Chapter 17.38
TRANSPORTATION IMPACT FEES

Sections:

17.38.010    Findings and authority.

17.38.020    Definitions.

17.38.030    Assessment of impact fees.

17.38.040    Exemptions.

17.38.050    Credits.

17.38.060    Tax adjustments.

17.38.070    Appeals.

17.38.080    Establishment of impact fee accounts.

17.38.090    Refunds.

17.38.100    Use of funds.

17.38.110    Review.

17.38.120    Transportation impact fee.

17.38.130    Independent fee calculations.

17.38.010 Findings and authority.

The city council of the city of North Bend (the “council”) hereby finds and determines that new growth and development, including but not limited to new residential, commercial, retail, office, and industrial development, in the city of North Bend will create additional demand and need for public facilities in the city of North Bend, and the council finds that new growth and development should pay a proportionate share of the cost of new facilities needed to serve the new growth and development. The city of North Bend has conducted extensive studies documenting the procedures for measuring the impact of new developments on public facilities, has prepared the Transportation Impact Fee Rate Calculations for City of North Bend (“rate study”), and hereby incorporates this rate study into this chapter by reference. Therefore, pursuant to RCW 82.02.050 through 82.02.090, the council adopts this chapter to assess impact fees for system improvements to public streets and roads. The provisions of this chapter shall be liberally construed in order to carry out the purposes of the council in establishing the impact fee program. (Ord. 1324 § 1 (part), 2008).

17.38.020 Definitions.

The following words and terms shall have the following meanings for the purposes of this chapter, unless the context clearly requires otherwise. Terms otherwise not defined herein shall have the meaning defined in RCW 82.02.090, NBMC 1.04.010, Chapter 2.20 NBMC, NBMC 15.02.050, 17.30.040, 18.06.030, or 20.12.010 or, if not defined thereby, given their usual and customary meaning.

A. “Capital facilities plan” means the capital facilities plan element of a comprehensive plan adopted by the city of North Bend pursuant to Chapter 36.70A RCW, and such plan as amended.

B. “Department” means the department of public works.

C. “Development activity” means any construction, expansion, or change in the use of a building or structure that requires a building permit and that creates additional demand and need for public facilities.

D. “Development approval” means any written authorization from the city of North Bend which authorizes the commencement of a development activity.

E. “Director” means the director of the department of public works or the director’s designee.

F. “Encumbered” means to reserve, set aside, or otherwise earmark the impact fees in order to pay for commitments, contractual obligations, or other liabilities incurred for public facilities.

G. “Feepayer” is a person, corporation, partnership, an incorporated association, or any other similar entity, or department or bureau of any governmental entity or municipal corporation commencing a land development activity which creates the demand for additional capital facilities, and which requires the issuance of a building permit. “Feepayer” includes an applicant for an impact fee credit.

H. “Gross floor area” means the total square footage of any building, structure, or use, including accessory uses.

I. “Impact fee account” or “account” means the account(s) established for each type of public facility for which impact fees are collected. The accounts shall be established pursuant to NBMC 17.38.080 and 17.38.090, and comply with the requirements of RCW 82.02.070.

J. “Independent fee calculation” means the transportation impact calculation and/or economic documentation prepared by a feepayer, to support the assessment of an impact fee other than by the use of the rates listed in NBMC 17.38.120, or the calculations prepared by the director where none of the fee categories or fee amounts in NBMC 17.38.120 accurately describe or capture the impacts of the new development on public facilities.

K. “Interest” means the average interest rate earned in the last fiscal year by the city of North Bend.

L. “ITE Land Use Code” means the classification code number assigned to a type of land use by the Institute of Transportation Engineers in the Seventh Edition of Trip Generation.

M. “Occupancy permit” means the permit issued by the city of North Bend where a development activity results in a change in use of the pre-existing structure, or the creation of a new use where none previously existed.

N. “Project improvements” means site improvements and facilities that are planned and designed to provide service for a particular development or users of the project, and are not system improvements. No improvement or facility included in a capital facilities plan adopted by the council shall be considered a project improvement.

O. “Rate study” means the “Transportation Impact Fee Rate Calculations for City of North Bend,” City of North Bend, dated July 21, 2008.

P. “Residential” or “residential development” means all types of construction intended for human habitation. This shall include, but is not limited to, single-family, duplex, triplex, and other multifamily development.

Q. “Significant past tax payment” means taxes exceeding five percent of the amount of the impact fee, and which were paid prior to the date the impact fee is assessed and were earmarked or proratable to the same system improvements for which the impact fee is assessed.

R. “Square footage” means the square footage of the gross floor area of the development.

S. “Street” and/or “road” means a public right-of-way which enables motor vehicles, transit vehicles, bicycles and/or pedestrians to travel between destinations, and affords the principal means of access to abutting property, including a public avenue, place, way, drive, lane, boulevard, highway, street, and other thoroughfare, except an alley.

T. “System improvements” means improvements to street and/or transportation public facilities that are included in the city of North Bend’s capital facilities plan and are designed to provide service to service areas within the community at large, in contrast to project improvements. (Ord. 1324 § 1 (part), 2008).

17.38.030 Assessment of impact fees.

A. Unless exempted pursuant to NBMC 17.38.040, an applicant seeking development approval from the city for any development activity within the city shall pay, and the city shall collect, impact fees calculated according to the rates set forth in NBMC 17.38.120 and the taxes, rates and fees schedule set forth in Ordinance No. 1314 as it may be subsequently amended from time to time. Development activity subject to the impact fees assessed herein shall include, but is not limited to, the development of residential, commercial, retail, office, and industrial land, and includes the expansion of existing uses that creates a demand for additional public facilities, as well as a change in existing use that creates a demand for additional public facilities.

B. For a change in use of an existing building or dwelling unit, including any alteration, expansion, replacement or new accessory building, the impact fee shall be the applicable impact fee for the land use category of the new use, less any impact fee previously paid for the land use category of the prior use. If no impact fee was paid for the prior use, the impact fee for the new use shall be reduced by an amount equal to the current impact fee rate for the prior use.

C. For mixed-use developments, impact fees shall be imposed at the applicable rate set forth in NBMC 17.38.120 for each separate type of land use contained in the mixed-use development.

D. Impact fees shall be paid at the rate in effect at the time the building permit is issued by the city.

E. Applicants that have been awarded credits prior to the submittal of the complete building permit application pursuant to NBMC 17.38.050, shall submit, along with the complete building permit application, a copy of the letter or certificate prepared by the director pursuant to NBMC 17.38.050 setting forth the dollar amount of the credit awarded.

F. Where the impact fees imposed are determined by the square footage of the development, a deposit shall be due from the feepayer at the same time that a complete application for a building permit is submitted. The deposit shall be based on an estimate, submitted by the feepayer, of the size and type of structure to be constructed on the property. In the absence of an estimate provided by the feepayer, the department shall calculate a deposit amount based on the maximum allowable density/intensity permissible on the property. If the final square footage of the development is in excess of the initial estimate, any difference will be due prior to the issuance of a certificate of occupancy or an occupancy permit, using the rate in effect at that time. The feepayer shall pay any such difference plus interest, calculated at the interest rate which the city of North Bend then earns. If the final square footage is less than the initial estimate, the department shall give a credit for the difference, plus interest at the interest rate which the city of North Bend then earns.

G. The department shall not issue the required building permit or occupancy permit unless and until the impact fees set forth in NBMC 17.38.120 have been paid in the amount that they exceed exemptions or credits provided pursuant to NBMC 17.38.040 or 17.38.050.

H. The service area for impact fees shall be a single citywide service area. (Ord. 1324 § 1 (part), 2008).

17.38.040 Exemptions.

A. Except as provided for below, the following development activity shall be exempt from the requirement to pay impact fees:

1. Alteration of an existing nonresidential structure that does not expand the usable space or add any residential units;

2. Miscellaneous accessory use improvements, including, but not limited to, fences, walls, swimming pools, and signs;

3. Demolition or moving of a structure;

4. Expansion of an existing structure that results in the addition of 100 square feet or less of gross floor area;

5. Replacement of a structure with a new structure of the same size and use at the same site or lot when such replacement occurs within 12 months of the demolition or destruction of the prior structure. Replacement of a structure with a new structure of the same size shall be interpreted to include any structure for which the gross square footage of the building will not be increased by more than 100 square feet;

6. Any building permit application not subject to the moratorium in Ordinance No. 1303 or any subsequent ordinance renewing or extending said moratorium, where such building permit application was submitted to the city before 5:00 p.m. the business day before the effective date of the ordinance codified in this chapter and subsequently determined based on the information on file to have been complete prior to the effective date of the ordinance codified in this chapter; or

7. Any development by the city of North Bend.

B. The director shall be authorized to determine whether a particular development activity falls within an exemption identified in this section, in any other section, or under other applicable law. Determinations of the director shall be in writing and shall be subject to the appeals procedures set forth in NBMC 17.38.070. (Ord. 1324 § 1 (part), 2008).

17.38.050 Credits.

A. A feepayer can request that a credit or credits for impact fees be awarded to him/her for the total value of dedicated land, improvements, or construction provided by the feepayer. Credits will be given only if the land, improvements, and/or the facility constructed are:

1. Included within the capital facilities plan or would serve the goals and objectives of the capital facilities plan; and

2. At suitable sites and constructed at acceptable quality as determined by the city.

B. The director shall determine if requests for credits meet the criteria in subsection A of this section.

C. Credits shall be based on a certified statement of actual costs of the improvements incurred by the feepayer. The statement shall include copies of invoices paid for such work.

D. For each request for a credit or credits that involves dedication of land, the director shall select an appraiser or the feepayer may select an independent appraiser acceptable to the director. The appraiser must possess an MAI or other equivalent certification and shall not have a fiduciary or personal interest in the property being appraised. A description of the appraiser’s certification shall be included with the appraisal, and the appraiser shall certify that he/she does not have a fiduciary or personal interest in the property being appraised. The appraiser shall be directed to determine the total value of the dedicated land, improvements, and/or construction provided by the feepayer on a case-by-case basis. The feepayer shall pay for the cost of the appraisal or may request that the cost of the appraisal be deducted from the credit in the event that a credit is awarded. If no credit is awarded, the feepayer shall pay the cost of the appraisal.

E. After receiving the certified statement of actual costs and any appraisal, the director shall provide the applicant with a letter or certificate setting forth the dollar amount of the credit, the reason for the credit, the legal description of the site donated where applicable, and the legal description or other adequate description of the project or development to which the credit may be applied. The applicant must sign and date a duplicate copy of such letter or certificate indicating his/her agreement to the terms of the letter or certificate, and return such signed document to the director before the impact fee credit will be awarded. The failure of the applicant to sign, date, and return such document within 60 calendar days shall nullify the credit.

F. No credit shall be given for project improvements.

G. A feepayer can request that a credit or credits for impact fees be awarded to him/her for significant past tax payments. For each request for a credit or credits for significant past tax payments for park and transportation impact fees, the feepayer shall submit receipts and a calculation of past tax payments earmarked for or proratable to the particular system improvement. The director shall determine the amount of credits, if any, for significant past tax payments for park and transportation public facilities.

H. Any claim for credit must be made no later than 20 calendar days after the submission of an application for a building permit. The failure to timely file such a claim shall constitute a final bar to later request any such credit.

I. Determinations made by the director pursuant to this section shall be subject to the appeals procedures set forth in NBMC 17.38.070. (Ord. 1324 § 1 (part), 2008).

17.38.060 Tax adjustments.

Pursuant to and consistent with the requirements of RCW 82.02.060, the rate study provides adjustments for future taxes to be paid by the new development which are earmarked or proratable to the same new public facilities which will serve the new development. The impact fee rates in NBMC 17.38.120 have been reasonably adjusted for taxes and other revenue sources which are anticipated to be available to fund system improvements. (Ord. 1324 § 1 (part), 2008).

17.38.070 Appeals.

A. Any feepayer may pay the impact fees imposed by this chapter under protest in order to obtain a building permit. No appeal shall be permitted, and no building permit issued, until the impact fees at issue have been paid.

B. Appeals regarding the impact fees imposed on any development activity may be filed only by the feepayer and owner of the property where such development activity will occur.

C. Before a feepayer may appeal, the feepayer must first file a request for review regarding impact fees with the director, as provided herein:

1. The request shall be in writing on the form provided by the city;

2. The request for review by the director shall be filed within 14 calendar days of the feepayer’s payment of the impact fees at issue. The failure to timely file such a request shall constitute a final bar to any review or appeal;

3. No administrative fee will be imposed for the request for review by the director; and

4. The director shall issue his/her determination in writing.

D. Determinations of the director with respect to the applicability of the impact fees to a given development activity, the availability or value of a credit, or the director’s decision concerning the independent fee calculation which is authorized in NBMC 17.38.120, or the fees imposed by the director pursuant to NBMC 17.38.120, or any other determination which the director is authorized to make pursuant to this chapter, may be appealed to the hearing examiner only as provided below.

E. An appeal must be filed no later than 14 calendar days of the director’s issuance of a written determination, by filing with the department a notice of appeal specifying the grounds thereof, and depositing the necessary fee, which is set forth in the existing fee schedules for appeals of such decisions. The director shall transmit to the office of the hearing examiner all papers constituting the record for the determination, including, where appropriate, the independent fee calculation.

F. The hearing examiner shall fix a time for the hearing of the appeal, give notice to the parties in interest, and decide the same as provided in the North Bend Municipal Code. At the hearing, any party may appear in person or by agent or attorney.

G. The hearing examiner is authorized to make findings of fact regarding the applicability of the impact fees to a given development activity, the availability or amount of the credit, or the accuracy or applicability of an independent fee calculation. The decision of the hearing examiner shall be final.

H. The hearing examiner may, so long as such action is in conformance with the provisions of this chapter, reverse or affirm, in whole or in part, or may modify the determinations of the director with respect to the amount of the impact fees imposed or the credit awarded. (Ord. 1324 § 1 (part), 2008).

17.38.080 Establishment of impact fee accounts.

A. Impact fee receipts shall be earmarked specifically and deposited in special interest-bearing accounts.

B. There is hereby established the roads impact fee account for the fees collected pursuant to this chapter. Funds withdrawn from these accounts must be used in accordance with the provisions of NBMC 17.38.100 and applicable state law. Interest earned on the fees shall be retained in each of the accounts and expended for the purposes for which the impact fees were collected.

C. On an annual basis, the finance manager shall provide a report to the council on the impact fee account showing the source and amount of all moneys collected, earned, or received, and the system improvements that were financed in whole or in part by impact fees.

D. Impact fees shall be expended or encumbered within six years of receipt, unless the council identifies in written findings extraordinary and compelling reason or reasons for the city to hold the fees beyond the six-year period. Under such circumstances, the council shall establish the period of time within which the impact fees shall be expended or encumbered. (Ord. 1426 § 4, 2011; Ord. 1324 § 1 (part), 2008).

17.38.090 Refunds.

A. If the city fails to expend or encumber the impact fees within six years of when the fees were paid, or where extraordinary or compelling reasons exist, such other time periods as established pursuant to NBMC 17.38.080, the current owner of the property on which impact fees have been paid may receive a refund of such fees. In determining whether impact fees have been expended or encumbered, impact fees shall be considered expended or encumbered on a first in, first out basis.

B. The city shall notify potential claimants by first class mail deposited with the United States Postal Service at the last known address of such claimants. A potential claimant or claimant must be the owner of the property.

C. Owners seeking a refund of impact fees must submit a written request for a refund of the fees to the director within one year of the date the right to claim the refund arises or the date that notice is given, whichever is later.

D. Any impact fees for which no application for a refund has been made within this one-year period shall be retained by the city and expended on street and/or transportation system improvements.

E. Refunds of impact fees under this section shall include any interest earned on the impact fees by the city.

F. When the city seeks to terminate any or all components of the impact fee program, all unexpended or unencumbered funds from any terminated component or components, including interest earned, shall be refunded pursuant to this section. Upon the finding that any or all fee requirements are to be terminated, the city shall place notice of such termination and the availability of refunds in a newspaper of general circulation at least two times and shall notify all potential claimants by first class mail at the last known address of the claimants. All funds available for refund shall be retained for a period of one year. At the end of one year, any remaining funds shall be retained by the city, but must be expended for the appropriate public facilities. This notice requirement shall not apply if there are no unexpended or unencumbered balances within the account or accounts being terminated.

G. The city shall also refund to the current owner of property for which impact fees have been paid all impact fees paid, including interest earned on the impact fees, if the development activity for which the impact fees were imposed did not occur; provided, that if the city has expended or encumbered the impact fees in good faith prior to the application for a refund, the director can decline to provide the refund. If, within a period of three years, the same or subsequent owner of the property proceeds with the same or substantially similar development activity, the owner may petition the director for an offset. The petitioner must provide receipts of impact fees previously paid for a development of the same or substantially similar nature on the same property or some portion thereof. The director shall determine in writing whether to grant an offset, and the determination of the director may be appealed pursuant to the procedures in NBMC 17.38.070. (Ord. 1324 § 1 (part), 2008).

17.38.100 Use of funds.

A. Pursuant to this chapter, impact fees:

1. Shall be used for system improvements that will reasonably benefit the new development; and

2. Shall not be imposed to make up for system improvement deficiencies in public facilities serving existing developments; and

3. Shall not be used for maintenance or operation.

B. Impact fees imposed hereunder may be spent for street and/or transportation system improvements or any portion thereof, including, but not limited to, planning, land acquisition, right-of-way acquisition, site improvements, necessary off-site improvements, construction, engineering, architectural, permitting, financing, and administrative expenses, applicable impact fees or mitigation costs, and any other expenses which can be capitalized.

C. Impact fees may also be used to recoup street and/or transportation system improvement costs previously incurred by the city to the extent that new growth and development will be served by the previously constructed system improvements.

D. In the event that bonds or similar debt instruments are or have been issued for the advanced provision of street and/or transportation system improvements for which impact fees may be expended, impact fees may be used to pay debt service on such bonds or similar debt instruments to the extent that the facilities or improvements provided are consistent with the requirements of this section and are used to serve the new development. (Ord. 1324 § 1 (part), 2008).

17.38.110 Review.

A. The fee rates set forth in NBMC 17.38.120 may be reviewed and adjusted by the council as it deems necessary and appropriate in conjunction with the annual update of the capital facilities plan element of the city’s comprehensive plan. The council may determine the amount of the adjustment and revise the fee rates set forth in NBMC 17.38.120.

B. An inflationary adjustment shall be made in the fee rates at the beginning of each calendar year whether or not the council adjusts the fee rates under subsection A of this section. This annual inflationary adjustment shall be the same percentage amount as the change in the Engineering News Record Construction Cost Index for the Seattle area from the date of the previous year’s adjustment. (Ord. 1324 § 1 (part), 2008).

17.38.120 Transportation impact fee.

The transportation impact fee rates are generated from the formula for calculating impact fees set forth in the rate study, which is incorporated herein by reference. Except as otherwise provided for independent fee calculations in NBMC 17.38.030, exemptions in NBMC 17.38.040, and credits in NBMC 17.38.050, all development activity in the city shall pay the street and/or transportation impact fee based on the trip generation data in the below table applicable to the type of development activity at the rates established by the taxes, rates, and fees schedule adopted by ordinance:

	ITE Land Use Category	P.M. Peak Traffic Trip Ends (1)	% New Trips (2)	Net New Trips per Unit of Measure
110	Light industrial	0.98	100%	0.98/	1,000 sq. ft.
140	Manufacturing	0.74	100%	0.74/	1,000 sq. ft.
151	Mini-warehouse	0.26	100%	0.26/	1,000 sq. ft.
210	Single-family house	1.01	100%	1.01/	Dwelling
220	Apartment	0.62	100%	0.62/	Dwelling
230	Condominium or townhouse	0.52	100%	0.52/	Dwelling
240	Mobile home	0.59	100%	0.59/	Dwelling
251	Senior adult housing – detached	0.26	100%	0.26/	Dwelling
252	Senior adult housing – attached	0.11	100%	0.11/	Dwelling
253	Congregate care facility	0.17	100%	0.17/	Dwelling
254	Assisted living	0.22	100%	0.22/	Dwelling
310	Hotel	0.59	100%	0.59/	Room
320	Motel	0.47	100%	0.47/	Room
420	Marina	0.19	100%	0.19/	Berth
430	Golf course	0.30	100%	0.30/	Acre
440	Adult cabaret	38.67	100%	38.67/	1,000 sq. ft.
441	Live theater	0.02	100%	0.02/	Seat
443	Movie theater without matinee	0.07	100%	0.07/	Seat
445	Multiplex movie theater	5.22	100%	5.22/	1,000 sq. ft.
522	Middle/junior high school	1.19	100%	1.19/	1,000 sq. ft.
530	High school	0.97	100%	0.97/	1,000 sq. ft.
560	Church	0.66	100%	0.66/	1,000 sq. ft.
565	Day care center	13.18	100%	13.18/	1,000 sq. ft.
610	Hospital	1.18	100%	1.18/	1,000 sq. ft.
620	Nursing home	0.22	100%	0.22/	Bed
710	General office	1.49	100%	1.49/	1,000 sq. ft.
720	Medical office	3.72	100%	3.72/	1,000 sq. ft.
730	Government office	1.21	100%	1.21/	1,000 sq. ft.
760	R&D center	1.08	100%	1.08/	1,000 sq. ft.
812	Building materials and lumber	4.49	100%	4.49/	1,000 sq. ft.
814	Specialty retail	2.71	100%	2.71/	1,000 sq. ft.
820	Shopping center	3.75	66%	2.48/	1,000 sq. ft.
850	Supermarket	10.45	64%	6.69/	1,000 sq. ft.
851	Convenience market (24 hr.)	52.41	39%	20.44/	1,000 sq. ft.
890	Furniture store	0.46	47%	0.22/	1,000 sq. ft.
896	Video rental	13.60	100%	13.60/	1,000 sq. ft.
911	Bank/savings: walk-in	33.15	100%	33.15/	1,000 sq. ft.
912	Bank/savings: drive-in	45.74	53%	24.24/	1,000 sq. ft.
931	Restaurant: quality	7.49	56%	4.19/	1,000 sq. ft.
932	Restaurant: sit-down	10.92	57%	6.22/	1,000 sq. ft.
933	Fast food, no drive-through	26.15	50%	13.08/	1,000 sq. ft.
934	Fast food, with drive-through	34.64	50%	17.32/	1,000 sq. ft.
936	Drinking place	11.34	100%	11.34/	1,000 sq. ft.
943	Auto parts and service center	4.46	57%	2.54/	1,000 sq. ft.
944	Service station	13.86	34%	4.71/	per vfp (3)
947	Self-service car wash	5.54	100%	5.54/	wash stall
949	Automated car wash	14.12	100%	14.12/	1,000 sq. ft.

(1) “Trip Generation,” Seventh Edition (2003), Institute of Transportation Engineers. “P.M. Peak” = 4:00 to 6:00 p.m.

(2) Calculated by Henderson, Young & Company from data in “Trip Generation Handbook: An ITE Recommended Practice (2001),” Institute of Transportation Engineers. New trip % is the reciprocal of pass-by trips in ITE.

(3) “vfp” = vehicle fueling position.

(Ord. 1324 § 1 (part), 2008).

17.38.130 Independent fee calculations.

A. If in the judgment of the director none of the fee categories or fee amounts set forth in NBMC 17.38.120 accurately describes or captures the impacts of a new development on roads, the department may conduct independent fee calculations and the director may impose alternative fees on a specific development based on those calculations. The alternative fees and the calculations shall be set forth in writing and shall be mailed to the feepayer.

B. If a feepayer opts not to have the impact fees determined according to NBMC 17.38.120, then the feepayer shall prepare and submit to the director an independent fee calculation for the development activity for which a building permit is sought. The documentation submitted shall show the basis upon which the independent fee calculation was made.

C. Any feepayer submitting an independent fee calculation will be required to pay the city of North Bend a fee to cover the cost of reviewing the independent fee calculation. The fee required by the city for conducting the review of the independent fee calculation shall be the actual cost incurred by the city paid from an engineering fee deposit provided by the feepayer prior to initiation of review.

D. While the calculations set forth in the roads study shall be presumed valid, the director shall consider the documentation submitted by the feepayer. The director is not required to accept any documentation or analysis which the director reasonably deems to be inaccurate or not reliable, and the director may, in the alternative, require the feepayer to submit additional or different documentation for consideration. The director is authorized to adjust the impact fees on a case-by-case basis based on the independent fee calculation, the specific characteristics of the development, and/or principles of fairness. The fees or alternative fees and the calculations shall be set forth in writing and shall be mailed to the feepayer.

E. Determinations made by the director pursuant to this section may be appealed to the office of the hearing examiner as set forth in NBMC 17.38.070. (Ord. 1324 § 1 (part), 2008).