Chapter 16.95
DEVELOPMENT IMPACT FEES
Sections:
16.95.010 Authority and reference to chapter.
16.95.022 Fees established by this chapter.
16.95.050 Amount to be paid and timing of payment.
16.95.070 Credit/reimbursement for construction of public facilities.
16.95.080 Notice of protest rights.
Prior legislation: Ord. 36-2003, 43-2003, 4-2005 and 7-2009.
16.95.010 Authority and reference to chapter.
This chapter may be referred to as the “impact fee ordinance,” and is adopted pursuant to Section 66000 et seq. of the Government Code (hereinafter Mitigation Fee Act). All words, phrases, and terms used in this chapter shall be interpreted in accordance with the definitions set forth in the Mitigation Fee Act, unless otherwise specifically defined herein. [Ord. 3-2019 §3 (Exh. A), eff. 3-29-2019; Ord. 10-2009 §3, eff. 6-26-2009]
16.95.020 Purpose of fees.
Pursuant to the Mitigation Fee Act and this chapter, the City has established fees which will be imposed upon development projects for the purpose of mitigating the impact that the development projects have upon the City’s ability to provide specified public facilities. [Ord. 3-2019 §3 (Exh. A), eff. 3-29-2019; Ord. 10-2009 §3, eff. 6-26-2009]
16.95.022 Fees established by this chapter.
From time to time the City Council may, by resolution, adopt new development impact fees, update existing development impact fees, or repeal or replace existing development impact fees. Development impact fees authorized by this chapter include, but are not limited to, the following:
A. City roadway impact fee;
B. City active transportation impact fee;
C. Capital facilities fee;
D. Southeast Policy Area cost recovery fee (for projects within the Southeast Policy Area);
E. Southeast Policy Area and Laguna Ridge Specific Plan Phase 3 drainage fee (for projects within the Southeast Policy Area);
F. Southeast Policy Area park and trail fee (for projects within the Southeast Policy Area);
G. Southeast Industrial Area cost recovery fee (for projects within the Southeast Industrial Area).
For development projects approved prior to the effective date of this section that are conditioned to pay the roadway impact fee, that condition shall be interpreted to include both the roadway impact fee and the active transportation impact fee, as such active transportation projects were previously included in the roadway impact fee. [Ord. 32-2022 §3 (Exh. A), eff. 1-13-2023; Ord. 1-2022 §3, eff. 2-25-2022; Ord. 3-2019 §3 (Exh. A), eff. 3-29-2019]
16.95.025 Definitions.
As used in this chapter:
“Caltrans Cost Index” means the annual Construction Cost Index for Selected Highway Items as published by the California Department of Transportation; or, if the index is no longer published, an index determined by the City Engineer to be a recognized standard of the construction industry.
“City Engineer” means the City Engineer of the City of Elk Grove, or any person designated by the City Manager or City Engineer to perform the functions of the City Engineer specified in this chapter.
“City regulations” means all written laws, rules, and policies established by the City, including those set forth in the Elk Grove Municipal Code, ordinances, resolutions, policies, procedures, and the City’s design documents (including the standard plans, standard specifications, design standards, and relevant public facility master plans).
“Development project” means any project undertaken for the purpose of development, as defined in the Mitigation Fee Act, and shall specifically include any tentative parcel map, tentative subdivision map, final parcel map, final subdivision map, preliminary development plan, final development plan, or building permit.
“ENR” means the Construction Cost Index for San Francisco published in the Engineering News-Record (McGraw-Hill, Inc., publisher); or, if the index is no longer published, an index determined by the City Engineer to be a recognized standard of the construction industry.
“Fee” means a monetary exaction, other than a tax or an assessment, imposed in connection with approval of a development project for the purpose of defraying all or a portion of the cost of providing public facilities related to the development project, as more specifically defined in the Mitigation Fee Act.
“Fee fund” means each of the separate and distinct funds into which fees for each public facility category are deposited.
“Implementing resolution” means a resolution of the City Council of the City of Elk Grove that makes the findings specified in the Mitigation Fee Act for each fee category.
“Lot” means an individual undivided parcel of real property described on a final subdivision map or final parcel map approved by the City or the official map recorded by the Sacramento County Office of the Assessor for property not developed after the City’s incorporation.
“Mitigation Fee Act” means Section 66000 et seq. of the California Government Code.
“Program” means all of the public facilities to be provided in any given public facility category.
“Public facility” means public improvements, public services, and community amenities, as defined by the Mitigation Fee Act, including, but not limited to: roadways (including streets, traffic signals, and other public right-of-way improvements), storm drainage, water (including supply, treatment, and distribution), wastewater (including collection and treatment), parks, public buildings, parking lots, and other improvements or services identified in implementing resolutions adopted pursuant to this chapter.
“Public facility category” means a separate and distinct set of public facilities as defined by EGMC Section 16.95.030(B).
“Specified geographical area” means the area within which development projects are subject to a fee, as identified in each implementing resolution.
“Specified public facility” means those public facilities described in each implementing resolution, the total program costs of which are used as the basis for the calculation of a fee.
“Subdivider” means a person, or other legal entity, who applies to the City to divide or cause to be divided real property into a development project, or who applies to the City to develop or improve (into a development project) any existing parcel of real property.
“Total program costs” means those costs described in EGMC Section 16.95.050.
“Vested development rights” means a subdivider’s right to proceed with development of a development project in substantial compliance with the local ordinances, policies, and standards in effect at the time that the rights vest, as the term is defined in the vesting tentative map statutes (Sections 66498.1 through 66498.9 of the Government Code), development agreement statutes (Sections 65864 through 65869.5 of the Government Code), and State law. [Ord. 3-2019 §3 (Exh. A), eff. 3-29-2019; Ord. 10-2009 §3, eff. 6-26-2009]
16.95.030 Use of fees.
A. The fees imposed by the City pursuant to this chapter shall be used to pay for the cost of providing specified public facilities, as described in implementing resolutions.
B. As described in each implementing resolution, the specified public facilities will be categorized into separate and distinct sets of public facilities based upon the type of public facility to be provided, the geographical area served by the public facility, or other identifying features. Each separate set of specified public facilities described in an implementing resolution shall be referred to in this chapter as a “public facility category.”
C. For each separate public facility category, the City shall calculate and impose a separate fee. The property owner shall pay the fee calculated and imposed by the City. The City shall deposit all fees collected into a separate and distinct fee fund, subject to the accounting requirements of the Mitigation Fee Act.
D. In order to more effectively mitigate the impact of new development, and maximize the use of fee revenues, fee revenues may be used as temporary loans from one (1) fee fund to another fee fund only if the City Engineer finds all of the following, subject to the review and approval of the City Council:
1. Based upon planned phasing of the public facilities, and anticipated timing of fee revenues to be collected, it is in the City’s best interests to allow the temporary loan.
2. The development projects which are required to pay fees to the fee fund from which the loan is made will receive a benefit from the use of the loan by the separate fee fund to which the loan is made.
3. All requirements of the Mitigation Fee Act have been satisfied, including a specification of the amount loaned, the date of repayment, and the interest rate to be paid. [Ord. 3-2019 §3 (Exh. A), eff. 3-29-2019; Ord. 10-2009 §3, eff. 6-26-2009]
16.95.040 Setting of fees.
The City Council shall set any fee authorized by this chapter by resolution conforming with the Mitigation Fee Act. [Ord. 3-2019 §3 (Exh. A), eff. 3-29-2019; Ord. 10-2009 §3, eff. 6-26-2009]
16.95.050 Amount to be paid and timing of payment.
A. The fee to be paid for each lot within a development project shall be the amount of the fee in effect, pursuant to implementing resolution, at the time that full payment is made to the City. The fee for each lot within a development project shall be paid in full prior to the issuance of any building permit, unless otherwise authorized by the Mitigation Fee Act and/or as provided for in the implementing resolutions.
B. In the event that a partial fee payment is made for any lot, the full fee to be paid for that lot shall be the amount of the fee in effect, pursuant to implementing resolution, at the time that full payment is made to the City, less the amount of the partial payment.
C. The subdivider shall have the burden of proving the amount of any fee previously paid, the date on which payment was made, and the lot for which payment was made. [Ord. 3-2019 §3 (Exh. A), eff. 3-29-2019; Ord. 10-2009 §3, eff. 6-26-2009]
16.95.060 Fee adjustments.
The City shall update and adjust each fee on an annual basis, as authorized and required by the Mitigation Fee Act. The fee in effect at the time any subdivider has obtained a vested development right shall be subject to adjustment by the City, as incorporated in implementing resolutions in effect at the time that full payment of the fee is made, based upon any or all of the criteria set forth in subsections (A) through (C) of this section. For the purpose of this section, the term “specified public facilities,” as defined in EGMC Section 16.95.010, is limited to the specified public facilities to be designed and constructed in accordance with the City regulations in effect at the time the relevant subdivider has obtained a vested development right.
A. On January 1st of each calendar year, the fee adjustments described within this section shall automatically occur. Adjustments in the amount of the estimated construction costs of providing the specified fee program facilities will be based upon adjustments in the Caltrans Cost Index, the Engineering News-Record (ENR) (the San Francisco Construction Cost Index or Twenty City Construction Cost Index), or other applicable source as identified in the implementing resolutions (in such case the implementing resolution shall supersede the specification of this section). In addition, if no listed index is available the Finance Director may use an alternative index or other source that the Finance Director finds, in his or her discretion, to be most equivalent to estimate changes in construction costs.
B. Adjustments to replace estimated costs with actual costs of providing the specified public facilities.
C. Adjustments to reflect more accurate cost estimates of providing the specified public facilities based upon more detailed analysis or design of the previously identified specified public facilities. [Ord. 3-2019 §3 (Exh. A), eff. 3-29-2019; Ord. 3-2013 §4, eff. 4-12-2013; Ord. 10-2009 §3, eff. 6-26-2009]
16.95.070 Credit/reimbursement for construction of public facilities.
In the event a development project is conditioned or obligated to construct, or a developer elects to construct a facility (or facilities) that are included in a fee program(s), that developer may apply for and receive credit(s) and reimbursement under the subject fee program(s) for that facility/facilities, pursuant to the provisions of this section.
A. Timing of Agreement. A credit and reimbursement agreement for an eligible facility shall be entered into prior to the commencement of construction of the improvements; provided, however, that a prior credit and reimbursement agreement is not required if the facility for which credit and/or reimbursement is sought was either: 1) not previously included in a fee program; or 2) the facility’s scope and/or cost in the fee program has been substantially updated to reflect an updated design and/or conditions through an amendment to the fee program, in which case a credit and reimbursement agreement would be required within six (6) months of the addition of the facility to the fee program or the fee program update, as applicable. The City Council may authorize alternative timing of any credit and reimbursement agreement, in its sole discretion.
B. Agreement Value. The value of the agreement shall be limited to the construction value of the improvements, being the lesser of the private construction contract value or the value of the improvements in the nexus study, escalated to the date of the private construction contract execution.
C. Form of Agreement. The form of a credit and reimbursement agreement shall be as specified by the City and in conformance with this chapter, the provisions of the subject fee program, and other applicable rules, regulations, and policies of the City. Each agreement shall be limited to a single fee program; multiple facilities may be included in one (1) agreement.
D. Developer Obligations. Facilities must meet City standards for acquisition projects in order to be eligible for fee credits or reimbursements. All construction contracts, construction work, and requests for reimbursement must be performed in conformance with the most current “Reimbursement Policies and Procedures for Privately Constructed Public Facilities.” Developers shall be responsible for complying with all applicable laws, codes, and regulations relating to contracting and construction procedures for publicly funded public works projects.
E. Issuance and Application of Credits. Credits shall be issued to the party executing the agreement and developing the improvement(s). The amount of credits shall be specified in the agreement and shall be an amount equal to the lesser of the actual construction costs (inclusive of allowed soft costs) or the value of the improvement as specified in the applicable fee program as escalated to the date of the construction contract execution pursuant to the escalation procedures of the program. Upon issuance of the credits, they may be applied to the fee obligation of a development project. Such application shall be made pursuant to the terms of the agreement and consistent with City policy. Credits may be transferred from one party to another as may be specified in the agreement. Credits may not be transferred between fee programs.
F. Reimbursement of Unused Credits. Any credits remaining in an agreement after application to one (1) or more development projects may be exchanged with the City for their remaining cash value. Such reimbursement shall be pursuant to the terms of the agreement. The priority of the reimbursement will be determined by the City Manager, and the reimbursement will only be paid after the City has accepted the developer-funded facility. All reimbursements will be an obligation of the applicable fee program and not an obligation of the general fund. [Ord. 32-2022 §3 (Exh. A), eff. 1-13-2023; Ord. 3-2019 §3 (Exh. A), eff. 3-29-2019; Ord. 10-2009 §3, eff. 6-26-2009]
16.95.080 Notice of protest rights.
Each subdivider is hereby notified, pursuant to Section 66020 of the Government Code, including Section 66020(d)(1) of the Government Code, that the ninety (90) day approval period (in which the subdivider may protest the imposition of any fees, dedications, reservations, or other exactions imposed on a development project) shall begin on the date that the development project is approved or conditionally approved. If the subdivider fails to file a protest within the ninety (90) day period, complying with all of the requirements of Section 66020 of the Government Code, the subdivider will be legally barred from later challenging any such fees, dedications, reservations, or other exactions. These protest procedures shall only apply to the fees, dedications, reservations, or other exactions which have been determined in accordance with this chapter, and each respective implementing resolution. [Ord. 3-2019 §3 (Exh. A), eff. 3-29-2019; Ord. 10-2009 §3, eff. 6-26-2009]