Chapter 17.30
IMPACT MITIGATION
Sections:
17.30.010 Title.
17.30.020 Purpose.
17.30.040 Definitions.
17.30.050 Applicability of impact fee.
17.30.060 Identification of development impacts.
17.30.070 Mitigation review – Alternatives.
17.30.080 Imposition of impact fee.
17.30.090 Establishment of development service areas.
17.30.100 Calculation of impact fee.
17.30.120 Impact fee exemptions.
17.30.130 Impact fee credits.
17.30.140 Appeals.
17.30.150 Impact mitigation fee fund.
17.30.160 Expenditures.
17.30.170 Refunds.
17.30.180 Impact fee as additional and supplemental requirement.
17.30.010 Title.
This chapter shall be known as the North Bend development impact mitigation ordinance and may be cited as such. (Ord. 889 § 3, 1992).
17.30.020 Purpose.
It is the purpose of this chapter to:
A. Ensure that adequate facilities are available to serve new growth and development;
B. Promote orderly growth and development by requiring that new development pay a proportionate share of the cost of new facilities needed to serve growth; and16
C. Ensure that impact fees are imposed through established procedures and criteria so that specific developments do not pay arbitrary fees or duplicate fees for the same impact. (Ord. 889 § 4, 1992).
17.30.040 Definitions.
A. “Applicant” means the person, firm or corporation proposing a development in the city.
B. “Building permit” means the permit required for new construction and additions pursuant to Chapter 15.02 of the North Bend Municipal Code. The term building permit, as used herein, shall not be deemed to include:
1. Permits required for the remodeling, rehabilitation or other improvements to an existing structure or rebuilding a damaged or destroyed structure, provided there is no increase in the square footage of floor space (for non-residential construction) or number of dwelling units (for residential construction) resulting therefrom;
2. Permits required for temporary dwellings;
3. Permits required for placement of a mobile home within an approved mobile home park.
C. “Capital improvement plan” means Resolution No. 596 of the City of North Bend approving the 1990-1995 consolidated capital improvement plan, and any subsequent legislative enactment that amends or otherwise updates said consolidated plan.
D. “City” means the city of North Bend.
E. “Development” means any proposed land use, zoning or rezoning, comprehensive plan amendment, annexation, subdivision, short subdivision, planned unit development, planned area development, building permit, binding site plan or any other property development action permitted or regulated by the North Bend Municipal Code.
F. “Development approval authority” means the city official or tribunal having code authority to approve a development.
G. “Impact” means any effect on public facilities or services attributable or directly related to the proposed development.
H. “Impact fee” means the fee or charge levied pursuant to this chapter as a condition of issuance of a building permit or development approval and which mitigates all or any portion of an impact.
I. “Low income housing” means single family or multifamily housing, the construction of which is either undertaken by a housing authority operating pursuant to Chapter 35.82 RCW or financially assisted pursuant to a federal, state or local government low income
housing program, or a not for profit charitable organization that follows the same or similar guidelines; provided, that the terms shall apply only to the number of units within a multifamily housing development as are required to be rented to low income tenants.
J. “Mitigation or mitigate” means an action which avoids any negative or adverse impact, or which ameliorates any such impact.
K. “Project improvements” means site improvements and facilities that are planned and designed to provide service for a particular development project and that are necessary for the use and convenience of the occupants or users of the project, and are not system improvements. No improvement or facility included in the capital improvement plan shall be considered a project improvement.
L. “Public facilities” means any city-owned, operated or contracted facility or service, in whole or in part, whether existing or planned, including but not limited to parks, utilities, recreational facilities, schools, libraries, playgrounds, streets, transportation facilities, open spaces, police, fire or garbage services, buildings, and all such facilities or services, including related equipment.
M. “Service area” means a geographical area in which a defined set of public facilities provides services to developments within the area. Service areas may be separately described for each type of public facility.
N. “System improvements” means public facilities that are included in the capital improvement plan and are designed to provide service to service areas within the community at large, in contrast to project improvements. (Ord. 889 § 5, 1992).
17.30.050 Applicability of impact fee.
A. This chapter shall be applied as part of and integrated into the city’s land use and development approval procedures, so that mitigation decisions under this chapter are incorporated into development approval and permitting decisions at the earliest stage, thus permitting public review and comment.
B. This chapter shall be uniformly applicable to development that occurs within a designated service area.
C. Mitigation conditions imposed pursuant to this chapter shall be deemed conditions of the development permit and may be enforced by any suitable means. (Ord. 889 § 6, 1992).
17.30.060 Identification of development impacts.
A. Impact Identification Required. Before a development is given approval or is allowed to proceed, the city shall identify all impacts of the development, if any.
B. Impact Criteria. The city shall consider but not be limited to the following items in identifying or quantifying an impact, to the extent the items applicable are to the development.
1. The provisions of the North Bend Municipal Code, the capital improvement plan, or any other adopted city plan.
2. Technical documents which discuss or analyze public facilities or services or adopted city plans.
3. Pre-development versus post-development demands upon public facilities and services.
4. Impact of the development on the size, number, capacity, condition, availability, proximity or other characteristics of public facilities and services.
5. Likelihood that an impact from a development, when aggregated with impacts of future development in the immediate vicinity, will require mitigation due to its cumulative effect.
6. Nature, quantity, cost, identified completion date, if any, and pro rata share if applicable, of contributions, improvements or dedications to public facilities and services, including those offered or suggested by the applicant.
7. Likelihood that the development will benefit from or use public facilities and services.
8. Existing or planned alternatives for financing capital improvements.
9. Whether the development furthers the public health, safety and general welfare.
10. Likelihood of city growth through annexation of areas adjacent to the development.
11. Whether impacts have been previously mitigated, in whole or in part.
12. Any other criteria useful for identifying and quantifying impacts deemed relevant by the city.
C. Identification Cost. The cost of any special investigation, analysis or report necessary for an identification of impacts related to any development shall be borne by the applicant. (Ord. 889 § 7, 1992).
17.30.070 Mitigation review – Alternatives.
A. Mitigation of Impacts Required. The city shall not give a development approval unless satisfactory provisions have been made to mitigate identified impacts and such provisions meet the policies and goals of this chapter and of the city’s development regulations.
B. Review. The city shall review the identified impacts and any proposed alternatives for mitigating such impacts to determine whether the policies and goals of this chapter and of the city’s development regulations can be met.
C. Mitigation Alternatives. The following alternatives or any combination, either on-site or off-site, may be used as necessary to mitigate or avoid identified impacts. The list is not exhaustive and does not purport to describe all available and viable alternatives. Other alternatives may be used as necessary to achieve the policies and goals of this chapter and of the city’s development regulations.
1. Modification of the development so that identified impacts are avoided.
2. Dedication of land to the city for public purposes.
3. Contributions or payments offered by the applicant for use in mitigating on-site or off-site impacts as authorized under RCW 82.02.020. Contributions pursuant to RCW 82.02.020 shall not be required as a condition of development approval and shall be subject to the limitations of RCW 82.02.020 as now existing or hereafter amended; provided, however, that persons entitled to a refund and/or payment of interest may voluntarily and in writing waive their right to such refund or payment in whole, in part, or for a specified time period to facilitate completion of the designated improvement. No such waiver shall be required as a condition of development approval, but when made shall be recorded with the King County auditor and shall be binding upon subsequent owners.
4. Environmental mitigation agreements under the authority of Chapter 43.21C, RCW and Chapter 14.04 of the North Bend Municipal Code. Such agreements shall not fall within the purview of RCW 82.02.020 and shall be distinct from voluntary contribution agreements.
5. Impact fees assessed pursuant to this chapter. Such fees, if assessed, shall be used only to fund system improvements. Formulas for determining the amount of such fees will be adopted, from time to time, by ordinance of the city council.
6. Contractual arrangements between the applicant and the city permitting use by the general public of facilities or services within the development.
7. Contractual arrangements between the applicant and the city whereby the applicant constructs, funds, or commits to construct or fund public facilities and services which mitigate identified impacts.
8. Any contractual agreement, including but not limited to latecomers agreement, no protest agreement, maintenance agreement, or funding agreement which mitigates any identified impact.
9. Any alternative offered by the applicant which is satisfactory to the city and has the effect of mitigating identified impacts.
10. If the city determines that identified impacts would be best mitigated on a regional basis, the city may dependently or in conjunction with any other jurisdiction prepare or have prepared a cost estimate and define a benefit area for the regional improvement. The fair share of the total costs to be allocated to the proposed development shall then be determined. (Ord. 889 § 8, 1992).
17.30.080 Imposition of impact fee.
A. No building permit shall be issued for a development in a designated service area as herein defined unless the impact fee is calculated, imposed and collected pursuant to this chapter.
B. 1. For single family/duplex residential subdivisions and short subdivisions hereinafter approved, the per lot impact fee shall be calculated and assessed at the time of preliminary plat or short plat approval, noted on the face of the final plat, and collected on a per lot basis at the time of building permit application; provided, however, if an improvement for which an impact fee is being collected must be constructed prior to occupancy of any phase of the development, then the impact fee for said improvement shall be paid at the time of assessment.
2. For new multifamily and nonresidential development hereinafter approved, the impact fee shall be calculated and assessed at the time of site plan approval and collected at the time of building permit application; provided, however, if an improvement for which an impact fee is being collected must be constructed prior to occupancy of any phase of the development, then the impact fee for said improvement shall be paid at the time of assessment. If the nature of the development is then not sufficiently defined, then calculation and assessment of the impact fee shall be deferred until the building permit application is submitted. Notwithstanding the foregoing, the fee may be recalculated for building permit applications filed more than three years following the date of the applicable preliminary plat, preliminary short plat, or site plan approval.
C. For development not necessitating or having previously been granted preliminary plat, preliminary short plat or site plan approval, the impact fees shall be calculated, assessed and collected at the time of building permit application.
D. For development not necessitating a building permit, the impact fee shall be calculated, assessed and collected at the time of site plan approval.
E. For mobile home parks, the impact fee shall be calculated, imposed and collected at the time of site plan approval; provided, if the mobile home park is approved for construction in phases, then the fee for the first phase shall be paid at the time of site plan approval, and the fee for each subsequent phase shall be paid prior to the issuance of permits for construction of improvements within that phase. (Ord. 889 § 9, 1992).
17.30.090 Establishment of development service areas.
Service areas, which may vary by type of public facility, are to be established.
A. Such areas will provide a nexus between those paying the fees and receiving the benefits to ensure that those developments paying impact fees receive substantial benefits.
B. Service areas may be designated by the city council, by ordinance or through amendment to the capital improvement plan upon consideration of the following factors:
1. The Comprehensive Plan.
2. Standards for adequate public facilities incorporated in the capital improvement plan.
3. The projections for full development as permitted by land use ordinances and timing of development.
4. The need for funding unprogrammed capital improvements necessary to support projected development.
5. Such other factors as the city may deem relevant. (Ord. 889 § 10, 1992).
17.30.100 Calculation of impact fee.
A. Formulas for determining the amount of the impact fees assessed under this chapter will be adopted, from time to time, by ordinance of the city council. The city council shall hold a public hearing before adopting or amending impact fee formulas.
B. If the development for which approval is sought contains a mix of use, the impact fee must be separately calculated for each type of use.
C. Upon application by the developer supported by studies and data, the impact fee may be reduced or eliminated if it is shown that either:
1. The formulae adopted by the city council do not accurately reflect the impact; or
2. Due to unusual circumstances:
a. Facility improvements identified for the applicable service area are not reasonably related to the proposed development; or
b. Such facility improvements will not reasonably benefit the proposed development.
D. Prior to making an application for any development approval, an applicant, upon payment of the applicable fee may request an impact fee determination, which determination shall be based upon information supplied by the applicant sufficient to permit calculation of the impact fee. The impact fee determination shall be binding upon the city for a period of six months unless there is a material change in either the development proposal or this chapter. The fee for a binding preapplication impact fee determination shall be as established by the taxes, rates and fees schedule adopted by ordinance. The fee shall be the actual cost of making the determination, including all legal, administrative, engineering and planning fees, and shall be paid before the written determination is provided to the applicant. (Ord. 1237 § 15 (part), 2005: Ord. 889 § 11, 1992).
17.30.120 Impact fee exemptions.
A. The following developments shall be exempt from the requirement for payment of impact fees:
1. Low income housing; provided however, prior to being allowed an exemption the landowner shall enter into an agreement with the city that requires the payment of the impact fee if the property should cease to be used for low income housing. The applicable impact fee shall be the fee in effect at the time the housing unit ceases to be used for low income housing. The agreement shall be recorded as a covenant against the land.
2. Developments owned or operated, in whole or in part, by the city.
B. The impact fee for an exempt development shall be calculated as provided for herein and paid with public funds by including such amount(s) in the public share of system improvements undertaken within the applicable service area. (Ord. 889 § 12, 1992).
17.30.130 Impact fee credits.
A. The developer shall be entitled to a credit against the applicable impact fee for the present value of any dedication of land, for improvement to or new construction of any system improvements provided by the developer (or the developer’s predecessor in interest) to facilities that are/were identified in the capital improvement plan and that are required by the city as a condition of approval for the immediate development proposal, if such prior dedication, improvement or construction is located within the same service area as the immediate development proposal.
B. The amount of the credit shall be determined at the time of building permit issuance (or site plan approval where no building permit is required). In the event the amount of the credit is calculated to be greater than the amount of the impact fee due, the developer may apply such excess credit toward impact fees imposed on other developments within the same service area; provided, however, if the improvement is one for which a latecomer’s agreement would be authorized, then the developer shall only be entitled to a latecomer’s agreement. (Ord. 889 § 13, 1992).
17.30.140 Appeals.
The determination of the development approval authority as to the applicability and amount of and/or credit against an impact fee shall be appealable as provided for in this section.
A. The determination of the development approval authority shall be appealable to the city council. Such appeal may be perfected by the proponent or any aggrieved party by giving notice to the city administrator within 10 days of the decision being appealed. Review by the hearing examiner shall be on a de novo basis; provided, however, where the hearing examiner is the development approval authority the only appeal shall be to the King County superior court pursuant to the provisions of subsection D of this section.
B. The notice of appeal shall be made upon a form to be supplied by the city administrator. A nonrefundable fee as established by the taxes, rates and fees schedule adopted by ordinance shall be paid at the time the notice of appeal is submitted. A hearing shall then be scheduled before the hearing examiner within 30 days of the filing of the notice of appeal and appeal fee.
C. The decision of the hearing examiner shall be in writing and shall include findings of fact and conclusions to support the decision.
D. The decision of the hearing examiner shall be final unless, within 10 calendar days, a party of record files and serves upon all city and all affected parties a petition for writ of review with the King County superior court. (Ord. 1237 § 15 (part), 2005: Ord. 1172 § 15, 2002: Ord. 889 § 14, 1992).
17.30.150 Impact mitigation fee fund.
A. There is hereby created a fund to be known as the impact mitigation fee fund. The city finance director shall establish separate accounts within such fund and maintain records for each such account whereby impact fees collected can be segregated by type of facility and by service area. All interest shall be retained in the account and expended for the purposes for which the impact fees were imposed.
B. By April of each year, the city finance director shall provide a report for the previous calendar year on each impact fee account showing the source and amount of monies collected, earned, or received and system improvements that were financed in whole or in part by impact fees. (Ord. 1203 § 1 (part), 2003; Ord. 889 § 15, 1992).
17.30.160 Expenditures.
Impact fees for system improvements shall be expended only in conformance with the capital improvement plan. Impact fees shall be expended or encumbered for a permissible use within six years of receipt, unless there exists an extraordinary and compelling reason for fees to be held longer than six years. Such extraordinary and compelling reasons shall be identified in written findings by the city council. (Ord. 889 § 16, 1992).
17.30.170 Refunds.
A. The current owner of property in which an impact fee has been paid may receive a refund of such fee if the city fails to expend or encumber the impact fees within six years of when the fees were paid or such other period of time established pursuant to this section on public facilities intended to benefit the development activity for which the impact fees were paid. In determining whether impact fees have been encumbered, impact fees shall be considered encumbered on a first in, first out basis. The current owner likewise may receive a proportionate refund where the public funding of applicable service area projects by the end of such six-year period has been insufficient to satisfy the ratio of public to private funding for such service area as established in the capital improvement plan. The city shall notify potential claimants by first class mail deposited with the United States Postal Service addressed to the last known address of claimants.
B. The request for refund money must be submitted to the city council in writing within one year of the date the right to claim a refund arises or the date the notice is given, whichever is later. Any impact fees that are not expended within these time limitations, and for which no application for refund has been made within this one-year period, shall be retained and expended on the indicated capital improvements. Refunds of impact fees under this subsection shall include interest earned on the impact fees.
C. A developer may request and shall receive a refund, including interest earned on the impact fees, when the building permit for which the impact fee has been paid has lapsed for noncommencement of construction. (Ord. 889 § 17, 1992).
17.30.180 Impact fee as additional and supplemental requirement.
The impact fee is additional and supplemental to, and not in substitution of, any other requirements imposed by the city on the development of land or the issuance of building permits; provided, that any other such city development regulation which would require the developer to undertake dedication or construction of a facility contained within the city capital improvement plan shall be imposed only if the developer is given a credit against impact fees as provided for in NBMC 17.30.130. (Ord. 889 § 18, 1992).