Division 2. Fees, Appeals, Public Hearings, Time Limits

Chapter 18.290
DEVELOPMENT IMPACT FEES

Sections:

Article I. General Provisions and Definitions

18.290.010    Authority and reference to chapter.

18.290.020    Purpose of fees.

18.290.030    Use of fees.

18.290.040    Calculation of fees by implementing resolutions.

18.290.050    Definitions.

Article II. Payment of Fees

18.290.060    Obligation to pay fees.

18.290.070    Timing of payment.

18.290.080    Amount of payment.

18.290.090    Park land impact fees.

18.290.100    Fee adjustments by the city.

18.290.110    Exemptions, exclusions and exceptions.

Article III. Credits and Reimbursements

18.290.120    Application for potential credit.

18.290.130    Timing of application.

18.290.140    Amount of potential credit.

18.290.150    Request for reimbursement.

18.290.160    Allocation of reimbursements.

Article IV. Fee Protests, Appeals, and Adjustments

18.290.170    Notice of protest rights.

18.290.180    Informal hearing.

18.290.190    Director’s determination.

18.290.200    Appeal of director’s determination.

18.290.210    Appeal hearing.

18.290.220    Decision of independent hearing officer.

18.290.230    Costs of protest.

18.290.240    Applicant’s acknowledgment of adjustment or waiver.

Article I. General Provisions and Definitions

18.290.010 Authority and reference to chapter.

This chapter may be referred to as the “impact fee ordinance,” and is adopted pursuant to the authority of Article XI, Section 7 of the California Constitution, Cal. Gov’t Code §§ 66000 et seq. (hereinafter “Mitigation Fee Act”), Cal. Gov’t Code §§ 65000 et seq. (the planning and zoning law of the state of California), and in accordance with the findings set forth in the ordinance codified herein (and all amendments thereto). (Ord. 2463 § 1, 6-4-02; Ord. 04-2016 § 44, 3-1-16. 1990 Code § 8-9100.)

18.290.020 Purpose of fees.

Pursuant to this chapter, the city has established fees which will be imposed upon development projects for the purpose of mitigating the impacts that the development projects have upon the city’s ability to provide public facilities. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9101.)

18.290.030 Use of fees.

(a)    The fees imposed by the city pursuant to this chapter shall be used to pay, in whole or in part, the estimated reasonable 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, 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.” Public facility categories include, but are not limited to: traffic, park land dedication, park facilities, capital facilities, and fire facilities.

(c)    For each separate public facility category, a separate fee shall be calculated and imposed, and each separately imposed fee shall be collected by the city and deposited in 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 fee fund to another fee fund only if the director makes findings, subject to the review and approval of the city council, of the following:

(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. 2463 § 1, 6-4-02. 1990 Code § 8-9102.)

18.290.040 Calculation of fees by implementing resolutions.

Pursuant to the Mitigation Fee Act, in any action establishing, increasing, or imposing a fee as a condition of approval of a development project, a technical report shall be prepared for each public facility category, subject to city council approval by implementing resolution. In addition to the findings supporting the adoption of impact fees identified in the impact fee ordinance, each implementing resolution shall include the following:

(a)    Identify the purpose of the fee by identifying the estimated types and quantities of development projects subject to the fee, and the public facility category to be funded by the fees.

(b)    Identify the use of the fee by identifying the specified public facilities to be funded by the fees.

(c)    Determine how there is a reasonable relationship between the city’s use of the fee and the types of development projects on which the fee is to be imposed by demonstrating how the development projects will benefit from the specified public facilities to be funded by the fees.

(d)    Determine how there is a reasonable relationship between the need for the specified public facilities and the types of development projects on which the fee is to be imposed, by demonstrating how the development projects create a demand for the construction of the specified public facilities to be funded by the fees.

(e)    Determine how there is a reasonable relationship between the amount of the fee and the cost of the specified public facility attributable to the development projects on which the fee is to be imposed. This shall include two elements: (1) a quantification of the estimated reasonable cost of providing the specified public facility, which may include the estimated costs of land acquisition, design, construction, construction administration, general administration (including establishment and enforcement) of the fee program, and contingencies; and (2) an identification of the method by which the city quantifies the proportionate responsibility of each development project for the cost of the specified public facilities, which may be satisfied by establishing a formula which reasonably quantifies the proportionate responsibility of various types of development projects using standardized units of measurement. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9103.)

18.290.050 Definitions.

As used in this chapter, all words, phrases, and terms shall be interpreted in accordance with the definitions set forth in the Mitigation Fee Act, unless otherwise defined herein.

“Affordable housing” means any residential unit restricted for persons at or below 120 percent of the area median income.

“Applicant” means any person, or other legal entity, which applies to the city for approval of a development project.

“Change of use” means any proposed use of an existing structure (or a previously existing structure) on a parcel which: (a) requires a building permit or other permit or city approval (such as a conditional use permit or a zoning administrator permit), and (b) the proposed use is included in a different property use category (as defined in implementing resolutions) than the last legal use of the existing structure, and (c) the proposed use results in impacts greater than the last legal use of the existing structure.

“Development project” means any project undertaken for the purpose of development, as defined in the Mitigation Fee Act, and shall specifically include any building permit, or any other permit or city approval required for a change of use. “Development project” shall specifically include any change of use or remodel.

“Director” means the director of the community development department of the city of Fremont, or any person designated by the city manager or director to perform the functions of the “director” specified in this chapter.

“Fee” means, for the purpose of this chapter, a development impact fee imposed by the city in accordance with this chapter.

“Fee fund” means each of the separate and distinct funds into which fees for each public facility category are deposited.

“Impact fee ordinance” means this chapter.

“Implementing resolution” means a resolution of the city council of the city of Fremont, including any technical report incorporated by reference, in which the findings specified in Section 18.290.040 are made for each public facility category.

“Inflation index” means a recognized standard index (such as the Consumer Price Index), as determined by the director to be a reasonable method of calculating the impact of inflation upon cost estimates set forth in implementing resolutions.

“Market rate housing” means any residential unit with no affordability restrictions (excluding the manager’s unit in a housing project with only affordable housing).

“Mitigation Fee Act” means Cal. Gov’t Code § 66000 et seq.

“Permit” means the city building permit required for a development project, or, if the development project consists of a change of use for which no building permit is required, any other permit or city approval required for the change of use.

“Public facility” means any public improvements, public services, or community amenities, as defined by the Mitigation Fee Act, including, but not limited to: traffic improvements, park land dedication, park facility improvements, capital facilities (such as public buildings), fire facilities, and any similar public improvement for which the city has adopted an implementing resolution pursuant to this chapter.

“Public facility category” means a separate and distinct set of public facilities as described in Section 18.290.030(b).

“Quimby Act” means Cal. Gov’t Code § 66477.

“Remodel” means any proposed improvement or reconstruction of an existing structure (or a previously existing structure) on a parcel which: (a) requires a building permit or other permit or city approval (such as a conditional use permit or a zoning administrator permit), and (b) results in impacts greater than the last legal use of the existing structure.

“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, as described in Section 18.290.030.

“Vested development rights” means an applicant’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 (Cal. Gov’t Code §§ 66498.1 through 66498.9), development agreement statutes (Cal. Gov’t Code §§ 65864 through 65869.5), and state law. (Ord. 2463 § 1, 6-4-02; Ord. 13-2009 § 2, 7-7-09; amended during 2012 reformat; Ord. 04-2016 § 45, 3-1-16; Ord. 06-2019 § 2, 10-1-19. 1990 Code § 8-9104.)

Article II. Payment of Fees

18.290.060 Obligation to pay fees.

(a)    Each applicant for city approval of a development project (including applications for a change of use and remodels) shall pay impact fees to the city, in accordance with the amounts set forth in implementing resolutions, unless the applicant establishes, to the satisfaction of the director, entitlement to a fee credit pursuant to Article III of this chapter, a fee adjustment pursuant to Article IV of this chapter, or a fee exemption or exception pursuant to this article.

(b)    The obligation to pay impact fees pursuant to this chapter shall not replace an applicant’s obligation to mitigate development project impacts in accordance with other requirements of state or local law.

(c)    For developments involving a subdivision for which a fee credit may be applicable in accordance with Section 18.290.120, should the individual lots be sold prior to development, the city shall not be responsible for determining the share of credits desired among property owners, and may require approval from all property owners within the subdivision prior to approving a fee credit sought for any individual lot. At initial development/subdivision approval, the subdivider may identify a lot or lots to receive the credits, which shall form the basis for applicable fee credits if included within the development approval documents. If a dispute arises regarding application of credit, the burden shall be upon the subdivider and any subsequent owners to resolve the dispute and submit qualifying fee credit application(s) to the city. The city may withhold fee credits if the property owners within a subdivision do not agree on the assignment of credits. (Ord. 2463 § 1, 6-4-02; Ord. 27-2016 § 41, 12-6-16. 1990 Code § 8-9200.)

18.290.070 Timing of payment.

(a)    At Building Permit Issuance. Except as otherwise provided in this section, the fees for each unit of development within a development project shall be paid in full prior to the issuance of the building permit required for that unit of development. All market rate housing development projects consisting of two or more residential units must pay the fees for each unit of development in full at the issuance of the building permit for that unit of development.

(b)    After Building Permit Issuance. Upon application by an applicant, and approval by the director or director’s designee, the fees for a development project may be paid as follows:

(1)    For market rate and affordable housing projects consisting of only one unit, before:

(A)    Final inspection; or

(B)    Issuance of a certificate of occupancy.

(2)    For affordable housing projects consisting of more than one unit, at the discretion of the director or director’s designee:

(A)    On a pro rata basis for each affordable housing unit within the development before:

(i)    The particular unit receives its final inspection, or

(ii)    The particular unit is issued a certificate of occupancy; or

(B)    On a pro rata basis before each specified percentage of the residential units within the development receive:

(i)    Their final inspections, or

(ii)    Their certificates of occupancy; or

(C)    In its entirety on a date before the first residential unit within the development receives:

(i)    Its final inspection, or

(ii)    Its certificate of occupancy.

(D)    If the fee is to be paid after permit issuance pursuant to this subsection, the applicant shall, as a condition of permit issuance, enter into a written agreement with the city as provided in subsection (c) of this section.

(3)    For a nonresidential development project consisting of only one building, before:

(A)    Final inspection; or

(B)    Issuance of a certificate of occupancy; or

(C)    The expiration of 18 months from the date of permit issuance, whichever occurs first.

(4)    For a nonresidential development project consisting of more than one building, at the discretion of the director or director’s designee:

(A)    On a pro rata basis for each building within the development before:

(i)    The particular building receives its final inspection,

(ii)    The particular building is issued a certificate of occupancy, or

(iii)    The expiration of 18 months from the date of permit issuance for the particular building, whichever occurs first; or

(B)    On a pro rata basis before each specified percentage of the nonresidential buildings within the development receive:

(i)    Their final inspections,

(ii)    Their certificates of occupancy, or

(iii)    On a date before the expiration of 18 months from the date of permit issuance for the specified percentage of buildings, whichever occurs first; or

(C)    In its entirety on a date before the first nonresidential building within the development receives:

(i)    Its final inspection,

(ii)    Its certificate of occupancy, or

(iii)    On a date before the expiration of 18 months from the date of permit issuance for the first building, whichever occurs first.

(D)    If the fee is to be paid after permit issuance pursuant to this subsection, the applicant shall, as a condition of permit issuance, enter into a written agreement with the city as provided in subsection (c) of this section.

(c)    Written Agreement. Any applicant, other than an applicant who pays the fees in whole pursuant to subsection (a) of this section, shall, prior to permit issuance, enter into a written agreement with the city to be recorded in the office of the Alameda County recorder.

(1)    Contents of Agreement. The agreement shall be signed by the property owner, be in a form approved by the city attorney, and contain all of the following:

(A)    A legal description of the property;

(B)    A provision that the agreement runs with the land, constitutes a lien on the property for the payment of the fees from the date of recordation and is enforceable against successors in interest;

(C)    A provision that the fees must be paid prior to final inspection, issuance of a certificate of occupancy, or within 18 months from permit issuance, whichever is first. Developments paying fees pursuant to subsection (b)(2)(D) of this section shall contain a provision that the fees must be paid prior to final inspection or issuance of certificate of occupancy, whichever occurs first. Neither approval of a final building inspection nor a certificate of occupancy shall be granted, and no occupancy shall be permitted, until the fees are paid. For developments consisting of more than one affordable housing unit or nonresidential building, the agreement shall include additional details regarding payment pursuant to subsection (b) of this section;

(D)    A statement of the amount of the fee due as calculated pursuant to Section 18.290.080(a);

(E)    A provision that, in any action to collect the fee or any portion thereof, the city shall be entitled to all of its costs of enforcement and collection, including reasonable attorneys’ fees; and

(F)    A requirement that the property owner notify the city of the opening of any escrow for the sale of the property and that the property owner provide escrow instructions that the fees be paid to the city from the sale proceeds in escrow before disbursing proceeds to the seller.

(2)    Release of Obligation. When the obligation is paid in full, the city shall record a release of the obligation.

(3)    Implementation. The director or designee shall develop an application form for applicants to request payment of fees after permit issuance pursuant to subsection (b) of this section and shall establish departmental guidelines for approval or denial of such applications. The director or designee is authorized to execute the agreement and the release of obligation under this subsection (c).

(4)    Compliance. No city official or agency may issue a permit with respect to a development project unless either the fees required by this chapter have been paid as required by subsection (a) of this section or an agreement meeting the criteria set forth in this subsection (c) has been entered into and recorded in connection with the development project. No city official or agency may certify final inspection or issue a certificate of occupancy for a unit of development, or otherwise allow occupancy of a unit of development, until the fees required by this chapter with respect to such unit are paid in accordance with this section. (Ord. 13-2009 § 3, 7-7-09; Ord. 06-2019 § 3, 10-1-19. 1990 Code § 8-9201.)

18.290.080 Amount of payment.

(a)    The amount of any fee to be paid for a unit of development within a development project shall be the amount of the fee in effect, pursuant to implementing resolution, on the date of permit issuance. However, if any fee is paid more than 18 months after the date of permit issuance, then the amount of the fee shall be the amount in effect, pursuant to implementing resolution, at the time that full payment is made to the city.

(b)    The amount of any fee to be paid in connection with a change of use shall be: (1) the amount of the fee required pursuant to subsection (a) of this section for the proposed use, (2) minus the amount of the fee paid for the last legal use of the existing structure.

(c)    The amount of any fee to be paid in connection with a remodel shall be the amount of the fee required pursuant to subsection (a) of this section for that portion of the remodel which generates impacts greater than the last legal use of the existing structure.

(d)    In the event that a previous partial fee payment is made for any unit of development, the full fee to be paid for that unit shall be the amount of the fee in effect, pursuant to implementing resolution, at the time of permit issuance, less the amount of the previous partial payment.

(e)    The applicant shall have the burden of proving the amount of any fee previously paid, the date on which payment was made, and the unit of development for which payment was made. (Ord. 2463 § 1, 6-4-02; Ord. 13-2009 § 4, 7-7-09. 1990 Code § 8-9202.)

18.290.090 Park land impact fees.

Each residential development project shall be required to pay a park land impact fee. However, if dedication of park land is proposed by a development project applicant or required pursuant to Section 17.25.270, the applicant shall receive a credit against park land impact fees, in accordance with Article III of this chapter. (Ord. 2463 § 1, 6-4-02; Ord. 04-2016 § 46, 3-1-16. 1990 Code § 8-9203.)

18.290.100 Fee adjustments by the city.

The city reserves the right to update and adjust each fee from time to time, in accordance with the Mitigation Fee Act. The fee in effect at the time any applicant has obtained a vested development right shall be subject to adjustment by the city, as incorporated in updated implementing resolutions in effect at the time that full payment of the fee is made, based upon any or all of the following criteria:

(a)    Adjustments in the amount of the estimated construction costs of providing the specified public facilities based upon adjustments in accordance with the inflation index.

(b)    Adjustments to replace estimated costs with actual costs (including carrying 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. 2463 § 1, 6-4-02. 1990 Code § 8-9204.)

18.290.110 Exemptions, exclusions and exceptions.

(a)    Nonresidential development projects are exempt from impact fees for park land dedication fees and park facility fees.

(b)    Residential development projects, including accessory dwelling units, are exempt from impact fees for any remodel or addition, as long as they do not result in a change of use.

(c)    Market rate housing development projects consisting of two or more units are excluded from utilizing the provisions of Section 18.290.070(b).

(d)    A reconstruction of a razed structure shall receive a fee credit only if the applicant submits documentation to the satisfaction of the director establishing that the razed structure was in existence in accordance with the timing requirements of this subsection (d). If a development project receives a credit pursuant to this subsection (d), the amount of the fee to be paid shall be: (i) the amount of the fee required pursuant to Section 18.290.080(a) for the entire new structure, (ii) minus the amount of the fee which would have been required pursuant to Section 18.290.080(a) for the last legal use of the razed structure.

(1)    In order to be entitled to a credit for a fire impact fee, the razed structure is required to have been in existence on or after May 16, 1989.

(2)    In order to be entitled to a credit for a traffic impact fee, or a capital facility fee, or a parks facility fee, the razed structure is required to have been in existence on or after June 11, 1991.

(3)    In order to be entitled to a credit for a park dedication in lieu fee, the razed structure is required to have been in existence on or after April 18, 1972.

(e)    An applicant may request a refund of a fee previously paid in accordance with this chapter only if the applicant provides written documentation to the satisfaction of the director that:

(1)    The building permit (including any permit or city approval on which the fee was imposed) is canceled or voided; and

(2)    Work has not progressed on the building permit which would allow commencement of a new use or change of use; and

(3)    The city has not already committed the fees to the construction of public facilities. Any refund made pursuant to this subsection may, in the discretion of the director, include a deduction to cover the city’s administrative costs of processing the refund.

(f)    A development project shall be exempt from the requirements of this impact fee ordinance if the applicant provides documentation, to the satisfaction of the director, of federal, state, or local law (including a duly adopted resolution of the city council) which establishes entitlement to the exemption. (Ord. 2463 § 1, 6-4-02; Ord. 05-2018 § 30, 3-20-18; Ord. 06-2019 § 4, 10-1-19. 1990 Code § 8-9205.)

Article III. Credits and Reimbursements

18.290.120 Application for potential credit.

An applicant may be eligible for a credit against impact fees otherwise owed, in return for providing a public facility to the city, only if the applicant submits a written application to the director which establishes compliance with all of the following requirements to the satisfaction of the director:

(a)    Describe the specified public facilities (or portion thereof) proposed to be provided by the applicant, with a cross-reference to the description of the specified public facilities in the relevant implementing resolution.

(b)    Identify the estimated cost of providing the specified public facilities (including construction, design, and/or land acquisition, as set forth in Section 18.290.040) for which the applicant is requesting credit.

(c)    Describe the development project or projects to which the fee credit is requested to apply. The description shall be limited to all or a portion of the development project for which specified public facilities are a condition of approval.

(d)    Document that either: (1) the applicant is required, as a condition of approval for the development project, to construct the specified public facilities; or (2) the applicant requests to build one or more specified public facilities which benefit the development project, and the director determines in writing prior to the commencement of construction that it is in the city’s best interests for the specified public facilities to be built by the applicant.

(e)    To the extent that credit for land acquisition costs are requested, document that: (1) the location of the land is advantageous to the public facility needs of the city; and (2) the amount of credit for the land acquisition is equal to a reasonable estimate of the fair market value of the land based upon either: (A) documentation provided by the applicant to the city, or (B) in the event that the director determines that the documentation provided by the applicant does not provide a reasonable basis for determining the fair market value of the land, the applicant shall pay for the costs of a property appraisal by an expert selected by the director which is qualified to express an opinion as to the value of the property (pursuant to Cal. Civ. Proc. Code § 1255.010). (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9300.)

18.290.130 Timing of application.

The application for credit shall be submitted by the applicant to the director in accordance with the following timing requirements: (a) to the extent that the applicant requests credit for design or construction, the application shall be submitted concurrently with the submittal of improvement plans; (b) to the extent that the applicant requests credit for land dedication, the application shall be submitted prior to the recordation of the final map or parcel map for the development project. The applicant may submit a late application only if the applicant establishes, to the satisfaction of the director, that, in light of new or changed circumstances, it is in the city’s best interests to allow the late application. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9301.)

18.290.140 Amount of potential credit.

In the event that the director determines that the applicant has submitted a timely application in compliance with Section 18.290.130, and it is in the city’s best interest to allow the applicant to provide the proposed specified public facility, the applicant shall be entitled to credit against fees otherwise owed in accordance with this chapter; provided, that the applicant enters into an agreement with the city which includes the following essential terms:

(a)    The design of the specified public facility is approved by the city.

(b)    The applicant agrees to provide the specified public facilities in return for the credit to be allocated in accordance with the terms of the agreement and this chapter.

(c)    The amount of credit available to the applicant shall not exceed the lesser of: (1) the applicant’s actual cost of providing the specified public facility, to be evidenced by the submittal of written documentation to the satisfaction of the director, and (2) the estimated cost of providing the specified public facility, as identified in the implementing resolution.

(d)    The amount of credit available to the applicant for land dedication shall be equal to the amount identified in Section 18.290.120(e).

(e)    The applicant provides improvement security in a form and amount acceptable to the city.

(f)    The applicant identifies the development projects to which the credit will be applied.

(g)    The credit may only be applied to fees which would otherwise be owed for the public facility category relevant to the specified public facility. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9302.)

18.290.150 Request for reimbursement.

To the extent that the applicant has a balance of credit available, the applicant may submit a written request for reimbursement to the director. The applicant shall be entitled to potential reimbursement from the city only if the applicant submits a written request to the director which establishes the following:

(a)    The request shall be made no later than 180 days after the later to occur of: (1) issuance of the last permit within the development project for which the application for credit was made, or (2) the date of the city’s acceptance of the specified public facilities as complete.

(b)    The request shall identify the specific dollar amount of the credit balance for which the applicant requests reimbursement, along with documentation in support thereof. This documentation shall include a calculation of the total credit available (pursuant to Section 18.290.140(c)) less amount of credit previously allocated to offset fees pursuant to Section 18.290.140(f).

(c)    The request must include a designation of the name and address of the legal entity to which reimbursement payments are to be made. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9303.)

18.290.160 Allocation of reimbursements.

(a)    In the event the director determines that the applicant has properly submitted a request for reimbursement pursuant to Section 18.290.150, the director shall prepare a written determination which will identify the dollar amount of the potential reimbursement. The dollar amount of the reimbursement shall equal the amount specified in the applicant’s request (not to exceed the actual credit available to the applicant, less the total of all credit allocations to offset fees pursuant to Section 18.290.140, as determined by the director).

(b)    The city shall make reimbursement payments to the applicant (or the entity identified by the applicant pursuant to Section 18.290.150). The right to receive reimbursement payments, if any, shall not run with the land.

(c)    The city shall make reimbursement payments pursuant to a schedule to be established by the director, and consistent with the approved capital improvement program. The city shall make no reimbursements to any applicant in excess of the amount of fees deposited in the relevant reimbursement account.

(d)    No reimbursement payment shall be made to an applicant until after the completion of construction by the applicant and acceptance of improvements by the city. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9304.)

Article IV. Fee Protests, Appeals, and Adjustments

18.290.170 Notice of protest rights.

(a)    Each applicant is hereby notified that, in order to protest the imposition of any impact fee required by this chapter, the protest must be filed in accordance with the requirements of this chapter and the Mitigation Fee Act. Failure of any person to comply with the protest requirements of this chapter or the Mitigation Fee Act shall bar that person from any action or proceeding or any defense of invalidity or unreasonableness of the imposition.

(b)    On or before the date on which payment of the fee is due, the applicant shall pay the full amount required by the city and serve a written notice to the director with all of the following information: (1) a statement that the required payment is tendered, or will be tendered when due, under protest; and (2) a statement informing the city of the factual elements of the dispute and the legal theory forming the basis for the protest.

(c)    After receipt of the notice from the applicant, and prior to the informal hearing to be scheduled in accordance with Section 18.290.180, the director shall investigate the factual and legal adequacy of the applicant’s protest. At the request of the director, the applicant shall provide additional information or documentation in substantiation of the protest.

(d)    The applicant shall bear the burden of proving, to the satisfaction of the director, entitlement to a fee adjustment. The evidence (information and documentation) to be submitted by the applicant in support of the protest shall include, but not be limited to, an identification of the amount of the fee which the applicant alleges should be imposed upon the development project, and all factual and legal bases for the allegation. The applicant shall identify each portion of this impact fee ordinance and any implementing resolution which the applicant claims supports the allegation. The applicant shall identify each portion of this impact fee ordinance (in particular the elements summarized in Section 18.290.040) and each portion of any implementing resolution (in particular the technical reports incorporated therein) which the applicant claims fails to support the city’s imposition of the fee upon the development project. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9400.)

18.290.180 Informal hearing.

(a)    The director shall schedule an informal hearing regarding the protest, to be held no later than 60 days after the imposition of the impact fees upon the development project, and with at least 10 days’ prior notice to the applicant (unless either dates are otherwise agreed by the director and the applicant).

(b)    During the informal hearing, the director shall consider the applicant’s protest, relevant evidence assembled as a result of the protest, and any additional relevant evidence provided during the informal hearing by the applicant and the city. The director shall provide an opportunity for the applicant to present additional evidence at the hearing in support of the protest. However, in weighing relevant evidence, the director may consider the extent to which the applicant provided requested substantiating evidence prior to the hearing. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9401.)

18.290.190 Director’s determination.

When the director determines that sufficient evidence has been submitted to decide the protest, the director shall close the informal hearing and issue a written determination regarding the protest. The director may continue the informal hearing in order to assemble additional relevant evidence. The director’s determination shall support the fee imposed upon the development project unless the applicant establishes, to the satisfaction of the director, entitlement to an adjustment to the fee. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9402.)

18.290.200 Appeal of director’s determination.

Any applicant who desires to appeal a determination issued by the director pursuant to Section 18.290.190 shall submit a written appeal to the director and the city manager. A complete written appeal shall include a complete description of the factual elements of the dispute and the legal theory forming the basis for the appeal of the director’s determination. An appeal received by the city manager more than 10 calendar days after the director’s determination may be rejected as late. Upon receipt of a complete and timely appeal, the city manager shall appoint an independent hearing officer to consider and rule on the appeal. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9403.)

18.290.210 Appeal hearing.

The independent hearing officer shall, in coordination with the applicant and the director, set the time and place for the appeal hearing, and provide written notice thereof. The independent hearing officer may issue directives related to the conduct of the hearing in an effort to facilitate resolution of the dispute or narrow the issues in dispute, including prehearing or post-hearing briefs pursuant to a briefing schedule, and scheduling presentation of evidence during the hearing. The independent hearing officer shall consider relevant evidence, provide an opportunity for the applicant and the city to present additional noncumulative evidence at the hearing, and preserve the complete administrative record of the proceeding. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9404.)

18.290.220 Decision of independent hearing officer.

Within 30 days after the independent hearing officer closes the hearing and receives post-hearing briefs (if any), the independent hearing officer shall issue a written decision on the appeal hearing which shall include a statement of findings of fact in support of the decision. The independent hearing officer’s discretion shall be limited to a determination that either supports the director’s determination or orders the city to refund all or a portion of the impact fees to the applicant. The applicant shall bear the burden of proving entitlement to a fee adjustment. The decision of the hearing officer is final and conclusive, and is subject to judicial review only in accordance with Chapter 1.30. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9405.)

18.290.230 Costs of protest.

The applicant shall pay all city costs related to any protest or appeal pursuant to this chapter, in accordance with the fee schedule adopted by the city. At the time of the applicant’s protest, and at the time of the applicant’s appeal, the applicant shall pay a deposit in an amount established by the city to cover the estimated reasonable cost of processing the protest and appeal. If the deposit is not adequate to cover all city costs, the applicant shall pay the difference within 20 days after receipt of written notice from the director. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9406.)

18.290.240 Applicant’s acknowledgment of adjustment or waiver.

As a condition of any adjustment or waiver made for a fee imposed upon a particular development project, the applicant may be required by the director or the independent hearing officer to provide an acknowledgment and waiver, in a form acceptable to the director, of any further right to protest or appeal the city’s imposition of fees for that development project. (Ord. 2463 § 1, 6-4-02. 1990 Code § 8-9407.)