Article 7 — DEVELOPMENT FEES

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

(Ord. No. 3570, § 1, 2-4-86)

Fee as used in this article shall mean 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.

(Ord. No. 3570, § 1, 2-4-86)

A fee area as used in this article is 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.

(Ord. No. 3570, § 1, 2-4-86)

Fee program as used in this article shall mean a program adopted by resolution of the Board of Supervisors 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 7-9-709, 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 County sources for any costs above the prorated share of the costs attributable to such developer's property.

A fee program may provide that the County 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 County 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 board of Supervisors, including but not limited to public notice or hearing.

(Ord. No. 3570, § 1, 2-4-86; Ord. No. 3665, § 2, 10-27-87)

Benefit area or area of benefits as used in this article shall mean an area established by resolution of the Board of Supervisors 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.

(Ord. No. 3570, § 1, 2-4-86)

A facility as used in this article shall mean a public facility normally owned or based and operated by the County of Orange, including but not limited to fire stations, libraries and sheriff's substations, 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.

(Ord. No. 3570, § 1, 2-4-86; Ord. No. 3867, § 1, 10-6-92)

Building permit as used in this article refers to 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.

(Ord. No. 3570, § 1, 2-4-86)

Payment of fees as used in this article shall include payment of money, construction of facilities, commitment to construction of facilities, and dedication of land for facilities.

(Ord. No. 3570, § 1, 2-4-86)

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.

(a)

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.

(b)

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.

(c)

Notice of a public hearing before the Board of Supervisors shall be given by publication for ten (10) days in a newspaper published once a week or oftener. Two (2) publications, with at least five (5) days intervening between the dates of first and last publication, not counting the publication dates, shall be required. The first publication shall be at least ten (10) days prior to the hearing. 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 for construction of the facility by a developer.

(d)

At the public hearing, the Board of Supervisors 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.

(e)

The Board of Supervisors may, by resolution, adopt the proposed fee program and benefit area as prepared by responsible agency or department or as revised by the Board of Supervisors, 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 (c). If substantial changes not discussed at the initial hearing are proposed, no such change shall be adopted by the Board of Supervisors until after notice of such change is given in the manner described in subsection (c), and all interested persons have been given an opportunity to be heard with respect to such changes.

(f)

Any property may be a part of more than one (1) benefit area and fee program. Such benefit areas and fee programs need not be adopted at the same time.

(g)

The resolution adopting the fee program shall incorporate the program and a certified copy of such resolution shall be recorded with the Orange County Recorder.

(Ord. No. 3570, § 1, 2-4-86; Ord. No. 3867, § 2, 10-6-92)

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 County 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:

(a)

Parts (a) through (g) of section 7-9-708 shall apply to proposals for modification.

(b)

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

(1)

Change in the benefit area.

(2)

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.

(3)

Change in the location or capacity of the facility.

(4)

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

(5)

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.

(c)

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. 3570, § 1, 2-4-86)

(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. 3570, § 1, 2-4-86)

(a)

No discretionary permit, as that term is used in section 7-9-150, 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. 3570, § 1, 2-4-86)

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. 3570, § 1, 2-4-86)

Sec. 7-9-713. - Time of collection of fees; Government Code section 53077.5.

Notwithstanding any other provision of this article, no community facilities fees relating to a residential project shall be required to be paid prior to final inspection or issuance of certificates of occupancy, whichever is later, unless permitted by Government Code section 53077.5. Unless Government Code section 53077.5 permits a requirement that fees be paid at an earlier time, any provision of this article requiring payment of fees at such time shall be deemed to require such payment at time of final inspection or the time of issuance of the certificate of occupancy, whichever is later. This section shall remain in effect only until January 1, 1993, or such other time as Government Code section 53077.5, as adopted by chapter 685, 1986 Statutes, is repealed.

(Ord. No. 3665, § 1, 10-27-87)