Part 3 — PARK IMPACT REQUIREMENT

Editor's note— See the editor's note at Part 1.

A.

It is in the public interest, convenience, health, welfare and safety that at least three (3) acres of real property for each one thousand (1,000) persons residing within this city be devoted to park facilities.

B.

The park impact requirements of this chapter shall be based on the value of real property in the City of San José and shall be calculated in the same manner as the dedication requirements are calculated under Chapter 19.38 of this Code. The schedule of fees and credits under this chapter shall be the same

schedule as the schedule of fees and credits established by resolution of the city council pursuant to Chapter 19.38 of this Code.

(Ord. 27949.)

A.

The requirements of this chapter shall apply to the construction of new residential units that are not subject to the requirements of Chapter 19.38 of this Code.

B.

Every applicant shall dedicate land, pay a park impact fee in lieu of dedication, or both, for park or recreational purposes in conformity with the conditions, provisions, standards and formulas contained in this chapter except as otherwise provided in this chapter or in the schedule of fees and credits. Alternatively, an applicant may satisfy the requirements of this chapter by entering into a parkland agreement for the construction of park facilities, recreational facilities or both pursuant to Section 14.25.410.

C.

Except as otherwise provided in this chapter or in the schedule of fees and credits, no building permit for a residential unit subject to this chapter shall be issued unless and until the park impact fee has been paid or, alternatively, the applicant has provided evidence of either compliance with or exemption from the provisions of this chapter.

D.

Failure to pay the park impact fee within the time specified under this chapter shall result in the imposition of additional charges as set forth in the schedule of fees and credits as well as loss of any credits previously granted pursuant to this chapter.

(Ord. 27949.)

A.

The planned development zoning or development permit for the residential project subject to this chapter, whichever occurs first, shall set forth whether the city will accept land dedication or require payment of a fee in lieu thereof, or a combination of both. The determination shall be based upon, but not limited to, consideration of the following:

The General Plan of the City of San José;

The city's policies for the development or renovation of park facilities and recreational facilities;

The topography, geology, access, and location of land in the residential project that is suitable for the development or renovation of park facilities or recreational facilities;

The size and shape of the residential project and land available for dedication;

The location of existing or proposed park sites and trails.

B.

Land to be dedicated shall not be of such size, shape or location as to make the development of the residential project unfeasible, and shall permit the balance of the residential project to be developed in an orderly and efficient manner. The feasibility of all dedications shall be determined pursuant to this section. Additionally, land to be dedicated must meet the following criteria:

Be at least one-half (1/2) acre in size, excluding hillsides over a ten (10) percent grade, riparian set back areas and environmental mitigation areas. The director may accept dedications of land less than one-half (1/2) acre if the land to be dedicated is located adjacent to an existing or planned park facility or recreational facility; and

Can be graded to create a sufficiently flat area of less than three (3) percent grade in any direction; and

Be located adjacent to a public street in order to promote public safety and facilitate policing.

C.

The applicant, as required by the city, in addition to the land dedicated pursuant to Subsection A., shall:

Provide reasonable improvements and access to the land dedicated including, but not limited to, full street improvements and utility connections, such as curbs, gutters, street paving, traffic control devices, street trees, and sidewalks, to land which is dedicated pursuant to this chapter;

Provide for fencing along the property line of that portion of the project contiguous to the dedicated land; and

Provide improved drainage through the site.

D.

The director shall consult with the director of public works and the director of planning, building and code enforcement in making the determination whether to require the dedication of land.

E.

Prior to making a determination to require land dedication pursuant to Subsection A. above, the director may consult with the applicant as to the desirability of requiring dedication rather than fees, as well as to the nature of any such dedication.

F.

Notwithstanding Subsection A. above, if the proposed project contains fifty (50) or fewer parcels and is not a condominium project, stock cooperative or community apartment project as such terms are defined in California Civil Code Section 1351, as amended, the applicant shall be allowed to pay park impact fees as determined in accordance with Section 14.25.300.

G.

If a phased project results in a total residential project of more than fifty (50) units, the land dedication which could not have been otherwise required pursuant to Subsection F., may be required.

(Ord. 27949.)

A.

Real property dedicated to the city shall be conveyed by grant deed, free and clear of encumbrances. Deeds, in a form acceptable to the director of public works, shall be given to the director of public works prior to, or concurrent with, the issuance of the first building permit, unless the parkland agreement specifies a different procedure for transmittal of the grant deed.

B.

The applicant shall provide all instruments required to convey the land and shall also provide a preliminary title report and title insurance in favor of the city in an amount equal to the value of the property being conveyed as estimated by the city.

(Ord. 27949.)

If during the time between dedication of land for park purposes and commencement of development, circumstances arise which indicate that another site would be more suitable for local park or recreational

purposes serving the residential project, the land may be sold upon the approval of the city council with the proceeds being deposited in the park trust fund and used as provided in Section 14.25.350.

(Ord. 27949.)

A.

Subject to the requirements of Subsection B., below, the park impact fees collected pursuant to this chapter shall be used for the development, including acquisition of, or renovation of:

Park facilities, or

Recreational facilities; or

Park facilities or recreational facilities on public agency property pursuant to a joint use agreement.

B.

The facilities developed or renovated with park impact fees must serve or benefit the residential project that paid such park impact fees.

(Ord. 27949.)

A.

An applicant may, prior to the issuance of the applicant's building permit, seek to delay payment of the park impact fee until the date of the final inspection of the applicant's residential project by filing a written appeal with the director.

B.

The exclusive grounds for granting an applicant's appeal to delay payment of park impact fees shall be as follows:

The city's five-year capital improvement plan does not include a park facilities project or a recreational facilities project which would serve or benefit the applicant's proposed residential project; or

The city has not appropriated or expended funds for a park facilities project or a recreational facilities project which would serve or benefit the proposed residential project.

C.

Within ten (10) business days of receipt of the applicant's request for delay of payment, the director shall issue a written response to either uphold or deny the applicant's request for delayed payment of the park impact fees for the applicant's project. The decision of the director shall be final.

D.

An appeal of the timing of the park impact fee submitted after payment of the park impact fee shall be deemed untimely and shall not be considered.

(Ord. 27949.)

A.

In the event that the director determines to uphold the applicant's request for delay of payment, the city and the applicant shall enter into an agreement for the delayed payment of the park impact fees as a condition of issuance of the applicant's building permit(s).

B.

The delayed payment agreement shall be recorded in the Office of the Santa Clara County Recorder and shall require the applicant or the applicant's successor to pay the park impact fees for the applicant's project, in full, no later than the date on which final inspection of the first unit within applicant's project occurs. Failure to pay the park impact fee, when due, shall result in the imposition of additional charges as set forth in the schedule of fees and credits.

C.

The delayed payment agreement shall have attached as an exhibit a legal description of the real property on which the applicant's project is to be built. The applicant shall be responsible for providing the legal description to the city at the applicant's sole cost.

(Ord. 27949.)

A.

Park impact fees shall be deposited into the park trust fund. Money in the park trust fund, including accrued interest, shall be expended solely for the uses specified in Sections 14.25.350 and 19.38.345. The director of finance shall report to the city council at least annually on income, expenditures and status of the park trust fund.

B.

Park impact fees collected pursuant to this chapter shall be committed by the city in a budgetary year within five (5) years of receipt of payment for a specific project to serve or benefit residents of the project for which the fees were collected.

C.

If park impact fees are not committed as specified in Subsection B., these fees shall be distributed and paid to the current record owners of the lots or units of the residential project or projects for which the fees were charged on a prorated basis.

D.

If the administrative costs of refunding uncommitted fees pursuant to Subsection C. exceeds the amount to be refunded, the city council, after a public hearing, may determine that the uncommitted fees shall be allocated for some other purpose for which fees are collected and which serve or benefit the project for which the park impact fee was originally charged.

(Ord. 27949.)