Chapter 9.94 — DEVELOPMENT FEES

The city has approved development proposals in areas where additional supporting facilities will be needed to provide public services. Recognizing that fiscal constraints prevent the city from assuming all of the costs of providing such facilities, the city has imposed conditions on such approvals requiring developer contribution to the costs of acquiring land and installing such facilities. The purpose of this chapter is to provide an orderly method for implementing such conditions. This chapter is adopted pursuant to the authority granted the city under article XI, section 7, of the California Constitution.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

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

Benefit area or area of benefits means an area established by resolution of the city council which will be benefitted by and will have contributed to the need for a facility. Such area shall be determined solely on the basis of need for the facility and contribution of development in the area to the need for the facility. In establishing a benefit area, consideration shall not be given to whether or not fee areas are included.

Building permit means a building permit which would allow construction of any structure which would contribute to the need for a facility for which a fee is required.

Facility means a public facility normally owned and operated by the city, including but not limited to fire stations, libraries and sheriffs stations, appropriate sites, and equipment necessary to the functioning of such facility, payment for a share of the cost of which is required by conditions of approval of some, but not necessarily all, general plan amendments, zone changes, or other development approvals within the area of benefit of such facility.

Fee means the pro rata share of the cost of provision of facilities attributable to a particular parcel of real property and may include provision of specified facilities or dedication of land for such facilities.

Fee area means any area covered by a general plan amendment, zone change, or other development approval which was granted subject to a condition that the developer pay a fee.

Fee program means a program adopted by resolution of the city council which apportions the pro rata share of the costs of a facility to each parcel within a benefit area based on the benefit to be derived by each such parcel and the contribution of the development approved for such parcel to the need for the facility and without regard to whether or not such parcels are within a fee area. The program shall state the estimated cost of the facility, which cost shall be deemed fixed for purposes of the program unless the program is amended pursuant to section 9.94.025, and shall describe the facility, its capacity, its location, and the projected date of its completion. A fee program may include provisions for construction of a facility or provision of land for a facility by a developer and for reimbursement from fees or other appropriate city sources for any costs above the prorated share of the costs attributable to such developer's property. A fee program may provide that the city may advance funds from appropriate sources to fund the cost of

its completion. A fee program may include provisions for construction of a facility or provision of land for a facility by a developer and for reimbursement from fees or other appropriate city sources for any costs above the prorated share of the costs attributable to such developer's property. A fee program may provide that the city may advance funds from appropriate sources to fund the cost of

constructing the facility and acquiring land therefor and reimburse such sources from fees. A program shall provide that all funds received and any interest derived therefrom shall be used solely for the purpose of constructing or acquiring the facility described therein. Where applicable to the facility, assessment districts or other acceptable methods of financing shall be taken into consideration in establishing fee programs. No fee program shall conflict with any preexisting agreement for provision of facilities between the city and a developer. A fee program may provide for automatic periodic adjustment of fees based on the Real Estate Research Council of Southern California's Office Building Construction Cost Index, without further action of the city council, including but not limited to public notice or hearing. Payment of fees includes payment of money, construction of facilities, commitment to construction of facilities, and dedication of land for facilities.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Cross reference— Definitions generally, § 1.01.170.

Sec. 9.94.020. - Establishment of fee programs and benefit areas.

Fee programs and benefit areas shall be established in accordance with the following procedures. Fee programs and benefit areas for the same public facility should ordinarily be established simultaneously by a single resolution.

(1)

The responsible agency or department shall prepare a proposed fee program and/or benefit area to be submitted to the planning commission for its advice and comments. The proposal shall be supported by adequate engineering studies to demonstrate the appropriateness of the proposed benefit area and fee distribution. No public hearing of the planning commission or notice of its consideration of the matter shall be required, provided that the planning commission may receive such testimony as it deems appropriate.

(2)

The responsible agency or department shall revise the proposed fee program and benefit area as it deems appropriate following receipt of the planning commission advice and comments.

(3)

At least 15 calendar days' notice of a public hearing before the city council shall be given by United States mail to each owner of property as shown on the last equalized assessment roll in a fee area located within the proposed benefit area where such property may be subject to a fee. The notice shall contain preliminary information relating to the boundaries of the benefit area, type, capacity and other pertinent information on the facility; estimated cost of the facility; method of fee apportionment; and, if applicable, proposed dedication of land or construction of the facility by a developer. No property shall be included in the fee area unless notice has been given in accordance with this subsection (3).

(4)

At the public hearing, the city council shall review the proposed fee program and benefit area and any advice and comments from the planning commission and receive the testimony of any interested person.

(5)

The city council may, by resolution, adopt the proposed fee program and benefit area as prepared by responsible agency or department or as revised by the city council, may reject the proposed fee program and benefit area, may continue the matter to a time certain for further consideration, or may refer the matter to the responsible agency or department or the planning commission for further study and recommendation. When the matter is referred for further study and recommendation, the hearing shall either be continued to a time certain or shall be renoticed, pursuant to subsection (3). If substantial changes not discussed at the initial hearing are proposed, no such change shall be adopted by the city council until after notice of such change is given in the manner described in subsection (3), and all interested persons have been given an opportunity to be heard with respect to such changes.

(6)

Any property may be a part of more than one benefit area and fee program. Such benefit areas and fee programs need not be adopted at the same time.

(7)

The resolution adopting the fee program shall incorporate the program and a certified copy of such resolution shall be recorded with the county recorder.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Projects may develop over a period of many years and conditions may change with respect to needed facilities and to costs for facilities. Developers may initiate requests for changes in permitted residential density, street locations, uses, and other matters. The city may change requirements and criteria for facilities needed to support development. Other changes may occur which will alter the need for facilities or the equity of the distribution of costs of such facilities or both. In order to provide the flexibility to accommodate such changes in the most equitable manner possible, fee programs and benefit areas may be modified as set forth below:

(1)

Subsections 9.94.020(1) through (7) shall apply to proposals for modification.

(2)

Modifications to fee programs and benefit areas may include any or all of the following:

a.

Change in the benefit area.

b.

Change in the fee program to reallocate the pro rata shares of the costs of the facility, provided that there shall be no increase in fees imposed on any parcel of property unless the permitted uses have been

changed so as to increase the contribution of the property to the need for the facility and the benefits to be derived by the property from the facility.

c.

Change in the location or capacity of the facility.

d.

Change in any provisions that a developer will dedicate land or construct a facility.

e.

Change in the estimated cost of providing the facility, in which case the fee may be increased for those parcels that have not already paid such fees or had been conditioned by a tentative tract map or discretionary permit to pay a specific fee.

(3)

If fees are reduced, any person who has paid such fees shall, upon written demand submitted to the responsible agency or department, be entitled to a refund of any excess paid.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.94.030. - Provisions for payment required for subdivision map approval.

(a)

No tentative parcel map or tentative tract map proposed in a fee area where a fee program and a benefit area have been established shall be approved unless the map is conditioned to require the subdivider to enter into a secured agreement prior to recordation. The agreement shall require payment of such fees prior to issuance of building permits. The subdivider may pay such fees prior to recordation in lieu of entering into an agreement.

(b)

No tentative parcel map or tentative tract map shall be approved in a fee area where a fee program and benefit area have not been established unless such map is conditioned so as to require payment of such fees as may be established. Such condition shall require that, prior to recordation of the map, the subdivider shall enter into an agreement to pay such fees upon such establishment, or upon issuance of building permits, whichever occurs last, and shall post security therefor.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.94.035. - Payment required for issuance of discretionary permits.

(a)

No discretionary permit, as that term is used in section 7-9-150 of the county's zoning ordinance, which would allow development of any project which would contribute to the need for the facility for which a fee is

required shall be approved for property located in a fee area where a benefit area and fee program have been established except where a previously approved subdivision map requires payment of fees or a subdivision map will be required prior to development, unless the permit is conditioned to require payment of such fees prior to the issuance of building permits.

(b)

No such discretionary permit shall be approved in a fee area where a fee program and benefit area have not been established unless such permit is conditioned so as to require the applicant to pay such fees as may be established. Such condition shall require that, prior to issuance of building permits, the applicant shall enter into an agreement to pay such fees upon establishment of a program and shall post security therefor.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.94.040. - Payment required for issuance of building permits.

No building permit shall be issued in a fee area where a fee program and benefit area have been established unless such fees have been paid.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.94.045. - Time of collection of residential development fees; Government Code § 66007.

Notwithstanding sections 9.94.030, 9.94.035, and 9.94.040, no development fees relating to a residential development projects shall be required to be paid prior to final inspection or issuance of certificates of occupancy, whichever occurs first, unless otherwise permitted by Government Code § 66007.

(Ord. No. 98-193, §§ 1—4, 10-19-98; Ord. No. 08-273, § 2, 11-3-08)

Sec. 9.94.050. - Temporary deferral of payment of development fees for commercial and residential projects.

(a)

[Deferral.] Notwithstanding sections 9.94.030, 9.94.035, 9.94.040, and 9.94.045, development fees imposed upon new commercial and residential development projects pursuant to sections 9.94.030, 9.94.035, and 9.94.040 may be deferred upon application by the property owner, or lessee if the lessee's interest appears of record, and approval by the community development director.

(b)

[Preliminary title report.] Prior to the community development director's consideration of an application for deferral of development fees, the owner or lessee shall provide the community development director, at the owner's or lessee's expense, a current preliminary title report on the affected property.

(c)

Deferral of development fees for commercial development. Upon approval of the deferral application by the community development director, the property owner or lessee, as a condition of issuance of the building permit for construction of any portion of a commercial development encumbered thereby, shall execute a

contract to pay the fee, or applicable portion thereof, 30 days prior to the date the certificate of occupancy is issued.

(d)

Deferral of development fees for residential development. Upon approval of the deferral application by the community development director, the property owner or lessee, as a condition of issuance of the building permit for construction of any portion of a residential development encumbered thereby, shall execute a contract to pay the fee, or applicable portion thereof, 30 days prior to the date the certificate of occupancy is issued, or upon the close of escrow, whichever occurs first.

(e)

[Obligation to pay fee.] The obligation to pay the fee shall inure to the benefit of, and be enforceable by, the city regardless of whether it is a party to that contract. The contract shall contain the legal description of the property affected, shall be recorded in the Clerk-Recorder Department for the County of Orange and, from the date of recordation shall constitute a lien for the payment of the fee, which shall be enforceable against successors in interest to the property owner or lessee at the time of issuance of the building permit. The lien for payment of the fee shall not be subordinated. A deed of trust and the contract shall be

recorded in the grantor-grantee index in the name of the city as grantee and in the name of the property owner or lessee as grantor. The city shall record a release of obligation, containing a legal description of the property, in the event the obligation is paid in full.

(f)

[Notification of opening of escrow.] The contract shall require the property owner or lessee to provide appropriate notification of the opening of any escrow for the sale of the property for which the building permit was issued and to provide in the escrow instructions that the fee be paid to the city from the sale proceeds in escrow prior to disbursing proceeds to the seller.

(g)

[Unpaid fees.] Should the deferred fees not be paid at the time they are due and payable:

(i)

All unpaid fees shall be accelerated and become immediately due and payable;

(ii)

An additional $1,000.00 shall be added to the unpaid balance for the initial administrative costs incurred in processing the fee deferral; and

(iii)

The city may pursue collection through all available legal and administrative means including, but not limited to, judicial or nonjudicial foreclosure of the recorded lien against the affected property and/or civil judgment against the owner or lessee for breach of contract and/or the security provided hereunder.

(h)

[Applicability.] This section and the incentives derived hereunder shall apply only to new commercial development projects that have not obtained building permits from the city at the time this section is adopted by the city council pursuant to Ordinance No. 08-273. This section shall remain in effect until December 18, 2009, and as of that date is repealed unless a city council resolution adopted before December 18, 2009, extends that date for a period not to exceed six (6) months.

(Ord. No. 08-273, § 3, 11-3-08)

CHAPTER 9.96. - UNDERGROUND UTILITY DISTRICTS

Sec. 9.96.010. - Definitions.

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

Commission means the Public Utilities Commission of the State of California.

Director means the director of community development.

Person includes but is not limited to individuals, firms, corporations, partnerships and their agents and employees.

Poles, overhead wires and associated overhead structures means poles, towers, supporters, wires, conductors, cables, guys, stubs, platforms, crossarms, braces, transformers, insulators, cutouts, switches, communications circuits, appliances, attachments and appurtenances located aboveground within a district and used or useful in supplying electric, communication, community antenna television, or similar or associated service.

Underground utility district or district means that area within the city within which poles, overhead wires and associated overhead structures are prohibited as such area is described in a resolution adopted pursuant to the provisions of section 9.96.040.

Utility includes all persons or entities supplying electric, communication, community antenna television, or similar or associated service.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Cross reference— Definitions generally, § 1.01.170.

Sec. 9.96.020. - Public hearing.

The city council may from time to time call public hearings to ascertain whether the public health, safety or welfare requires the removal of poles, overhead wires and associated overhead structures within designated areas of the unincorporated territory of the city and the underground installation of wires and facilities for supplying electric, communication, community antenna television, or similar or associated service. The city clerk shall notify all affected property owners, as shown on the last equalized assessment roll, and all utilities concerned, by mail, postage prepaid, of the time and place of such hearings at least ten

days prior to the date thereof. Each such hearing shall be open to the public and may be continued from time to time. At each such hearing all persons interested shall be given an opportunity to be heard.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.96.030. - Report by director.

Prior to holding such public hearing, the director or his representative shall consult with all affected utilities and shall prepare a report for submission at such hearing, containing, among other information, the extent of such utilities' participation and estimates of the total costs to the city and affected property owners. Such report shall also contain an estimate of the time required to complete such underground installation and removal of overhead facilities.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.96.040. - Designation of underground utility districts.

If, after any such public hearing as described in section 9.96.020, the council finds that the public health, safety or welfare requires the removal of poles, overhead wires and associated overhead structures and requires the underground installation of wires and facilities for supplying electric, communication, community antenna television or similar or associated service within a designated area, and the council determines that such undergrounding is in the general public interest for one or more of the following reasons:

(1)

Such undergrounding will avoid or eliminate an unusually heavy concentration of overhead facilities;

(2)

Such street or road or right-of-way is extensively used by the general public and carries a heavy volume of pedestrian or vehicular traffic;

(3)

Such street or road or right-of-way adjoins or passes through a civic area or public recreation area or an area of unusual scenic interest to the general public;

the council shall, by resolution, declare the designated area an underground utility district and shall order the removal and underground installation of such facilities. The decision of the council shall be final and conclusive. Immediately following its adoption, the city clerk shall cause a certified copy of the resolution to be recorded in the office of the county recorder. The resolution shall include a description and map of the area comprising the district and will also provide that the council shall by subsequent resolution fix the time within which the individual properties in the district must be ready to receive underground service, and poles, overhead wires and associated overhead structures shall be removed. A reasonable time shall be allowed for such removal and underground installation, having due regard for the availability of labor, materials and equipment necessary for such removal and for the installation of such underground facilities as may be occasioned thereby.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Whenever the city council creates an underground utility district and orders the removal of poles, overhead wires and associated overhead structures therein as provided in section 9.96.040, it shall be unlawful for any person or utility to erect, construct, place, keep, maintain, continue, employ or operate poles, overhead wires and associated overhead structures in the district after the date when such overhead facilities are required to be removed by such resolution unless such facilities are specifically excluded from the undergrounding requirement in such resolution or except as hereinafter provided. Overhead facilities may, however, be permitted to remain temporarily if required to furnish service to an owner or occupant of property for a reasonable period of time prior to the performance by such owner or occupant of the underground work necessary for such owner or occupant to continue to receive utility service as provided in section 9.96.100, and for such reasonable time as is required to remove such facilities after such work has been performed, and as otherwise provided in this chapter.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.96.060. - Exceptions, emergency or unusual circumstances.

Notwithstanding other provisions of this chapter, overhead facilities may be installed and maintained for a period not to exceed ten days without authority of the city council in order to provide emergency service. Additionally, the council may grant special permission, on such terms as the council may deem appropriate, in cases of unusual circumstances, without discrimination as to any person or utility to erect, construct, install, maintain, use or operate poles, overhead wires and associated overhead structures.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.96.070. - Additional exceptions.

This chapter and any resolution adopted pursuant to section 9.96.040 shall, unless otherwise provided in such resolution, not apply to the following types of facilities:

(1)

Any city facilities or equipment installed under the supervision and to the satisfaction of the director.

(2)

Poles and associated overhead structures used exclusively for street lighting.

(3)

Overhead wires which originate on a pole outside the boundaries of a district and terminate at a point of service on a building within the district.

(4)

Overhead wires attached to the exterior surface of a building by means of a bracket or other fixture and extending from one location of the building to another location on the same building or to an adjacent

building without crossing any public street.

(5)

Antennae, associated equipment and supporting structures, used by a utility for furnishing communications services.

(6)

Equipment appurtenant to underground facilities, such as surface-mounted transformers, pedestalmounted terminal boxes and meter cabinets, concealed ducts, cable TV pedestals and amplifier cabinets.

(7)

Temporary poles, overhead wires and associated overhead structures used or to be used in conjunction with construction projects.

(8)

Stub poles, anchors and guy wires originating in the district but used to support poles outside the district.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.96.080. - Notice to property owners and utility companies.

(a)

Within ten days after the effective date of a resolution adopted pursuant to section 9.96.040, the city clerk shall notify all affected utilities and all affected property owners within the district created by such resolution of the adoption thereof. The clerk shall further notify such affected property owners of the necessity that, if they or any person occupying such property desire to continue to receive electric, communication, community antenna television, or similar or associated service, they or such occupant, at their own expense, shall provide all necessary facility changes on their premises so as to receive underground service from the underground lines of the supplying utility or utilities, subject to the applicable rules, regulations and tariffs of the respective utility or utilities on file with the commission and to all other applicable requirements of state laws and city ordinances. Notifications by the clerk shall be made by mailing a copy of the resolution adopted pursuant to section 9.96.040, together with a copy of this chapter, to affected property owners as such are shown on the last equalized assessment roll and to the affected utilities.

(b)

Within 15 days of adoption by the city council of the resolution fixing the time within which conversions on private property and pole removal must be accomplished, the clerk shall further notify all affected utilities and affected persons that the work required to change the facilities on the premises so as to receive electric, communication, or community antenna television, or similar or associated service provided or to be provided by the utility company, shall be accomplished on or before the applicable date set forth in the resolution. This notice shall also state the date all poles and related overhead structures are to be removed from within the district. Notification by the clerk shall be made by mailing a copy of such resolution to

affected property owners as such are shown on the last equalized assessment roll and to the affected utilities.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.96.090. - Responsibility of utility companies.

If underground construction is necessary to provide utility service within the district created by any resolution adopted pursuant to section 9.96.040, the supplying utility shall furnish that portion of the conduits, conductors and associated equipment required to be furnished by it under its applicable rules, regulations and tariffs on file with the commission, and all other applicable requirements of state laws and city ordinances.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.96.100. - Responsibility of property owners.

Every person owning, operating, leasing, occupying or renting a building or structure within a district shall provide for the construction of that portion of the service connection on his property between the facilities referred to in section 9.96.090 and the termination facility on or within such building or structure being served.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

If any person owning, operating, leasing, occupying or renting such property does not comply with section 9.96.100 within the time specified in the resolution adopted pursuant to sections 9.96.040 and 9.96.080(b), the director shall proceed as follows:

(1)

He shall give notice in writing to the person in possession of such premises, and notice in writing to the owner thereof as shown on the last equalized assessment roll, to provide the required underground facilities within ten days after receipt of such notice.

(2)

The notice to provide the required underground facilities may be given either by personal service or by mail. In case of service by mail, the notice shall be deposited in the United States mail, in a sealed envelope with postage prepaid, addressed to the person in possession of such premises at such premises, and to the owner thereof. If notice is given by mail to either the owner or occupant of such premises, the director shall, within 48 hours after the mailing thereof, cause a copy thereof, printed on a card not less than eight inches by ten inches in size, to be posted in a conspicuous place on such premises.

(3)

The notice given by the director to provide the required underground facilities shall particularly specify that work is required to be done and shall state that if such work is not completed within 30 days after receipt of

such notice, the director will provide such required underground facilities, in which case the cost and expense thereof, including engineering, legal, advertising and all incidental expenses, will be assessed against the property benefitted and become a lien upon such property.

(4)

If, upon the expiration of the 30-day period, the required underground facilities have not been provided, the director shall forthwith proceed to do the work; provided, however, that, if such premises are unoccupied and no electric or communication services are being furnished thereto, the director may, in lieu of providing the underground facilities, authorize the disconnection and removal of any and all overhead service wires and associated facilities supplying utility service to such property. Upon completion of the work by the director, he shall file a written report with the city council setting forth the fact that the required underground facilities have been provided and the cost thereof, together with a legal description of the property against which such cost is to be assessed. The council shall thereupon fix a time and place for hearing protests against the assessment of the cost of such work upon such premises which time shall not be less than ten days thereafter.

(5)

The director shall forthwith, upon the time for hearing such protests having been fixed, give notice in writing to the person in possession of such premises, and a notice in writing thereof to the owner thereof, in the manner hereinabove provided for giving of the notice to provide the required underground facilities, of the time and place that the council will pass upon such report and will hear protests against such assessment. Such notice shall also set forth the amount of the proposed assessment.

(6)

Upon the date and hour set for the hearing of protests, the council shall hear and consider the report and all protests, if there be any, and proceed to affirm, modify or reject the assessment.

(7)

If any assessment is not paid within five days after its confirmation by the council, the amount of the assessment shall become a lien upon the property against which the assessment was made by the director, and the director shall deliver to the assessor and tax collector of the county a notice of lien on each of such properties on which the assessment has not been paid, and such assessor and tax collector shall add the amount of such assessment to the next regular bill for taxes levied against the premises upon which such assessment was not paid. Such assessment shall be due and payable at the same time property taxes are due and payable and, if delinquent, shall bear the same penalties as prescribed for delinquent real property taxes.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

Sec. 9.96.120. - Responsibility of city.

The city shall remove at its own expense all city-owned equipment from all poles required to be removed under this chapter in ample time to enable the owner or user of such poles to remove the same within the time specified in the resolution adopted pursuant to section 9.96.040.

(Ord. No. 98-193, §§ 1—4, 10-19-98)

If any act required by this chapter or by a resolution adopted pursuant to section 9.96.040 cannot be performed within the time provided on account of shortage of materials, war, restraint by public authorities, strikes, labor disturbances, civil disobedience or any other circumstances beyond the control of the actor, then the time within which such act will be accomplished shall be extended for a period equivalent to the time of such limitation.

(Ord. No. 98-193, §§ 1—4, 10-19-98)