Article II — Willowcreek Fee

This article is adopted pursuant to the general powers reserved to the city under its City Charter for the purpose of authorizing certain development impact fees, as described in the Willowcreek financing plan/nexus study, to be assessed upon the owners of residential and nonresidential property located within the Willowcreek project area. The fees herein adopted shall be assessed upon landowners developing such property for any residential or nonresidential use in order to provide all or a portion of the funds which will be necessary to design, construct, install or acquire public infrastructure required to meet the needs of and address the impacts caused by development activity. It is the intent and purpose of the city to protect and promote the public health, safety and welfare by constructing, installing and acquiring public infrastructure necessitated by development in the Willowcreek project area. Furthermore, it is the intent and purpose of the city to allow the development within the Willowcreek project area on the condition that landowners in the area pay the costs of such public infrastructure and that such costs shall not be or become a responsibility of the city's general fund. (Prior code § 84.09.900)

In addition to the definitions set forth in Section 18.32.010 of this chapter, unless the contrary is stated or clearly appears from the context in which a term is used, the following definitions set forth in this section shall govern construction of the words and phrases used in this article:

• "Automatic annual adjustment" means the automatic annual adjustment of development impact fees based on the inflation factors described in Section 18.32.130 of this chapter.

• "Willowcreek fee" means the Willowcreek fee described in the Willowcreek financing plan/nexus study and established in Section 18.32.050(A)(1). (Prior code § 84.09.901)

• A. The following development impact fee is established and imposed pursuant to the provisions of this chapter to finance the cost of the following public improvements, facilities, and property required by development within the Willowcreek project area: 1. Willowcreek Fee. A development impact fee is established for the public facilities intended to serve the Willowcreek project area, and which facilities are described in the Willowcreek financing plan/nexus study.

B. The city council, by resolution, shall establish the specific initial and subsequent amounts of the foregoing fees pursuant to Section 18.32.070 of this chapter and make the additional findings required under Section 18.32.060 of this chapter in establishing said amounts of each fee. In addition, the city council, by resolution, may adopt additional provisions, procedures and policies to implement the fees established by this chapter. The amounts of fees, provisions, procedures, and policies adopted by resolution pursuant to this subsection shall be consistent with the South Natomas community plan and the Willowcreek financing plan/nexus study. (Prior code § 84.09.902)

At the time it considers the amount of the fees established pursuant to Section 18.32.050 of this chapter, or at the time of amending such fees other than in making an automatic annual adjustment to the fees made in the manner hereinafter provided by this chapter, the city council shall adopt the amount of such fees if it makes the following findings in support of such fees: A. A finding that such fees have been determined and calculated in the manner consistent with the Willowcreek financing plan/nexus study; and

• B. The following additional findings required by Section 66001 of the Government Code which demonstrate that there is a nexus between the public infrastructure for which such fees are imposed and the need for such public infrastructure created by the development of residential and nonresidential property within the Willowcreek project area upon which the fees are imposed: 1. Findings which identify the purpose of the fees;

2. Findings which identify the use to which the fees are to be put;

3. Findings which demonstrate that there is a reasonable relationship between the use of the fees and the type of development project on which the fees are imposed; and

4. Findings which demonstrate that there is a reasonable relationship between the need for the public infrastructure and the type of development project on which the fee is to be imposed.

5. Findings which demonstrate how there is a reasonable relationship between the amount of the fees and the cost of the public infrastructure, or portion of such public infrastructure, attributable to the development project on which the fees are imposed.

C. In making the findings pursuant to this section and any other findings, the city council may consider all matters, whether offered orally or in writing, presented at the hearing or hearings conducted for the purpose of establishing or amending the fee, and any and all oral and written material presented to the city council and city planning and design commission in connection with the adoption, approval, or amendment of the South Natomas community plan and the Willowcreek financing plan/nexus study. (Prior code § 84.09.903)

A. At the time of setting the amount of the fees established pursuant to this chapter, or at the time of amending such fees other than in making an automatic annual adjustment to the fees, the city council shall hold a public hearing on the proposed fees or proposed amendment of fees in the manner required by Sections 66016, 66017, and 66018 of the Government Code.

B. The effective date of any resolution adopted by the city council which establishes or amends, as the case may be, the amount of the fees established pursuant to Section 18.32.050 of this chapter, shall be established pursuant to the Section 66017 of the Government Code. (Prior code § 84.09.904)

A. The development impact fees established under this chapter shall be imposed on real property located within the Willowcreek project area based upon the following types of development:

1. For residential property:

• a. The construction on the property of a new building or structure containing one or more dwelling units;

• b. The construction on the property of alterations or additions to an existing building or structure which add one or more dwelling units to such existing building; or

• c. The change in use of an existing building or structure on the property from a previous nonresidential use to a residential use, provided that the landowner shall be entitled to a credit against fees in the amount of fees which were actually paid for such previous nonresidential use, which prior fees shall be adjusted for inflation consistent with Section 18.32.140 of this chapter.

2. For nonresidential property:

• a. The construction on the property of a new building or structure;

• b. The construction on the property of alterations or additions to an existing building or structure which results in the expansion in the size or use of such existing building or structure; or

c. The change in use of an existing building or structure on the property from a previous residential use to a nonresidential use, or from a previous nonresidential use to another nonresidential use requiring a certificate of occupancy under the building regulations adopted by city or pursuant to this code, provided that the landowner shall be entitled to a credit against fees in the amount of fees which were actually paid for such previous residential or nonresidential use, which prior fees shall be adjusted for inflation consistent with Section 18.32.140 of this chapter.

B. Except as may be expressly provided in this chapter, no building permits or extension of permits relating to the activities described in subsections (A)(1) and (A)(2) of this section shall be granted unless and until the appropriate development impact fee or fees have been paid to the city in accordance with the provisions of this chapter.

C. Notwithstanding anything to the contrary set forth in subsection A of this section or in any other provision in this chapter, the development impact fees established pursuant to this chapter shall apply to any development project (1) which has heretofore received a tentative map approval or other approval or permit, whether discretionary or nondiscretionary, from the city, where the approval of the same has been conditioned upon payment of the fees established as a result of the implementation of the Willowcreek financing plan/nexus study, or (2) which is subject to a development agreement or other agreement between the landowner and city which requires the payment of fees established as a result of the implementation of the Willowcreek financing plan/nexus study. (Prior code § 84.09.905)

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

1. Alterations, renovations, or expansion of an existing residential building or structure where no additional dwelling units are created and the use is not changed; provided, however, that the expansion or intensification of use of an existing commercial or industrial building or structure shall not be exempt from the fees established in this chapter. For purposes of this section, "expansion or intensification of uses" means any increase in the anticipated parking and/or traffic impacts associated with the proposed new use.

2. The replacement of a destroyed or partially destroyed or damaged building or structure with a new building or structure of the same size and use.

B. Any claim of exemption with respect to the fees established by this chapter must be made no later than the time for application for fee adjustment pursuant to Section 18.32.150 of this chapter. (Prior code § 84.09.906)

The methodologies set forth in the Willowcreek financing plan/nexus study shall be used as the basis to set the amount of fees pursuant to any resolution referenced under subsection B of Section 18.32.050 of this chapter. Applicants for subdivision maps, building permits, or other development permits, or entitlements shall include plans and calculations prepared by the applicant or applicant's agent, specifying data necessary to calculate development impact fees, including, without limitation, each proposed land use, acreage, and other relevant data as may be required by the city director of public works, or his or her authorized designee. All fees due under this chapter shall be determined and calculated by the city director of public works, or his or her authorized designee. (Prior code § 84.09.907)

The Willowcreek fee established by this chapter shall be paid for the property on which a development project is proposed at the time of filing with the city any final subdivision map relating to such development. With respect to development projects for which no final subdivision map is to be filed, the city director of public works, or his or her authorized designee, shall have the authority to determine the time for payment of fees. With respect to development projects completed or commenced as of the effective date of this chapter, the city director of public works, or his or her designee, may enter into agreements with landowners regarding the amount, time, and manner of payment of fees payable with respect to such development projects. (Prior code § 84.09.908)

A. The city council, by resolution, may establish policies, guidelines and procedures regarding credits and reimbursements which may apply to the fees established by this chapter. Said policies, guidelines and procedures shall be subject to the terms of any written agreement entered into by the city and any landowner or landowners within the Willowcreek project area concerning credits against and reimbursement of fees established pursuant to the Willowcreek financing plan/nexus study.

B. All policies, guidelines and procedures regarding credits and reimbursements shall be consistent with the following:

1. The credits and reimbursements shall apply to fees owed by (i) by landowners that have advanced funds for the construction of public infrastructure which otherwise would be paid from the revenue of the fees established by this chapter, (ii) by landowners that constructed public infrastructure or dedicated land which otherwise would be paid from the revenue of the fees established by this chapter.

2. The policies, guidelines and procedures shall provide for reimbursement to the city for administrative and engineering costs and other expenses relating to the implementation of the Willowcreek financing plan/nexus study.

3. The credits and reimbursements may be transferable, in whole or in part, upon notice to the city in the form and in the manner specified by the city.

4. The amounts of credits and reimbursements shall be subject to adjustments for inflation calculated consistent with the provisions of Section 18.32.130 of this chapter, but shall not accrue interest unless specifically provided for in an applicable reimbursement agreement.

5. The credits and reimbursements may be subject to annual review and adjustment to insure that funds are available to construct or acquire public infrastructure in a timely manner pursuant to the Willowcreek financing plan/nexus study and to promote fairness and equity relating to credits and reimbursements.

6. The credits and reimbursements shall be given, consistent with the assessment district policy manual, for the construction of any public infrastructure (or a portion thereof) for which a fee established by this chapter may be expended and shall apply to the fees otherwise due and payable for the development project giving rise to the need for such public infrastructure.

7. The credits and reimbursements shall not be given for site-related improvements and dedications of land, which are specifically required by the project in order to serve it and which do not constitute a public facility for which a fee established by this chapter may be expended.

8. Any claim for credit or reimbursement must be made no later than at the time of filing of a final subdivision map, or, if no final subdivision map is utilized, then no later the date set by the city director of public works, or his or her authorized designee. Any claim not made by or before the applicable deadline shall be deemed waived.

9. The sole source of the payment of a reimbursement shall be the revenue collected on the specific fee which could be expended on the public infrastructure to which the reimbursement relates.

10. Credits and reimbursements may cease or be amended if the city council, by resolution, determines that the same constitute threats to the public health, safety or welfare.

C. The landowner seeking a credit or reimbursement, or both, 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 city director of public works, or his or her authorized designee to support the request for a credit or reimbursement. The director shall determine the credit or reimbursement amount for construction of a specific public infrastructure based upon either the foregoing landowner-provided cost estimates or upon alternative engineering criteria and construction cost estimates if the director determines that such estimates submitted by the landowner are either unreliable or inaccurate. The director shall determine whether facilities or improvements are eligible for credit or reimbursement. Any decision made by the director pursuant to this section may be appealable to the city council by the filing of a notice of appeal with the city clerk. The city council shall consider the appeal at a public hearing held within sixty (60) days after the filing of the notice of appeal. The decision of the city council shall be announced at said public hearing. (Prior code § 84.09.909)

The fees established by this chapter shall be adjusted automatically to take into consideration inflation on July 1st of each fiscal year, beginning on July 1, 1997, by a factor equal to the percentage increase, if any, of the Construction Cost Index for San Francisco (based on 1913 U.S. average = 100) during the twelve (12) months ending on March 1st of the prior fiscal year, as published by Engineer News Record/McGraw-Hill Construction Weekly, or any substitute index which the city council adopts by resolution. This automatic annual adjustment shall not apply to those fees which are based on variable factors which themselves result in an automatic inflation adjustment, those which specifically indicate otherwise, or those which are governed by provisions of an agreement with the city expressly exempting such fees from the adjustment set forth under this section. (Prior code § 84.09.910)

In addition to any automatic annual adjustment, the amount of the fees established by this chapter may be revised periodically, including, without limitation, upon the report and review provided for in Section 18.32.210 of this chapter, by resolution of the city council. Any action by the city council to increase fees shall comply with the provisions of this chapter and Government Code Sections 66016 through 66018. (Prior code § 84.09.911)

A. A landowner subject to a fee established by this chapter may apply to the city director of public works, or his or her designee (for purposes of this section, the "director"), for a reduction, adjustment, or waiver of any one or more of the fees, or any portion thereof, based upon the absence of a reasonable relationship or nexus between the impacts of the landowner's development project and either the amount of the fee charged or the type of public infrastructure to be financed, or both. The application shall state in detail the factual basis for the claim of reduction, adjustment, or waiver, and shall include any and all written materials which the landowner deems appropriate in support of the application.

B. The application shall be made in writing and filed with the director at or before the time required for the filing of protests under Government Code Sections 66020 and 66021. For purposes of determining the applicable limitations period set forth in Government Code Section 66020, the date of the imposition of the fees under this chapter shall be the date of the earliest discretionary approval by the city of the subject development project. The application shall be accompanied by the payment of a filing fee in an amount established by the city council. The applicant shall be liable for the actual cost of the city in processing and ruling upon the application to the extent such cost exceeds the filing fee. Such excess amount may be deducted from any refund found due and owing to the applicant or may be added to the amount of development impact fees found to be due or owing from the applicant, as the case may be.

C. Notwithstanding the filing of an application and the pendency of any hearing or procedure under this section, the landowner shall pay the development impact fees originally determined by the city in a timely manner pursuant to Section 18.32.110 of this chapter. Such payment shall be deemed to be a payment under protest pursuant to Government Code Sections 66020 and 66021.

D. It is the intent of this section that:

1. The director may calculate a revised fee or require additional exactions where the impacts of a particular proposed development exceed the standards otherwise applicable in determining the public infrastructure necessitated by such development under the Willowcreek financing plan/nexus study; and

2. The fee categories (including fee components) shall be considered individually; thus it may occur that a fee adjustment or waiver is made to one category of fees and not affect another.

E. The director shall consider the application at an informal hearing held within sixty (60) days after the filing of the fee adjustment application. The decision of the director shall be final and not appealable, except as provided in subsections H and I of this section. The director shall make his or her determination of the fee calculation within fifteen (15) days from the date of the informal hearing or the date on which said director sets for the submission of additional engineering or other studies, other information, or additional calculations as found necessary by the director during the course of the informal hearing. Applicant's failure to submit, on a timely basis, additional information requested by the director may result in a denial of the application. The applicant shall be notified of the director's decision, in writing, by the mailing of such decision by first-class mail, postage prepaid, and addressed to the address provided by the applicant. F. The director shall consider the following factors in his or her determination whether or not to approve an application:

1. The factors identified in Government Code Section 66001:

a. The purpose and proposed use of the fee;

b. The type of development involved, including factors such as differences in factors relevant to the calculation of the fee;

c. The relationship between the fee's use and the type of development involved;

d. The need or demand for improvements and the type of development involved; and

• e. The amount of the fee and the portion of it attributable to the development involved.

2. The substance and nature of the evidence presented by the applicant.

3. The facts, findings and conclusions stated in the South Natomas community plan and the Willowcreek financing plan/nexus study, including technical information, studies, and reports contained within and supporting said plans and study, together with findings supporting the resolution setting the amount of the fee or fees in question. The applicant must present comparable technical information, studies, and reports to demonstrate that the fee is inappropriate for the particular development involved.

G. If the application is granted, any change in use within the particular development involved in an application shall invalidate the reduction, adjustment, or waiver of the fee if such change in use would render the same inappropriate.

H. Within ten (10) days of the date of the mailing of the decision of director's decision, an applicant may appeal the director's decision to the city council, by filing a notice of appeal with the city clerk. The provisions of Chapter 1.24 of this code shall govern the appeal to the city council. In reaching its decision, the city council or the appointed hearing examiner, as the case may be, shall consider the factors set forth in subsections A and F of this section. The decision on the appeal shall be mailed within five days following the hearing held pursuant to this section by firstclass mail, postage prepaid, and addressed to the address provided by the applicant. The decision shall be final and not appealable, except as provided in subsection I of this section.

I. The protest procedures set forth in this section are administrative procedures which must be exhausted prior to the institution of any judicial proceeding concerning the fees protested. Any petition seeking judicial review of a decision by the city council shall be made under Code of Civil Procedure Section 1094.5 and shall be filed by or before (1) ninety (90) days following the date on which such decision is mailed to the applicant or (2) the expiration of the limitation period set forth in subsection (d) of Government Code Section 66020, whichever occurs later. For purposes of determining the applicable limitations period set forth in Government Code Section 66020, the date of the imposition of the fees under this chapter shall be the date of the earliest discretionary approval by the city of the subject development project. (Prior code § 84.09.912)

The fees established and collected pursuant to this chapter shall be deposited in the following separate special funds created specifically to hold the revenue generated by such fees. The fees established and collected pursuant to this chapter shall be deposited in these funds in the percentages described in the Willowcreek financing plan/nexus study, unless the city council, by resolution, directs that funds be deposited in different percentages. Said collected fees shall be deposited, managed, and maintained pursuant to the provisions of Section 66006 of the Government Code. Moneys within such fund may be used solely for the purposes set forth in Section 18.32.170 of this chapter. In this regard, the following special funds are created and established:

• A. Construction fund;

• B. Engineering consultant cost fund;

• C. Property owner soft cost reimbursement fund;

• D. City administration fund. (Prior code § 84.09.913)

A. Funds collected from the fees established by this chapter and deposited in their respective special funds established under Section 18.32.160 of this chapter, shall be used for the purpose of: 1. Expending by appropriation by the city council for the payment of the actual costs of designing and constructing public infrastructure for which the fees may be expended as described in the resolution or resolutions adopted pursuant to subsection B of Section 18.32.050 of this chapter; 2. Reimbursing the city for the development's share of those public infrastructure already constructed by the city, or to reimburse the city for costs advanced, including, without limitation, administrative costs incurred with respect to a specific public infrastructure or the implementation of the Willowcreek financing plan/nexus study, as set forth in Section 18.32.120 of this chapter; 3. Providing for reimbursements as described in Section 18.32.120 of this chapter; 4. Providing refunds as described in Sections 18.32.180 and 18.32.190 of this chapter;

5. Funding the city's administration of the fee program implemented by the provisions of this chapter;

6. Using the same as may be permitted under Section 66006 of the Government Code; and

7. Using the same as may be described in the Willowcreek financing plan/nexus study. B. The city council, by resolution, may authorize the city manager to make loans among any different funds established pursuant to this article and, where expressly authorized, other articles of this chapter as those articles relate to the Willowcreek project area, to assure adequate cash flow for the construction and acquisition of public improvements, public facilities and public property on a timely basis so long as such inter-fund loans do not unreasonably delay such construction and acquisition under the lending fund. C. Unless used or refunded as otherwise permitted under this section, moneys, including any accrued interest, not assigned in any fiscal period shall be retained in the same fund until the next fiscal period. (Prior code § 84.09.914)

If a final subdivision map, or other entitlement on which fees were paid if no final subdivision map was utilized, expires without commencement of construction, then the city director of public works is authorized, at his or her discretion, to issue a refund to the fee payer, without interest, of the fees paid, provided, however, that the portion of any fee revenue received by the city as reimbursement of its costs in administering the provisions of this chapter shall not be refunded. The fee payer must submit an application for such a refund to the city director of public works within ninety (90) calendar days of the expiration of the final subdivision map or other applicable entitlement. Failure to timely submit the required application for refund shall constitute an absolute waiver of any right to the refund. (Prior code § 84.09.916)

The provisions of this chapter shall not release any owner of residential or nonresidential property located within the Willowcreek project area from the obligation of paying other applicable fees relating to development of property, including, without limitation, the application fees, processing fees, mitigation fees, and other development fees within the control of the city; from complying with any public facility or improvement requirements which are imposed pursuant to applicable law, including, without limitation, the provisions of this code; from complying with any requirement

to dedicate property for public use pursuant to applicable law, including without limitation, the provisions of this code and the Government Code, at the time of approval of a tentative subdivision map, tentative master parcel map, certificate of compliance, building permit or other land use entitlement; and from complying with any obligation to pay fees or exactions, or to comply with mitigation requirements, of identified project-related environmental effects. (Prior code § 84.09.917)

• A. No later than one hundred eighty (180) days following the end of each fiscal year, the city manager or his or her designee (for purposes of this section, the "city manager") shall prepare a report for the city council identifying the following:

1. The beginning and ending balances of the Willowcreek fee established under Section 18.32.160 of this chapter, and any other fees established under this chapter, for the fiscal year;

2. The fee, interest, and other income collected in said fund(s) during the fiscal year;

3. The amount of expenditures from said fund(s) categorized by the public infrastructure to which such expenditures relate;

4. An accounting of all refunds and reimbursements for which the city is obligated to make or has made pursuant to this chapter;

5. The reallocation, if any, of unexpended or unappropriated fee revenue made pursuant to subsection (B)(3) of Section 18.32.180 of this chapter and Government Code Section 66001(f);

6. The public infrastructure constructed and to be constructed utilizing the revenues collected from the fee(s) established by this chapter, the continued need for such public infrastructure, the reasonable relationship between such need and the impacts of development for which the fee(s) is charged;

7. The estimated costs of the public infrastructure described in the report; and

8. The amount of any automatic annual adjustment made pursuant to Section 18.32.130 of this chapter, including the basis of the calculation therefor.

B. In addition to the report matters set forth in subsection A of this section, at least once each fiscal period, the city manager or his or her duly authorized designee, shall present to the city council a proposed capital improvement program for the various public infrastructure referenced in the resolution or resolutions adopted pursuant to subsection B of Section 18.32.050 of this chapter, assigning moneys (including any accrued interest) from the appropriate special fund to specific improvement projects, acquisitions, and related expenses. The adoption of such capital improvement program shall comply with the provisions of Government Code Section 66002.

C. In preparing the report pursuant to this section, the city manager shall adjust the estimated costs of the public infrastructure in accordance with the engineering construction cost index as published by engineer new record, or other reasonable standard, for the elapsed time period from the first day of the previous July or the date that the cost estimate was developed.

D. The report prepared pursuant to subsection A of this section shall be made available to the general public pursuant to the provisions of subsection (b) of Government Code Section 66006. The city council shall review the information contained in said report at its next regularly scheduled public meeting not less than fifteen (15) days after the report is made available to the public. The scheduling of the hearing and notice thereof shall comply with the provisions of subsection (b) of Government Code Section 66006.

he provisions of subsection (b) of Government Code Section 66006. The city council shall review the information contained in said report at its next regularly scheduled public meeting not less than fifteen (15) days after the report is made available to the public. The scheduling of the hearing and notice thereof shall comply with the provisions of subsection (b) of Government Code Section 66006.

• E. The city council, by resolution, may revise the fees established by this chapter to reflect the findings made from its consideration of the annual report and to include additional projects previously not foreseen as being needed, provided that all such revisions shall be consistent with the South Natomas community plan and the Willowcreek financing plan/nexus study.

F. The report prepared by the city manager and its review by the city council, as well as any findings thereon, shall be subject to the provisions of subsection (d) of Government Code Section 66001, to the extent applicable. (Ord. 2004-044 § 4; prior code § 84.09.918)

In the event the fees established by this chapter have failed or will fail to generate revenue sufficient to construct needed public infrastructure in a timely manner, city staff, Willowcreek project area landowners, and other interested parties may explore alternative sources of funding of such public infrastructure. If the city council finds that there is no feasible alternative source of funding for the timely construction of necessary public infrastructure, the council, in its sole discretion and in the exercise of its police powers to protect the public health, safety and welfare, may curtail or cease development within the Willowcreek project area pursuant to applicable law. (Prior code § 84.09.919)

The provisions of this chapter and any resolution adopted pursuant hereto, shall at all times be subject and subordinate to the provisions of Title 5 (commencing with Section 66000), Division 1, of Title 7 of the Government Code, as the same presently exist or may hereafter be amended or renumbered from time to time, to the extent the same are applicable. In the event of any applicable conflict between the provisions of this chapter and the state law, the latter shall control. (Prior code § 84.09.920)