Chapter 18.40

HABITAT CONSERVATION FEE FOR NORTH AND SOUTH NATOMAS COMMUNITY PLAN AREAS

Sections: 18.40.010 Purposes. 18.40.020 Additional definitions. 18.40.030 Establishment of habitat conservation fee. 18.40.040 Applicability of fee. 18.40.050 Time and manner of payment. 18.40.060 Deferral of payment of habitat conservation fee. 18.40.070 Credits and reimbursements. 18.40.080 Adjustment of fee by resolution. 18.40.090 Protest of fees. 18.40.100 Creation of North Natomas habitat conservation fund. 18.40.110 Use of funds. 18.40.120 Other fee and dedication requirements. 18.40.130 Invalidity.

This chapter is adopted pursuant to the general powers reserved to the city under its City Charter. The purpose of this chapter is to establish a habitat conservation fee relating to the mitigation of the loss of plant and animal species and their habitat in connection with development of land within the North and South Natomas community plan areas. This chapter is intended to implement the Natomas Basin habitat conservation plan and the implementation agreement entered into between the city, the U.S. Fish and Wildlife Service, the California Department of Fish and Game and the Natomas Basin conservancy, which plan and agreement were adopted by the city council on August 7, 1997, and which provide a method and alternatives by which landowners may satisfy local, state and federal mandated mitigation requirements in order to develop their properties and to construct required infrastructure in the plan area. The fee established by this chapter is one which landowners may elect to pay in lieu of satisfying federal and state Endangered Species Acts by other methods as specified in that plan and agreement. (Prior code § 84.10.1000)

In addition to the definitions set forth in Section 18.24.010 of this title, 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 chapter:

"Habitat conservation plan," or "plan," means the multi-species Natomas Basin habitat conservation plan together with the implementation agreement which accompanies that plan, adopted by the city council on August 7, 1997, as said plan may be amended from time to time.

• "Habitat conservation fee," or "fee," means the mitigation fees as defined at Section 2.24 of the implementation agreement for participation in the plan where such participation has been elected by a landowner, the amount of which may change from time to time pursuant to the plan provisions.

• "Implementation agreement" means the implementation agreement for the Natomas Basin habitat conservation plan, adopted by the city council together with the habitat conservation plan on August 7, 1997, as said agreement may be amended from time to time.

"Mitigation monitoring programs" means those mitigation measures concerning the potential loss of various plant and animal species and their habitat, and other impacts as set forth in the mitigation monitoring program for the North Natomas community plan update contained in the 1994 North Natomas community plan supplemental environmental impact report, adopted on May 3, 1994, including specifically that part of the program relating to biological resources, and all other species and habitat mitigation requirements and programs adopted by the city applicable to the North Natomas community plan or the property being developed, as such programs exist as of the date of the enactment of this chapter, or as may thereafter be amended or supplemented from time to time.

"North Natomas community plan" means the community plan adopted by the city council, by resolution No. 94-259, dated May 3, 1994, as such plan exists as of the date of the enactment of this chapter, or as it may thereafter be amended or supplemented from time to time.

"North Natomas finance plan area" carries with it the same definition set forth in the North Natomas financing plan, as such area may exist from time to time.

"North Natomas financing plan" means the financing plan adopted by the city council by Resolution No. 94-495, dated August 9, 1994, as such plan exists as of the date of the enactment of this chapter, or as it may thereafter be amended or supplemented from time to time.

• "Permit area" has the meaning specified in the implementation agreement at Section 2.27.

• "Project" has the meaning specified in the implementation agreement at Section 2.29.

"SAFCA permit" means the permit issued by the U.S. Army Corps of Engineers to the Sacramento Area Flood Control Agency pursuant to Section 404 of the Federal Clean Water Act, in conjunction with the north area local project.

"South Natomas community plan" means the community plan adopted by the city council, by Resolution No. 88-1018, dated November 29, 1988, as such plan exists as of the date of the enactment of this chapter, or as it may thereafter be amended or supplemented from time to time.

• "Urban development" has the meaning specified in the implementation agreement at Section 2.34.

• "Urban development permit" has the meaning specified in the implementation agreement at Section 2.35. (Prior code § 84.10.1001)

The habitat conservation fee established pursuant to this chapter is a fee which a landowner may elect to pay in lieu of satisfying the requirements of federal and state Endangered Species Acts and of the mitigation monitoring programs and SAFCA permit. Landowners seeking to develop property within the permit area may elect not to pay the fee and to address said requirements by other means specified in the habitat conservation plan.

A. A habitat conservation fee is established pursuant to the provisions of this chapter.

B. The city council, by resolution, shall establish the specific initial and subsequent amounts of the habitat conservation fee. In addition, the city council, by resolution, may adopt additional provisions, procedures and policies to implement the fees established by this chapter. The amount of the fees, and such policies, guidelines, and procedures shall be consistent with the requirements of the habitat conservation plan. (Prior code § 84.10.1002)

A. The habitat conservation fee shall apply to real property which is within the permit area and for which an urban development permit is required under that plan. A landowner may elect to pay the fee in lieu of compliance with the plan pursuant to one of the other available alternatives under said plan.

B. Except as may be expressly provided in this chapter, including, without limitation, those provisions for a deferral in the payment of fees, no urban development permit shall be issued by the city for land within the permit area unless and until the habitat conservation fee has been paid to the city or the applicant has otherwise complied with the habitat conservation plan by electing one of the alternative methods of compliance specified therein.

C. Notwithstanding anything to the contrary set forth in subsection A of this section or in any other provision in this chapter, the habitat conservation fee shall apply to any urban development project (1) which has heretofore received a tentative map approval or other approval, whether discretionary or nondiscretionary, from the city where the approval of the same has been conditioned upon payment of the development impact fees established as a result of the implementation of the North Natomas financing plan, or (2) which is subject to a development agreement between the land-owner and city which requires the payment of development impact fees established as a result of the implementation of the North Natomas financing plan, or (3) which is located within the South Natomas community plan area and is subject to any other agreement which requires the payment of development impact fees related to impacts upon species covered by the federal or state Endangered Species Acts. (Prior code § 84.10.1003)

A. In the event a landowner elects to pay the habitat conservation fee, said payment shall be made at the time of the earliest issuance of an urban development permit.

B. With respect to urban development projects completed or commenced as of the effective date of the ordinance enacting the provisions of this chapter, and which are subject to the provisions of Section 18.40.040(C) of this chapter, the director may enter into agreements with landowners regarding the amount, time and manner of payment of fees payable with respect to such urban development projects.

C. With respect to urban development projects as to which interim fees were paid pursuant to Ordinance No. 95-060 prior to the effective date of the ordinance enacting the provisions of this chapter, the director shall collect from the landowner the difference between the interim fees paid and the amount of the habitat conservation fee specified in the resolution adopted by the city council of even date with this chapter. The city council, by resolution, may establish policies, guidelines and procedures regarding the payment of the amounts due. (Prior code § 84.10.1004)

The city council, by resolution, may establish policies, guidelines and procedures regarding the deferral or other adjustment of the time in which the habitat conservation fee must be paid, including, without limitation, provisions allowing for the payment of fees in installments over time. (Prior code § 84.10.1005)

The city council, by resolution, may establish policies, guidelines and procedures regarding credits and reimbursements which may apply to the habitat conservation fee. Said policies, guidelines and procedures shall be subject to the terms of any written agreement entered into by the city and landowners within the North Natomas finance plan area concerning credits against and reimbursement of fees relating to the conservation of plant and animal species and their habitat. (Prior code § 84.10.1006)

Consistent with the terms of the habitat conservation plan, the amount of the habitat conservation fee established by this chapter may be revised periodically by resolution of the city council. (Prior code § 84.10.1007)

A. Notwithstanding the voluntary nature of the habitat conservation fee, a landowner within the permit area may pay the fee under protest pursuant to Government Code Sections 66020 and 66021.

B. 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 urban development project. (Prior code § 84.10.1008)

The habitat conservation fund is created and established. The habitat conservation fee collected pursuant to this chapter shall be deposited in the habitat conservation fund. Revenue collected and deposited in such fund may be used solely for the purposes specified in the habitat conservation plan. (Prior code § 84.10.1009)

A. Funds collected from the fees established by this chapter and deposited in the habitat conservation fund established under Section 18.40.030 of this chapter, shall be used for the purpose of:

1. Transferring sums to the conservancy, as that term is defined in Section 2.7 of the implementation agreement; and

2. Providing reimbursements as described in Section 18.40.070 of this chapter.

B. Moneys, including any accrued interest, shall be transferred to the conservancy. (Prior code § 84.10.1010)

The provisions of this chapter shall not release any owner of residential or nonresidential property located within the permit area from the obligation of paying other applicable fees relating to development of property, including, without limitation, the application fees, processing fees, other mitigation fees, and development fees within the control of the city, from complying with any

public facility improvement requirements which are imposed pursuant to applicable law, including, without limitation, the provisions of this code, and from complying with any requirement to dedicate property for public use pursuant to applicable law, including without limitation, the other provisions of this code and the Government Code, at the time of approval of a development agreement, tentative subdivision map, tentative master parcel map, certificate of compliance, building permit or other land use entitlement. (Prior code § 84.10.1011)

In the event that the fee or the plan or the implementation agreement, upon which the fee is based, is found to be unlawful by virtue of a final judgment of a court of competent jurisdiction, or is the subject of any judicial order suspending or enjoining its enforceability, implementation or use, then in that event the provisions of Chapter 18.24 of this title shall become immediately effective upon the date of such judgment or order without the need for any further action by the city council. (Prior code § 84.10.1012)