Newark Municipal Code Ch. 3.24 Development Impact Fees

Footnotes:

--- (3) ---

Editor's note— Ord. No. 498, § 1(Exh. A), adopted June 8, 2017, repealed the former Ch. 3.24, §§ 3.24.010—3.24.200, and enacted a new Ch. 3.24 as set out herein. The former Ch. 3.24 pertained to similar subject and derived from Ord. No. 360, § 2(part), adopted in the year 2000.

This article may be referred to as the "Impact Fee Ordinance," and is adopted pursuant to the authority of Article XI, Section 7 of the California Constitution, California Government Code Section 66000 et seq. (hereinafter "Mitigation Fee Act") and California Government Code Section 65000 et seq. (the planning and zoning law of the State of California).

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

The city council finds and declares that:

A. The city provides public services and constructs and maintains public facilities for the benefit of residents, businesses and employees within the city.

B. As a result of increasing regional growth, substantial residential, commercial and industrial development is expected to occur within the city.

C. The city capital improvement plan identifies public facilities that are needed in the city as a part to the city's development.

D. In accordance with its general plan, the city intends to expand and improve its public facilities to serve new development and to maintain existing levels of service of public facilities.

E. Based upon projected growth and development permitted under the general plan, a substantial amount of commercial, industrial, and residential development will occur in the city before the city is fully built out.

F. This anticipated development cumulatively will generate a substantial increase in the need for city services and the corresponding capital facilities necessary to provide those services. New commercial, industrial, and residential development will thus create an additional burden on the existing capital facilities.

G. If additional capital facilities are not added as development occurs, the existing facilities will not be adequate to serve the community. Such inadequacies in, for example, space for city employees, public safety facilities, transportation infrastructure and community facilities, could result in adverse impacts in that this shortage of capital facilities would lead to a deterioration of the public services which the residents, employees, and property owners in Newark now enjoy.

H. To prevent these undesirable consequences, the capacity of the city's capital facilities must be built at a rate which will accommodate the expected growth in the city.

I. Although the need for public services generated by an individual development project may not be, in and of itself, sufficient to overload the city's existing capital facilities, the cumulative impact of all new development (including development currently submitted for approval) will result in an unacceptable burden.

J. It is the policy of the city, as provided in its general plan, that new commercial, industrial, and residential development pay for its share of the cost of public services and of the improvements to existing capital facilities and construction of new capital facilities that are necessary to accommodate the public service needs generated by such new development and, further, that before permitting development to occur, services and facilities required to support such development must be in place or provision made for their extension or creation. In the absence of this chapter imposing development impact fees, existing and future sources of revenue will be inadequate to fund a substantial portion of the capital facilities improvements that are necessary to avoid an unacceptable deterioration of public services.

K. Under Government Code Section 66001, the city council finds that each implementing resolution established hereunder shall establish that:

1. The purpose of the fee is to provide adequate improvements to serve new commercial, industrial, and residential development within the city.

2. The improvements for which the fee will be used are identified in the general plan, capital improvement plan, and technical studies attached to each implementing resolutions.

3. The fee will fund that portion of capital facility improvements attributable to new commercial, industrial and residential development responsible for paying the fee as further described in each implementing resolution.

4. The amount of the fee bears a fair and reasonable relationship to each development's burden on and benefit from the city's public services and capital facilities improvements to be funded by the fee, and shall be based on the following considerations:

a. New development will pay only for those capital facilities that serve new development and are necessary to serve the public service needs which will be created by such new development.

b. The cost of improvements needed to alleviate existing deficiencies in capital facilities if any, are not included in the fee.

c. Each type of development shall contribute to the needed improvements in proportion to the use of public services and capital facilities by that type of development. For residential development, the fees shall be based on the average number of residents for the particular residential use, and the estimated average use of particular facilities. For commercial and industrial development, the fees shall be based on square feet and the estimated average use of particular facilities, as further described in the technical report attached to each implementing resolution.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

Pursuant to this article, the city has established fees that will be imposed upon projects for the purpose of mitigating the impacts that the projects have upon the city's ability to provide public facilities.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

A. The fees imposed by the city under this article, including any interest earning thereon, shall be used to pay, in whole or in part, the estimated reasonable cost of providing specified public facilities, as described in implementing resolutions; to reimburse the city for the cost of specified public facilities constructed by the city with funds from other sources; and to make reimbursement payments in accordance with Section 3.24.100.

B. As described in each implementing resolution, the specified public facilities will be categorized into separate and distinct sets of public facilities based upon the type of public facility to be provided, or other identifying features.

C. For each separate public facility category, a separate fee shall be calculated and imposed, and each separately imposed fee shall be collected by the city and deposited in a separate and distinct "fee fund," subject to the accounting requirements of all applicable law, including the Mitigation Fee Act.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

A. Pursuant to the Mitigation Fee Act, in any action establishing, increasing, or imposing a fee as a condition of approval of a project, a technical report shall be prepared for each public facility category, subject to city council approval by implementing resolution.

B. Each implementing resolution shall include the following:

1. Identify the purpose of the fee by identifying the estimated types and quantities of projects subject to the fee, and the public facility category to be funded by the fees.

2. Identify the use of the fee by identifying the specified public facilities to be funded by the fees.

3. Determine how there is a reasonable relationship between the city's use of the fee and the types of projects on which the fee is to be imposed by demonstrating how the project will benefit from the specified public facilities to be funded by the fees.

4. Determine how there is a reasonable relationship between the need for the specified public facilities and the types of projects on which the fee is to be imposed by demonstrating how the project creates a demand for the construction of the specified public facilities to be funded by the fees.

5. Determine how there is a reasonable relationship between the amount of the fee and the cost of the specified public facility attributable to the project on which the fee is to be imposed. This shall include two elements: (1) a quantification of the estimated reasonable cost of providing the specified public facility, which may include the estimated costs of land acquisition, design, construction, construction administration, general administration (including establishment and enforcement) of the fee program, and contingencies; and (2) an identification of the method by which the city quantified the proportionate responsibility of each project for the cost of the specified public facilities, which may be satisfied by establishing a formula which reasonably quantifies the proportionate responsibility of various types of projects using standardized units of measurement.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

The development impact fees, in an amount to be determined by the implementing resolutions of the city council, are applicable to a building permit to construct a new single-family and multifamily dwelling units and new commercial and industrial development as set forth in this chapter.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

The following activities and actions are exempt from the requirement to pay the development impact fees:

A. No fees are due if a fee was previously paid in full for a particular property and use;

B. No development impact fee shall be charged for remodeling or for an addition to an existing residential unit;

C. No fee shall be charged for demolition of an existing residential structure and the building of a new residential structure on the same site, provided the demolished structure was in use as a residential dwelling within two years before the issuance of a building permit for the new residential structure.

D. The transportation portion of the development impact fees shall not be assessed on those portions of new commercial and industrial development that serve as amenities to on-site employees. No more than five percent of the total floor area of a development may be so exempted. For purposes of this chapter, "amenities" means employee cafeterias, health clubs and gymnasiums; space for concierge and convenience services; and other spaces which are of similar use in the judgment of the community development director.

E. The city council may elect to waive the payment of an impact fee if a residential or non-residential development project provides community benefits in excess of those required by the impacts of the project, and if the city council finds that the expected benefits to the community exceed those that would be provided by the payment of the fee. Such community benefits may include the provision of senior housing, the generation of significant taxes, or the elimination of nuisances.

There are no other exemptions to the development impact fees.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

The time for payment of the development impact fees shall be established by the implementing resolution adopted by the city council that sets the amount of the fee, and shall conform to the requirements of Government Code Section 66007.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

At the time of approval of a project or at the time of the imposition of the fees, the city shall provide to the project applicant a statement of:

A. The amount of the fee and the public improvements that the fee will be used to finance (Government Code Section 66006(f)); and

B. Notification that the ninety-day approval period in which the applicant may protest has begun (Government Code Section 66020(d)).

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

A. As may be authorized by resolution of the city council following review and written report from city staff, development impact fee revenues may be used to reimburse a developer, upon his or her written request, under this section. A developer must obtain council approval for reimbursement, by resolution, before any offer of dedication and before any construction begins for a public improvement which may be the subject of a reimbursement request. Reimbursement may only be approved by the city council where all of the following four conditions are satisfied:

1. Developer has been required or permitted to install and dedicate a public facility identified in a technical report attached to an implementing resolution beyond that which can be attributed to the specific development installing the same;

2. The facility for which reimbursement is sought is identified by the city as a priority project to be funded within the three-year period immediately following the completion of the facility;

3. Revenues within the particular fee account funding the facility are available; and

4. The sum value of the facility(ies) constructed, based on the most current estimate of the infrastructure item (as defined by annual cost review or other recent evaluation of cost), exceeds the total development impact fee liability of the specific development installing the facility.

B. Reimbursements shall not be authorized if the value of the constructed and dedicated improvement is below the total development impact fee liability of the project. Reimbursements for oversizing shall not be available as fee credits against a development's fee liability, except as provided in Section 3.24.110.

C. Reimbursements for oversizing shall include appropriate financing charges (interest) which shall be based upon the rate at which the city can borrow money at the time the reimbursement is approved by the city council. Financing charges included in any reimbursement payments to a developer or property owner shall not exceed this interest rate, as calculated by the city's chief financial officer.

D. In the case of city council approval of reimbursement, the reimbursement amount will be based on the most current estimate of the infrastructure item, as defined by annual cost review or other recent evaluation of cost, regardless of the actual cost to construct the facility.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

A. The community development director is authorized to credit development impact fees imposed under this chapter in consideration for certain on-site and off-site facilities, improvements constructed or paid for by the developer. A developer is entitled to credit for improvements not to exceed the amount of the applicable development impact fee for a particular development if the improvement is identified by the city as a priority project to be funded within the three-year period immediately following the completion of the facility and the developer:

(1) Dedicates an appropriate site;

(2) Constructs the improvements;

(3) Finances an improvement by cash, assessment district, or Mello-Roos community facilities district; or

(4) A combination of the above.

B. A decision regarding a fee credit is appealable under Section 3.24.160.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

The development impact fee authorized by this article and the implementing council resolution(s), the accumulated fee funds and their appropriation, and supporting documentation, shall be reviewed annually by the city council in a manner which conforms with the requirements of Sections 60001(d) and 66006(b) of the Government Code.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

The city shall not collect a development impact fee established by an implementing resolution once funds sufficient to construct residential, commercial and industrial development's share of all facilities described in the technical reports attached to the implementing resolutions have been collected.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

A. The developer of a project subject to a development impact fee under this chapter may apply to the community development director for an adjustment to or waiver of that fee or for a finding that the project is exempt from the fee. The waiver or adjustment of a fee shall be based upon the absence of any reasonable relationship between the impact on public facilities of that development and either the amount of fee charged or the type of facilities to be financed. Additionally, in the case of new residential development providing for-sale or rental housing to be made available at "affordable housing cost" or "affordable rent" to "low income households" and/or "moderate income households," as those terms are defined under California law, as from time to time amended, the community development director may grant a waiver of all or a portion of the fee if the developer demonstrates that the development would not be economically feasible and could not be built with the imposition of the full fee.

B. The application shall be made in writing and filed with the community development director no later than the time of the issuance of a building permit. The application shall state completely and in detail both the applicant's factual basis and legal theory for adjustment or waiver, and compare its proposal with the analysis set forth in the technical report prepared for the fee being challenged. The community development director may refuse to consider factual assertions or legal theories not set forth in the written application.

C. The community development director shall consider the application at an informal hearing, which may be continued from time to time, and which shall be held within sixty days after the filing of the complete application. The decision of the community development director is appealable under Section 3.24.160.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

The community development director or the hearing officer appointed under Section 3.24.160 may require as a condition of adjustment, waiver or a finding of exemption that the developer provide a recordable document in a form acceptable to the director acknowledging the factual basis of such adjustment, waiver or exemption and further acknowledging that a subsequent change of facts may result in the requirement that additional fees be paid.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

A. The community development director is responsible for administering, collecting, crediting, adjusting and refunding development impact fees. A decision by the community development director regarding a fee imposed under this chapter shall be appealable in accordance with this section. A person appealing under this section shall have first sought a fee credit under Section 3.24.110, or an adjustment or waiver, or a finding of fee exemption under Section 3.24.140. A person seeking judicial review shall first complete an appeal under this section and shall pay all city charges for that appeal.

B. A person appealing a decision under this chapter shall file an appeal with the city clerk, who is responsible for processing the appeal toward a hearing. The appeal shall be in writing, stating completely and in detail the factual and legal grounds, and shall be filed within ten calendar days following the decision being appealed.

C. The cost of the appeal shall be borne by the applicant, who shall pay a deposit against such cost at the time of filing the appeal. The amount of the deposit shall be established by resolution of the city council. The cost of an appeal must be paid in full before the appeal hearing takes place.

D. The city clerk shall notify the city manager of the appeal, and the city manager shall appoint a hearing officer.

E. The appointed hearing officer shall set the time and place for the hearing, serve notice on the parties, conduct the hearing, prepare written findings of fact and a written decision on the matter, and shall preserve the complete administrative record of the proceeding. The hearing officer may issue directives, including but not limited to directives that legal briefs be submitted in accordance with an established briefing schedule, to the parties in order to facilitate resolution of the appeal. The hearing officer shall consider relevant evidence presented by the appellant and by the community development department.

F. The decision of the hearing officer is final and may not be further appealed; it is reviewable by a court under Code of Civil Procedure Section 1094.5.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

A developer seeking to proceed with his or her project during the pendency of an application for adjustment or waiver or a finding of exemption or during the pendency of an appeal may do so by following the procedures set forth in Section 66020 of the Government Code.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)

A. If a building permit or use permit is canceled or voided and the fees paid have not been committed, the community development director may, upon the written request of the applicant and provided that work has not progressed to a point that would permit commencement of a new, changed or expanded use for which a fee would be payable, order return of the fee and interest earned on it less administrative costs.

B. If a fee is not spent or committed five years or more after it was paid, and the city council does not make the findings required by Government Code Section 66001(d), the community development director may authorize a refund to the then owner of the property for which the fee was paid, under Government Code Section 66001(e).

C. A decision regarding refund of a fee is appealable under Section 3.24.160.

(Ord. No. 498, § 1(Exh. A), 6-8-2017)