Banning Municipal Code Ch. 3.36 Fee and Service Charge Revenue/ Cost Comparison

Pursuant to Article XIIIB of the California Constitution, it is the intent of the city council to require the ascertainment and recovery of costs reasonably borne from fees and charges levied therefor in providing the regulation, products or services hereinafter enumerated in this chapter.

(Code 1965, § 29-1.)

The following words, terms and phrases when used in this chapter shall have meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

"Developer" means any person legally responsible for payment of any development impact or other fees in connection with a commercial development pursuant to this Code or any ordinance or resolution of the city.

"Development" means any project undertaken for the purpose of developing real property for residential, commercial, industrial or other uses, or any combination thereof, including a project involving the issuance of a permit for construction, reconstruction, rehabilitation or expansion, but not a permit to operate.

"Development impact fees" mean monetary exactions other than taxes or special assessments, established by either ordinance or resolution of the city council for a broad class of developments, or upon a specific development on an individual basis, in connection with the city's approval thereof for the purpose of defraying all or a portion of the cost of construction of public improvements and community amenities, but excluding the multispecies habitat conversation fee and the transportation uniform mitigation fee as defined in this section.

"Direct variable program costs" mean all applicable direct variable costs that would be eliminated if a program did not operate, including, without limitation, salaries, wages, fringe benefits, program specific supplies for program operation and maintenance, officials, and other direct expenses incurred.

"Discretionary approval" means any regulatory land use action or approval by the city as to which the exercise of discretion is vested in the city or its officials, officers or employees and includes, but is not limited to the following: any tentative tract or parcel map, lot line adjustment, variance, conditional use permit, zone change or zoning code amendment, general plan amendment, development agreement, building permit, demolition permit, grading permit, administrative site plan, or design review.

"Economic zone" means either one of the following areas:

1. D&M Economic Zone. All of that real property located within the boundaries of the Banning Merged Downtown and Midway Redevelopment Project Area that is zoned for commercial uses or otherwise designated for commercial use under the Banning General Plan, as may from time to time be updated and amended, as depicted in the diagram on file with the planning department, and as such boundaries may be amended from time to time.

2. SBL Economic Zone. All of that real property located within the City of Banning, California in proximity to Sun Lakes Boulevard that is zoned for commercial use or otherwise designated for commercial use under the Banning General Plan, as may from time to time be updated and amended, as depicted in the diagram on file with the planning department, as such area may be amended from time to time.

"Multispecies habitat conservation plan fee" means the impact fee imposed and levied under Ordinance 1305, as codified in Chapter 15.72 of this Code adopting the "Multispecies Habitat Conservation Plan" (MSHCP). The MSHCP establishes a fee known as the MSHCP fee, the purpose of which is to mitigate the incidental take of listed, threatened, and protected species and their habitats within areas of western Riverside County, including the City of Banning. The city has decided to participate in the MSHCP through the adoption of Ordinance No. 1305, as codified in Chapter 15.72.

"Pass-through fees" mean those development impact and other fees and charges that are either: (i) imposed by another public or private entity, collected by the city and distributed to such other entity, or (ii) imposed and collected by the city pursuant to a contractual or statutory obligation for the benefit of another public or private entity. For example, school fees.

"Qualifying project" means a development that meets all of the criteria as set forth in subsections 1 through 4 of this definition:

1. The development meets one of the following requirements:

a. Large Commercial Retail Development. A new development primarily intended and approved for occupancy and use by one or more significant sales tax generators. A development will be deemed to meet this requirement where the project: (i) was approved as a commercial retail development; (ii) consists of the construction of one or more buildings suitable for large commercial retail enterprises; (iii) such buildings are constructed on at least one and one-half contiguous acres of area to be developed; and (iv) eighty percent of the gross square footage of the buildings (including covered or enclosed outdoor sales areas) constructed shall be occupied by one or more significant sales tax generators. For the purposes of this subsection, property shall be considered as contiguous even if separated by roads, streets, utilities easements or railroad rights-of-way or other dedicated rights-of-way. For purposes of this subsection, the "area to be developed" means the area of the development that encloses all of the privately developed and owned improvements, including private circulation improvements, landscaped areas and parking areas; or

b. Vehicle Dealership. A development primarily intended and approved for occupancy and use as a vehicle dealership. A development will be deemed to meet this requirement where the project: (a) was approved as a vehicle dealership; (b) consists of the construction of one or more buildings and related improvements suitable for operation by at least two vehicle dealerships, franchises or dealer points; (c) such buildings and improvements are constructed on at least three contiguous acres of area to be developed; and (d) vehicle showrooms, sales offices and outdoor vehicle display areas, considered together, equal or exceed the gross square footage of buildings occupied for vehicle service and/or storage. For purposes of this subsection, property shall be considered as contiguous even if separated by roads, streets, utilities easements or railroad rights-of-way or other publicly dedicated rights-of-way. For purposes of this subsection, the "area to be developed" means the area of the vehicle dealership that encloses all of the privately developed and owned improvements, including private circulation improvements, landscaped areas, vehicle display and storage areas, and parking areas.

2. The development is located entirely within the D&M or SLB economic zones.

3. The development will be consistent with all applicable land use laws, regulations, and development requirements contained within the city's general plan (as amended from time to time), any applicable specific plan (as amended from time to time), and this Code (as amended from time to time).

4. The application for the first discretionary approval required for the development has been deemed complete as of or after the effective date of the ordinance codified in this chapter.

"Significant sales tax generator" means any use or combination of uses located in a development that is projected, by the city in its sole and absolute discretion, to generate not less than fifty thousand dollars per year in local sales taxes to be received by the city in accordance with the Bradley-Burns Uniform Sales and Use Tax Law (Revenue and Taxation Code 7200, et seq.), as it may be amended or substituted.

"Transportation uniform mitigation fee program" means the development impact fee imposed and levied under City of Banning Ordinance No. 1291 adopting the "Transportation Uniform Mitigation Fee Program." This program establishes a fee known as the transportation uniform mitigation fee (TUMF). The purpose of the TUMF is to mitigate the traffic impacts of local development on, and to provide funds for the improvement and expansion of, existing and planned regional transportation and circulation facilities (including, but not limited to, regionally significant state, county, and local, arterials, highways, and freeways) within Riverside County or such other subregion of Riverside County, the boundaries of which exceed the boundaries of the City of Banning as they exist on the effective date of the ordinance codified in this chapter and as they may hereafter be expanded by approved annexation. The city has decided to participate in this regional program through the adoption of Ordinance No. 1291.

"Vehicle dealership" means any development which will provide for the franchised sale, lease and servicing of new and used motor vehicles, trucks, recreational vehicles, off-road vehicles, boats and other personal watercraft together with such ancillary uses such as administrative offices, automobile inventory storage, and parts sales.

(Code 1965, § 29-7.)

(Ord. No. 1551, § 3, 9-24-19; Ord. No. 1602, § 2, 4-9-24)

"Costs reasonably borne," as used and ordered to be applied in this chapter are to consist of the following elements:

A. All applicable direct costs including, but not limited to salaries, wages, fringe benefits, service and supplies, operation expenses, contracted services, special supplies, and any other direct expense incurred.

B. All applicable indirect costs including, but not restricted to, building maintenance and operations, equipment maintenance, communication, printing and reproduction, and like expenses when distributed on a rational proration system.

C. Fixed assets recovery expenses, consisting of depreciation of fixed assets, and additional fixed asset expense recovery charges calculated on the current estimated cost of replacement, divided by the approximate life expectancy of the fixed asset. A further additional charge to make up the depreciation not previously recovered and reserved in cash also shall be calculated and considered a cost so as to recover such unrecovered depreciation over the remaining life of the asset.

D. General overhead, expressed as a percentage, distributing and charging the expenses of the city council, city manager, administrative services (finance) department, city clerk, city treasurer, city attorney's office, personnel office, risk management; City Hall, and all other staff and support service provided to the entire city organization.

E. Departmental overhead, expressed as a percentage, distributing and charging the cost of each department head and his or her supporting expenses as enumerated in subsections A, B, and C of this section.

(Code 1965, § 29-3.)

A. The city manager is directed to annually/seasonally review fees and charges to recover the percentage of costs reasonably borne in providing the regulation products or services enumerated in this chapter in the percentage of costs reasonably borne and on the schedule of rate review and revision as hereinafter established in this chapter and recommend changes to the city council for adoption.

B. "Costs reasonably borne" shall be defined in Section 3.36.030. In adjusting fees and charges, the city manager shall act in an administrative and ministerial capacity and shall consider only the standards and criteria established by this chapter.

(Code 1965, § 29-2.)

Pursuant to the requirements of California Government Code Section 54992, the city clerk has caused notice to be provided as set out in the Government Code Section 54992, and the city council has received at a public meeting oral and written presentations concerning the fees and charges proposed for those categories of fees and charges set out in Government Code Sections 54990 and 54991. Such notice, oral and written presentation receipt, and public meeting shall be provided by the city council prior to the city manager taking any action on any new or increased fees or charges for those categories set out in the Government Code Sections 54990 and 54991 and Section 3.36.080(A) of this chapter.

(Code 1965, § 29-5.)

Pursuant to Section 54992 of the California Government Code, the city manager shall, at least ten days prior to the required public meeting set out in the Government Code section, make available to the public indicating the cost, or estimated cost required to provide the services set out in Government Code Sections 54990 and 54991.

(Code 1965, § 29-6.)

A. Repeal of Development Impact Fees. Notwithstanding any other provisions of this Code or any other city ordinance or resolution, no development impact fees are applicable to, and except as is expressly provided in subsection H of this section, the imposition and levy of development impact fees against qualifying projects are repealed and no development impact fee shall be levied against a qualifying project and payment of development impact fees shall not be made a condition of approval of any qualifying project.

B. Nothing in this section shall be deemed or shall operate to limit, modify or abridge the obligation of any developer of a qualifying project with respect to the payment of ad valorem taxes, special taxes or assessments, fees and charges for utility services, and/or similar or dissimilar nondevelopment-related charges. Nothing in this section shall be deemed or shall operate to limit, modify or abridge the discretion of the city council (or its subordinate boards and commissions) with respect to the processing, conditioning, approval or denying of any application for a discretionary within the limits of such discretion provided by law to the city council (or its subordinate boards and commissions) with respect to such matters. Nothing in this section shall be deemed a representation, warranty or commitment by the city to approve, impose and/or delete any condition(s) with respect to the approval of any application for a discretionary, except to the limited extent as set forth in subsections A and B of this section.

C. Pass-Through Fees. Notwithstanding subsections A and B of this section, any qualifying project shall pay and be responsible for any and all pass-through fees applicable to such qualifying project, including but not limited to MSHCP and TUMF.

D. Applicability. The provisions of subsection A of this section shall not apply to: (1) any portion(s) of a development which is (are) not a qualifying project; and (2) any residential component of a qualifying project.

In each such case described in this section, the nonqualifying project or residential component shall pay as applicable: (i) if such nonqualifying portion(s) and/or residential component is (are) capable of receiving independent discretionary approvals separate and apart from the qualifying project, all fees and charges required of the nonqualifying portion(s) and/or residential component by city ordinance, resolution, or this Code; or (ii) if such nonqualifying portion(s) and/or residential component is (are) not capable of receiving discretionary approvals separate and apart from the qualifying project, a prorate percentage (based on the percentage that the gross square footage of the nonqualifying portion(s) and/or residential component represents to the gross square footage of the development as a whole of the fees and charges which would be required of the qualifying project by city ordinance, resolution, or this Code but for the application of subsection A of this section.

E. Sunset. The provisions of subsection A of this section shall not apply to any discretionary approval for a qualifying project as to which the application for such discretionary approval is not deemed complete (either by the city or by operation of law) after the earlier of the following:

1. As to a qualifying project, December 31, 2010; or

2. The date on which the city council, its sole and absolute discretion, rescinds or modifies the provisions of this section.

F. Fair Share. This section shall not have the effect of requiring any person or entity to pay more than that person's or entity's "fair share" of the costs attributable to development by that person or entity. For purposes of any study or analysis conducted by the city following the effective date of the ordinance codified in this chapter which first added this section to the Code, to determine the amount of developer impact fees required to offset the costs attributable to any development within the city, all qualifying projects shall be deemed by the city to have paid all development impact and other fees which may have been imposed by the city against such project but for the provisions of subsection C of this section.

G. Condition to Issuance of Certificate of Occupancy. If a development which was a qualified project at the time of the application of subsection A of this section to such development is no longer a qualifying project as of the issuance of any certificate of occupancy for such development due to any reason other than an affirmative legislative action of the city which causes the development to fail to meet any of the criteria for a qualifying project as set forth in Section 3.36.020 of this chapter, then the developer shall pay to the city as a condition to the issuance of such certificate of occupancy an amount equal to the full amount of fees and/or charges which would have been payable with respect to such development but for the operation of subsection A of this section.

H. No Vested Rights. This section is not intended to and shall not create any vested right, entitlement or privilege in any person or entity. This section may be enforced solely through a writ of mandate pursuant to Code of Civil Procedure Section 1085. The city council may amend, terminate, suspend or abrogate all or any provisions of this section at any time and for any reason within the limits of the discretion afforded the city council by law with respect to legislative matters. Any such amendment, termination, suspension or abrogation shall be applicable to any application for a discretionary approval for a qualifying project which is deemed complete (by the city or by operation of law) on or after the effective date of the ordinance codified in this chapter enacting such amendment, termination, suspension or abrogation.

I. No Representation Regarding Labor Code Matters. Nothing in this section or elsewhere in this Code is or is intended to be a representation or affirmation to any developer or other entity concerning the application of any provision of the California Labor Code, including, without implied limitation, Labor Code Sections 1720 and 1773. Any party availing itself of the benefits of this section agrees to and shall comply with any applicable provisions of state and federal labor laws and regulatory requirements, including those applicable to public works. Further, as a condition to receiving the benefits of the alternate fee schedule as set forth in this section, any party receiving the benefits thereof shall be deemed to have agreed to and shall defend, indemnify and hold the city and its respective officers, officials, employees, agents, attorneys and contractors harmless from and against all liability, cost and expense alleged against or incurred by the city or the other indemnified parties as a result of that party's failure to comply with the provisions of this subsection.

(Code 1965, § 29-7.1.)

The city manager, finance director and each city department head, under the direction of the city manager, shall review the fees and service charges listed following, on the schedule of frequency listed in this section, and set and adjust the fee or charge schedule so as to recover the listed percentage of costs reasonably borne necessary to provide the listed regulation, product or service.

A. Development Services:

B. Public Safety Services:

* Per a regulatory ordinance to be passed by the city council.

C. Parks and Recreation Services:

D. Utility and Enterprise Services:

E. Maintenance Services:

F. Finance or Administrative Services:

All fees and charges set pursuant to this chapter and section shall take effect immediately.

(Code 1965, § 29-4; Ord. No. 1599, § 2, 2-13-24; Ord. No. 1602, § 3, 4-9-24)