Chapter 3.40 — PARK FACILITIES FEES

Editor's note(s)—Ord. No. 04-20 , § I, adopted Feb. 11, 2020, amended Ch. 3.40 in its entirety to read as herein set out. Former Ch. 3.40, §§ 3.40.010—3.40.140, pertained to similar subject matter, and derived from Ord. 10-03.

The City Council of the City of Orange finds and declares that all recitals set forth in the preamble of the ordinance codified in this chapter are true and such recitals are incorporated in this chapter and set forth as findings of the City Council; and the City Council does further find and declare as follows:

• A. The State of California, through the enactment of Section 66000 et seq. of the Government Code of the State of California, also known as the Mitigation Fee Act, has determined the nexus that must be established in the enactment of development impact fees.

• B. The imposition of development impact fees is one of the preferred methods of ensuring that development bears a proportionate share of the cost of public facilities and services necessary to accommodate such development. This must be done in order to promote and protect the public health, safety and welfare.

• C. This chapter recognizes that new residential development projects within the City will result in additional growth and that such growth will place additional burdens on park and recreational facilities, infrastructure and services, necessitating the acquisition of land and construction of park and recreational facilities and expansion of services and infrastructure in order to meet and accommodate new residential development projects.

• D. New residential development projects should bear a proportionate financial burden in the construction and improvement of park and recreational facilities necessary to serve them.

• E. The cost of providing park and recreational facilities occasioned by new residential development projects exceeds the revenue generated by fees exacted from the residential development projects.

• F. In adopting fees authorized by this chapter, the City shall establish the fees based upon the costs generated through the need for new park and recreational facilities and other capital acquisition costs required, incrementally, by new residential development.

• G. The fees established by this chapter shall not exceed the reasonable cost of providing park and recreational facilities occasioned by new residential development projects.

• H. The fees established by this chapter shall bear a rational relationship to the reasonable cost of providing park and recreational facilities occasioned by new residential development projects.

• I. The fees established by this chapter are consistent with the goals and objectives of the City's general plan and are designed to mitigate the impacts caused by new residential development referenced in this chapter throughout the City. Development impact fees are necessary in order to finance the required park and recreational facilities and to pay for new

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City of Orange, CA

REVENUE AND FINANCE

§ 3.40.010

§ 3.40.020

residential development's fair share of their costs.

• J. Imposition of fees to finance park and recreational facilities required by new residential development is necessary in order to avoid adversely impacting existing park and recreational facilities and services.

• (Ord. 04-20, 2020)

For purposes of this chapter, unless otherwise apparent from the context, the following terms, phrases, words, and their derivations shall have the meanings respectively ascribed to them by this section:

"Building permit" means any permits required for construction, such as electrical and plumbing permits, moving permits, and the like.

"Developer" means the legal or beneficial owner or owners of a lot or of any land included in a proposed residential development, including the holder of an option or contract to purchase or other persons having an enforceable proprietary interest in such land, who is legally responsible for payment of a park facilities fee.

"Dormitory-style housing" means student housing facilities for individual or group accommodation owned or operated, or authorized to be acquired, constructed, furnished, equipped and operated, by a college or university for use by students, faculty members, or other employees of any college or university.

"Dwelling unit" shall have the meaning given to that term in Section 17.04.023 of this code but, for the purposes of this chapter, shall also mean and include any of the other types of housing units within the definition of the term "residential development" in this section.

"Fair market value" means the fair market value of undeveloped residential real property as applicable for the density classifications established by resolution of the City Council for the implementation of this chapter.

"Master plan" means the City of Orange Master Plan for Park Facilities, Recreation and Community Services as adopted by the City Council of the City of Orange, as the same may be amended from time to time.

"Minimum park standards" shall have the meaning given that term in Section 16.60.020 of this code.

"Park" means a parcel or contiguous parcels of land, which provides recreational land and facilities for the benefit and enjoyment of the residents, students and visitors of the City.

"Park facilities fee" means a monetary exaction, other than taxes or special assessments, which is established by the City Council under this chapter and is charged by the City to an applicant in connection with approval of a residential development project for the purpose of defraying all or a portion of the cost of public park and recreational facilities serving the residential development project, but does not include fees specified in Section 66477 of the California Government Code, Chapter 16.60 of the Orange Municipal Code, fees for processing applications for governmental regulatory actions or approvals, or fees collected under development agreements adopted pursuant to Article 2.5 of Chapter 4, Division 1, Title 7 of the California Government Code (commencing with Section 65864).

"Recreational facilities" means those improvements to parks, which provide a recreational

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City of Orange, CA

ORANGE CODE

§ 3.40.020

§ 3.40.040

opportunity for the user, including, but not limited to, ball fields, lighting, swimming pools, tennis courts, picnic shelters, trails, play/tot lots, and community buildings. These are improvements that are above the basic minimum park standard requirements.

"Residential care facility for the elderly" means a housing arrangement chosen voluntarily by persons 60 years of age or over, or their authorized representative, where varying levels and intensities of care and supervision, protective supervision, personal care, or health-related services are provided, based upon their varying needs, as determined in order to be admitted and to remain in the facility. As used in this chapter, the term, residential care facility for the elderly, shall also mean a housing arrangement chosen voluntarily by persons under 60 years of age, or their authorized representative, with compatible needs who are allowed to be admitted or retained in a residential care facility for the elderly.

"Residential development project" means any project undertaken for the purpose of developing real property with one or more dwelling units involving the issuance of a permit for construction or expansion. The term "residential development project" shall include a subdivision, condominiums, apartment houses, dormitory-style housing, fraternity and sorority houses, room and board facilities, mobile homes, permits for the erection of manufactured housing or structures, and structures moved into the City, and other residential development not a part of a subdivision for which dedication of park land and/or the payment of fees in-lieu of dedication (or both) were imposed and paid as a condition of subdivision approval. (Ord. 04-20, 2020)

• A. A park facilities fee is established to finance the cost of park facilities and improvements required by new residential development, which fee shall include an amount to recover the cost of preparation of the study and administrative overhead costs, to be set as a percentage of the park facilities fees which are collected pursuant to this chapter.

• B. The City Council shall, by resolution, set forth the specific amount of the park facilities fees.

• (Ord. 04-20, 2020)

The payment of a park facilities fee shall be due upon the following:

• A. The date of final inspection or certificate of occupancy for each unit, whichever occurs first. The rate at which the fee shall be charged shall be based upon the rate that was in place at the time a building permit was issued for each unit.

• B. Notwithstanding anything to the contrary set forth in subsection A above, or in any other provision of this chapter, the park facilities fee shall apply to any development project which has heretofore received a tentative map approval or other approval from the City, where the approval of the same, assented to by the developer, has been conditioned upon payment of the fees established as a result of the study performed by the City.

• C. The timing of payment of the park facilities fees shall apply to all development projects upon which park facilities fees are imposed on or after the effective date of this chapter, unless one of the following applies:

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City of Orange, CA

REVENUE AND FINANCE

§ 3.40.040

§ 3.40.070

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

   • a. The fees are collected for improvements or facilities for which the City has established an account, appropriated funds, and adopted a proposed construction schedule or plan; or

   • b. The fees are to reimburse the City for expenditures previously made for a public improvement, service or amenity.

2. The development project is subject to a statutory development agreement (pursuant to Government Code Section 65864) or an agreement pursuant to Chapter 17.44 of this code, which provides for the payment and/or satisfaction of park facilities fees in a manner different than set forth in this section.

• D. The City may require the developer, as a condition to the issuance of a building permit, to execute and deliver to the City a contract, in recordable form, whereby the developer agrees to pay the park facilities fee within the time (or at the times) specified in subsection A of this section, which contract shall comply with the requirements of subsection (c) of Section 66007 of the Government Code of the State of California and shall be satisfactory in form and content to the City Attorney.

• (Ord. 04-20, 2020)

The park facilities fee shall be adjusted on the first day of July of each year to reflect the percentage of increase or decrease in the Consumer Price Index for All Urban Consumers (CPI-U) (Los Angeles-Long Beach-Anaheim; all items, not seasonally adjusted; 1982-1984=100 reference base) for the timeframe since the most recent increase. The adjusted fee, if any, shall be rounded to the nearest dollar. The park facilities fee will be reviewed on an annual basis to determine if development and the corresponding park and recreational facilities improvements are proceeding as projected.

(Ord. 04-20, 2020)

Notwithstanding the automatic annual adjustment provided in Section 3.40.050, the amount of the fees established pursuant to this chapter may be more specifically set and revised periodically by resolution of the City Council, with this chapter being considered as enabling and directive in this regard in accordance with the notice and public hearing procedures specified in Section 66018 of the Government Code of the State of California and with available federal census data, updated cost estimates for minimum park standards, updated fair market values for undeveloped residential real property, substantial changes in the City's master plan, capital improvement plan and/or general plan, or other pertinent information.

The fees referred to in Sections 3.40.030 and 3.40.050 may be revised, deleted, or otherwise amended by resolution of the City Council. (Ord. 04-20, 2020)

All fees collected under this chapter shall be promptly transferred for deposit into a special fund

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City of Orange, CA

ORANGE CODE

§ 3.40.070

§ 3.40.090

of the City entitled "park facilities fund." The fund shall be used only for the purposes stated in Section 3.40.010.

(Ord. 04-20, 2020)

• A. The following shall be exempted from payment of the park facilities fees established by to this chapter:

  1. Alterations, renovations or expansion of an existing dwelling unit where no additional dwelling units are created and the use is not changed.

  2. The replacement of a destroyed or partially destroyed or damaged dwelling unit with a new dwelling unit.

  3. Residential care facilities for the elderly, residential care facilities, mental sanitariums, health sanitariums, rest homes or the like.

  4. If the land on which a residential development is proposed to be located has been previously subject to the park land dedication provisions of this code that were in effect after November 9, 1972 but prior to July 14, 2000, the requirements of this chapter regarding the payment of a park facilities fee shall only apply to the creation of additional dwelling units and not to the dwelling units existing on the land prior to the issuance of a building permit for the proposed residential development.

  5. Residential development which is part of a subdivision for which dedication of park land and/or the payment of fees in-lieu of dedication (or combination of both) were imposed and paid in accordance with the provisions of Chapter 16.60 of this code as a condition of subdivision approval.

• B. All determinations regarding the exemptions provided in subsection A above, shall be made by the Director of Community Development.

• C. In order to ensure that the imposition of fees pursuant to this chapter will not be contrary to the public interest, or prevent the development of a public service project, the City Council may waive all, or any portion of, the fees required by this chapter if the City Council finds that a residential development project will serve a public purpose or satisfy a public need and is located within a redevelopment project area, or other special district, or involves direct City participation in the residential development project. Moreover, the City Council may, from time to time, and as the need may arise, set forth, by resolution, specific limitations, which will apply to waivers of fees which may be made pursuant to this section. In this regard, this chapter shall be considered enabling and directory.

• (Ord. 04-20, 2020)

• A. A developer of any residential development subject to the fees described in this chapter may apply to the City Council for a reduction, adjustment or waiver of the fees, based upon the absence of any reasonable relationship or nexus between the impacts of that residential development and either the amount of the fees charged or the type of facilities to be financed. The application shall be made in writing and filed with the City Clerk not later than: (1) 10 days prior to the public hearing on the development permit application for the

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City of Orange, CA

REVENUE AND FINANCE

§ 3.40.090

§ 3.40.110

residential development; or (2) if no development permit is required, at the time of the filing of the request for a building permit. The application shall state in detail the factual basis for the claim of waiver, reduction or adjustment. The City Council shall consider the application at the public hearing on the permit application or at a separate public hearing held within 60 days after the filing of the fee adjustment application, whichever is later. The decision of the City Council shall be final. If a reduction, adjustment or waiver is granted, any change in use within the residential development shall invalidate the waiver, adjustment or reduction of the fee if such change in use would render the same inappropriate. The hearing shall be noticed and conducted in the same fashion and manner as prescribed by the laws of the City for hearings on development permits.

• B. The City Council may, from time to time, and as the need may arise, set forth, by resolution, specific limitations, which will apply to reductions, adjustments or waivers of fees which may be made pursuant to this section. In this regard, this chapter shall be considered enabling and directory.

• (Ord. 04-20, 2020)

• A. New residential development that, through demolition or conversion, will eliminate existing residential development is entitled to a fee credit if the existing residential development is a lawful use under the City's zoning ordinance, including a legal nonconforming use.

• B. New residential development that will replace residential 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 residential development that was partially or totally destroyed was a lawful use under the City's zoning ordinance, including a legal nonconforming use, at the time thereof.

• C. Credit for such eliminated residential development or residential development that was partially or totally destroyed as above specified shall be calculated by the Director of Community Development in accordance with the fee schedule set forth in the resolution to be adopted pursuant to Section 3.40.030 and shall be applied to new residential development on the same site.

• (Ord. 04-20, 2020)

• A. In-Lieu Fee Credits for Construction of Park Facilities.

  1. A developer required by the City to construct any park facilities (or a portion thereof) for which fees are required by this chapter as a condition of approval of a residential development permit may request an in-lieu credit of the park facilities fees. Upon request, an in-lieu credit of fees shall be granted for park facilities that mitigate all or a portion of the need therefor that is attributable to and reasonably related to the given residential development.

  2. Only costs proportional to the amount of the park facilities that mitigates the need therefor attributable to and reasonably related to the residential development shall be eligible for in-lieu credit, and then only against the fees to which the park facilities

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City of Orange, CA § 3.40.110

ORANGE CODE

§ 3.40.110

relate.

3. The park facilities fees required by this chapter shall be reduced by the actual construction costs of the park facilities that relate to the park facilities fees, as demonstrated by the applicant and reviewed and approved by the Director of Community Development, all consistent with the provisions of subsections (A)(1) and (A)(2), above. Subject to the applicable provisions of subsection B of this section, if the cost of the park facilities is greater than the required park facilities fees, this chapter does not create an obligation on the City of Orange to pay the applicant the excess amount.

• B. Development Construction of Park Facilities Exceeding Needs Related to Residential Development. Whenever a developer is required, as a condition of approval for a residential development permit, to construct any park facilities (or a portion thereof) for which fees are required by this chapter, which park facilities are determined by the City to exceed the need therefor attributable to and reasonably related to the given residential development, a reimbursement agreement with the developer and a credit against the park facilities fees which would otherwise be charged pursuant to this chapter on the residential development, shall be offered. The credit shall be applied with respect to that portion of the park facilities which are attributable to and reasonably related to the need therefor caused by the residential development, and shall be determined, administered and processed in accordance with and subject to the provisions of this section. The amount to be reimbursed shall be that portion of the cost of the park facilities which exceeds the need therefor attributable to and reasonably related to the given residential development. The reimbursement agreement shall contain terms and conditions mutually agreeable to the developer and the City, and shall be approved by the City Council.

• C. Site-Related Improvements. Credit shall not be given for site-related improvements, including, but not limited to, traffic signals, right-of-way dedications, or providing paved access to the property, which are specifically required by the residential development in order to serve it and do not constitute park facilities.

• D. Determination of Credit. The developer seeking credit and/or reimbursement for construction of improvements or facilities or dedication of land or rights-of-way, shall submit such documentation, including, without limitation, engineering drawings, specifications, and construction cost estimates, and utilize such methods as may be appropriate and acceptable to the Director of Community Development (or designee) to support the request for credit or reimbursement. The Director of Community Development (or designee) shall determine credit for construction of park facilities based upon either these cost estimates or upon alternative engineering criteria and construction cost estimates if the Director of Community Development (or designee) determines that such estimates submitted by the developer are either unreliable or inaccurate. The Director of Community Development (or designee) shall determine whether park facilities are eligible for credit or reimbursement.

• E. Time for Making Claim for Credit. Any claim for credit must be made no later than the application for a building permit. Any claim not so made shall be deemed waived.

• F. Transferability of Credit—Council Approval. Credits shall not be transferable from one project or development to another without the approval of the City Council.

• G. Appeal of Determinations of Director of Community Development. Determinations made

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City of Orange, CA

REVENUE AND FINANCE

§ 3.40.110

§ 3.40.120

by the Director of Community Development (or designee) pursuant to the provisions of this chapter may be appealed to the City Council by filing a written appeal (setting forth in detail the factual basis therefor) with the City Clerk, together with a fee established by resolution of the City Council within 10 calendar days of the determination of the Director of Community Development (or designee). The appeal shall be considered by the City Council at a public hearing to be held, noticed and conducted in accordance with the provisions prescribed in Section 3.40.100 for public hearings with respect to fee adjustments. The decision of the City Council on the appeal shall be final. (Ord. 04-20, 2020)

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 2, of Title 7 of the California Government Code, as the same presently exists or may hereafter be amended from time to time, to the extent the same are applicable. In the event of any conflict between the provisions of this chapter and state law, the latter shall control. (Ord. 04-20, 2020)

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City of Orange, CA

REVENUE AND FINANCE

§ 3.50.010

§ 3.50.010