CHAPTER 2
DEVELOPMENT IMPACT FEES AND LAND DEDICATIONS

Article 1    PARK IMPACT FEE

9.2.102 Purpose.

In order to implement the goals and objectives of the General Plan currently applicable to the City, and to mitigate the impacts caused by future development in the City, certain public facilities must be constructed. The City Council has determined that a park impact fee is needed in order to finance these public facilities and to pay for each development’s fair share of the construction and acquisition costs of these improvements. In establishing the park impact fee described in the following sections, the City Council has found the fee to be consistent with the general plan currently applicable to the City, and pursuant to Government Code Section 65913.2, has considered the effects of the fee with respect to the City’s housing needs as established in the housing element of the general plan currently applicable to the City.

9.2.104 Park Impact Fee Established.

a.    A park impact fee is established to pay for park and recreation facilities.

b.    Pursuant to Government Code Section 66001, the City Council shall, in a Council resolution adopted after a duly noticed public hearing, set forth the amount of the park impact fee, describe the benefit and impact area on which the park impact fee is imposed, list the public facilities to be financed, describe the estimated cost of these facilities, describe the reasonable relationship between the use of the park impact fee and the need for the public facilities and the types of future development projects on which the park impact fee is imposed, and set forth time for payment.

9.2.106 Use of Fee Revenues.

The revenues raised by payment of the park impact fee shall be accounted for in the City’s capital project fund. Separate and special accounts within the fund shall be used to account for revenues, along with any interest earnings on such account. These monies shall be used for the following purposes:

a.    To pay for design, engineering, acquisition, acquisition of property interests for, including, without limitation, right of way acquisition for, and construction of the public facilities designated in the City Council resolution and reasonable costs of outside consultant studies related thereto;

b.    To reimburse the City for designated public facilities constructed by the City with funds (other than gifts or grants) from other sources together with accrued interest;

c.    To reimburse developers who have designed and constructed such designated public facilities; and/or

d.    To pay for and/or reimburse costs of program development and ongoing administration of the park impact fee program.

9.2.108 Developer Construction of Facilities.

If a developer is required, as a condition of approval of a permit, to construct a public facility that has been designated to be financed with park impact fees, a credit against the fee otherwise levied by this chapter on the development project in an amount not to exceed the cost of such public facility as estimated by the City in adopting the fee shall be offered by the City and, if the fee is less than such amount, the developer shall be entitled to reimbursement. The reimbursement amount shall be from fee revenues only.

9.2.110 Administrative Guidelines.

The City Council may, by resolution, adopt administrative guidelines to provide procedures for the calculation, credit, reimbursement, or deferred payment and other administrative aspects of the park impact fee.

Article 2    PARKLAND DEDICATIONS

9.2.202 Authority and Purpose.

This Section is enacted pursuant to authority granted by Section 66477 of the Government Code of the State of California ("Quimby Act").

9.2.204 Requirement.

In accordance with Government Code Section 66477(a), each subdivider of land subject to the Subdivision Map Act (Government Code Section 66410 et seq.) and the City’s subdivision ordinance shall, as a condition to filing a final subdivision map, dedicate land, pay fees in lieu thereof, or a combination of both, for neighborhood and community park or recreational purposes, including open space. In accordance with Government Code Section 66477(b), land or fees required under this Ordinance shall be conveyed or paid directly to the City, which provides park and recreational services on a community wide level and to the area within which the proposed development will be located, if the City elects to accept the land or fee, upon approval of the final map.

9.2.206 Limitations.

a.    In accordance with Government Code Section 66477(a)(1), the requirements imposed by Section 9.2.204 shall apply only to subdivision maps filed 30 days or more after this Ordinance has become effective.

b.    In accordance with Government Code Section 66477(a)(3), the land, fees, or combination thereof are to be used only for the purpose of developing new or rehabilitating existing neighborhood or community parks or recreational facilities, including open space, to serve the subdivision.

c.    In accordance with Government Code Section 66477(a)(5), the amount and location of land to be dedicated or the fees to be paid shall bear a reasonable relationship to the use of the park and recreational facilities by the future inhabitants of the subdivision.

d.    In accordance with Government Code section 66477(a)(6), the City shall develop a schedule specifying how, when, and where it will use the land, fees, or both, to develop park or recreational facilities to serve the residents of the subdivision in a manner consistent with the limitations of this Ordinance and the Subdivision Map Act (Government Code Section 66410 et seq.). Any fees collected under this Ordinance shall be committed within five (5) years after the payment of the fees or the issuance of building permits on one-half (1/2) of the lots created by the subdivision, whichever occurs later. If the fees are not committed, they, without any deductions, shall be distributed and paid to the then record owners of the subdivision in the same proportion that the size of their lot bears to the total area of all lots within the subdivision.

e.    In accordance with Government Code Section 66477(a)(4), park and recreational facilities shall be in accord with principles and standards of the Parks and Recreation element of the Oakley 2020 General Plan ("General Plan") and the Oakley Parks and Recreation Master Plan 2020 ("Parks Master Plan").

f.    In accordance with Government Code Section 66477(a)(7), only the payment of fees may be required in subdivisions containing fifty (50) parcels or less; except that dedication or reservation of land may be required of condominium projects, stock cooperatives, or community apartment projects, as defined in Civil Code Section 1351, that exceed 50 dwelling units, notwithstanding that the number of parcels in such subdivisions may be less than 50.

g.    In accordance with Government Code Section 66477(a)(8), the requirements imposed by Section 9.2.204, shall not apply to subdivisions containing less than 5 parcels; however, a condition may be placed on the approval of the parcel map for such subdivisions that if a building permit is requested for construction of a residential structure or structures on one or more of the parcels within four years, the fee described in Section 9.2.210, may be required to be paid by the owner of each parcel as a condition of the issuance of the building permit.

h.    In accordance with Government Code Section 66477(d), the provisions of this Ordinance do not apply to condominium projects or stock cooperatives that consist of the subdivision of airspace in an existing apartment building that is more than five (5) years old when no new dwelling units are added.

9.2.208 Amount of Land to be Dedicated.

It is found and determined in accordance with Government Code Section 666477(a)(2), the Parks Master Plan, and the Park Land Dedication Fee Analysis report prepared by Sinclair and Associates dated March 30, 2003 and adopted by the City ("Report"), that the amount of existing neighborhood and community park land and open space within the City, as calculated pursuant to Government Code Section 66477(a)(2), equals or exceeds 7.02 acres of park land for each 1,000 persons residing within the City. It is also found and determined that the public interest, convenience, health, safety and welfare require that five acres of land for each 1,000 persons residing in a subdivision within the City subject to this Ordinance be devoted to local park and recreational purposes. In accordance with Government Code Section 66477(a)(5), the amount of land to be dedicated, or fees to be paid shall bear a reasonable relationship to the use of the park and recreation facilities by the future inhabitants of the subdivision. In accordance with Government Code Section 66477(a)(2), the amount of land to be dedicated shall be calculated according to the following formula:

LAND = A x B

a.    "A" means the park and recreation area required per dwelling unit, based on the type of dwelling units of the proposed subdivision and the park area per 1,000 City residents.

1)    The park area of the City is determined to be 5 acres per 1,000 people, or .005 acres per person.

2)    The park and recreation area required per dwelling unit is established as follows:

(a)    Single family development. For dwelling units to be constructed on property designated in the City’s adopted General Plan for 5.5 and fewer units per acre, each unit is assigned 3.26 people.

Therefore, A = 3.26 x .005 = 0.0163 acres per unit (for community and neighborhood parks and open space).

(b)    Multi-Family development. For dwelling units to be constructed on property designated in the City’s adopted General Plan for more than 5.5 units per acre, each unit is assigned 2.13 people.

Therefore, A = 2.13 x .005 = 0.01065 acres per unit (for community and neighborhood parks and open space).

b.    "B" means the number of dwelling units in the proposed subdivision. For the purpose of this section, the number of dwelling units in the proposed subdivision shall be determined as follows:

1)    In areas zoned for one (1) dwelling unit per lot or parcel, the number of dwelling units shall equal the number of parcels indicated on the final map.

2)    When the subdivision is located in an area zoned for multiple dwelling units per parcel, the number of dwelling units shall equal the maximum number of dwelling units allowed under that zone.

3)    For residential condominium projects, the number of dwelling units shall equal the number of condominium units indicated on the final map.

4)    For planned development projects, the number of dwelling units shall equal the number of dwelling units indicated on the approved planned development plan.

9.2.210 Calculation of In –Lieu Fees.

If fees are required by the City to be paid in lieu of land dedication, such fees shall be equal to the applicable Park Land Acquisition element of the Park Impact Fee for development subject to the Quimby Act, as set forth by resolution duly adopted by the City as from time to time amended.

9.2.212 Credits.

a.    In accordance with Government Code Section 66477(a)(9), if a subdivider provides park and recreational improvements to the dedicated land, as authorized by the City, the value of the park and recreational improvements, together with any equipment located thereon, as approved by the City, shall be a credit against the payment of fees or dedication of land otherwise required by this article. To be authorized and approved by the City, park and recreational improvements and equipment provided by subdividers pursuant to this section shall be generally consistent, as determined by the City, with applicable principles and standards for local and neighborhood parks contained in the park and open space element of the General Plan and the Parks Master Plan. Such applicable principles and standards shall include, but not be limited to, relevant portions of the Parks Master Plan establishing standards for neighborhood and community parks and open space.

b.    In accordance with Government Code Section 66477(e), common interest developments such as community apartments, condominiums, and stock cooperatives, as defined in Section 1351 of the Civil Code, shall be eligible to receive a credit not to exceed 25%, as determined by the City, against the land required to be dedicated, or the amount of the fee imposed pursuant to this article, for the value of private open space within the development which is usable for active recreational uses. For the purposes of this section, private open space usable for active recreational uses means private open space that is:

1)    At least 3/4 (three-quarters) of an acre in area with the smallest dimension being at least 100 feet clear excluding yards and setbacks normally required by zoning provisions; owned and maintained by a homeowners’ association, available to all residents of the subdivision without restriction, and designated for park and recreational purposes by recorded covenants which run with the land and cannot be defeated or eliminated without consent of the City Council; suitable for active park and recreation purposes taking into consideration such factors as shape, topography, access, and improvements proposed; and generally consistent as determined by the City with applicable principles and standards for local and neighborhood parks contained in the park and open space element of the City’s adopted General Plan and the Master Plan. Such principles and standards that apply to private open space within common interest developments subject to this section 6 include, but are not limited to, those contained in the Master Plan concerning private and special recreation facilities.

9.2.214 Procedures.

a.    Prior to approval of a subdivision subject to this article, the Planning Commission shall consider the report and recommendation from City staff regarding the following:

1)    The amount of land required; or

2)    That a fee be charged in lieu of land; or

3)    That a combination of land and fee be required; and

4)    The location of the park land and, where appropriate, the siting and conceptual design of the park facilities appurtenant thereto, to be dedicated or used in lieu of fees.

b.    At the time of approval of a subdivision subject to this article, the Planning Commission shall determine whether land, in-lieu fees, or a combination of land and fees shall be dedicated and/or paid by the subdivider based, among other factors considered by the Planning Commission, on the criteria contained in the Parks Master Plan.

c.    The Planning Commission may approve, modify or disapprove the recommendations of City staff; provided, however, that any modification of the recommendation not previously considered shall first be referred back to City staff for further report and recommendation. City staff shall report back to the Planning Commission within thirty (30) days. After the receipt and consideration of the report, or after thirty (30) days have passed in the event no report is received, the Planning Commission may take action on the modification.

9.2.216 Off-Site Dedication.

Dedication of land outside of the subdivision may be authorized by the City, in consultation with the Planning Commission, by action on the tentative map and be credited toward the developer’s park land dedication requirement pursuant to this article.

Article 3    TRAFFIC IMPACT FEE

9.2.302 Purpose.

In order to implement the goals and objectives of the general plan currently applicable to the City, and to mitigate the impacts caused by future development in the City, certain transportation facilities must be constructed. The City Council has determined that a transportation impact fee is needed in order to finance these transportation facilities and to pay for each development’s fair share of the construction and acquisition costs of these improvements. In establishing the transportation impact fee described in the following sections, the City Council has found the fee to be consistent with the general plan currently applicable to the City, and pursuant to Government Code Section 65913.2, has considered the effects of the fee with respect to the City’s housing needs as established in the housing element of the general plan currently applicable to the City."

9.2.304 Traffic Impact Fee Established.

a.    A traffic impact fee is established to pay for transportation facilities;

b.    Pursuant to Government Code Section 66001, the City Council shall, in a Council resolution adopted after a duly noticed public hearing, set forth the amount of the traffic impact fee, describe the benefit and impact area on which the traffic impact fee is imposed, list the public facilities to be financed, describe the estimated cost of these facilities, describe the reasonable relationship between the use of the traffic impact fee and the need for the public facilities and the types of future development projects on which the traffic impact fee is imposed, and set forth time for payment.

9.2.306 Use of Fee Revenues.

The revenues raised by payment of the traffic impact fee shall be accounted for in the City’s capital project fund. Separate and special accounts within the fund shall be used to account for revenues, along with any interest earnings on such account. These monies shall be used for the following purposes:

a.    To pay for design, engineering, acquisition, acquisition of property interests for, including, without limitation, right of way acquisition for, and construction of the public facilities designated in the City Council resolution and reasonable costs of outside consultant studies related thereto;

b.    To reimburse the City for designated public facilities constructed by the City with funds (other than gifts or grants) from other sources together with accrued interest;

c.    To reimburse developers who have designed and constructed such designated public facilities; and/or

d.    To pay for and/or reimburse costs of program development and ongoing administration of the traffic impact fee program.

9.2.308 Developer Construction of Facilities.

If a developer is required, as a condition of approval of a permit, to construct a public facility that has been designated to be financed with traffic impact fees, a credit against the fee otherwise levied by this article on the development project in an amount not to exceed the cost of such public facility as estimated by the City in adopting the fee shall be offered by the City and, if the fee is less than such amount, the developer shall be entitled to reimbursement. The reimbursement amount shall be from fee revenues only.

9.2.310 Administrative Guidelines.

The City Council may, by resolution, adopt administrative guidelines to provide procedures for the calculation, credit, reimbursement, or deferred payment and other administrative aspects of the traffic impact fee.

Article 4    PUBLIC FACILITIES FEE

9.2.402 Purpose.

In order to implement the goals and objectives of the general plan currently applicable to the City, and to mitigate the impacts caused by future development in the City, certain public facilities must be constructed. The City Council has determined that a public facilities impact fee is needed in order to finance these public facilities and to pay for each development’s fair share of the construction and acquisition costs of these improvements. In establishing the public facilities impact fee described in the following sections, the City Council has found the fee to be consistent with the general plan currently applicable to the City, and pursuant to Government Code Section 65913.2, has considered the effects of the fee with respect to the City’s housing needs as established in the housing element of the General Plan.

9.2.404 Public Facilities Impact Fee Established.

a.    A public facilities impact fee is established to pay for City-owned public facilities.

b.    Pursuant to Government Code Section 66001, the City Council shall, in a Council resolution adopted after a duly noticed public hearing, set forth the amount of the public facilities impact fee, describe the benefit and impact area on which the public facilities impact fee is imposed, list the public facilities to be financed, describe the estimated cost of these facilities, describe the reasonable relationship between the use of the public facilities impact fee and the need for the public facilities and the types of future development projects on which the public facilities impact fee is imposed, and set forth time for payment.

9.2.406 Use of Fee Revenues.

The revenues raised by payment of the public facilities impact fee shall be accounted for in the City’s capital project fund. Separate and special accounts within the fund shall be used to account for revenues, along with any interest earnings on such account. These monies shall be used for the following purposes:

a.    To pay for design, engineering, right-of-way acquisition and construction of the public facilities designated in the City Council resolution and reasonable costs of outside consultant studies related thereto;

b.    To reimburse the City for designated public facilities constructed by the City with funds (other than gifts or grants) from other sources together with accrued interest;

c.    To reimburse developers who have designed and constructed such designated public facilities; and/or

d.    To pay for and/or reimburse costs of program development and ongoing administration of the public facilities impact fee program.

9.2.408 Developer Construction of Facilities.

If a developer is required, as a condition of approval of a permit, to construct a public facility that has been designated to be financed with public facilities impact fees, a credit against the fee otherwise levied by this chapter on the development project in an amount not to exceed the cost of such public facility as estimated by the City in adopting the fee shall be offered by the City and, if the fee is less than such amount, the developer shall be entitled to reimbursement. The reimbursement amount shall be from fee revenues only.

9.2.410 Administrative Guidelines.

The City Council may, by resolution, adopt administrative guidelines to provide procedures for the calculation, credit, reimbursement, or deferred payment and other administrative aspects of the public facilities impact fee.

Article 5    FIRE FACILITIES IMPACT FEE

9.2.502 Purpose.

To implement the goals and objectives of the general plan currently applicable to the City and to mitigate the impacts caused by future development in the City, certain fire-fighting facilities must be constructed. The City Council has determined that a fire impact fee is needed to finance those fire-fighting facilities and to pay for each development’s fair share of the construction and acquisition costs of those improvements. In establishing the fire impact fee described in the following sections, the City Council has found the fee to be consistent with the general plan currently applicable to the City, and pursuant to Government Code Section 65913.2, has considered the effects of the fee with respect to the City’s housing needs as established in the housing element of the current general plan.

9.2.504 Fire Impact Fee Established.

a.    A fire impact fee is established to pay for fire-fighting facilities.

b.    Pursuant to Government Code Section 66001, the City Council shall, in a Council resolution adopted after a duly noticed public hearing, set forth the amount of the fire impact fee, describe the benefit and impact area on which the fire impact fee is imposed, list the public facilities to be financed, describe the estimated cost of those facilities, describe the reasonable relationship between the use of the fire impact fee and the need for the public facilities and the types of future development projects on which the fire impact fee is imposed, and set forth time for payment.

9.2.506 Use of Fee Revenues.

The revenues raised by payment of the fire impact fee shall be accounted for in a capital project fund. Separate and special accounts within the fund shall be used to account for revenues, along with any interest earnings on such account. These monies shall be used for the following purposes:

a.    To pay for design; engineering; acquisition; acquisition of property interests for, including, without limitation, right of way acquisition for and construction of the public facilities designated in the City Council resolution; and reasonable costs of outside consultant studies related thereto;

b.    To reimburse the City or applicable fire district providing fire services within the City for designated public facilities constructed by the City and/or fire district with funds (other than gifts or grants) from other sources together with accrued interest;

c.    To pay for and/or reimburse costs of program development and ongoing administration of the impact fee program.

9.2.508 Administrative Guidelines.

The City Council may, by resolution, adopt administrative guidelines to provide procedures for the calculation, deferred payment and other administrative aspects of the fire impact fee.

Article 6    Rescinded and Repealed

(Sec.1, Ordinance No. 11-09, adopted April 14, 2009)

Article 7    HABITAT CONSERVATION PLAN/NATURAL COMMUNITY CONSERVATION PLAN IMPLEMENTING PROGRAM

(Sec. 2, Ordinance No. 19-07, adopted November 13, 2007)

9.2.702 Purpose.

The purpose of this article is to establish a comprehensive framework to protect and conserve species, wetlands, natural communities and ecosystems in East Contra Costa County, while improving and streamlining the environmental permitting process for impacts of future development on rare, threatened and endangered species.

This Article provides for the adoption of fees to be used for the acquisition of land to conserve habitat for rare species in mitigation of the impacts of development in eastern Contra Costa County and procedures to support implementation of the East Contra Costa County Habitat Conservation Plan / Natural Community Conservation Plan.

(Sec. 2, Ordinance No. 19-07, adopted November 13, 2007)

9.2.704 Authority.

This article is enacted pursuant to the Mitigation Fee Act (Gov. Code, § 66000 et seq.) and Article 11, section 7 of the California Constitution.

(Sec. 2, Ordinance No. 19-07, adopted November 13, 2007)

9.2.706 Definitions.

a.    General. Unless otherwise specifically provided, the following definitions shall govern the interpretation of this article:

b.    "Affected Development Project" means the development projects to which this article applies, as set forth in Section 9.2.708.

c.    "Covered Species" means those species of plants and animals whose conservation and management are provided for by the HCP/NCCP for which limited take is authorized pursuant to the State and Federal permits.

d.    "Development Fee" means the fees described in Chapter 9.3.1 of the HCP/NCCP and imposed on Development Projects pursuant to Section 9.2.712(b) of this Code.

e.    "Development Fee Zones" means the three areas depicted as Zones I, II and III on the map attached hereto as Exhibit A and the detailed map data used to create Exhibit A. The Development Fee imposed on a Development Project is determined based on the Development Fee Zone in which the project is located.

f.    "Development Project" means any project undertaken for the purpose of development, including a project involving the issuance of a permit for construction or reconstruction, but not a permit to operate.

g.    "HCP/NCCP" means the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan, approved by the City of Oakley on January 22, 2007, as may be revised from time to time.

h.    "HCP/NCCP Implementing Fees" means the Development Fee and the Wetland Mitigation Fee.

i.    "Implementing Agreement" means the January 22, 2007 Implementing Agreement for the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan by and between East Contra Costa County Habitat Conservancy, County of Contra Costa, City of Pittsburg, City of Clayton, City of Oakley, City of Brentwood, Contra Costa County Flood Control and Water

Conservation District, East Bay Regional Park District, United States Fish and Wildlife Service, and California Department of Fish and Game.

j.    "Implementing Entity" means the East Contra Costa County Habitat Conservancy, a joint exercise of powers agency formed by the County and the cities of Brentwood, Clayton, Oakley and Pittsburg to oversee the implementation of the HCP/NCCP.

k.    "Jurisdictional Wetlands and Waters" means State and federally regulated wetlands and other water bodies that cannot be filled or altered without permits from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. § 1251 et seq.), from the State Water Resources Control Board under either section 401 of the Clean Water Act or the Porter-Cologne Water Quality Act (California Water Code, § 13000 et seq.), or from the California Department of Fish and Game under section 1602 of the California Fish and Game Code, as further explained in Chapter 1.3.5 of the HCP/NCCP.

l.    "Project applicant" means a property owner, or duly designated agent of the property owner, who has submitted to the City a request for approval of a Development Project on the property.

m.    "Public facilities" includes public improvements, public services and community amenities.

n.    "State and federal permits" means the permit issued by the California Department of Fish and Game to the City and other local agencies on August 6, 2007 authorizing take of covered species pursuant to the HCP/NCCP and the Natural Community Conservation Planning Act (permit number 2835-2007-01-03) and the permit issued by the United States Fish and Wildlife Service to the City and other local agencies on July 25, 2007 authorizing incidental take of covered species pursuant to the HCP/NCCP and the federal Endangered Species Act (permit number TE160958-0), as those documents may be amended from time to time.

o.    "Take" has the same meaning provided by the federal Endangered Species Act of 1973, as amended (16 U.S.C. § 1531 et seq.) ("FESA") and its implementing regulations with regard to activities subject to that Act, and also has the same meaning provided in the California Fish and Game Code with regard to activities subject to the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) and the Natural Community Conservation Planning Act (Fish & Game Code, § 2800 et seq.). Specifically, take is defined in FESA to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" (16 U.S.C. § 1532(18)) and in Fish and Game Code section 86 as "to hunt, pursue, catch, capture, or kill or attempt to hunt, pursue, capture, or kill."

p.    "Urban Development Area" means the areas designated for urban development that are either (1) within the area designated as the "Initial Urban Development Area" as generally depicted on Figure 2.3 of the HCP/NCCP, incorporated herein by reference, or (2) areas added to or removed from the Initial Urban Development

Area according to the procedures set forth in Section 3.50 of the Implementing Agreement.

q.    "Wetland Mitigation Fee" means the fee described in Chapter 9.3.1 of the HCP/NCCP and imposed on development projects pursuant to Section 9.2.712(c) of this Code.

(Sec. 2, Ordinance No. 19-07, adopted November 13, 2007)

9.2.708 Applicability.

a.    General. This article shall apply to all development projects in within the City of Oakley that are within the Urban Development Area except for the following:

1)    Any development project that will permanently disturb less than one acre. The "acreage of land permanently disturbed" by a project, as that term is defined in Chapter 9.3.1 of the HCP/NCCP, shall be determined by the Community Development Director.

2)    Any development project that the Community Development Director determines is contained entirely within an area mapped as urban, turf, landfill and/or aqueduct land cover types in the HCP/NCCP, as generally depicted on Exhibit B and in the map data used to create Exhibit B, both of which are incorporated here by reference.

3)    Any development project of a type not covered by the HCP/NCCP within the Urban Development Area, as set forth in Chapter 2.3.1 of the HCP/NCCP.

4)    Development projects with vested rights pursuant to a written agreement by and between the project applicant and the City or applicable state law.

5)    Development projects exempt under any provision of law.

6)    Development projects where the City determines based on written evidence submitted by the project applicant that application of the ordinance would deprive the project applicant of all reasonable economic use of the property in violation of federal or state constitutional prohibitions against the taking of property without just compensation.

b.    The development projects to which this Article applies, as set forth above, may hereafter be referred to as the "Affected Development Projects."

(Sec. 2, Ordinance No. 19-07, adopted November 13, 2007)

9.2.710 Purpose of Fees/Use of Revenue.

a.    The purpose of the Development Fee is to mitigate for impacts to open space, habitat and species covered by the HCP/NCCP. The Development Fee revenues will be used to fund the acquisition of land that does or could provide habitat for covered species, the management and enhancement such land and habitat and the administrative actions necessary to accomplish these tasks, as more particularly set forth in the HCP/NCCP, incorporated herein by reference.

b.    The purpose of the Wetland Mitigation Fee is to mitigate for impacts to Jurisdictional Wetlands and Waters, riparian woodland/scrub or stream buffers. The Wetland Mitigation Fee revenues will be used to fund the restoration, creation and management of Jurisdictional Wetlands and Waters and riparian woodland/scrub and the administrative actions necessary to perform these tasks, as more particularly set forth in the HCP/NCCP.

(Sec. 2, Ordinance No. 19-07, adopted November 13, 2007)

9.2.712 HCP/NCCP Implementing Fees.

a.    General. HCP/NCCP Implementing fees are hereby adopted to fund the public facilities identified in Section 9.2.710, as follows:

b.    Development Fee

1.    Except as otherwise provided in Sections 9.2.712 (e) and (g), a Development Fee shall be imposed upon and collected from any and all Affected Development Projects for each acre of land, or portion thereof, permanently disturbed.

2.    The Community Development Director, or her designee, shall determine in which of the three Development Fee Zones the Affected Development Project is located, pursuant to Exhibit A of the corresponding Fee Resolution adopted by the City Council and the map data used to create Exhibit A.

3.    The Development Fee for each Affected Development Project shall be calculated by multiplying the fee for the applicable Development Fee Zone by the acreage of land permanently disturbed by the Project, as determined by the Community Development Director or his or her designee pursuant to Chapter 9.3.1 of the HCP/NCCP. The Development Fee amount shall be based on the fee as established from time to time by resolution of the City Council ("Fee Resolution").

4.    Upon or before the issuance of a grading permit or, if no grading permit is issued, upon or before issuance of a building permit, the project applicant shall either (1) pay the entire Development Fee or, (2) with the prior written approval of the City, pay at least 67 percent of the Development Fee and execute an agreement with the City, in a form approved by the City Attorney, to provide additional funding payments through assessments on the subject parcels or other mechanisms, provided that assessments or other funding mechanisms are legally authorized for this purpose, pursuant to the requirements of Chapter 9.3.1 of the HCP/NCCP.

5.    The Development Fee amount applicable to an Affected Development Project shall be the Development Fee amount in effect at the time a grading permit is issued or, if no grading permit is issued, at the time the first building permit is issued for the project. Notwithstanding the foregoing, a project applicant may request to pay the Development Fee in a calendar year prior to the calendar year in which the grading permit or first building permit is issued. Such request may be granted by the Community Development Director or his or her designee only in accordance with Section 13.2.2.1 of the Implementing Agreement and Chapter 9.3.1 of the HCP/NCCP. If such request is granted, the applicable Development Fee shall be the Development Fee in effect during the calendar year in which the fee is to be paid, including any adjustments made pursuant to Section 9.2.714(b) of this Code.

c.    Wetland Mitigation Fee

1)    Except as otherwise provided in Sections 9.2.712 (f) and (g), in addition to a Development Fee, a Wetland Mitigation Fee shall be imposed upon and collected from any and all Affected Development Projects that will fill, dredge, or remove Jurisdictional Wetlands and Waters or riparian woodland or scrub, and from any and all Affected Development Projects that have been granted an exception to the stream setback established pursuant to Conservation Measure 1.7 of the HCP/NCCP.

2)    The Wetland Mitigation Fees applicable to Affected Development Projects that will fill, dredge, or remove Jurisdictional Wetlands and Waters or riparian woodland or scrub varies by the land cover type impacted by those projects. The Community Development Director, or his or her designee, shall determine which of the land cover types will be impacted by an Affected Development Project and the corresponding fee amounts in accordance in accordance with Chapter 9.3.1 of the HCP/NCCP and the Wetland Mitigation Fee established by the Fee Resolution. The Wetland Mitigation Fee applicable to an Affected Development Project that has been granted an exception to the stream setback shall be determined by the Community Development Director, or his or her designee, based on the acreage of setback encroachment, in accordance with Chapter 9.3.1 of the HCP/NCCP and the Wetland Mitigation Fee amount established by the Fee Resolution.

3)    Upon or before the issuance of a grading permit or, if no grading permit is issued, upon or before issuance of a building permit, the project applicant shall pay the Wetland Mitigation Fee determined for the Affected Development Project.

4)    The Wetland Mitigation Fee amount applicable to an Affected Development Project shall be the Wetland Mitigation Fee amount in effect at the time a grading permit is issued or, if no grading permit is issued, at the time the first building permit is issued for the project. Notwithstanding the foregoing, a project applicant may request to pay the Wetland Mitigation Fee in a calendar year prior to the calendar year in which the grading permit or first building permit is issued. Such request may be granted by the Community Development Director or his or her designee only in accordance with Section 13.2.2.1 of the Implementing Agreement and Chapter 9.3.1 of the HCP/NCCP. If such request is granted, the applicable Wetland Mitigation Fee shall be the Wetland Mitigation Fee in effect during the calendar year in which the fee is to be paid, including any adjustments made pursuant to Section 9.2.714 (c) of this Code.

d.    Condition of Approval. Compliance with this Article, including but not limited the payment of fees specified herein, as applicable, shall be a condition of approval of all Affected Development Projects.

e.    Dedications.

1)    On a case-by-case basis, and upon a voluntary offer by the project applicant, the City may accept a dedication of land in lieu of some or all of the Development Fee that would otherwise be imposed upon a development project. Any offer of dedication may be considered for acceptance only if the land dedication is considered by the Community Development Director, or his or her designee, to be consistent with the HCP/NCCP and Implementing Agreement. The Community Development Director, or his or her designee, shall determine the amount of the Development Fee for which such dedication would substitute in accordance with Section 13.2.2.2 of the Implementing Agreement (Exhibit F) and Chapters 8.6.7 and 9.3.1 of the HCP/NCCP.

2)    If required to comply with the Stay Ahead provision set forth at Section 8.6.1 of the HCP/NCCP and Section 9.2 of the Implementing Agreement (Exhibit F), the City may require that some or all Affected Development Projects offer a dedication of land in lieu of some or all of the development Fee that would otherwise be imposed.

f.    Creation/Restoration of Habitat. On a case-by-case basis, and upon a voluntary offer by the project applicant, the City may accept the restoration or creation of Jurisdictional Wetlands and Waters or riparian woodland/scrub in lieu of some or all of the Wetland Mitigation Fee that would otherwise be imposed on an Affected Development Project. The offer of restoration or creation of Jurisdictional Wetlands and Waters or riparian woodland/scrub in lieu of some all or a portion of the Wetland Mitigation Fee may be considered for acceptance only if such restoration or creation is determined by the Community Development Director, or his or her designee, to be consistent with the HCP/NCCP and Implementing Agreement. The Community Development Director, or his or her designee, shall determine the amount of the Wetland Mitigation Fee for which such restoration or creation would substitute in accordance with Conservation Measures 2.1 and 2.2 and chapter 9.3.1 of the HCP/NCCP.

g.    Separate Take Authorization. On a case-by-case basis, a project applicant that possesses separate and final approval from the United States Fish and Wildlife Service and/or California Department of Fish and Game for incidental take of all federally or state listed species that may be adversely affected by the development project may apply to the City to pay a fee, the amount to be negotiated by the project applicant with the City, to support the conservation of habitat and open space under the HCP/NCCP in lieu of the HCP/NCCP Implementing fees. If the Community Development Director or his or her designee determines that the mitigation and conservation requirements under the separate approval are equivalent to or exceed what would be required under this Article, the City may determine that no further fees are required for purposes of complying with the HCP/NCCP, in which case the HCP/NCCP Implementing fees described herein shall not be required of the project. Pursuant to Section 9.8 of the Implementing Agreement, the development projects covered by the East Cypress MOU will not be subject to this ordinance if such development projects receive independent take authorizations under FESA and the California Endangered Species Act.

h.    All HCP/NCCP implementing fees collected shall be transmitted to the County Auditor-Controller and dispersed to the HCP/NCCP Conservancy at least quarterly in accordance with this Chapter and the California Mitigation Fee Act.

(Sec. 2, Ordinance No. 19-07, adopted November 13, 2007)

9.2.714 Adjustments to Fees.

The Development Fee and Wetland Mitigation Fee shall on March 15 of each year be automatically adjusted automatically for inflation or deflation in accordance with the requirements of the HCP/NCCP and the Fee Resolution.

(Sec. 2, Ordinance No. 19-07, adopted November 13, 2007)

9.2.716 Take Authorization Application and Review Procedures.

a.    The City shall require project applicants for any and all Affected Development Projects to submit an application for take authorization to the Community Development Director or his or her at the same time as the request for approval of the project is submitted to the City. The Community Development Director or his or her designee may require that the application be submitted on one or more standard application forms. At a minimum, the application for take authorization must include the following information:

1)    Description of the Affected Development Project, including detailed information on the project footprint, extent of construction and extent of any ongoing maintenance activities subject to the HCP/NCCP.

2)    One or more reports documenting the methods and results of planning surveys and the methods of applicable preconstruction surveys and construction monitoring, in accordance with Chapter 6 of the HCP/NCCP. The Community Development Director or his or her designee may allow specific components of the required surveys, including some or all of the results of planning surveys and the methods of applicable preconstruction surveys and construction monitoring, to be provided subsequent to the submittal of the initial application and prior to approval of the development project; however, the application for take authorization is not complete until all items in this Section 9.2.716 are submitted.

3)    Evidence of compliance or planned compliance with avoidance and minimization measures, in accordance with Chapter 6 of the HCP/NCCP.

4)    Quantification of the anticipated acreage of land permanently disturbed, consistent with Chapters 6.2 and 9.3.1 of the HCP/NCCP.

5)    Estimate of HCP/NCCP Implementing fees due and/or documentation of proposed land dedication and/or proposed habitat restoration or creation, consistent with Section 9.2.712.

6)    Other information as directed by the Community Development Director or his or her designee in accordance with the HCP/NCCP.

b.    The City may grant take authorization to a project applicant only upon satisfaction of all of the following conditions:

1)    The application for take authorization is deemed complete.

2)    The project applicant has been required to comply with all terms and conditions of the Implementing Agreement, the HCP/NCCP, and the state and federal permits that apply to the Development Project. Such terms and conditions include but are not limited to the following:

i.    Payment of the required HCP/NCCP Implementing fees and/or approval an offer of land dedication and/or habitat restoration or creation by the City, pursuant to the requirements of Section 9.2.712 of this article.

ii.    Compliance with all relevant surveys, monitoring, avoidance, minimization, and conservation measures determined by the Community Development Director or his or her designee to apply to the Development Project, pursuant to Chapter 6 of the HCP/NCCP.

c.    The City makes a determination that extension of take authorization is consistent with the HCP/NCCP, Implementing Agreement, the state and federal permits and all applicable federal, state and local laws and regulations.

(Sec. 2, Ordinance No. 19-07, adopted November 13, 2007)

9.2.718 Enforcement.

a.    The City Attorney shall be authorized to enforce the provisions of this article by civil action and any other proceeding or method permitted by law.

b.    Failure of any official or agency to fulfill the requirements of this article shall not excuse any person from compliance with the requirements of this article."

(Sec. 2, Ordinance No. 16-08, adopted November 25, 2008)