Chapter 16.40 — DRAINAGE FEES

The council declares and finds that the development of land for urban uses substantially accelerates the concentration of surface and storm waters and that it is necessary to provide for the construction of and establishment and collection of drainage fees to defray all or a part of the actual or the estimated cost of constructing planned drainage facilities for the removal of surface and storm waters from drainage areas in order to promote and protect the public health, safety, and general welfare, and for the accomplishment of the purposes more particularly set forth as follows:

A. To provide for planned drainage facilities within the city required for the removal of surface and storm waters;

B. To provide for an alternate method of financing construction of planned drainage facilities within the city;

C. To provide a source of information regarding development of planned drainage facilities for present and prospective residents, developers and investors in property within the city;

D. To obviate the menace to public safety arising from inadequate provision for removal of surface and storm waters occurring as the result of development of property within the city;

E. To prevent deterioration of property values and impairment of conditions making for desirable residential, commercial or industrial development, as the case may be, that would result from the failure to construct planned drainage facilities;

F. To prevent deterioration of public streets and other public facilities that would result from failure to construct planned drainage facilities;

G. This chapter is enacted pursuant to the authority under the Government Code of the state of California and the Charter of the city of Visalia to provide for collection of drainage fees for construction of planned drainage facilities within the city at the time of the division of land, or at the time of other development thereof; except as herein excepted, such fees being, however, subject to credits as herein provided for revenues, assessments and other receipts theretofore collected with respect to any such parcel or parcels of land for construction of planned drainage facilities within the city. (Ord. 2017-01 (part), 2017: prior code § 9435)

Unless the particular provisions or the context otherwise requires, the definitions contained in this chapter shall govern the construction, meaning, and application of the words and phrases defined, and their derivatives and derivatives therefrom wherever applicable, whenever used in this chapter.

"Development" means any building, structure, or other improvement or the construction, erection, or installation thereof, in, over or upon any parcel of land. Development does not include any temporary building, structure or other improvement, or the construction, erection or installation thereof, which under the terms of any permit issued therefore or the provisions of this code or pursuant to such other assurance as the engineer may require, may be maintained not to exceed one year or, if erected or installed for use in the performance of the work of a construction project, until completion of such work. The term improvement shall include, without limitation, any development activity that, as determined by the engineer, materially alters the natural surface of the land or restricts the imperviousness of the soil and includes without limitation paving (concrete, asphalt, oil or other means of soil stabilization) and landscaping. "Division" means the dividing of any parcel of land into one or more lots or parcels, including, but not limited to, a division as described in Section 16.08.010, or any parcel of land that has been so divided.

"Drainage area" means the area of the city for which planned drainage facilities for the collection and removal of surface and storm waters therefrom, and the total estimated costs of constructing such facilities, are set forth in a drainage plan.

"Drainage fees" means fees established and levied as provided in this chapter to pay all or a part of the costs of planned local drainage facilities and their appurtenances.

"Drainage plan" means the storm drainage master plan, adopted by the council; such plan delineating therein a plan for the drainage area that contains an estimate of the total costs of constructing the drainage facilities required by the plan, together with their appurtenances, and a map of the drainage area showing generally its boundaries and the location of the planned local drainage facilities.

"Engineer" means the city engineer of the City of Visalia.

"Gross acreage" means the area of a parcel of land, or the area of a proposed division, including those portions designated for streets and alleys and including those portions of all abutting streets and alleys measured to the center lines thereof or to a line parallel with and thirty (30) feet from the property line, whichever shall be the lesser. In the case of a single-family residential use occupying a corner parcel, the area of the street abutting the shortest side of such parcel, or one side in the case of a square parcel, shall not be included.

"Parcel of land" means any real property improved or unimproved, shown on the latest equalized county assessment roll as a parcel and reflected by the assessor's parcel maps prepared by the office of the county assessor of the county of Tulare.

"Planned drainage facilities" means drainage facilities required for the drainage area. The term facilities shall include, without limitation, real property and rights in property for use for and in connection with the installation of planned drainage facilities, conduits, drainage channels, drainage retention, detention and recharge basins, and things incidental thereto, all as may be required for the collection and removal of surface and storm waters from the drainage

area.

"Planned drainage facilities fund" means a separate fund established by the finance director for the drainage area, into which all drainage fees collected on property within the drainage area shall be deposited, and the monies in which shall be expended solely for acquisition for construction or reimbursement for acquisition or construction of planned drainage facilities within the drainage area for which such fund was established.

"Zoning ordinance" means the zoning ordinance (Title 17) of the City of Visalia. (Ord. 2017-01 (part), 2017: prior code § 9440)

A. Except as otherwise provided in this section, the drainage fee shall be paid on each parcel of land in the drainage area prior to the commencement of the work of any development thereon or, in the case of any division of a parcel of land, prior to the approval of the final subdivision or parcel map, or development, and shall be composed of an acquisition fee and a development fee to be paid as follows:

1. The acquisition fee shall be paid on each parcel of land in the drainage area prior to the approval of the final subdivision or parcel map. The amount of the acquisition fee payable prior to the approval of the final subdivision map or parcel map shall be as determined by Section 16.40.030(E). When no final subdivision or parcel map is submitted for final approval prior to the commencement of the work of any development on each parcel of land, the acquisition fee shall be paid prior to the commencement of the work of any development thereon.

2. The development fee shall be paid on each parcel of land prior to the commencement of the work of any development thereon.

B. In the case of subdivisions that at the time of approval are zoned for industrial uses, and of parcel maps, the following applies:

1. If planned drainage facilities are required within the limits of, or are necessitated by such division or phase thereof, the drainage fees that shall be paid prior to the approval of the final map thereof shall not exceed the cost of such planned drainage facilities.

2. If planned drainage facilities are not required within the limits of, or are not necessitated by such division, the drainage fees required by this article may be deferred for previously undeveloped areas only.

3. The drainage fees deferred under the provision of this subsection shall be payable in the amounts determined by the provisions of this article prior to receipt of a development entitlement for the lands subject to such division.

C. Except in the case of single-family residential uses, the area of an addition, replacement, reconstruction or the construction of separate structures or other improvements on a previously developed parcel for which the drainage fee or assessment has not been fully paid shall be deemed a parcel of land for the purposes of this chapter and the drainage fee is payable thereon when such area equals or exceeds one thousand (1,000) square feet. When the area of such addition, replacement, reconstruction or other improvement or the accumulation of such additions or other improvements made after October 1, 1988, equals twenty-five (25) percent or more of the development existing as of October 1, 1988, the drainage fee shall be payable on the total area of the subject parcel as defined in Section 16.40.020 and Section 16.40.060(F). Credits for fees or assessments previously paid shall be granted in accordance with Section 16.40.070(C).

• D. The city shall require:

1. The design, construction, and dedication of planned drainage facilities located within or necessitated by a development or division; or

2. The combination of the payment of a partial drainage fee as required herein and the design, construction and dedication of planned drainage facilities when determined by the city to be necessary in conjunction with such development or division.

• E. Exceptions. The drainage fees are not payable for the performance of the following items of work:

1. Except in the case of a division, any development work that consists solely of the construction, erection, or installation of:

a. Fences, pole lines, underground conduits or pipelines, or similar developments that, as determined by the

engineer, do not materially alter the natural surface of a parcel of land; or

b. Concrete curbs, gutters, sidewalks, driveway approaches, paving or other street improvements within any street or alley.

2. Any development consisting solely of additions or alterations to any single-family residential dwelling or its accessory structures or other additional development on a developed single-family residential parcel.

3. Any reconstruction or replacement of a single-family residence destroyed by fire or because of condemnation, provided that this exception shall not apply in the event that:

• a. The use of the parcel or any portion thereof at the time of reconstruction or replacement is for other than singlefamily residential; or

• b. Reconstruction or replacement does not occur within twelve (12) months; or

• c. The ownership of the parcel is changed following the occurrence that requires reconstruction or replacement thereof.

F. Government Agency. Payment of the drainage fee upon division of land divided by a governmental agency engaged in such activity may be deferred upon request filed with the city by the governmental agency to the time of development of any undeveloped lot or parcel created in said division, subject to the conditions herein specified. A governmental agency, for the purposes of this deferment, is defined as one that is created under the provisions of either federal, state or local enabling legislation and that is acting under a program in which payment of the drainage fee would not be an eligible cost.

1. The deferment authorized herein shall be allowed only in the event said governmental agency enters into a written agreement with the city which shall provide:

• a. That the fee shall otherwise be paid pursuant to the provisions of this chapter;

• b. That the agreement creates a valid lien upon such parcel to the extent of the fee (such lien may be subordinated at the discretion of the engineer, and the form and substance of the agreement, procedures, documents, covenants, etc., necessary to place the agreement and lien into effect shall all be determined by the engineer, subject to the approval of the city attorney);

• c. That said agreement shall provide that the owner of each lot or parcel created as a result of said division shall agree to pay all court costs and attorney fees and waives any and all defenses, legal or equitable, other than liquidated monetary setoffs against the city, if an action at law or foreclosure suit is brought to enforce payment of the fee or recovery of the fee through the lien.

2. Said governmental agency will pay or provide for payment of the drainage fee on any developed lot or parcel at the time of division except that in the event of ownership by said governmental agency of said developed parcel or parcels, payment of the drainage fee thereon shall be made at the time of sale of said developed lot or parcel by the governmental agency.

3. Said governmental agency will give actual notice of the lien described above to the purchaser of any lot or parcel created as a result of such division, except that failure by said governmental agency to provide actual notice to the purchaser shall not affect the lien upon said parcel or portion thereof as sold or the liability by the owner thereof to pay any drainage fee thereon as herein provided.

G. As to any portion of land included within a parcel map for which the fee has not been deferred under subsection

(B) of this section, the fee obligation established by this chapter may be deferred where such divisions of land are required by court order.

1. All owners who desire to defer fees under this subsection shall enter into an agreement with the city that shall require the payment of such deferred fee at the earliest of the following occurrences:

• a. The sale or transfer of any such parcel or portion thereof;

• b. The filing of a final map or parcel map on any portion of such parcel;

• c. The issuance of a building permit or special permit for any development entitlement on or for any portion of such parcel.

2. Fees deferred under this subsection shall be paid at the rates in effect when such fees become due and payable.

• (Ord. 2017-01 (part), 2017: prior code § 9445)

• A. Notwithstanding the requirements of Section 16.40.030, the City Council may, by resolution, authorize the payment of the fee at a time other than that identified in Section 16.40.030.

• B. In adopting the resolution identified in subsection A of this section, the City Council shall make the following findings:

1. That the state of the economy in the city is such that the deferment of the fee required by this chapter will stimulate the economy and enhance the provision of jobs; and

2. That the deferment of the fee required by this chapter will not materially affect the ability of the city to deliver its five-year capital improvement program.

• C. In adopting the resolution identified in subsection A of this section, the City Council shall:

1. Identify the point in time at which the fee shall be paid; provided, that in no event shall the deferral be extended beyond the time of the final inspection or issuance of the certificate of occupancy, whichever occurs first;

2. Identify to which major land use category (i.e., residential, commercial, office and/or industrial) the resolution applies;

3. Identify whether or not a contract shall be entered into by and between the property owner, or lessee if the lessee's interest appears of record, and the city prior to the issuance of the building permit. If a contract is required to be executed, it shall be processed and recorded in accordance with Government Code Section 66007(c). In lieu of entering into a contract, if one is required, the fee payer may provide such other form of surety instrument guaranteeing payment of the fee as may be acceptable to the city engineer or his/her designee and the city attorney; 4. Impose a penalty, equal to one hundred (100) percent of the amount of the fees deferred, on any party who fails to pay the deferred fee by the point in time specified in such resolution; and

4. Provide that a party who fails to pay such deferred fees by the point in time specified in such resolution shall further forfeit the future right to defer such fees on parcels in which such party has a financial interest.

D. Companies classified within the following Standard Industrial Codes shall be able to pay their development impact fees over five years without interest or administrative fee. The first installment of twenty (20) percent shall be due upon occupancy and the balance shall be paid in five equal annual installments thereafter and shall be collected on the property tax roll. The collection of the balance due on the property tax roll shall not preclude the earlier payment of any outstanding balance.

2000–2099 Food processing

2200–3999 Certain other manufacturers

4200–4299 Trucking and warehousing 4500–4599 Air transportation

4700–5199 Transportation services and warehouse trade

(Ord. 2017-01 (part), 2017: Ord. 9818 § 4, 1998)

No person shall construct, erect, or install, or cause or permit to be constructed, erected, or installed, any development on any parcel of land on which the drainage fee required by this article has not been paid; and no building permit or other permit for any development shall be issued unless the required drainage fee has been paid. (Ord. 2017-01 (part), 2017: prior code § 9450)

A. The council shall establish by resolution, a schedule of per-gross-acre fees calculated to provide the sum of money necessary to pay the estimated total costs, as set forth in the drainage plan, of the planned drainage facilities. Such schedule shall be conditioned and based on the following findings by the council:

1. That the planned drainage facilities for the drainage area are in conformity with the drainage plan of the city;

2. That the development of property within the drainage area will require construction or acquisition of the planned drainage facilities described in the drainage plan and that the fees are fairly apportioned within the drainage area on the basis of benefits conferred on property developed or to be developed or on the need for planned drainage facilities created by proposed or existing development of property within the drainage area;

3. That drainage facilities planned with respect to the drainage area that are in addition to any existing drainage facilities serving such drainage area at the time of adoption of the drainage plan are necessary to complete the planned drainage facilities for the drainage area.

B. The schedule of fees shall be those amounts as established by Resolution No. 97-39 of the council and shall remain in effect until July 1, 1998. Effective July 1, 1998, and each succeeding July 1st thereafter, said schedule of fees shall be adjusted in accordance with the following criteria:

1. On April 1st of each year the engineer shall review the current Engineering News Record Construction Cost Index (ENRCCI) for the cities of Los Angeles and San Francisco, CA. When the average of such indices differs from the average of the indices for the preceding April 1st, the factor of increase or decrease shall be applied to the schedule of fees. Such factor shall be computed by dividing the average ENRCCI for the current April 1st by that pertaining to the previous April 1st. The individual drainage fee rates may be multiplied by said factor to determine the adjusted schedule of fees. The engineer shall present the new fee schedule for adoption by resolution of council after at least one public hearing.

2. The engineer shall add to the schedule of fees the drainage fee rates for new planned drainage areas established by the council concurrently with the amendment of the drainage plan adding thereto such new planned drainage areas.

3. If in the determination of the engineer the adjustment of the schedule of fees produced by the procedure in subdivision 1 of this subsection is not representative of the actual change in costs of the planned drainage facilities, the engineer may, in lieu of the procedures set forth in said paragraph, compute a new schedule of fees for adoption by resolution of the council after at least one public hearing.

determination of the engineer the adjustment of the schedule of fees produced by the procedure in subdivision 1 of this subsection is not representative of the actual change in costs of the planned drainage facilities, the engineer may, in lieu of the procedures set forth in said paragraph, compute a new schedule of fees for adoption by resolution of the council after at least one public hearing.

4. In the event of the adoption of a new schedule of fees by resolution of the council, such new schedule shall become effective sixty (60) days after the adoption thereof by the council. The adjustment of such schedule provided in Subdivision 1 of this subsection shall begin the April 1st next occurring after adoption of the new schedule.

C. The rates per-gross-acre used to compute drainage fees levied and collected pursuant to this article for parcels of land located in the drainage area shall be those rates set forth for the drainage area in the schedule of per-gross-acre fees established by resolution of the council as set forth in this section. For parcels of land located, pursuant to the zoning ordinance, in the respective land use districts identified in the schedule of per-gross-acre fees, the per-grossacre fee shall be the sum identified with such land use district in such schedule.

D. In such cases wherein the parcel of land is located in a new land use district for which a rate per-gross-acre has not been adopted by the council, the engineer shall calculate and shall levy an interim fee using the cost distribution formula for the land use district within the subject local drainage area that in the engineer's opinion is the most similar to the new district, but which is not less than the lowest per-acre rate identified in the rate schedule. The council shall, as soon as practical, thereafter amend the schedule of per-gross-acre fees identifying therein the new district and the fees per gross acre associated therewith and any deviation from the interim fees that shall have been paid shall be adjusted by a further payment to the city or refund to the owner.

E. The drainage fee applicable to any parcel of land or division shall be the product of the gross acreage of the parcel or division multiplied by the rate or rates per gross acre applicable to the land use district, within which the parcel or division is located as specified within the fee schedule resolution adopted pursuant to this section.

F. When a development is proposed on only a portion of any parcel of land, the engineer may designate on the approved plot plan the portion of such real property on which the development is to occur as the area to be developed. The payment of the drainage fee shall be limited to such designated area subject to the following conditions:

1. Such designated area shall include all area to be the subject of activity which materially alters the natural surface of the land or restricts the imperviousness of the soil, including landscaping, paving and other means of soil stabilization, and grading and filling.

2. Such designated area shall equal or exceed the minimum area established for the applicable land use district identified in the zoning ordinance.

3. The area of such parcel remaining undesignated shall equal or exceed the minimum area established for the applicable land use district identified in the zoning ordinance.

G. When any development subject to a conditional use permit or a recorded development agreement would create a substantially greater or lesser amount of change in the natural surface of the land than would be created by the normal or usual development of land in a land use district, an appropriate fee shall be calculated by using the rate or rates for

the land use district within the subject drainage area which is most similar in character to the proposed development. Payment of such fee or the construction of planned local drainage facilities, or a combination thereof, shall be a condition of any permit which is required for construction or use of such development.

H. When the drainage fee applicable to any parcel of land has been paid pursuant to this article, or shall have been paid through assessment in a specific assessment proceeding, and the use of such parcel of land is changed to a use which, under the then-current fee schedule, requires a higher drainage fee, then such parcel of land shall be subject to payment of an additional fee that shall be the fee applicable to such parcel of land in its changed use under the fee schedule in effect at the time the additional fee is payable less the total of any credits allowed under Section 16.40.070. (Ord. 2017-01 (part), 2017: Ord. 9719 § 4, 1997)

A. In the computation of the drainage fee payable because of the development or division of any parcel of land, a credit shall be allowed for planned drainage facilities installed with respect to such parcel. Such credits for drainage facilities constructed and still in existence and use in any street, alley or public easement and not constructed by special assessment proceeding shall be allowed, subject to the following conditions and limitations:

1. Facilities considered for such credits shall have been constructed in conformance with the standards of the city in effect when such facilities were constructed;

2. The engineer shall certify that such facilities are in conformance with, or beneficial for use in connection with, the planned drainage facilities installed or to be installed in the drainage area;

3. The credit allowed shall not exceed the cost of such facilities, as determined by the engineer from actual cost records or by applying estimates of construction costs prevailing at the time such facilities were constructed; provided, that no credit shall be allowed because of public easements, the dedication of which may have been required by the city in conjunction with development or divisions as defined in this chapter;

4. The facilities shall have been constructed and paid for with respect to the parcel for which credit is claimed and are located in or will serve the planned drainage area within which is located the parcel for which credit is claimed;

5. Such credits shall be calculated based on the cost estimates identified in the storm drain master plan, and adjusted annually in the same manner as the schedule of per-gross-acre fees in Section 16.40.060;

6. The city shall have acquired ownership of the facilities without cost;

7. When the facilities for which credit is claimed benefit more than one parcel and only a portion of the total allowable credit is claimed, the city may, in the absence of an agreement among the owners of the subject parcels eligible for such credit, estimate the total cost of the facilities at the time of construction and apportion the total credit allowable for such facilities among the benefitting parcels in a manner that the city in its sole discretion shall deem equitable;

8. Except in the case of public agencies, in the event the actual cash expenditures, as determined by the engineer in Subsection (A)(3) of this section, exceed the total drainage fee payable because of the development or division of any parcel of land, the city shall contract with the developer or divider to reimburse such excess credits. Such reimbursement shall be subject to the following conditions and limitations:

a. Such reimbursements shall be paid to the developer or divider from drainage fees received pursuant to subsequent development or division of other parcels of land within the local drainage area served by the planned drainage facilities for which such reimbursement is due,

b. In those drainage areas in which more than one reimbursement contract is concurrently in existence, the order of reimbursement shall be based upon the date of receipt by the city of the submittals set forth in Subsection (A)(8)(g) of this section. Reimbursement shall not be paid pursuant to a late reimbursement contract within a drainage area until any previous reimbursement contract within said drainage area is fully reimbursed,

c. The payment of such reimbursements is to be made semi-annually, in amounts determined by the engineer, d. Should there not be sufficient subsequent drainage fees available, or should the facilities required to provide the level of drainage service prescribed by the drainage plan not be available, by a date fifteen (15) years from the date of receipt by the city of the submittals set forth in Subsection (A)(8)(g) of this section, the initial reimbursement period and any remaining obligation of the city to reimburse such excess credit shall expire; provided, however, that the expiration of the city's reimbursement obligation shall be extended an additional five years in those cases in which the developer or divider has been reimbursed at least seventy-five (75) percent of the total excess credit during the initial reimbursement period,

e. The total reimbursement to be paid pursuant to this Subsection (A) shall not exceed ninety-five (95) percent of the total excess credit; the city shall retain five percent from each reimbursement as an administrative records and services charge,

f. Nothing herein shall preclude the more frequent payment of reimbursement or the partial payment of reimbursements when sufficient funds are determined by the engineer to be available and all other conditions of this Subsection (A) have been met,

g. The developer or divider shall submit to the city, within ninety (90) days of acceptance by the city of those facilities for which credit or excess credit is claimed, the reproducible as-built plans of said facilities, the project accounting reflecting final costs of the eligible items and any balance due of the final drainage fee determined pursuant to this chapter. Credits and reimbursement of excess credits shall not be granted pursuant to this section if the submissions required by Subsection (A)(8)(g) are not made.

B. Credits for assessment previously levied for planned drainage facilities by special assessment proceeding shall be allowed, subject to the following conditions and limitations:

1. Such facilities shall have been constructed in conformance with the standards of the city in effect when such facilities were constructed;

2. The engineer shall certify that such facilities are in conformance with or beneficial for use in connection with the planned facilities installed in the drainage area;

3. The credit allowed shall be equal to the amount of the assessment and any supplemental assessment levied upon the parcel of land, that was paid in cash or that became security for a bond or bonds issued in the special assessment proceedings. If one assessment was levied for drainage facilities and other improvements in the same proceeding, the engineer shall determine, from the engineer's report

16.40.070

in the assessment proceeding, if available, otherwise on cost estimates applied by the engineer, the proportion of the assessment attributable to such facilities, and the amount so determined by him shall be the credit allowed.

C. If the drainage fee was paid on all or a portion of the parcel of land pursuant to this chapter and an additional local drainage fee is payable under any provision of this chapter, a credit shall be allowed equal to the amount previously paid. (Ord. 2017-01 (part), 2017: prior code § 9460)