSHCP, is a development impact fee for residential, commercial, and industrial development. The amount of the fee is determined by the nature and extent of the impacts from the development to the identified natural ecosystems and or the relative cost of mitigating such impacts.

D.

The MSHCP and the 2020 Nexus Study, a copy of which is on file in the city clerk's office, provides a basis for the imposition of development impact fees on new construction.

E.

The use of the development impact fees to mitigate the impacts to the city and the region's natural ecosystems is reasonably related to the type and extent of impacts caused by development within the city.

F.

The costs of funding the proper mitigation of natural ecosystems and biological resources impacted by development within the city and the region are apportioned relative to the type and extent of impacts caused by the development.

G.

The facts and evidence provided to the city establish that there is a reasonable relationship between the need for preserving the natural ecosystems in the city and the region, as defined in the MSHCP, and the direct, indirect, and cumulative impacts to such natural ecosystems and biological resources created by the types of development on which the fee will be imposed, and that there is a reasonable relationship between the fee's use and the types of development for which the fee is charged. This reasonable relationship is described in more detail in the MSHCP and the 2020 Nexus Study.

H.

The cost estimates for mitigating the impact of development on the city's and the region's natural ecosystem and biological resources, as set forth in the MSHCP, are reasonable and will not exceed the reasonably estimated total of these costs.

I.

The fee set forth herein does not reflect the entire cost of the lands which need to be acquired in order to implement the MSHCP and mitigate the impact caused by new development. Additional revenues will be required from other sources. The city council finds that the benefit to each development project is greater than the amount of the fee to be paid by the project.

J.

The fees collected pursuant to this article shall be used to finance the acquisition and perpetual conservation of the natural ecosystems and certain improvements necessary to implement the goals and objectives of the MSHCP.

(Ord. No. 1572, § 1, 5-25-21)

15.72.070 - Administrative responsibility.

The RCA is hereby reaffirmed as the administrator of this article. The RCA is hereby authorized to receive all fees generated from the local development mitigation fee within the city, and to invest, account for, and expend such fees in accordance with the provisions of the MSHCP, MSHCP Implementing Ordinance, this article, and the MSHCP Mitigation Fee Implementation Manual. The detailed administrative procedures concerning the implementation of this article shall be contained in the MSHCP Mitigation Fee Implementation Manual adopted December 7, 2020 and as may be amended from time to time. The RCA Board of Directors may adopt a policy that will allow the city] to authorize the RCA to calculate the fees due and collect those amounts directly from property owners. If such a policy is adopted, it will be included in the MSHCP Mitigation Fee Implementation Manual.

(Ord. No. 1572, § 1, 5-25-21)

15.72.080 - Definitions.

As used in this article, the following terms shall have the following meanings:

"Accessory dwelling unit" means an accessory dwelling unit as defined by California Government Code section 65852.2(j)(1), or as defined in any successor statute.

"Board of supervisors" means the board of supervisors of the County of Riverside, California.

"City" means the City of Banning, County of Riverside, California.

"City council" means the City Council of the City of Banning, California.

"Credit" means a credit allowed pursuant to section 15.72.150 of this article, which may be applied against the development impact fee paid.

"Development" means a human-created change to improved or unimproved real estate, including buildings or other structures, mining, dredging, filing, grading, paving, excavating, and drilling.

"Development project" or "project" means any project undertaken for the purpose of development pursuant to the issuance of a building permit by the city pursuant to all applicable ordinances, regulations, and rules of the city and state law.

"Junior accessory dwelling unit" means a junior accessory dwelling unit as defined by California Government Code section 65852.22(h)(1), or as defined in any successor statute.

"Local development mitigation fee" or "fee" means the development impact fee imposed pursuant to the provisions of this article.

"Multiple species habitat conservation plan" or "MSHCP" means the Western Riverside County Multiple Species Habitat Conservation Plan, adopted by the city council on November 12, 2003.

"MSHCP Conservation Area" has the same meaning and intent as such term is defined and utilized in the MSHCP.

"Ordinance" means this Ordinance No. 1572 of the City of Banning, California.

"Project area" means the area, measured in acres, within the development project including, without limitation, any areas to be developed as a condition of the development project. Except as otherwise provided herein, the project area is the area upon which the project will be assessed the local development mitigation fee. See the MSHCP mitigation fee implementation manual for additional guidance for calculating the project area.

"Revenue" or "revenues" means any funds received by the city pursuant to the provisions of this article for the purpose of defraying all or a portion of the cost of acquiring and preserving vegetation communities and natural areas within the city and the region which are known to support threatened, endangered, or key sensitive populations of plant and wildlife species.

"Western Riverside County Regional Conservation Authority" or "RCA" means the governing body established pursuant to the MSHCP that is delegated the authority to oversee and implement the provisions of the MSHCP.

Any capitalized term not otherwise defined herein shall carry the same meaning and definition as that term is used and defined in the MSHCP.

(Ord. No. 1572, § 1, 5-25-21)

15.72.090 - Local development mitigation and local infrastructure fee.

A.

Adoption of local development mitigation fee schedule. The city council shall adopt an applicable local development mitigation fee schedule provided by the RCA through a separate resolution.

B.

Public projects. The city is required to mitigate the impacts of public projects pursuant to the MSHCP and the MSHCP Implementing Agreement. The definition of public project and the method for mitigating public projects will be set forth in the MSHCP Mitigation Fee Implementation Manual.

C.

Periodic fee edjustment. The local development mitigation fee schedule set forth in the fee resolution referenced above may be periodically reviewed and the amounts adjusted as set forth in the MSHCP Mitigation Fee Implementation Manual.

D.

Automatic annual fee adjustment. In addition to the periodic fee adjustment mentioned above, the RCA shall provide the city with an automatic annual fee adjustment for the local development mitigation fee established by this article as set forth in the MSHCP Mitigation Fee Implementation Manual.

(Ord. No. 1572, § 1, 5-25-21)

15.72.100 - Imposition of the local development mitigation fee.

A.

The local development mitigation fee will be paid no later than at the issuance of a building permit. Notwithstanding any other provision of the city's Municipal Code, no building permit shall be issued for any development project unless the local development mitigation fee applicable to such development project has been paid. The amount of the fee shall be calculated in accordance with the MSHCP Mitigation Fee Implementation Manual.

B.

In lieu of the payment of the local development mitigation fee as provided above, the fee for a development may be paid through a community facilities district, provided that such arrangement is approved by the RCA in writing.

(Ord. No. 1572, § 1, 5-25-21)

15.72.110 - Payment of local development mitigation fee.

A.

The local development mitigation fee shall be paid in full in accordance with applicable law.

B.

The local development mitigation fee required to be paid under this article shall be the fee in effect at the time the fee is paid for which the local development mitigation fee is assessed; provided, however, that housing development projects as defined by California Government Code section 65589.5(h)(2) may be entitled to pay the fee in effect at the time of the preliminary application was submitted.

C.

Notwithstanding anything in the city's Municipal Code, or any other written documentation to the contrary, the local development mitigation fee shall be paid whether or not the development project is subject to conditions of approval by the city imposing the requirement to pay the fee.

D.

If all or part of the development project is sold prior to payment of the local development mitigation fee, the project shall continue to be subject to the requirement to pay the fee as provided herein.

E.

The fee title owner(s) of the property is responsible for the payment of the local development mitigation fee.

(Ord. No. 1572, § 1, 5-25-21)

A.

Under certain circumstances, such as double payment, expiration of a building permit, or fee miscalculation due to clerical error, an applicant may be entitled to a refund. Refunds will be reimbursed by the end of the fiscal year on a first come, first served basis, depending upon the net revenue stream. Refunds will only be considered reimbursable if requested within three years of the original LDMF payment. In all cases, the applicant must promptly submit a refund request with proof of LDMF payment to the RCA if RCA collected the LDMF, or if collected by a local jurisdiction, the refund request shall be submitted to that local jurisdiction, which will subsequently forward the request to RCA for verification, review, and possible action.

B.

Expiration of building permits. If a building permit should expire, is revoked, or is voluntarily surrendered and is, therefore voided and no construction or improvement of land has commenced, then the applicant may be entitled to a refund of the LDMF collected which was paid as a condition of approval, less administration costs. Any refund must be requested within three years of the original payment. The applicant shall pay the current LDMF in effect at the time in full if s/he reapplies for the permit.

C.

Double payments. On occasion due to a clerical error, a developer has paid all or a portion of the required LDMF for project twice. In such cases, a refund of the double payment may be required.

D.

Balance due. When LDMF is incorrectly calculated due to city clerical error, it is the city's responsibility to remit the balance due to RCA. The error must be discovered within three years of the original payment for the city to be held accountable. The amount due can be remitted through alternate methods agreed to by the RCA executive committee. If first approved through RCA staff in writing, the calculation is not subject to additional review.

(Ord. No. 1572, § 1, 5-25-21)

15.72.130 - Accounting and disbursement of collected local development mitigation fees.

A.

All fees paid pursuant to this article shall be deposited, invested, accounted for, and expended in accordance with section 66006 of the Government Code and all other applicable provisions of law.

B.

Subject to the provisions of this section, all fees collected pursuant to this article shall be remitted to the Western Riverside County Regional Conservation Authority at least quarterly.

C.

In the resolution mentioned in section 15.72.090 A, the city may also add an additional cost to the local development mitigation fee schedule to cover the costs of collecting the fees from project proponents. Any amounts collected by the city shall not reduce the amount collected and remitted to the RCA under this article.

(Ord. No. 1572, § 1, 5-25-21)

The following types of construction shall be exempt from the provisions of this article:

A.

Reconstruction or improvements that were damaged or destroyed by fire or other natural causes, provided that the reconstruction or improvements do not result in additional usable square footage.

B.

Rehabilitation or remodeling to an existing development project, provided that the rehabilitation or remodeling does not result in additional usable square footage.

C.

Accessory dwelling units, but only to the extent such fee is exempted under state law.

D.

Junior accessory dwelling units, but only to the extent such fee is exempted under state law.

E.

Existing structures where the use is changed from an existing permitted use to a different permitted use, provided that no additional improvements are constructed and does not result in additional usable square footage.

F.

Certain agricultural operations as allowed by the MSHCP, as amended.

G.

Vesting tentative tract maps entered into pursuant to Government Code section 66452 et seq. (also, Government Code section 66498.1 et seq.) and development projects which are the subject of a development agreement entered into pursuant to Government Code section 65864 et seq., prior to the effective date of Ordinance No. 1305, wherein the imposition of new fees are expressly prohibited, provided that if the term of such a vesting map or development agreement is extended by amendment or by any other manner after the effective date of Ordinance No. 1305, the MSHCP Fee shall be imposed.

Except as exempted above, all projects are required to make a mitigation payment/ contribution and where no mitigation payment process is specified, the project will pay the updated per acre mitigation fee.

(Ord. No. 1572, § 1, 5-25-21)

15.72.150 - Fee credits.

Any local development mitigation fee credit that may be applicable to a development project shall be determined by the city and approved by the RCA. All fee credits shall comply with the resolutions, ordinances, implementing agreement, and policies of the Western Riverside County Regional Conservation Authority including, without limitation, the MSHCP Mitigation Fee Implementation Manual.

(Ord. No. 1572, § 1, 5-25-21)

Chapter 15.76 - Western Riverside County Transportation Uniform Mitigation Fee Program[[9]]

Footnotes:

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Editor's note— Ord. No. 1607, § 4, adopted January 14, 2025 amended Ch. 15.76 in its entirety to read as herein set out. Former Ch. 15.76, §§ 15.76.010—15.76.070, pertained to similar subject matter, and derived from Ord. No. 1549, § 3, 8-27-2019 and Ord. No. 1514, §§ 1—7, 11, adopted Sept. 11, 2017.