Barstow Municipal Code Ch. 12.40 Development Impact Fees

(a) This chapter shall be known and may be cited as the "Development Impact Fee Ordinance."

(b) The fees established pursuant to this chapter are development fees levied pursuant to the Mitigation Fee Act (California Government Code § 66000 et seq.).

(c) This chapter shall apply to the extent permitted by the statutes and laws of the State of California.

(Ord. No. 937-2015, § 1, 9-21-2015)

The following words and terms as used in this chapter shall have the meaning respectively ascribed thereto:

Administrator means the city manager, or his or her designee, who shall administer the provisions of this chapter.

Applicant means the owner of real property proposed for development, or the owner's authorized agent.

Development means a proposal for the construction, alteration, addition, or change of use of any building or structure in or upon real property in the city that requires any entitlement from or by the city including, without limitation, a building permit, use permit, zoning or rezoning approval, subdivision or re-subdivision map approval, lot line adjustment, architectural permit, general plan amendment, specific plan approval, or any other entitlement or approval.

ENR means the construction cost index published in the engineering news record, or if such index is no longer published, its successor.

Impact fee or fees means the fee or fees imposed on a development pursuant to this chapter.

Impact fee schedule means the schedule of impact fee rates approved by resolution or ordinance of the city council and maintained on file in the office of the administrator.

Improvement means (i) the facilities, vehicles and equipment (as well as any land associated with such improvement) identified in the development impact fee study approved by the city council, and (ii) other similar facilities, vehicles and equipment that are approved by the city council that may be substituted for an identified improvement (or be a part of a class of identified improvements) because they will mitigate similar congestion.

Improvement subtype means (i) law enforcement facilities, (ii) circulation facilities, (iii) storm drain facilities, (iv) general government facilities, or (v) community center facilities.

Program means the improvements described in the development impact fee study or approved by the city council as substitutes for such improvements.

(Ord. No. 937-2015, § 1, 9-21-2015)

(a) The impact fee is hereby imposed as a condition of the issuance of any permit for any development, unless expressly exempted by this chapter. The rate of the impact fee shall be calculated pursuant to section 12.40.040 of this Code.

(b) Except as otherwise required by Government Code § 66007, or unless deferred pursuant to subsection (c) below, the impact fee shall be payable when an application is submitted for a building permit for the project. The amount of the impact fee with respect to the construction authorized by a building permit shall be calculated at the lower of the rate in effect at the time such building permit issues, or the highest rate permissible under state law. Notwithstanding the foregoing, no impact fee shall be charged with respect to any building permit issued prior to August 1, 2009 with respect to development shown on a tentative map approved by the planning commission and complete public improvement plans submitted to the city engineer prior to August 1, 2007.

(c) If mutually agreed upon by the applicant and the city payment of the impact fee may be deferred to the date of approval of the final building inspection of the development, provided the owner of the real property for which the fees are required enters into a recordable agreement with the city prior to issuance of the building permit for the development, which shall constitute a lien on the property from the date of recordation and shall be enforceable against successors in interest to the property owner. The agreement shall provide that approval of the final building inspection shall not be granted until the impact fee is paid. The agreement shall also provide that, in any action to collect the impact fee or any portion thereof, the city shall be entitled to all of its costs of enforcement and collection, including reasonable attorney's fees. The city manager may execute such agreements on behalf of the city in a form acceptable to the city attorney. Any deferral granted pursuant to this paragraph shall be consistent with the requirements of Government Code § 66007. Impact fees to cover the cost of public facilities improvements that the city engineer or his/her designee determines are needed prior to the opening of the proposed new building(s) shall be paid at the time an application is submitted for a building permit.

(d) Except to the extent a credit is granted pursuant to chapter 18.24 of this Code, a credit against the impact fee may be given for dedications of improvements constructed or provided at private expense and for the value of land dedicated to the city that is necessary or useful to an improvement. Such credit will be granted only if, prior to dedication, the city council determines that (i) the improvement is part of the program and (ii) the grant of the credit, in lieu of the fee, will not cause the city to delay the implementation of elements of the program that are of higher priority, in the judgment of the city council, than the land or improvement to be dedicated. At the time the city council makes these determinations, it must also make a determination of the maximum credit that will be allowed for the dedication, which maximum credit shall not exceed the city council's reasonable estimate of the fair market value of the improvement and/or land. The credit shall be applied when the city accepts the land or improvement. If the city council has made the determinations required by this subdivision, payment of a portion of the impact fee equal to the amount of an expected credit against the impact fee may be deferred to the date of approval of the final building inspection of the development, provided the owner of the real property for which the fee is required enters into a recordable agreement with the city prior to issuance of the building permit for the development, which shall constitute a lien on the property from the date of recordation and shall be enforceable against successors in interest to the property owner. The agreement shall provide that approval of the final building inspection shall not be granted until the impact fee is paid or the credit issued. The agreement shall also provide that, in any action to collect the impact fee or any portion thereof, the city shall be entitled to all of its costs of enforcement and collection, including reasonable attorney's fees. The city manager may execute the agreement on behalf of the city in a form acceptable to the city attorney. Any deferral granted pursuant to this paragraph shall be consistent with the requirements of Government Code § 66007. The amount of any credit granted pursuant to this paragraph shall not exceed the lesser of (i) the actual documented construction costs for the dedicated improvement plus the value of any dedicated land as supported by a professional appraisal produced by an independent consultant selected by the city and paid for by the applicant or (ii) the maximum credit approved by the city council pursuant to this subsection.

(Ord. No. 937-2015, § 1, 9-21-2015)

(a) The impact fee imposed upon a development shall be calculated by subtracting any pre-existing impact credits for that development (calculated pursuant to subsection (c) of this section) from the sum of the base amounts (calculated pursuant to subsection (b) of this section) for all uses constituting that development. If the pre-existing impact credits for a project exceed the base amounts for that development, then the fee shall be zero.

(b) A base amount shall be calculated for each use included in a development. The base amount shall be calculated by multiplying the planned number (after the completion of the project) of dwelling units (for a residential use), guest rooms (for a commercial lodging use) or developed square feet (for any other use) on the parcels comprising the development by the then-applicable rate for that use as set forth in the impact fee schedule.

(c) The existing impact credit for development shall be the sum of the base amounts that would be imposed on a project comprised of the structures that existed on the parcels comprising the development prior to the occurrence of the new development.

(d) The rate of the fee shall be established from time to time by resolution or ordinance of the city council in the manner required by Government Code §§ 66004 and 66018 and other applicable law.

(e) The council shall review the fee annually to determine if the fee shall increase incrementally consistent with Exhibit A attached to the ordinance codified in this chapter or delay the incremental increase based on economic conditions. If no council action is taken, the fee increase will automatically follow the incremental increase consistent with Exhibit A attached to the ordinance codified in this chapter.

(f) Beginning July 1, 2008, and on each July 1 thereafter, the rate of the fee shall increase without further action by the city according to the following formula:

Where the "Council-Approved Rate" is the rate shown on the most recently adopted impact fee schedule, "Most Recent ENR" is the most recently published construction cost index when the calculation is made and "ENR at Council-Approval" is the construction cost index published for the month in which the council adopted the impact fee schedule including the "council-approved rate." The administrator shall calculate the increased fee annually and give notice of that calculation in the manner required by law for the publication of ordinance of the city council.

However, the rate determined pursuant to this subsection in any year shall not exceed the rate which would exist if the council-approved rate had been increased by three percent on each July 1st following the approval of the council-approved rate by the city council.

(Ord. No. 937-2015, § 1, 9-21-2015)

(a) There are hereby established seven special funds, entitled "Law Enforcement Development Impact Fund," "Circulation Development Impact Fund," "Storm Drain Development Impact Fund," "General Government Facilities Development Impact Fund," "Community Center Development Impact Fund," "Aquatic Facilities Development Impact Fund," and "Parks Development Impact Fund," into which all fee proceeds and any interest thereon shall be deposited. Fee proceeds shall be apportioned amongst the funds as set forth in the impact fee schedule, as adjusted pursuant to subsection (d) of section 12.40.040. The funds shall be maintained as required by Government Code § 66006. Revenues deposited in each fund shall be used exclusively for improvements of the improvement subtype for which the fund has been reserved.

(b) No such revenues shall be used for periodic or routine maintenance of facilities.

(c) In the event that bonds or similar debt instruments are issued for construction of land or improvements for which impact fees may be expended, impact fees may be used to pay debt service.

(d) At least annually, and as required by Government Code § 66006, the administrator shall review the estimated cost of the public improvements to be funded by the fee, the continued need for those improvements and the reasonable relationship between such need and the impacts of pending or anticipated new development. The administrator shall report his or her findings to the city council at a noticed public hearing and recommend any adjustment to the impact fee or such other action as he or she may deem appropriate.

(e) Impact fee revenues may be used to provide refunds pursuant to this chapter.

(f) Pursuant to § 66001 of the Government Code, in the fifth fiscal year following the first receipt of impact fees, and every five years thereafter, the administrator shall make the following findings or determinations with respect to the unexpended portion of such fees, whether committed or uncommitted:

(1) The purpose to which the fees are to be put;

(2) The relationship between the fee and the purpose for which they are imposed;

(3) The sources and amounts of funding corresponding to the capital improvements and traffic reduction measures described in the impact fee project list; and

(4) The approximate dates on which the funding referenced to in subsection (f)(3) of this section, is expected to be deposited into the impact fee account.

(Ord. No. 937-2015, § 1, 9-21-2015)

(a) If a building permit or other entitlement for a development expires without commencement of construction, then the applicant shall be entitled to a refund, without interest, of the impact fee paid as a condition for its issuance, except that the city shall retain two percent of the fee to offset a portion of the costs of collection and refund. The applicant shall apply in writing for such a refund within thirty calendar days of the expiration of the permit; provided, that the administrator may extend such period for good cause, not to exceed six months.

(b) The city council may additionally authorize refunds as required or permitted by Government Code § 66001(e).

(Ord. No. 937-2015, § 1, 9-21-2015)

(a) An applicant may either file an appeal and pay the impact fee imposed pursuant to this chapter under protest, or appeal the impact fee before the building permit or other entitlement for the development to which the fee pertains has been issued.

(b) An appeal may be filed from the following determinations of the administrator:

(1) The applicability or amount of the impact fees calculated pursuant to section 12.40.040;

(2) Calculation of a credit, disapproval of a credit, or disapproval of an exemption pursuant to section 12.40.030 or 12.40.080;

(3) Any other determination which the administrator is authorized to make under this chapter.

(c) An appeal shall be in writing and shall be accompanied with the appeal fee established by the council prior to the issuance of a building permit or other entitlement for the development to which the appeal pertains. The written appeal shall set forth the grounds for the appeal and contain technical information and specific supporting data to the extent applicable to the determination to be made in the appeal.

(d) The filing fee for appeals shall be the same as that for appeals from determinations of the zoning administrator pursuant to chapter 19.72 of this Code.

(e) The council shall hear the appeal within 60 days of the date of filing, at which hearing the administrator shall submit to the council:

(1) The written appeal and any supporting information submitted by the appellant;

(2) The administrator's determination and the record upon which it is based; and

(3) The administrator's analysis of the information and materials submitted by the applicant on the appeal of impact fees paid.

(Ord. No. 937-2015, § 1, 9-21-2015)

The provisions of this chapter shall not apply to any development that is exempt from the impact fee by virtue of the constitutions of the United States or California or by virtue of other applicable state or federal law. The amount of the fee calculated pursuant to this section shall not exceed that permitted by applicable law.

(Ord. No. 937-2015, § 1, 9-21-2015)

Any person, corporation, or other business entity violating or causing the violation of any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable in accordance with section 1.01.110 of this Code. Notwithstanding, the foregoing, the provisions of this chapter may also be enforced by legal or equitable action, or both such actions, all such remedies being cumulative.

(Ord. No. 937-2015, § 1, 9-21-2015)

Where a development would otherwise be subject both to the requirements of chapter 18.24 of this Code and a requirement of payment of impact fee, the development shall be exempt from the portion of the impact fee for the acquisition of land for parks improvements, but not from any other portion of the fee, and shall be subject to the requirements of chapter 18.24 of this Code.

(Ord. No. 937-2015, § 1, 9-21-2015)

(a) In addition to the fees otherwise imposed by this chapter, a fire impact fee is hereby imposed as a condition of the issuance of any permit for any development, unless expressly exempted by this chapter.

(b) The rate of the fire impact fee shall be calculated pursuant to section 12.40.040 of this Code.

(c) Except to the extent inconsistent with the provisions of this section, each provision of chapter 12.40 shall apply to the imposition and administration of the fire impact fee.

(d) There is hereby established a special fund, entitled "fire impact fee fund" into which all proceeds of the fire impact fee shall be deposited. Funds in the fire impact fee fund shall not be commingled with proceeds of other development impact fees imposed by the city. The city may contract for the expenditure of these funds with another public agency that provides fire suppression services within the boundaries of the city. Funds in the fire impact fee fund shall be used exclusively for the construction and acquisition of fire suppression equipment, facilities and improvements.

(e) The city council may, by ordinance or resolution, establish an administrative charge to be collected at the time the fire impact fee is paid to the city. The proceeds of this administrative charge shall be used solely to fund costs associated with (i) calculating the amount of the fire impact fee due from a feepayer; (ii) processing and collecting payments of the fire impact fee; and (iii) administering the fire impact fee fund.

(Ord. No. 937-2015, § 1, 9-21-2015)