Chapter 12.32


12.32.010    Purpose.

12.32.020    Findings.

12.32.030    Definitions.

12.32.040    Fee required – Exemptions.

12.32.050    Amount of fee.

12.32.060    Time of payment.

12.32.070    Credit.

12.32.080    Accounting – Use of funds – Refunds.

12.32.090    Appeals.

12.32.010 Purpose.

In 2004, the City approved the downtown specific plan, with the primary objective of re-establishing the downtown as the dynamic center of the City. The specific plan envisions transforming the downtown area into a viable city neighborhood. The downtown core will become a defined center, supporting office, retail, residential and recreational activity. Each plan area will encompass complementary uses, including new residences, places to eat and shop, local places to work, and nearby open space for community recreation.

For this transformation to occur will require both public and private efforts, operating in a coordinated fashion. The City has already adopted new master plans for sewer and storm drainage, and has adopted new financing structures for improvements to sewer, water, storm drains, city streets and public parks. But specific, additional improvements are needed for the downtown area, and under this chapter the City will require private development to share in the cost of those improvements. The specific, downtown improvements include: landscaping; flexible pavement; new intersection signals; lighted pedestrian crosswalks; a new plaza and fountain; improvements to the existing Lizzie Fountain; other street, curb and sidewalk repairs; Iron Horse trail; and utility improvements.

Improvements to the downtown will not only support and retain those establishments already downtown, but will also help to encourage new investment in both residential and nonresidential development. (Ord. 2065 § 1(A), 2018; Ord. 1757 § 1, 2005)

12.32.020 Findings.

This chapter is adopted under the authority of the Mitigation Fee Act (Government Code Section 66000 and following). Based on the Act and the study, the City Council makes the following findings.

A. Purpose of Fee. The policy of the City of Livermore is that new development will not burden existing development with the cost of street, park or infrastructure improvements required to accommodate growth. The purpose of the downtown revitalization fee is to implement this policy by providing a funding source from new development for downtown improvements. These new improvements are necessary for the downtown to become a defined and dynamic center to the City that can support residential, office, and retail activity. These improvements include additional landscaping, street and intersection improvements that allow for a pedestrian-friendly environment; and public amenities like parks and plazas that attract people to live, work and shop in the downtown. The fee advances a legitimate interest of the City by enabling the City to provide municipal services to new development.

B. Use of Fee Revenue. The downtown revitalization fee will be used to fund improvements within the Downtown Specific Plan area and are further described in detail in the latest amended version of the fee nexus study. The improvements include, but are not limited to:

1. First Street from Inman Street to S Street;

2. Railroad Avenue from Stanley Boulevard to Maple Street, including minor street improvements;

3. Plaza and fountain improvements, at the southwest corner of First Street and Livermore Avenue;

4. Lizzie Fountain, and landscape improvements to the northwest corner of First Street and Livermore Avenue; and

5. Iron Horse Trail, including approximately 9,150 linear feet of trail and four steel pedestrian bridge crossings.

These downtown improvements are detailed more specifically in the following city documents: City of Livermore Two-year Capital Improvement Budget; City of Livermore Downtown Specific Plan (latest amended version); City of Livermore General Plan; Livermore Bicycle, Pedestrian, and Trails Active Transportation Plan.

C. Relationship Between Use of Fee and Type of Development. There is a reasonable relationship between the fee’s use and the type of development project on which the fee is imposed. The City will restrict the use of the fee revenues to those uses specified in subsection B of this section which provide new public infrastructure for increased activity associated with new residential and business development in the downtown. The Downtown Specific Plan increases the density of both residential and nonresidential development and encourages more concentrated community and cultural activities. Infrastructure required to support these uses and activities include plazas, flex zones, pedestrian facilities, parking, transit and trails.

D. Relationship Between the Need for Public Improvements and the Type of Development Projects on Which the Fee Is Imposed. The total projected residential and non-residential vehicle trips anticipated with the build-out of the Downtown Specific Plan provide an indicator of the improvements needed to accommodate downtown growth. The fee will be based on trips generated by the land use data provided in the latest amended version of the Downtown Specific Plan and calculated to reflect traffic traveling through the downtown area and the type of use (residential or nonresidential) generating those trips. The portion of the fee that covers trail facilities will be determined by the estimated use of the trails by type of development. For residential development the use is based on average number of residents (for residential development) per household and full exposure to the trails. For nonresidential development, the use is based on the average number of employees assuming a more limited exposure to the trails, adjusted to reflect the relatively fewer number of hours an employee has exposure to the trails. The methodology is further detailed in the study.

E. Relationship Between the Amount of the Fee and the Cost of the Facility Attributable to the Development. The relationship between the downtown revitalization fee for a specific development project and the cost of the facilities attributable to that project is based on the estimated number of residents and employees that the project will serve. The total fee for a specific project is based on its size as measured by dwelling units (for residential development) or newly constructed gross floor area (building square footage for nonresidential development). The fee schedule converts the estimated number of residents or employees that a development project will accommodate into a fee based on the size of the project. Larger projects of a certain land use type would generate a higher usage and pay a higher fee than smaller projects of the same land use type. Thus, the fee schedule ensures a reasonable relationship between the fee for a specific development project and the cost of the facilities attributable to that project. (Ord. 2071 § 1, 2018; Ord. 2065 § 1(A), 2018; Ord. 1881 § 1, 2009; Ord. 1757 § 1, 2005)

12.32.030 Definitions.

In this chapter, the following definitions apply:

“Buildout” means full implementation of all residential and commercial development as outlined in the Downtown Specific Plan, latest amended version.

“Development” means: (1) any new construction, or any addition, extension, or enlargement of an existing structure or unit, which includes any dwelling units for residential use or any gross floor area of commercial or industrial use; and (2) any conversion or change in use of an existing structure requiring City approval, including a building permit, which would result in an increase or change in the peak hour trip rate otherwise applicable to such existing structure.

“Development fee” means a fee imposed on new development, as authorized by the State Mitigation Fee Act (California Government Code Sections 66000 through 66025).

“Downtown” or “downtown area” means the plan areas delineated by the Livermore Downtown Specific Plan (latest amended version).

“Downtown improvements” means improvements to be funded by the downtown revitalization fee and are described in detail in the latest amended version of the fee nexus study. The improvements are further detailed in the City of Livermore two-year capital improvement budget, latest adopted version; City of Livermore Downtown Specific Plan, latest amended version; City of Livermore General Plan; and Livermore Bicycle, Pedestrian, and Trails Active Transportation Plan.

“Gross floor area” means the sum of the square footage of the floor area at each floor level included within the surrounding principal outside faces of exterior walls of a building or portions of it, including a mezzanine or lobby. It does not include floor area devoted to vehicle parking, necessary interior driveways and ramps. The gross floor area of a building, or portions of it, that does not have surrounding exterior walls, includes the usable area under the horizontal projection of the roof or floor above.

“Iron Horse Trail” is a multi-use trail that follows adjacent to the Union Pacific Railroad right-of-way connecting residential, commercial areas, business parks, schools, public transportation (BART, ACE and LAVTA), parks and community facilities. The downtown improvements which are the subject of this chapter only include the portion of the trail within the downtown area. The portion included in this fee is approximately 9,150 linear feet, located in the downtown area along the railroad tracks from the First Street overcrossing east of Inman Street to a point west of Murrieta Boulevard as defined in the Downtown Specific Plan.

“Nonresidential” means office and retail uses. Office includes all general, professional, and medical offices, and does not include retail uses. Retail includes businesses for buying or selling goods and services, including service commercial uses and lodging.

“Study” means the City of Livermore Downtown Revitalization Fee Study dated December 2004, prepared by JR Structural Engineering, Inc., including the 2009 update and any future amendments to it.

“Unit” means an individual tenant space within a structure when that space has an individual address. (Ord. 2071 § 1, 2018; Ord. 2065 § 1(A), 2018; Ord. 1881 § 1, 2009; Ord. 1757 § 1, 2005)

12.32.040 Fee required – Exemptions.

A. Fee Required. Each development in the downtown area shall pay a fee in the amount established in LMC 12.32.050.

B. Exemptions. This chapter and the downtown revitalization fee do not apply to:

1. Vesting Tentative Map. Development for which an application for a vesting tentative map authorized by Government Code Section 66498.1 was deemed complete on or before the date of the introduction of this chapter (unless accompanied by a development agreement in which the property owner agrees to pay the fee).

2. Public Improvements. Capital improvements and/or buildings or structures related to the operation of City, Alameda County, state or federal governments including, but not limited to, police and fire stations, Livermore Area Recreation and Park District facilities, parking lots, offices, equipment yards, sanitation facilities, parks and similar facilities in or through which general government operations are conducted. However, this subsection does not create an exemption for private commercial or industrial activities conducted on public lands.

3. Temporary Uses. Temporary uses less than 12 months in duration. No extension of time is permitted.

4. Religious Uses. Churches, temples, and other properties used primarily for religious worship.

5. Schools. Private and public elementary and secondary schools.

6. Repair. Commercial, industrial or residential development consisting of the repair of structures on the same site, as long as the repair does not result in any conversion or change in use which increases the peak hour trip rate applicable to the previous structure.

7. Minor Additions. Additions, extensions or enlargements of an existing commercial or industrial structure which, in any one calendar year, increase the gross floor area of the structure by 200 square feet or less.

8. Parking. Parking structures.

9. Livermore Successor Agency Projects. Development within a designated Livermore successor agency project area if:

a. The Livermore successor agency approves the exemption and provides that the amount of the fee which would otherwise apply is paid by the Livermore successor agency into the City’s downtown revitalization fee fund; and

b. The City Council approves the exemption and makes one of the following findings:

i. The exemption is authorized in a disposition and development agreement or owner participation agreement with the developer of the property; or

ii. The Livermore successor agency is actively involved in the assembly and/or disposition of the property to be developed and the eventual purchase price to be paid by the developer will be less than the fair market value of that property; or

iii. The proposed development is a public or quasi-public facility or use, as defined in LDC Part 11, and provides a substantial community benefit.

10. Livermore Successor Agency Contribution. The Livermore successor agency has pre-funded a portion of the fees due for nonresidential and residential development for infrastructure improvements in the Livermore successor agency project area using Livermore successor agency fund sources. As of October 27, 2008, these improvements are either fully constructed or have been identified in the 2008-2010 Capital Improvement Program Budget, as amended, and funds have been appropriated for such improvements. The fee for residential and nonresidential development may be waived subject to a Council-adopted downtown incentive program, so long as the amount of the development fee obligation has been fully pre-funded by the agency. The waiver of the fee for residential development shall sunset on December 31, 2012, unless otherwise extended by ordinance of the City Council. At such time that all the Livermore successor agency funding has been expended, then all projects, residential and nonresidential, will be required to pay the fee.

11. Secondary Unit. Secondary dwelling unit approved under LDC 6.03.120.

12. Certain Care Facilities. Assisted living, convalescent care, skilled nursing, and dementia care facilities. (Ord. 2065 § 1(A), 2018; Ord. 1971 § 1(E), 2012; Ord. 1924 § 1, 2010; Ord. 1901 § 3 (Exh. A § 22), 2010; Ord. 1881 § 1, 2009; Ord. 1854 § 1, 2008; Ord. 1757 § 1, 2005)

12.32.050 Amount of fee.

A. Amount Set by Resolution. The amount of the downtown revitalization fee shall be established by resolution of the City Council. Once the fee is established, it shall automatically be increased annually based upon the Engineering News Record (ENR) 20-City Construction Cost Index, for the cost of construction of facilities. Periodically, the Council may re-study and re-calculate the fee.

B. Methodology. The City Council shall establish the amount of the downtown revitalization fee based on the methodology detailed in the latest amended version of the fee nexus study. The fee shall be based on the following assumptions, as outlined in more detail in the study:

1. Anticipated downtown development as outlined in the downtown specific plan, latest amended version.

2. Nonresidential Factors. The number of new employees within the downtown and the relative impact of an employee compared to a resident, as estimated by the latest amended version of the fee nexus study.

3. Residential Factors. The total number of new residents within the downtown, as estimated by the latest amended version of the fee nexus study.

4. General. The apportionment of improvement costs between residential and non-residential development is calculated in the latest amended version of the fee nexus study.

The improvements or portions thereof funded by the downtown revitalization fee are not included in any other development impact fee (not the sanitary sewer connection fees, the storm drainage connection fees, the traffic improvement fees or the park facilities fees). The portion of the Iron Horse Trail within the downtown specific plan area was excluded from the park facilities fee, so it is included in the downtown improvements.

C. Additions – Conversions. For development consisting of an addition, extension or enlargement of an existing structure or unit, the downtown revitalization fee is paid only on an additional dwelling unit or the additional gross floor area; however, if the existing structure or unit has been demolished (any portion) then the fee is paid on the entire gross floor area to be constructed. For development consisting of a conversion, or change in use of an existing, repaired or rebuilt structure or unit which increases the number of total residents or employees, the downtown revitalization fee is applicable to the entire structure or unit. (Ord. 2065 § 1(A), 2018; Ord. 1881 § 1, 2009; Ord. 1757 § 1, 2005)

12.32.060 Time of payment.

The downtown revitalization fee is due:

A. For residential uses, at the time of final inspection, or the date the certificate of occupancy is issued, whichever is first.

The city engineer may require the payment of the fee imposed under this chapter at the time of building permit where the city engineer determines that the fee will be collected for the purpose of defraying the actual or estimate cost of constructing parks facilities improvements for which an account has been establishes and funds appropriated and for which the City has adopted a proposed construction schedule or plan before any final inspection or issuance of a certificate of occupancy for a dwelling unit. (Government Code Section 66007(b).)

B. For nonresidential uses, at the time the building permit is issued.

C. Deferred Fee Program. The City Council may, by resolution, adopt administrative guidelines to provide a special fee deferral program in response to unprecedented conditions such as extraordinary economic changes. (Ord. 2065 § 1(A), 2018; Ord. 1879 § 6, 2009; Ord. 1757 § 1, 2005)

12.32.070 Credit.

A. When Credits May Be Given. The City may approve a credit against the downtown revitalization fee for any of the following, or a combination of them:

1. Land dedication made specifically to accommodate a downtown improvement as defined in LMC 12.32.030.

2. Construction of improvements under subsections B through E of this section.

B. Eligibility for Construction Credit.

1. General. This section applies to a developer who constructs a downtown improvement which would otherwise be constructed using downtown revitalization fee funds.

2. Requirements. To be eligible for credit, each of the following must be satisfied:

a. The proposed construction work must be a public improvement which would otherwise be constructed using downtown revitalization fee funds. The improvement must be on the list of proposed capital improvement projects approved by the City Council.

b. The land on which the work is done must be either owned by or be the subject of a recorded offer of dedication to the City.

c. The developer must enter into a subdivision agreement or other written agreement with the City before beginning construction of the improvement. The agreement shall comply with subsection C of this section. Within the limits of this section, the developer may determine the allocation of credits.

C. Calculation of Fee Credit Estimate.

1. General. The fee credit estimate is the value of a downtown improvement, as established by the City. It is based on estimates from the developer’s engineer (and approved by the city engineer) as to the portion of the land and improvements attributable to the downtown revitalization fee. The estimate is made at the time credits are established and are incorporated into the agreement. It is not the actual construction cost of the improvements.

2. Calculation. The city engineer shall calculate the fee credit estimate based upon the approved improvement plans and using the city engineer’s downtown improvement unit prices. The estimate includes construction costs and the cost of engineering and inspections. For nonstandard improvements, the credit is calculated based on information provided by the developer (such as bids or other documents verifying costs) for the city engineer’s review and approval.

3. Excluded Costs. The calculation of costs is based only on work which is eligible for credit under subsection A of this section. No credit is given for the cost of constructing improvements otherwise required without credit. No credit is given for amenities offered by the developer: (a) under the City’s housing implementation program which may exceed the basic requirement under the municipal code; and/or (b) under a development agreement, unless credit is authorized in the agreement.

D. Written Agreement.

1. General. Before the beginning of construction of a downtown improvement, the developer and the City must have entered into a subdivision improvement agreement or other written agreement regarding credit. If the developer is not the property owner, the property owner must also sign the agreement. The agreement shall be recorded before any lot in a subdivision is sold.

2. Contents of Agreement. The agreement shall include:

a. The developer’s obligation to have improvement plans reviewed and approved by the City;

b. The fee credit estimate (the total amount of credit which will be given), stated in current dollars;

c. When credits will apply;

d. To which lots the credits will apply, at the developer’s option. The portion attributed to each lot cannot be greater than the approximate amount of the downtown revitalization fee which would apply to that lot; and

e. The amount of security required to be provided to the City concurrently with the signing of the agreement.

E. Credit. Credit is granted at the time the downtown revitalization fee is due for a particular lot, under LMC 12.32.060, and in the amount specified in the agreement. The credit runs with the land. (Ord. 2065 § 1(A), 2018; Ord. 1757 § 1, 2005)

12.32.080 Accounting – Use of funds – Refunds.

A. Accounting. The City shall deposit the downtown revitalization fees in a separate fund, and avoid commingling with other funds except for temporary investments. Each year, the City shall account for the monies in the fund in accordance with Government Code Section 66006.

B. Use of Funds. The funds, and any interest earned on the account, shall be used only for downtown improvements. (See LMC 12.32.030, Definitions.)

C. Refunds. Unexpended revenues shall be refunded in accordance with Government Code Sections 66001(e) and (f). (Ord. 2065 § 1(A), 2018; Ord. 1757 § 1, 2005)

12.32.090 Appeals.

A person who wishes to appeal the downtown revitalization fee may do so by filing a timely appeal of the condition of approval when it is first imposed by the City, or under the protest procedures provided in Government Code Section 66020.

A developer may appeal to the City Council any determination made by city staff under this chapter. Any appeal shall be on a form prescribed by the community development department and must be filed within 15 days of the date of mailing or delivery to the developer of written notice of the applicable determination. An appeal not filed within the prescribed period is deemed waived. The City Council shall set the matter for hearing within 50 days of the date the city clerk receives the notice of the appeal. In making its determination on the appeal, the City Council shall follow the standards set forth in this chapter.

The time limits to protest fee increases set forth in Government Code Section 66002 apply to this chapter.

The procedure for protesting fees or dedications made under this chapter are those set forth in Government Code Section 66020.

A developer who offers downtown improvements as part of an application under the City’s housing implementation program may not challenge or withdraw that offer, without first amending any approval received under that program. (Ord. 2065 § 1(A), 2018; Ord. 2045 § 1(A), 2016; Ord. 2016 § 1(A), 2015; Ord. 1757 § 1, 2005)