Solano County Municipal Code Art. X Public Facilities Fees

11-130 Findings

(a) Beginning in January 1990, the board of supervisors and county staff have continued to express concern that new residential, commercial and industrial development in the county was placing increasing demands on a variety of county facilities. This concern was evidenced by Resolution No. 90-16 of the Solano County board of supervisors, which was jointly adopted by all of the cities in the county.

(b) Resolution No. 90-16 led to the hiring by the county of Recht Hausrath & Associates to identify the needs for new public facilities caused by additional residential, commercial and industrial development in the county, and to advise the county on appropriate means of recovering those costs.

(c) In order to mitigate impacts caused by new development projects within the county and to implement the goals and objectives of the county general plan, public facilities fees are necessary to finance public facilities and to assure that new development projects pay their fair share for these facilities.

(d) Title 7, Chapter 5, Section 66000 et seq. of the California Government Code provides that public facilities fees may be enacted and imposed on development projects. The board of supervisors finds and determines that:

(1) New development projects both in cities and the unincorporated area of Solano County cause the need for construction, expansion or improvement of public facilities within Solano County.

(2) Without fees from a dedicated funding source, funds for construction, expansion or improvement of public facilities are not available to accommodate the needs caused by development projects; which will result in inadequate public facilities within Solano County.

(e) The board of supervisors finds that the public health, safety, peace, morals, convenience, comfort, prosperity and general welfare will be promoted by the adoption of public facilities fees for the construction, expansion or improvement of public facilities, the need for which is caused by new development projects. In establishing public facilities fees, the board of supervisors finds the fees to be consistent with the county general plan and, pursuant to Government Code Section 65913.2, has considered the effects of the fees with respect to the county’s housing needs as established in the housing element of the county’s general plan.

(f) Adoption of this article does not have the potential to cause a significant effect on the environment. This article does not authorize new development or require it. Rather it provides that if and when development is approved, under whatever laws and policies are otherwise in effect, it will be subject to a fee. This article does not approve or foreordain approval of any public facilities nor mandate or alter the level of facilities to be constructed. Therefore, further review of this article under the California Environmental Quality Act (“CEQA”) is not required.

(g) This article is also exempt from review under CEQA pursuant to California Public Resources Code Section 21080(b)(8) and CEQA Guidelines Section 15273(a)(4). This article does not contemplate, identify, or approve expansion of the area for which county services are provided.

(Ord. No. 1446, §1; Ord. No. 1465, §1; Ord. No. 1737, §1)

11-131 Definitions

(a) Construction for which fees apply means all residential, multifamily, commercial, manufacturing, office, retail, wholesale buildings, and other land uses as defined in the applicable building and/or zoning ordinances of each city in Solano County, and in the building and zoning ordinances of the county itself.

(b) Exempt construction means (1) those projects for which a building permit was issued prior to October 26, 1992; or (2) projects which do not require the payment of city development fees. For purposes of this section, exempt construction does not include projects for which development fees have been waived by a local agency.

(Ord. No. 1446, §1; Ord. No. 1465, §1; Ord. No. 1737, §1)

11-132 Imposing public facilities fees

(a) All construction not otherwise exempt pursuant to provisions of Section 11-131(b) shall be subject to and pay the county public facilities fee. Such development fee shall be paid and collected as provided in Sections 11-133 and

11-134. Construction and development shall not be otherwise regulated under this article.

(b) The imposition of public facilities fees shall be accomplished, from time to time, by resolution of the board of supervisors after a noticed public hearing. Such fees, when imposed, shall be a condition of the issuance of permits for, or the approval of, development projects. In adopting each such resolution, the board of supervisors shall:

(1) Identify the purpose of the fee;

(2) Identify the use to which the fee is to be put;

(3) Determine how there is a reasonable relationship between the fee’s use and the type of development project on which the fee is imposed;

(4) Determine that there is a reasonable relationship between the need for the public facilities and the impacts caused by the type of development project on which the fee is imposed;

(5) Determine that there is a reasonable relationship between the amount of the fees and the cost of the public facilities, or portion of the public facilities, attributable to the development projects on which the fees are imposed; and

(6) Establish, as a part of each such resolution, a schedule of fees.

(Ord. No. 1446, §1; Ord. No. 1465, §1; Ord. No. 1737, §1)

11-133 Payment of fee

(a) Time for payment of fee. Fees for applicable development shall be paid prior to the issuance of the certificate of occupancy, or at the time of final inspection, whichever comes first, or, if the provisions of Government Code Section 66007 are met, at the time of issuance of a building permit for any nonexempt construction under the provisions of this article. Section 66007 requires that to collect fees at the building permit stage, an account has to be established for the fees to be collected and funds appropriated, and the board has to adopt a proposed construction schedule or plan prior to final inspection of issuance of the certificate of occupancy.

(b) Fee amounts. Except to the extent reduced by an in-lieu contribution approved pursuant to subdivision (e) of this section, which in-lieu contribution will only apply to development within the unincorporated areas of the county, fees under this section shall be payable in those specific amounts designated by the board of supervisors, and amended from time to time by board resolution. The amount payable shall be reduced by the amount of any fee charged to the developer by any other jurisdiction to provide funding for the same county facilities. The board of supervisors may adjust by resolution the fee amounts one time annually based on the percentage increase in the Engineering News Record Construction Cost Index or a similar index which measures typical construction costs for facilities generally similar to those to be built by the county.

(c) Appeal. Any person may protest the imposition of any fee imposed under the provisions of this article by meeting the following requirements:

(1) Tendering any required payment in full or providing satisfactory evidence of arrangements to ensure performance of the conditions necessary to meet the requirements imposed.

(2) Serving written notice on the clerk to the board of supervisors, which notice shall contain all of the following information:

(A) A statement that the required payment is tendered, or that any conditions which have been imposed are provided for or satisfied, under protest.

(B) A statement informing the board of supervisors of the factual elements of the dispute and the legal theory forming the basis of the protest.

(3) The protest must be filed no later than ninety (90) days after the date of the imposition of the fee hereunder.

Where a protest has been filed in compliance with these provisions, the protest resolution procedure shall be as set forth under the provisions of Government Code Section 66020 et seq.

(d) Demolition or destruction offset. Where a building permit is issued within two (2) years after demolition on the same lot, or where new construction replaces a structure on the same lot which was damaged or destroyed by fire, earthquake or other causes similarly beyond the owner’s control, the amount of new construction taken into account under this article shall be reduced by the number of square feet which were demolished or destroyed.

(e) In-lieu contribution. The county may authorize for affected development within the unincorporated areas of the county, in connection with approval of a subdivision map or any other development approval subject to a required public hearing before any agency of the county, the substitution of completed facilities or another contribution of at least equivalent value to the public facilities fee in place of all or part of the fees required under this article. The facilities or other contribution must reduce the need for new county public facilities in one (1) or more of the areas specifically identified in this article as being supported by these fees. Where the facilities or other contribution exceed in value the fee amount in the category or categories in which a benefit is provided, the county may (but shall not be required to) credit the excess value against fees in other categories and may further provide for a compensating allocation to the other categories of future fee receipts from the category in which a benefit is provided.

(f) Information required. Where the county is to issue a building permit, the person liable for the fee shall submit to the department of resource management such information as the department may require to calculate the amount due, or, where a city certifies square footage and use, or number of dwelling units, pursuant to Section 11-134(b), the information necessary to calculate the fee shall be submitted to the city by the applicant.

(Ord. No. 1446, §1; Ord. No. 1465, §1; Ord. No. 1737, §1)

11-134 City collection of fees

(a) Collection of fee. Each incorporated city within the county shall, pursuant to a separate agreement entered into between that city and the county, collect the fee required under the provisions of this article, and in the amount as may be amended by subsequent county resolution, on behalf of the county. The city will collect a fee for all nonexempt property pursuant to provisions of this article, or as that fee may be modified from time to time, at the time of the issuance of a certificate of occupancy or upon final inspection, whichever occurs first, or if the provisions of Government Code Section 66007 are met, at the time of issuance of a building permit.

(b) Remitting of fee by city. Each city shall remit to the county, on a quarterly basis, the sum of those fees collected during that quarter. The quarter shall be based upon a fiscal year quarter. The remittance shall be less any administrative charges as set out in subdivision (c) of this section.

(c) Administrative charge for city. Each city which collects the county facilities fee pursuant to subdivision (a) of this section and pays the fee to the county tax collector pursuant to subdivision (b) of this section shall be entitled to retain an administration charge specified pursuant to Section 11-136.

(d) County to defend. Upon reasonable notice by a city after notice of any claim or challenge, the county will defend, at its expense and with counsel of its choice, indemnify and hold harmless any city for any losses incurred as a result of implementation of the collection system, including claims, demands, protest, or causes of action and/or judgments, including attorney fees and costs, except to the extent of the city’s own willful misconduct or gross negligence.

(Ord. No. 1446, §1; Ord. No. 1465, §1; Ord. No. 1737, §1)

11-135 Use of fees

(a) Fee allocation. The county auditor-controller shall allocate all fees received into separate accounts to be expended for the purpose for which the fees were collected. The auditor- controller shall maintain such accounts from year to year.

(b) Use limitation. Amounts in each of the accounts shall be expended exclusively to determine the necessity of, plan, design, carry to completion, acquire or lease-purchase expanded or additional public facilities of the type corresponding to that fund, except as provided in subdivisions (b)(1) and (2) of this section. In no event shall any fee collected pursuant to this article (other than an administrative or processing charge) be expended for any purpose other than expanded or additional public facilities established pursuant to Section 11-132(b).

(1) Funds may be advanced from one (1) account to another where the advance is for public facilities which are proceeding sooner than those public facilities to be funded by the account from which the advance is furnished, and where the advance will be repaid from future fee revenue allocations to the account receiving the advance.

(2) Funds may be transferred between accounts where the transferred amount is used for a public facility for which the actual cost attributable to new development as shown by subsequent evidence exceeds the corresponding amount established pursuant to Section 11-132(b); provided, that this subdivision provides no authority to increase in any respect the aggregate fee amount payable by any development.

(c) Government Code requirements. The auditor-controller shall deposit, invest and account for all fees received under this article pursuant to Government Code Section 66006 (and any successor provision). Any fees received under this article and not expended or committed within five (5) years after receipt shall be refunded pursuant to Government Code Section 66001 (and any successor provision), unless the county otherwise complies with the requirements of Section 66006.

(d) Annual report. An annual report shall be prepared by the county and provided to all cities to account for the use of all the fees collected under this article. This report shall be prepared pursuant to the provisions of Government Code Section 66006. The cities will provide any fiscal information relative to the collection of these fees that is requested by the auditor-controller, in order to facilitate the preparation of these reports.

(Ord. No. 1446, §1; Ord. No. 1465, §1; Ord. No. 1737, §1)

11-136 Administration

(a) Charge. The auditor-controller shall determine the estimated costs of administration of this article and may recommend to the board of supervisors a charge to recover those costs. Initially, costs shall be estimated and the board of supervisors may establish a charge separately, by resolution, for at least the following two (2) types of administration:

(1) Administration through a city which collects and pays over to the county the county facilities fee pursuant to Section 11-135(a). In lieu of an administrative charge based upon the calculations set forth in this subdivision (a), a city may elect to retain the interest earned on those fees collected while the city retains the fees, prior to remittance at the end of each quarter.

(2) Administration by the county, including any additional costs resulting from implementing a county review process to identify applicable developments and carry out this article, or from analysis by the county, not otherwise required, of the number of dwelling units, use or square footage of a development, in order to determine the facilities fee payable.

(3) The board of supervisors may, by ordinance, modify or terminate any charge set under this section and may establish additional charges related to administration of this article.

(b) Additional rules and regulations. The board of supervisors may adopt by resolution rules, regulations, guidelines and procedures for administration of this article. The county department of resource management shall provide estimates of fees payable by impacting developments. The county department of resource management, county administrator’s office and auditor-controller may each adopt such further rules or regulations not in conflict with any action of the board of supervisors, as may be appropriate to carry out this article.

(Ord. No. 1446, §1; Ord. No. 1465, §1; Ord. No. 1737, §1)

11-137 Enforcement

(a) Civil proceedings. The county counsel may institute civil proceedings to enforce this article, including without limitation actions for injunction and civil penalties. Construction without the authorization required by this article and the payment of the fees required may be suspended by a court of competent jurisdiction. Violation of this article interferes with provision of public services, and shall be a public nuisance.

(b) Costs of securing compliance. Any person or entity not in compliance with this article shall be liable, in addition to other amounts provided for in this section, for attorney fees, or the reasonable costs of staff legal services incurred by the county, and all other reasonable costs of securing compliance, including the collection of the fees.

(c) Interest. Interest shall accrue on all fees not paid when due pursuant to this article at the rate prescribed by law for interest on judgments, from the date when payment was due until the date payment is received in full.

(Ord. No. 1446, §1; Ord. No. 1465, §1; Ord. No. 1737, §1)

11-138 Termination of ordinance as it applies to cities

It is provided that the provisions of this article, as they apply to the imposition and collection of capital facilities fees by the cities in Solano County on behalf of the county, for nonexempt construction within the incorporated limits of cities, shall terminate upon any of the following events occurring:

(a) The board of supervisors fails to adopt, impose, and levy a Solano County public facilities fee as authorized by provisions of Government Code Section 66000 et seq.

(b) The county fails to maintain the land use policy of “what is urban shall be municipal,” or unreasonably modifies, amends, or alters the Solano County general plan to increase existing densities or existing designations of residential, commercial and industrial land uses as presently in place or presently under study, and so long as existing county land uses are subject to limitations on land use development similar to those provided by county Measure “A,” whether those provisions continue in effect by act of the electorate or are imposed by the board of supervisors.

(c) The county public facilities fee to be collected by cities is greater than the rate imposed on development occurring in the unincorporated areas of the county.

(d) The county fails to adopt a public facilities capital improvement plan in support of the fee, such plan having been initially adopted, and thereafter annually updated, following a noticed public meeting between representatives of the county and the cities within the county, so that close cooperation can be maintained between the county and the cities within the county with respect to the capital improvements proposed to be funded by the county public facilities fee.

(Ord. No. 1446, §1; Ord. No. 1465, §1; Ord. No. 1466, §1; Ord. No. 1737, §1)

11-139 Severability

If any provision of this article, or its application to any person or circumstances, shall be held invalid or unenforceable, the remainder of this article shall not be affected; the provisions of this article are intended to be severable. If the amount of any fee payable under this article is held excessive, or invalid or unenforceable in part, the remainder of the fee shall nonetheless be due and payable.

(Ord. No. 1446, §1; Ord. No. 1465, §1; Ord. No. 1737, §1)