Fontana Municipal Code Art. V Timing of the Payment of Development Impact Fees

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

Automobile dealership means any development which will provide for the franchised sale, lease and servicing of new and used motor vehicles, together with such ancillary uses such as administrative offices, automobile inventory storage, and parts sales.

Certificate of occupancy means a document issued by the building official allowing the occupancy or use of a building and certifying that the structure has been constructed and will be used in compliance with the California Building Code, and City Municipal Code requirements.

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.

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 development code amendment, development agreement, building permit, demolition permit, grading permit, administrative site plan, or design review.

Dwelling, multiple-family means a building or portion thereof used and/or designed as a residence with three or more dwelling units in the same structure located on a single lot.

Dwelling single-family detached means a building used for one dwelling unit located on a single lot, and separated from any other dwelling unit.

Dwelling, two-family means a building designed and/or used to house not more than two families living independently of each other.

Economic zone means either one of the following areas:

(1) North Fontana Economic Zone. That real property located within the City of Fontana, California (currently or as such may be annexed into the city from time to time) that is north of Baseline Avenue and within the boundaries of the Fontana Redevelopment Agency's North Fontana Redevelopment Project Area, as such boundaries may be amended from time to time.

(2) South Fontana Economic Zone. That real property located within the City of Fontana, California (currently or as such may be annexed into the city from time to time) that is south of the Interstate 10 Freeway, north of Jurupa Avenue, east of Mulberry Avenue, and west of Sierra Avenue.

North Fontana Qualifying Project means a development that meets all of the criteria set forth in (1) through (5), inclusive below:

(1) The development meets one of the following requirements:

a. The development encompasses at least 20 contiguous acres of area to be developed. 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" shall mean 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. The development is a subsequent qualifying phase; or

c. The development is an automobile dealership encompassing at least eight contiguous acres of area to be developed. For purposes of this subsection, property shall be considered as contiguous even if it is 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" shall mean the area of the automobile dealership that encloses all the privately developed and owned improvements, including private circulation improvements, landscaped areas, vehicle display and storage areas, and parking areas; or

(2) The development is located entirely within the North Fontana Economic Zone.

(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 filed and deemed complete (by either the city or by operation of law) on or after August 24, 2006.

(5) At least 90 percent of the gross square footage of the footprint of the buildings for which a certificate of occupancy will be required shall be occupied by a use or uses which singly or in the aggregate constitute a significant sales tax generator; provided, however, that with respect to an automobile dealership, (1) the gross square footage of the footprint of all buildings (or portions thereof) of an automobile dealership which are set aside and actually used for the servicing of motor vehicles shall not be included in the gross square footage of the automobile dealership to which the aforementioned 90 percent requirement shall apply; and (2) the exterior vehicle display areas shall be considered as if they were enclosed by a building for which a certificate of occupancy will be required for purposes of determining compliance with the aforementioned 90 percent requirement.

Institutional means a nonprofit, religious, or public use such as a church, library, public or private school, hospital, or government-owned or operated building, structure, or land used for public a church or school.

Pass-through fees shall 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.

Qualifying project means either a North Fontana Qualifying Project or a South Fontana Qualifying Project.

Significant sales tax generator shall mean any use or combination of uses located in a development that is projected by the city in its sole and absolute discretion to generate no less than $250,000.00 per year in local sales taxes to 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

South Fontana Qualifying Project means a development that meets all of the criteria set forth in (1) through (4), inclusive below:

(1) The development is located entirely within the South Fontana Economic Zone.

(2) 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).

(3) The application for the first discretionary approval required for the development has been filed and deemed complete (by either the city or by operation of law) on or after May 5, 2005.

(4) At least 90 percent of the gross square footage of the footprint of the buildings for which a certificate of occupancy will be required shall be occupied by a use or uses which singly or in the aggregate constitute a significant sales tax generator.

Subsequent qualifying phase means a development other than an automobile dealership which is a phased, architecturally and commercially integrated addition or annexation to a qualifying project.

(Ord. No. 1237, § 1, 2-3-98; Ord. No. 1400, § 1, 5-6-03; Ord. No. 1475, § 1, 4-5-05; Ord. No. 1511, § 1, 7-25-06; Ord. No. 1676, § 2, 5-28-13)

The purpose of this article is to establish a policy concerning the timing of payment of development impact fees, notwithstanding anything to the contrary previously stated in any provision of this Code or ordinances or resolutions adopted by the city council.

(Ord. No. 1237, § 1, 2-3-98; Ord. No. 1290, § 1, 6-15-99; Ord. No. 1676, § 2, 5-28-13)

(a) Anything to the contrary stated elsewhere in this Code or any ordinance or resolution of the city council adopted prior to the effective date of the ordinance adding this article notwithstanding, all development impact fees shall be calculated in accordance with the most recently adopted development impact fee resolution and shall be payable as follows:

(1) As to development impact fees which are imposed on a per unit or square footage basis, as follows:

a. For a development involving the construction of a new residential single-family dwelling unit, residential two-family dwelling or residential multiple-family units, upon the issuance of a certificate of occupancy for each residential unit.

b. For a development involving the construction of a new commercial, industrial, institutional or other nonresidential unit or structure, upon the issuance of a certificate of occupancy for any portion of such commercial, industrial, or other nonresidential unit or structure.

c. For a development involving the reconstruction, rehabilitation or expansion of an existing residential, commercial, industrial, institutional or other unit or structure, upon the issuance of a certificate of occupancy for any portion of such reconstructed/rehabilitated/expanded unit or structure.

(2) As to development impact fees which are imposed on a gross or net acreage basis, as follows:

a. For a development involving the construction of a new residential single-family dwelling unit, residential two-family dwelling, or residential multiple-family units, upon the issuance of a certificate of occupancy for each residential unit in an amount determined by dividing the total development impact fee by the total number of units in the development; provided, however, that should the entirety of the development impact fee not be paid within a period of five years following the issuance of a building permit for the first residential unit, then the entirety of the unpaid balance of the development impact fee shall become immediately due and payable.

b. For a development involving the construction of a new commercial, industrial, institutional, or other nonresidential unit or structure, the entirety of the development impact fee shall be payable upon the issuance of the certificate of occupancy for any portion of such new or expanded/enlarged unit or structure.

c. For a development involving the reconstruction, rehabilitation or expansion of an existing residential, commercial, industrial, institutional or other unit or structure, upon the issuance of a certificate of occupancy for any portion of such reconstructed/rehabilitated/expanded unit or structure.

(b) The timing of the payment of development impact fees provided in this section shall apply to all developments upon which development impact fees are imposed on or after the effective date of this article, unless one of the following applies:

(1) An earlier or later time for the payment of development impact fees is stated in a condition of approval for a particular development because:

a. The development impact fee is collected for improvements or facilities for which the city has established an account, appropriated funds, and adopted a proposed construction schedule; or

b. The development impact fee is to reimburse the city for expenditures previously made for a public improvement, service or amenity.

(2) The development is subject to a statutory development agreement (Government Code § 65864) or an agreement pursuant to article VI of chapter 21 of this Code which provides for the payment and/or satisfaction of development impact fees in a manner different than set forth in this section.

(3) The city is required or allowed by an agreement with another public or private entity providing services and/or facilities for which the development impact fee is collected to require payment of such development impact fee at a time other than set forth in this section.

(Ord. No. 1237, § 1, 2-3-98; Ord. No. 1290, §§ 2, 3, 6-15-99; Ord. No. 1676, § 2, 5-28-13)

(a) Alternate fees. Notwithstanding any other provisions of this Code or any other city ordinance or resolution, the city establishes, as alternate development impact fees applicable to qualifying projects, the alternate fee schedule set forth in subsection (b) below.

(b) Limited fees. Pursuant to subdivision (a) of this election 21-123, the following fees or charges shall be imposed by the city on qualifying projects:

(1) Development impact fees: $0.00;

(2) Fees for building permits: $0.00;

(3) Fees for demolition permits: $0.00;

(4) Sewer connection charges: $0.00; and

(5) All other fees or charges for or relating to the processing of applications for discretionary approvals, including, without implied limitation, processing fees for conditional use permits, site plan reviews, design reviews, subdivision maps and environmental reviews: $0.00.

Nothing in this section 21-123 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 non-development related charges. Nothing herein 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 approval 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 herein 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 approval, except to the limited extent set forth in subdivisions (a) and (b) of this section 21-123.

(c) Pass-through fees. Notwithstanding subdivisions (a) and (b) of this section 21-123, any qualifying project shall pay and be responsible for any and all pass-through fees applicable to such qualifying project.

(d) Applicability of alternate fees. The provisions of subdivisions (a) and (b) of this section 21-123 shall not apply to (i) 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 above, the non-qualifying project or residential component shall pay, as applicable:

(1) If such non-qualifying portion(s) and/or residential component is (are) capable of receiving independent discretionary approvals separate and apart form the qualifying project, all fees and charges required of the non-qualifying portion(s) and/or residential component by city ordinance, resolution, or this Code; or

(2) If such non-qualifying portion(s) and/or residential component is (are) not capable of receiving discretionary approvals separate and apart form the qualifying project, a pro-rate percentage (based on the percentage that the gross square footage of the non-qualifying 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 subdivisions (a) and (b) of this section.

(e) Sunset. The provisions of subdivisions (a) and (b) 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 North Fontana Qualifying Project, June 30, 2007, and as to a South Fontana Qualifying Project, June 30, 2008; or

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

(f) Fair share. This section 21-123 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 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 subdivision (b) 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 subdivisions (a) and (b) 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 21-120, 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 subdivisions (a) and (b) 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 § 1085. The city council may amend, terminate, suspend or abrogate al or any provision 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 enacting such amendment, termination, suspension or abrogation.

(i) No representation re: Labor Code matters. Nothing in this section 21-123 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 §§ 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 set forth in subsection (b), 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.

(Ord. No. 1400, § 2, 5-6-03; Ord. No. 1475, § 2, 4-5-05; Ord. No. 1511, § 2, 7-25-06)