Calaveras County Municipal Code Ch. 15.08 Calaveras Fire Mitigation Fee Ordinance

This chapter shall be known and may be cited as the "Calaveras Fire Mitigation Fee Ordinance."

(Ord. No. 3068, § 3, 3-8-2016)

For the purposes of carrying out the intent of this chapter, words, phrases and terms used in this title shall be deemed to have the meaning ascribed to them in this chapter. When not inconsistent with the text, singular number includes the plural; words in the plural include the singular. The words "shall", "is" or "will" denote mandatory; the word "may" denotes permissive.

"Agricultural structure" means a structure designed and constructed to house farm implements, hay, grain, poultry, livestock or other horticultural products, including other agricultural structures located on agriculturally zoned land. This structure shall not be a place of human habitation.

"Board of supervisors" means the board of supervisors of the county.

"Capital improvement plan" or "CIP" means the plan for fire facility capital improvements as identified in the county's five-year CIP or their successor, as adopted or updated annually by the board of supervisors which indicates the approximate location, size, time of availability and estimated cost of capital improvements to be financed with impact mitigation fees and appropriate money for capital improvement projects.

"County" means the county of Calaveras, a political subdivision of the state of California.

"Development" or "development project" means any project undertaken for the purpose of development in the fire protection district and shall include all projects involving the issuance of a permit for construction or reconstruction, remodeling, or any work requiring any permit under the county code or ordinances of the county, as the same presently exist or may be amended from time to time hereafter. The term "development" or "development project" shall also include manufactured housing or structures, and structures moved into the fire protection district.

"District" means any independent fire protection district organized under the 1987 Fire District Protection Law (Health and Safety Code Sections 13800 et seq. or its predecessor law) within Calaveras County that seeks to benefit from the provisions herein.

"Fire impact fee" or "fee" means a monetary exaction, other than a tax or special assessment that is charged by the county in connection with approval of a development project for the purpose of defraying all, or a portion of, the cost of fire facilities, apparatus and equipment related to the development project or subdivision on behalf of the fire protection district but does not include fees collected under development agreements adopted pursuant to Article 2.5 (commencing with Section 65864) of Chapter 4 https://www.municode.com/library/, Division 1, Title 7 of the California Government Code.

"Apparatus" means and includes but is not limited to fire engines, brush engines, utility vehicles, staff vehicles, water tenders, bulldozers, rescue vehicles, and paramedic ambulances.

"Equipment" means and includes but is not limited to ladders, fittings, hoses, radios, cellular telephones, tools, safety clothing, breathing apparatus, hazardous materials equipment and medical and rescue equipment with a useful life of five years or more.

"Fire facilities" means public improvements, including buildings and structures, including but not limited to the building of fire stations, administrative buildings and training buildings, permit approvals, land purchase and utility connection fees, etc. and related planning, engineering, and construction costs.

"Industrial" means manufacturing buildings, including but not limited to, food processing, manufacturing, metal processing, pulp and paper firms, voltage optimization, water and wastewater systems, transport processing or other activity involving farm products off-farm. In particular, it includes fixed pieces of equipment, buildings or complexes used to produce goods in connection with, or as part of, any process or system.

"Multi-family dwelling" means a group of attached dwelling units (three or more) within one structure.

"Mixed use" means any urban, suburban, village development, or single building that blends a combination of residential, retail, commercial, cultural, institutional, industrial or agricultural uses.

"Mobile home" means a factory assembled structure, transportable in one or more sections, that is constructed according to the Mobile Home Construction and Safety Standards, Part 280 of the Code of Federal Regulations, Title 24, with or without a permanent foundation and not including recreational vehicles.

"Mobile home park" means any area tract of land where two or more mobile home spaces are rented, leased, or offered for rent or lease to accommodate mobile homes used for human habitation. The rental paid for any such mobile home shall be deemed to include rental for the lot it occupies.

"Office" means establishments providing direct services to customers, business/service, executive headquarters, information processing and computer-dependent and/or telecommunications-based activities, professional, medical, and administrative services.

"Retail/commercial" is defined as non-manufacturing business establishments, including, but not limited to, hotels, restaurants, wholesale businesses, retail stores, and health, social and educational institutions.

"Single family dwelling" means a building designed for and/or occupied exclusively by one family. Also includes factory-built, modular housing units, constructed in compliance with the Uniform Building Code (UBC), and mobile homes/manufactured housing units that comply with the National Manufactured Housing Construction and Safety Standards Act of 1974, placed on permanent foundations.

"Warehouse/distribution" means buildings devoted to the storage and/or distribution of non-agricultural products. A distribution center for a set of products is a warehouse or other specialized building, which is stocked with products (goods) to be redistributed to retailers, to wholesalers, or directly to consumers.

(Ord. No. 3068, § 3, 3-8-2016)

This chapter is enacted pursuant to State Mitigation Fee Act, as set forth in Chapter 5, Division 1, Title 7 of the California Government Code (commencing with Section 66000) to provide the authority for and process by which development fees may be imposed for fire prevention, suppression and emergency response within the unincorporated territory of the county covered by district's legal geographic area of responsibility. Such fees may be imposed by the county for the district whose proposed improvements can be financed based upon a reasonable relationship between new development and the fee to be charged. It is intended that new development shall pay its fair share to maintain the pre-existing level of service, thereby mitigating the impact of development on a District's ability to provide such service.

Specifically:

The Legislature passed the Mitigation Fee Act "in response to concerns among developers that local agencies were imposing development fees for purposes unrelated to development projects." (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 864) The Act creates uniform procedures for local agencies to follow in establishing, imposing, collecting, accounting for, and using development fees. (Centex Real Estate Corp. v. City of Vallejo (1993) 19 Cal.App.4th 1358, 1361-1362) In passing the Act, the Legislature found and declared that "untimely or improper allocation of development fees hinders economic growth and is, therefore, a matter of statewide interest and concern." (Section 66006, subd. (e).)

The Act defines a development fee as "a monetary exaction other than a tax or special assessment... that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project..." (Section 66000, subd. (b).) "A fee shall not include the costs attributable to existing deficiencies in public facilities, but may include the costs attributable to the increased demand for public facilities reasonably related to the development project in order to (1) refurbish existing facilities to maintain the existing level of service or (2) achieve an adopted level of service that is consistent with the general plan." (Section 66001, subd. (g).) "Public facilities' includes public improvements, public services, and community amenities." (Section 66000, subd. (d).)

To establish a development fee a local agency must identify "the purpose of the fee" and "the use to which the fee is to be put." (Section 66001, subd. (a).) The agency also must determine that both "the fee's use" and "the need for the public facility" are reasonably related to "the type of development project on which the fee is imposed." (Home Builders Assn. of Tulare/Kings Counties, Inc. v. City of Lemoore (2010) 185 Cal.App.4th 554, 561) "The Act thus codifies, as the statutory standard applicable by definition to nonpossessory monetary exactions, the 'reasonable relationship' standard employed in California and elsewhere to measure the validity of required dedications of land (or fees in lieu of such dedications) that are challenged under the Fifth and Fourteenth Amendments." (Ehrlich, supra, 12 Cal.4th at p. 865.)

To impose an established development fee as a condition of approval for a specific development project, a local agency must "determine how there is a reasonable relationship between the amount of the fee and the cost of the public facility or portion of the public facility attributable to the development on which the fee is imposed." (Section 66001, subd. (b).) The agency also must "identify the public improvement that the fee will be used to finance." (Section 66006, subd. (f).)

Each development fee a local agency collects must be deposited "in a separate capital facilities account or fund in a manner to avoid any commingling of the fees with other revenues and funds of the local agency." (Sections 66006, subd. (a); 66001, subd. (c).) A local agency must expend all development fees its collects "solely and exclusively for the purpose or purposes" the agency identified when it imposed the fee on a development project (Section 66008; see Section 66006, subd. (a)), and the public facilities built or established with the fee must serve the developments on which the fee was imposed (Home Builders, supra, 185 Cal.App.4th at p. 566). A development fee may not be "levied, collected, or imposed for general revenue purposes." (Section 66008; see Section 66006, subd. (a).)

At the end of each fiscal year, a local agency must separately account for each development fee it collected by providing the public certain information, including a brief description of the fee and its amount, the beginning and ending balance of the account in which the fee was deposited, the amount of fees collected and interest earned, an identification of each public improvement on which the fee was expended, and an approximate date when construction will begin on any incomplete public improvement identified when the fee was imposed if the agency determines it has collected sufficient funds to finance the identified improvement. (Section 66006, subd. (b)(1).) If the agency does not provide an approximate start date for construction within one hundred eighty days of determining it has collected sufficient funds, the agency must refund the unexpended portion of the fee and all accrued interest to the current owners of the properties on which the fee was imposed. (Section 66001, subd. (e).)

When a local agency has not used all of a development fee within five years of the date it started to collect the fee, the agency must make findings that (1) identify the agency's purpose in holding the unexpended balance; (2) demonstrate a reasonable relationship between the unexpended balance and the purpose identified when the agency assessed the fee; (3) identify the sources and funding anticipated to complete any incomplete public improvement identified when the fee was established; and (4) designate the approximate date the agency expects that funding to be deposited in the account holding the unexpended balance. (Section 66001, subd. (d)(1).) These findings therefore require the local agency to affirmatively demonstrate that it still needs the unexpended fee to achieve the purpose for which it was originally imposed, and that the agency has a plan on how to use the unexpended balance to achieve that purpose. These findings are due at the end of each five-year period if the agency continues to hold an unexpended portion of a development fee. (Ibid.) The Act requires the agency to refund the unexpended fees to the current owners of the affected properties if it fails to make the five-year findings. (Section 66001, subd. (d)(2).)

The five-year findings requirement establishes "a mechanism... to guard against unjustified fee retention" by a local agency (Home Builders, supra, 185 Cal.App.4th at p. 565) and it ensures the agency "refund[s] any portion of [a development] fee not expended within five years unless the local agency can demonstrate a reasonable relationship between the unexpended fee and its purpose" (Centex, supra, 19 Cal.App.4th at p. 1361).

In short, for all unexpended development fees, the agency must make findings every fifth year that identify how the fee will be used, demonstrate a reasonable relationship between the fee and the purpose for which it is charged, identify all sources and amounts of funding anticipated to complete financing for incomplete improvements that were identified when the fee was established, and designate the approximate dates for that funding to be deposited into a dedicated account. (Section 66001, subd. (d)(1).) The public agency must make these findings "in connection with" the annual report the Act requires the agency to provide. (Section 66001, subd. (d)(2).) If these findings are not made, "the local agency shall refund the moneys in the account or fund" to the then current owners of the affected properties on a prorated basis plus accrued interest. (Section 66001, subds. (d)(2) and (e); see Home Builders, supra, 185 Cal.App.4th at pp. 565—566.)

(Ord. No. 3068, § 3, 3-8-2016)

A fire protection district impact fee may not be established unless requested by a district seeking establishment of a fee under this chapter via district resolution which identifies new, specific, and an identifiable development project or projects upon which a fee is to be imposed, and describes either (1) the required connection between development projects and improvements sought; or (2) the direct relationship between the impact created by a project and the project-specific fee sought to be imposed on an ad hoc basis.

The fee shall not include the costs attributable to existing deficiencies in public facilities, but includes the costs attributable to the increased demand for public facilities reasonably related to the development project in order to (1) refurbish existing facilities to maintain the existing level of service; or (2) achieve an adopted level of service that is consistent with the general plan.

The board of supervisors shall establish the amount of such fee via board resolution at a publicly noticed meeting after completion of an adequate nexus study, commissioned by a district seeking establishment of the fee. The nexus study shall establish a reasonable development fee for the district and demonstrate by competent analysis the reasonable relationship between such fee and the impacts of such development, satisfying the statutory requirements for fees for development projects contained in Chapter 5, Division 1, Title 7 of the Government Code Section 66000 et seq. These fees may from time to time be amended as circumstances warrant by the adoption of a superseding resolution by the board of supervisors. Any action to adopt a resolution levying or increasing such fee shall follow the procedures set forth in Government Code Section 66016 et seq., and any subsequent amendments, including, without limitation, notice, public hearing and effective date provisions.

(Ord. No. 3068, § 3, 3-8-2016)

A. A fee collected pursuant to this chapter, together with any interest, shall be maintained and accounted for in a separate capital facilities account or fund in a manner to avoid any commingling of such moneys with other revenues or funds and expended in a timely fashion only for approved purposes.

B. County shall withhold two percent of the total fee collected to cover administrative costs at current weighted hourly salary associated with the implementation of this chapter. If the county administrative costs exceed two percent, the county shall charge the district each fiscal year for any deficiency the previous fiscal year.

(Ord. No. 3068, § 3, 3-8-2016)

A. Fees established pursuant to this chapter shall be paid for the property on which a development project is proposed at the time of the issuance of any required building permit.

B. Fees shall be payable in those specific amounts designated by the board of supervisors.

C. Chargeable residential square footage shall include new habitable living space within the perimeter of a structure, not including any carport, walkway, garages, overhangs, patios, enclosed patios, detached accessory structure or detached storage space. Chargeable nonresidential square footage shall include new covered and enclosed space within the perimeter of a nonresidential structure, not including any storage areas incidental to the principal use of the construction, garage, parking structure, unenclosed walkway, or utility or disposal area. Chargeable square footage shall be determined and calculated in accordance with the standard practice of the county.

D. Fee calculations for mixed use development shall be calculated based on the amount of gross square footage for each separate land use category.

(Ord. No. 3068, § 3, 3-8-2016)

Fees established pursuant to this chapter shall be adjusted automatically without any further action by the board of supervisors on the first day of each fiscal year, beginning on July 1, 2017, by the net percentage change during the preceding calendar year in the Engineering News Record Construction Cost Index for San Francisco (based on 1913 U.S. average equals one hundred) as published in the Engineering News-Record.

(Ord. No. 3068, § 3, 3-8-2016)

During the fifth year following the county's adoption of a resolution initially establishing the amount of the fee in the manner provided by this chapter on behalf of district, and every fifth year thereafter, the fees authorized by this chapter are to be recalculated by the county in the manner required by the chapter. The county shall cause such recalculated fees to be incorporated into a proposed resolution amending such fees, and shall present the proposed resolution to the board of supervisors for consideration and adoption.

(Ord. No. 3068, § 3, 3-8-2016)

A. If construction of a development project has not commenced before the expiration of the building permit that would have enabled the applicant to proceed with construction, then a fee payer shall be entitled to a refund, without interest, of the fees paid as a condition for the issuance of such permit. The fee payer must submit an application for such a refund within thirty calendar days of the expiration of the permit. Failure to timely submit the required application for refund shall constitute a waiver of any right to the refund.

B. In the event any fee collected pursuant to this chapter remains unexpended in the fund established pursuant to this chapter, the board of supervisors, in cooperation with the district, shall make the following findings for the fifth fiscal year following the first deposit into such account, and every five years thereafter, with respect to that portion of the fee remaining unexpended, whether committed or uncommitted: (1) identify the purpose to which the fee is to be put; (2) demonstrate a reasonable relationship between the fee and the purpose for which it was charged; (3) identify all sources and amounts of funding anticipated to complete financing of public facilities; and (4) designate the approximate dates on which such funding is expected to be deposited into the fund.

C. The unexpended portion of the fees, and any interest accrued thereon, for which need cannot be demonstrated pursuant to this section, shall be refunded to the then current record owner or owners of lots or units of the development project or projects on a prorated basis.

D. The provisions of California Government Code Section 66001(d), (e) and (f), as the same may be amended from time to time, shall apply fully to any refund of fees, and the provisions of this chapter https://www.municode.com/library/ shall be subordinate to the section and shall be applied in a manner consistent therewith.

(Ord. No. 3068, § 3, 3-8-2016)

The following shall be exempted from payment of the fee:

A. A structure owned by a governmental agency.

B. A structure which is being reconstructed following damage or destruction by fire or other casualty, or the voluntary demolition thereof, provided that the number of structures or the size in such reconstructed structure is no greater than the number of structures or the size of the structure prior to such damage, destruction or demolition.

C. A temporary mobile home as provided in Section 17.55.020(D).

(Ord. No. 3068, § 3, 3-8-2016)

A. A development project that, through demolition or conversion, will eliminate existing development is entitled to a fee credit if the existing development is a lawful use under the county code, including a nonconforming use.

B. A development project that will replace development that was partially or totally destroyed by fire, flood, earthquake, mudslide, or other casualty or act of God, is entitled to a fee credit if the development that was partially or totally destroyed was a lawful use under the county code, including a nonconforming use, at the time, thereof.

C. Credit for such eliminated development or development that was partially or totally destroyed (as above specified) shall be calculated in accordance with the fee schedule set forth in the resolution to be adopted pursuant to this chapter.

(Ord. No. 3068, § 3, 3-8-2016)

For fees established pursuant to this chapter, the county shall, within one hundred eighty days after the last day of each fiscal year, make available to the public the information required by California Government Code Section 66006(b).

(Ord. No. 3068, § 3, 3-8-2016)

Calaveras County is responsible for issuance of all RFPs to secure engineering consultants or vendors to prepare any nexus study required by this chapter. The district seeking establishment of a fee under this chapter shall pay for all engineering and consultant fees required to complete the relevant nexus study. The relevant nexus study shall be approved by specialized counsel of the County's choosing, who shall review the nexus study for legal defensibility only, not certainty to withstand legal scrutiny. The district seeking establishment of a fee under this chapter also shall pay for all specialized counsel legal fees, whether or not the nexus study is opined legally defensible. The county shall not proceed with any nexus study and specialized counsel review unless the district adopts a resolution accepting all terms of this chapter.

To the fullest extent permitted by law, any district seeking establishment of a fee under this chapter agrees to defend, indemnify, and hold harmless the county, its officers and employees, agents and assigns for all claims, demands or liability (including reasonable attorney's fees) arising out of or in connection with implementation of this chapter, including legal defense costs resulting from a third party suit, except to the proportionate extent of all such losses caused by any negligent act or failure to act by the county. Legal defense counsel shall be chosen by the county exclusively, after consultation with a relevant district. In the event legal defense counsel is required, district agrees to sign a joint defense agreement if deemed legally necessary by retained counsel.

(Ord. No. 3068, § 3, 3-8-2016)

The provisions of this chapter and any resolution adopted pursuant hereto shall at all times be subject and subordinate to the provisions of Chapter 5 (commencing with Section 66000), Division 1, of Title 7 of the California Government Code, as the same presently exist or may hereafter be amended from time to time, to the extent the same are applicable. In the event of any applicable conflict between the provisions of this chapter and the state law, the latter shall control.

(Ord. No. 3068, § 3, 3-8-2016)

The provisions of this chapter and any resolution adopted pursuant hereto shall supersede any previous ordinance or resolution to the extent the same is in conflict herewith.

(Ord. No. 3068, § 3, 3-8-2016)