Chapter 12.105
TRANSPORTATION IMPACT FEES

Sections:

12.105.010    Authority and purpose.

12.105.020    Definitions.

12.105.030    Scope and use of impact fees.

12.105.050    Assessment of transportation impact fees.

12.105.070    Payment of fees.

12.105.110    Use of funds.

12.105.120    Refunds.

12.105.140    Exemptions from transportation impact fees.

12.105.145    Credits.

12.105.150    Appeals.

12.105.155    Relationship to SEPA.

12.105.157    Relationship to concurrency.

Prior legislation: Ords. 38-02, 20-07 and 03-09.

12.105.010 Authority and purpose.

(1) This chapter is enacted pursuant to the City’s police powers, the Growth Management Act as codified in Chapter 36.70A RCW, the enabling authority in Chapter 82.02 RCW, Chapter 58.17 RCW related to platting and subdivisions, and the State Environmental Policy Act (SEPA), Chapter 42.21C RCW.

(2) The purposes of this chapter are to:

(a) Ensure that financial commitments are in place so that adequate transportation facilities are available to serve new growth and development;

(b) Promote orderly growth and development by establishing standards requiring that new growth and development pay a proportionate share of the cost of new transportation facilities needed to serve new growth and development;

(c) Ensure that transportation impact fees are imposed through established procedures and criteria so that specific developments do not pay arbitrary fees or duplicative fees for the same impact;

(d) Implement the transportation policies of the transportation element of the City of Covington comprehensive plan; and

(e) Provide additional funding for growth-related transportation improvements identified by the City of Covington comprehensive plan as reasonable and necessary to meet the future growth needs of the City of Covington. (Ord. 08-10 § 1 (Exh. A))

12.105.020 Definitions.

(1) “Capital facilities plan” means the capital facilities plan element of the City’s comprehensive plan adopted pursuant to Chapter 36.70A RCW and RCW 36.70A.070, and any amendments to the plan.

(2) “Corridor” means the road or set of roads within the City in which vehicle trips to or from a development will take place. Vehicles have flexibility as to an exact route within a corridor but little choice as to whether to use the corridor.

(3) “Department” means the City of Covington’s Community Development Department and Public Works Department, or as designated by the City Manager. Each department’s decision making authority within this chapter is based on the responsibility for implementing development regulations, overseeing the capital improvement program, transportation improvement program and updating the City’s fee schedule.

(4) “Developer” means the person or entity submitting an application for any development activity subject to the determination or collection of a transportation impact fee. It can also mean the property owner of record for the real property.

(5) “Development activity” or “development” means any residential or commercial construction or expansion of a building, structure or use, any change in use of a building or structure, or any change in the use of land that requires a development permit from the City.

(6) “Frontage improvements” or “system improvements” means all improvements in the public right-of-way or in public easements, all improvements required within the proposed public right-of-way of a new development activity, all improvements intended for ownership, operation, or maintenance by the City, and all other improvements, whether on site or off site, for which the Covington Municipal Code requires City approval.

(7) “Impact fee” means a payment of money imposed upon development as a condition of development approval to pay for public facilities needed to serve new growth and development, and that is reasonably related to the new development that creates additional demand and need for public facilities, that is a proportionate share of the cost of the public facilities, and that is used for facilities that reasonably benefit the new development. “Impact fee” does not include a reasonable permit or application fee.

(8) “Project cost” means the estimated cost of developing and constructing a project, including the costs of design and right-of-way acquisition.

(9) “Project improvement” 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 a capital facilities plan approved by the governing body of the county, city, or town shall be considered a project improvement.

(10) “Service area” means the entire corporate limits of the City of Covington.

(11) “System improvements” means public facilities that are included in the capital facilities plan and are designated to provide service to the service area at large, in contrast to project improvements.

(12) “Traffic impacts” means the diminishment of capacity of a roadway or intersection by the addition of new vehicle trips. Effects of new vehicle trips that are not quantifiable or to the extent that the effects cannot be mitigated fully by the addition of new capacity, such as safety hazards and inadequate signalization, are not traffic impacts for transportation impact fee purposes. (Ord. 08-10 § 1 (Exh. A))

12.105.030 Scope and use of impact fees.

Impact fees shall:

(1) Only be imposed for transportation improvements that are reasonably related to the traffic impacts of the new development;

(2) Not exceed a proportionate share of the costs of transportation improvements that are reasonably related to the new development;

(3) Be used for transportation improvements that will reasonably benefit the new development;

(4) Not be used to correct existing deficiencies; and

(5) Not be imposed to mitigate the same off-site traffic impacts that are being mitigated pursuant to any other law. (Ord. 08-10 § 1 (Exh. A))

12.105.050 Assessment of transportation impact fees.

(1) The transportation impact fee shall be assessed according to the units of daily vehicle trips according to the fee schedule in Exhibit B, attached to the ordinance codified in this chapter and hereby incorporated by reference. The transportation impact fee schedule will be generated from the formula for calculating impact fees set forth in the study entitled “Rate Study for Transportation Impact Fees” (DEA, Inc. 2009), as may be amended, and incorporated herein by reference. The fee schedule may subsequently be updated by a City Council resolution.

(2) The City shall collect transportation impact fees from any developer seeking development approval from the City for any development activity within the City, where such development activity requires the issuance of a building permit. This includes, but is not limited to, the development of residential, commercial, retail, office and industrial lands that creates an increase in units of vehicle trips.

(3) The Department may consider unusual circumstances for specific developments and may adjust the transportation impact fee for specific developments to ensure that impact fees are imposed fairly. The Department shall set forth its reasons for adjusting the impact fee in written findings. In determining whether to adjust the impact fee, the Department shall consider the following sources of information:

(a) The Institute of Transportation Engineers (ITE) Trip Generation User’s Guide, latest edition.

(b) If the developer proposes a trip generation rate other than that set forth in the ITE Trip Generation User’s Guide, latest edition, the developer shall provide supporting studies or data for a minimum of three comparison sites, at the same level of detail as would be necessary for the data to be accepted by ITE for inclusion in its database for trip generation.

(c) Any other data or studies submitted by a qualified transportation professional affiliated with the Institute of Transportation Engineers or a professional engineer licensed by the State of Washington.

(4) Any adjustments to the impact fee shall be transmitted to the Community Development Department for use in its review pursuant to the State Environmental Policy Act.

(5) Any request for the Department to consider unusual circumstances as outlined in subsection (3) of this section shall be provided to the Department in writing. The developer shall pay a fee as set forth in the City’s fee schedule for individually determined transportation impact fee.

(6) The timing of the transportation impact fee payment shall be in accordance with the provisions of CMC 12.105.070. (Ord. 08-10 § 1 (Exh. A))

12.105.070 Payment of fees.

(1) All developers shall pay a transportation impact fee in accordance with the provisions of this chapter. The fee paid shall be the amount in effect as of the date of building permit issuance. No building permit, for any development requiring payment of a transportation impact fee pursuant to this chapter, shall be issued until the transportation impact fee has been paid in full.

(2) The transportation impact fee will be initially calculated at the time a development application is submitted. The transportation impact fee shall be recalculated at the time of payment, outlined in subsection (1) of this section if the development is modified or conditioned in such a way as to alter the trip generation rate for the development or the development’s daily vehicle trips.

(3) All developers shall pay an administrative fee associated with the collection of transportation impact fees at the time of application for a development as set forth in the City’s fee schedule.

(4) The developer should note that it is not possible to have a vested right to pay a particular impact fee in advance of building permit issuance. If the City Council revises the impact fee formula or the impact fees, prior to the time that a building permit is issued for a particular development, the formula or fee amount in effect at the time of building permit issuance shall apply to the development. (Ord. 08-10 § 1 (Exh. A))

12.105.110 Use of funds.

(1) Pursuant to this chapter, impact fees:

(a) Shall be used for public improvements that will reasonably benefit new development; and

(b) Shall not be imposed to make up for deficiencies in public facilities serving existing developments; and

(c) Shall not be used for maintenance or operations.

(2) Road impact fees may be spent for public improvements, including, but not limited to, planning, engineering, surveying, land acquisition, right-of-way acquisition, site improvements, necessary off-site improvements, construction, architectural, permitting, financing, and administrative expenses, applicable impact fees or mitigation costs, and any other expenses which can be capitalized.

(3) Impact fees may also be used to recoup public improvement costs previously incurred by the City to the extent that new growth and development will be served by the previously constructed improvements or incurred costs.

(4) In the event that bonds or similar debt instruments are or have been issued for the advanced provision of public 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.

(5) The Department shall pool transportation impact fees whenever necessary to ensure that the fees are expended or encumbered for a permissible use within six years of receipt. Pooling for such purpose shall be accomplished as follows:

(a) The Department shall determine which project has the highest priority among the projects for which transportation impact fees were collected for each such development, and the Department shall transfer the transportation impact fees paid by the development to the budget of the project with the highest priority.

(6) The Finance Department shall prepare an annual report on the transportation impact fee accounts showing the source and amount of all monies collected, earned or received and transportation improvements that were financed in whole or in part by transportation impact fees. (Ord. 08-10 § 1 (Exh. A))

12.105.120 Refunds.

(1) 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 RCW 82.02.070, 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.

(2) If a property owner appears to be entitled to a refund of the impact fees, the Department shall notify the property owner by first class mail deposited with the United States Postal Service at their last known address. The property owner must submit a request for a refund to the City Council in writing within one year of the date the right to claim the refund arises or the date the notice is given, whichever is later. Any impact fees that are not expended or encumbered within the time limitations established by CMC 12.105.110 and for which no application for a refund has been made within this one-year period shall be retained and expended on the projects for which it was collected.

(3) In the event that the impact fees must be refunded for any reason, they shall be refunded with interest earned to the property owners as they appear of record with the assessor at the time of the refund.

(4) When the City seeks to terminate any or all impact fee requirements, all unexpended or unencumbered funds 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 to the last known address of claimants. Claimants shall request refunds as in subsection (2) of this section.

(5) 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 indicated road facilities. This notice of requirement shall not apply if there are no unexpended or unencumbered balances within an account or accounts being terminated. (Ord. 08-10 § 1 (Exh. A))

12.105.140 Exemptions from transportation impact fees.

(1) The following development activities are exempt from paying transportation impact fees because they do not have a measurable impact on the City’s transportation facilities or because the City has chosen to exempt them pursuant to RCW 82.02.060(2):

(a) Public school districts shall be exempted from payment of transportation impact fees.

(b) Existing Dwelling Unit. Any alteration, expansion, reconstruction, remodeling or replacement of existing single-family or multifamily dwelling units that does not result in the creation of additional dwelling units.

(c) Existing Nonresidential Building. Any alteration, reconstruction, remodeling or replacement of an existing nonresidential building that does not result in the generation of any new daily vehicle trips.

(d) Any accessory dwelling unit (ADU) permitted in accordance with applicable zoning regulations.

(2) In addition to the exemptions in subsection (1) of this section, the following may be exempt from the requirement to pay transportation impact fees:

(a) Low- or moderate-income housing projects developed or owned by public housing agencies or private nonprofit housing developers.

(b) Residential housing units dedicated for occupancy by low- or moderate-income households and whose rents or purchase prices are affordable to low- or moderate-income persons under the regulations of the U.S. Department of Housing and Urban Development or its successor.

(c) Individual low- or moderate-income dwelling units (as defined by King County’s housing programs) to be purchased by households with prices within their eligibility limits based on standard lending criteria.

(3) The developer shall be responsible for providing documentation to the City that their project qualifies for an exemption as outlined in subsection (2) of this section.

(4) Any claim or request for an exemption under this section shall be made no later than the time of issuance of a building permit. If a building permit is not required for the development activity, the claim shall be made when the fee is tendered. Any claim not made when required by this section shall be deemed waived.

(5) The determination to grant or deny an exemption under subsection (2) of this section shall be in the sole discretion of the City Council after consideration in an open public meeting of the public benefit of the specific project, the hardship to the project of the impact fee, the impacts of the project, the availability of public funding to pay the transportation impact fees payable on the project, and any other factors deemed relevant by the City Council. The City Council may also vote to exempt specific projects, or components thereof, within proposed development activities with broad public purposes from all or part of the required transportation impact fees upon such conditions as the City Council deems appropriate. If an exemption is granted, the exempted transportation impact fee attributable to the development shall be paid from public funds other than impact fees or interest on impact fees.

(6) As a condition of receiving an exemption under subsection (2) of this section, the owner shall execute and record in King County’s real property title records a City-drafted lien, covenant, or other contractual provision against the property that provides that the proposed housing unit or development will continue to be used for low- or moderate-income housing and remain affordable to those households under the regulations of the U.S. Department of Housing and Urban Development. The term of this provision shall be 10 years for individual owners and 15 years for private and private nonprofit developers/builders. The lien, covenant, or other contractual provision shall run with the land and apply to subsequent owners and assigns. In the event that the housing unit(s) is no longer used for low- or moderate-income housing during the term of the provision, the owner shall promptly pay to the City the transportation impact fee owed according to the current fee resolution. (Ord. 03-12 § 1 (Exh. A); Ord. 08-10 § 1 (Exh. A))

12.105.145 Credits.

(1) Pursuant to the authority of RCW 35A.21.240 and 82.02.060, a credit, not to exceed the transportation impact fee otherwise payable, shall be provided for the value of any dedication of land for, improvement to, or new construction of any system improvements provided by the developer, to facilities that are identified in the capital facilities plan and that are required by the City as a condition of approving the development activity. The determination of value shall be consistent with the assumptions and methodology used by the City in estimating the capital improvement costs.

(2) Credits will be given only if the land, improvements, and/or the facility constructed are:

(a) Included within the capital facilities plan or would serve the goals and objectives of the capital facilities plan; and

(b) At suitable sites while being constructed in accordance with adopted City codes.

(3) The Department shall determine if requests for credits meet the criteria in subsection (1) of this section.

(4) For each request for a credit or credits, the Director shall select an appraiser or the developer may select an independent appraiser acceptable to the Department.

(5) The appraiser must be qualified, licensed, 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.

(6) The appraiser shall be directed to determine the total value of the dedicated land, improvements, and/or construction provided by the developer on a case-by-case basis.

(7) The developer shall pay for all fees associated with the appraisal, including the review time by the City.

(8) After receiving the appraisal, the Department shall provide the developer 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 developer 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 Department before the impact fee credit will be awarded. The failure of the developer to sign, date, and return such document within 60 calendar days shall nullify the credit.

(9) No credit shall be given for project improvements required of the development by City code and/or SEPA; only dedications in excess of those required by law are eligible for credit. In no event shall this provision be interpreted to authorize cash payment. Nothing herein shall be interpreted to limit the discretion of the City to decline to accept any proposed dedication. (Ord. 08-10 § 1 (Exh. A))

12.105.150 Appeals.

(1) Appeals regarding the amount of the impact fee imposed on any development activity may only be filed by the developer of the development activity.

(2) The developer must first file a request for review regarding impact fees with the Department, as provided herein:

(a) The request shall be in writing on the form provided by the City.

(b) The request for review by the Department shall be filed within 28 calendar days of the developer’s payment of the impact fees.

(c) The developer shall pay a fee as set forth in the City’s fee schedule for individually determined transportation impact fee.

(3) The Department shall issue his/her determination in writing within 28 days from the receipt of a request for review.

(4) Determinations of the Department with respect to the applicability of the impact fees to a given development activity, the availability or value of a credit, or the Department’s decision concerning the independent fee calculation which is authorized in CMC 12.105.050, or the transportation impact fees in accordance with the most current fee schedule, or any other determination which the Department is authorized to make pursuant to this chapter, can be appealed to the Hearing Examiner.

(5) The decision of the Department may be appealed to the Hearing Examiner as a Type II decision in accordance with Chapter 14.30 CMC.

(6) Impact fees may be paid under protest in order to obtain a building permit or other approval of development activity when an appeal is filed. (Ord. 08-10 § 1 (Exh. A))

12.105.155 Relationship to SEPA.

(1) All development shall be subject to environmental review pursuant to SEPA and other applicable City ordinances and regulations.

(2) Further mitigation in addition to the impact fee shall be required for identified adverse impacts appropriate for mitigation pursuant to SEPA that are not mitigated by an impact fee.

(3) Nothing in this chapter shall be construed to limit the City’s authority to deny or condition a land use application or building permit when a proposal would result in significant adverse traffic impacts identified in an environmental impact statement and reasonable mitigation measures are insufficient to mitigate the identified impact. (Ord. 08-10 § 1 (Exh. A))

12.105.157 Relationship to concurrency.

Neither compliance with this chapter nor the payment of any fee hereunder shall constitute a determination of concurrency under Chapter 12.95 CMC. (Ord. 08-10 § 1 (Exh. A))