Chapter 11.01
DEVELOPMENT IMPACT FEES
Sections:
11.01.020 Development impact fees.
11.01.030 Development impact funds.
11.01.040 Payment of fees – Pending applications.
11.01.060 Calculation of fees.
11.01.070 Credit and reimbursement for contingent reimbursement or for construction of facilities.
11.01.090 Findings regarding use of fees.
11.01.110 Fee adjustment or waiver.
11.01.010 Definitions.
A. The following definitions shall generally apply and be utilized to establish the appropriate land use category in determining a development impact fee. Studies for individual fees may establish specific definitions necessitated by the different aspects of the various fees adopted by the city. Specific definitions and standards contained in a fee study shall supersede and control over these general definitions.
1. “Church” means a building designed for and utilized for religious worship and related accessory functions.
2. “Commercial” means a building which is designed to permit exclusive retail, wholesale or commercial service uses, a combination of commercial uses in conjunction with office uses or any other use which is permitted within the commercial general zoning district that does not fall within the definition of any other land use category defined in this section.
3. “Dwelling unit” means a dwelling unit as defined in the Uniform Building Code (UBC) as adopted by the city.
4. “Equivalent dwelling unit (EDU)” or “persons served” are terms to describe the units of capacity necessary to provide public services for both residents and employees. In general, nonresidential land uses are equated to residential land uses in terms of the burden that they place on each class of public improvements (e.g., roads, water systems, sewer systems). This equivalence may be expressed in terms of equivalent dwelling units (EDUs) for those services (e.g., sewer services, drainage) where land uses primarily determine the demand for capacity. Demand may be driven by “persons served” for those classes of public improvements (e.g., parks, police protection) where the person being served (whether resident or employee) provides the best measure of demand for capacity. The concept of EDUs and persons served can be used interchangeably, in mathematical terms, if assumptions about density, floor area ratio, number of employees per thousand building square feet, and residents per occupied household) are used appropriately to make the conversion from one set of units to another. The choice of the appropriate set of units to express demand depends on the nature of the service being provided.
5. “Hospital and health care facilities” means a building which is specifically designed or utilized for inpatient or outpatient medical treatment including convalescent or skilled nursing facilities but not including buildings that are primarily utilized for medical offices.
6. “Industrial” means a building which is designed or utilized for exclusive manufacturing or warehousing use or a combination of manufacturing and commercial service or office use as follows:
a. If a building in an industrially-zoned district (ML, MH or IP) is less than fifty thousand square feet in floor area and the applicable zoning district or policy plan permits office or commercial service uses, the building shall be determined to be fifty percent office and fifty percent industrial unless it can be conclusively demonstrated that the occupancy of the building has been contractually limited to industrial uses;
b. If a building in an industrially-zoned district (ML, MH or IP) is greater than fifty thousand square feet in floor area, the building shall be determined to be industrial unless specific non-industrial use(s) has been approved for the building pursuant to the zoning ordinance.
7. “Multiple family unit” means any dwelling unit which is not a single-family unit. A manufactured home in an exclusive mobile home park or subdivision or a detached secondary unit shall be considered a multiple family unit for the purposes of this section.
8. “New development” or “development” means the construction, alteration, addition, occupancy or use of any building, land or structure within the city.
9. “Office” means a building which is specifically designed for exclusive use by office uses, including those primarily utilized for medical offices, wherein the primary function is the provision of professional services as opposed to retail, wholesale, commercial service or industrial uses. The reasonable likelihood of exclusive office uses shall be conclusively demonstrated if the building is located in a zoning district which also allows commercial uses.
10. “Single family unit” means any dwelling unit for which the enclosing walls are a minimum of six feet from the enclosing walls of another dwelling unit.
11. “Site area” means the net acreage devoted to improvements serving the proposed use or building in the case of a single building on a site. In the case of multiple building sites, such as shopping centers, the director of public works, the director of community development, or his/her designee, shall approve an apportionment of the total site area to each building on the site consistent with each building’s percentage of the total square footage of building area on the multiple building site.
12. “Square foot” means every square foot of floor area of a building as defined in the Uniform Building Code (UBC) as adopted by the city. Square foot shall also include outdoor sales areas such as, outdoor seating areas for restaurants, canopy areas for gasoline service stations, plant or gardening areas, and other covered areas utilized as part of a business activity.
B. Interpretation of Definitions. The director of community development or his/her designee shall, upon written request, interpret the provisions of the preceding definitions as they relate to a specific development and shall make other determinations as provided within the preceding definitions. (Ord. 1477 §2(part), 1992).
11.01.020 Development impact fees.
The city imposes upon, or agrees to collect from, new development the following development impact fees:
A. Fees reasonably related to impacts on city provided facilities and public improvements from development:
1. Public Facilities Impact Fee. The purpose of the public facilities impact fee is to provide for police, fire and general city facilities and equipment to serve the needs of, and address the impacts from new residential, industrial, commercial office and other development.
a. The public facilities impact fee has three components. The first component is to provide police protection by providing for the costs associated with a police facilities building and equipment to serve additional demands for police services. Based upon a review of the city’s land use forecasts, the police department has determined that the anticipated residential, commercial, office and other development will adversely impact upon the department’s ability to maintain existing levels of police and safety services. The department has demonstrated the demand for a new facility consisting of a communications center, holding area, parking, storage and office space to provide city-wide service in response to the projected development throughout the city.
b. The second component of the public facilities impact fee is included to provide fire protection and paramedic services by providing for the cost associated with fire stations, fire fighting and paramedic equipment to serve the additional demands for fire services from new development. There is a demand for new fire stations and equipment in response to development identified in the general plan. Evidence indicates that the demand is directly related to the impacts of new development and is necessary to maintain adequate levels of fire protection, suppression and paramedic activities and to provide required response times to the area served and to maintain reasonable insurance rates for the affected property owners.
c. The third component of the public facilities impact fee relates to other governmental services. This portion of the fee will be used for buildings and equipment for all city departments, other than police and fire, and those costs of new development not accounted for through other development impact fees. With an increase in residential, industrial, commercial or other development, the complexity and size of general city services will increase which will be reflected in the demand for additional operation and maintenance activities that will require new and/or expanded facilities and equipment.
2. Traffic Impact Fee. This fee has previously been entitled “major streets and interchanges fee” or “M.S. and I. fee.” The fee shall now be called the “traffic impact fee.” The purpose of this fee is to provide for costs of street widening and reconstruction, traffic signals, transit facilities, bike paths, bridge widenings, and freeway interchange improvements related to new development in accordance with the development forecast under the general plan. The demand for the identified transportation improvements has been based on the development forecast and accepted traffic analysis methodology from the previously referenced documents. As the amount of new development contemplated by the general plan occurs there will be an additional burden on the city-wide surface transportation system. Without funding identified capital improvements there will be an unacceptable level of traffic congestion, delays, accidents and generally reduced public safety throughout the city. Air quality could be adversely affected as has been demonstrated in other studies when idle/ standing times are increased. Based on the development potential of the general plan as analyzed through the development forecast, engineering consultants and the city staff have utilized traffic studies including trip generation and intersection analysis models to indicate the impact of new development in terms of roadway capacities, signalization standards, and interchange requirements to develop the transportation capital improvements projects. The projects were refined to apportion the impacts and resulting share of improvements between various land uses in accordance with prior M.S. and I. fee studies.
3. Water System Impact Fee. The purpose of the water system impact fee is to further and protect the health and safety of the citizens of the city by providing for facilities to ensure a continuing supply of potable water including new water mains and storage reservoirs. Federal, state and city regulations establish minimum standards for potable water required to adequately serve residential and other land uses as well as to provide for fire protection. As the population increases and new development locates or existing development expands in the city, there will be an attendant demand to expand the facilities necessary to provide an adequate supply of potable water for domestic consumption, fire protection, and nondomestic purposes such as industry and commerce.
4. Sewer System Impact Fee. The purpose of the sewer system impact fee is to further and protect the health and safety of the citizens of the city by providing for the construction of sewage and waste water facilities including new sewer drains, treatment plants and aeration ponds. As new development occurs there will be an additional burden placed on the existing sewer and waste water collection, treatment and disposal systems. Federal, state and city health requirements set minimum standards for effluent treatment which result in the demand for new sewer and waste water facilities.
5. Parks and Recreation Facilities Impact Fee. The purpose of the parks and recreation facilities impact fee is to provide a variety of parks, recreation facilities and park improvement projects such as tennis courts, swimming pools, soccer, ball fields and the like. As development and population increases, park and recreation facilities, inadequate to serve the city, could occur which have potential for adversely affecting the general well being of city residents. In order to address this potential and to meet city recreation standards it is appropriate that new development pay for additional park facilities and recreation development attributable to development impacts.
6. Drainage and Stormwater Detention Facilities Impact Fee. The purpose of the drainage and stormwater detention facilities impact fee is to finance the cost of drainage and stormwater detention projects including mains, tributary systems, creek improvements and detention basins. New development increases the amount of impervious surfaces due to more roof area, paved streets, driveways and parking lots. Flooding potential is thereby increased particularly during periods of high intensity and/or sustained rainfall creating an unacceptable hazard to citizen welfare and safety. Drainage and stormwater detention facilities will provide the improvements necessary to maintain adequate drainage, flood protection, and stormwater detention throughout the city by reducing the impacts of new development.
7. a. Open Space and Greenbelt Buffer Impact Fee. The purpose of this fee is to provide partial funding of the costs of preserving agricultural and open space uses in and adjacent to the city in accordance with the general plan and other policies adopted by the city council and to preserve the unity identity by separating developed lands of Vacaville and Fairfield. The fee is intended to be one component in a variety of strategies to attain these goals. Other strategies include, but are not required to be implemented or limited to, maintaining existing land uses in identified open space and greenbelt buffer areas, acquiring lands that are put to public use such as parks, providing for the transfer of development rights, or modifying development standards.
b. The Open Space Component.
B. Fees related to development impacts on public facilities and public improvements provided specifically by other agencies and, in turn, provided to the citizens of the city:
1. School Facilities Mitigation Fee.
C. Fees imposed and adopted by other public agencies for which the city has, by resolution, authorized to be imposed within its municipal boundaries and to collect on behalf of such other agencies. Such fees shall only be those development impact fees which are adopted pursuant to the provisions of Government Code Section 66000 et seq. by public agency which provides services throughout its jurisdiction and which jurisdiction includes the city of Vacaville, and for which such development impact fees are imposed for mitigation of impacts on public facilities and public improvements, and applied on an equitable basis throughout the other public agency’s jurisdiction.
D. The development impact fees and procedure dealt with in this chapter do not include fees or other charges adopted and imposed by the city to reimburse the city for the full cost of staff time and supplies. Such fees and costs are commonly referred to as, or include, plan check fees, inspections, application fees, costs associated with environmental reviews, special studies related to a particular project, and the like. Those fees and charges are adopted and periodically reviewed through other actions of the city council and adopted or updated by resolution of the city council or by application to such existing fees and charges of an annual standardized cost of living adjustment. (Ord. 1477 §§2 (part), 3, 1992).
11.01.030 Development impact funds.
A. The city finance director shall create in the city treasury individual special interest-bearing funds for each development impact fee in effect within the city. All amounts collected under this chapter shall be deposited into each such fund, as so designated for each development impact fee.
B. The fees and interest earned thereon shall be expended solely to pay the costs of facilities and appropriate administrative costs or to reimburse developers entitled to reimbursement under the resolutions and exhibit thereto previously in effect or later adopted in accordance with this chapter, all of which provide for such fees under the provisions of Government Code Section 66000 et seq. The funds for the categories listed above shall be kept separate. For purposes of this chapter, they are referred to in aggregate as the “development impact fee funds.” Money remaining in a fund, if any, when the necessity for such fund no longer exists, shall be apportioned in accordance with the provisions of Government Code Section 66001.
C. The city manager shall have the authority to make loans among the development impact fee funds to assure adequate cash flow for the construction of public improvements on a timely basis so long as such interfund loans do not unreasonably delay the construction of improvements under the lending fund. Interest charged on each loan shall be the same rate then earned on other city funds. (Ord. 1477 §2(part), 1992).
11.01.040 Payment of fees – Pending applications.
A. The property owner of any new development causing impacts to public facilities shall pay the appropriate development impact mitigation fees as provided in this chapter at the time a building permit is issued, unless a different point of payment is established by the resolution adopted for such fees. The amount shall be calculated in accordance with the resolutions adopted for each fee and the program fee per EDU or persons served equivalency as established by said resolution and the exhibits thereto. The director of public works is authorized to make individual adjustments in the fee charged to a development in accordance with the provisions of Section 11.01.110.
B. Payments of fees required by this chapter are required by every new development in the city pursuant to:
1. The police power of the city granted under Article XI, Section 7, of the California Constitution;
2. The provisions of the California Environmental Quality Act, Public Resources Code, Section 21000 et seq., which in general requires that all developments mitigate environmental impacts; and
3. The provisions of the California Government Code regarding general plans at Section 65300 et seq. including but not limited to the provisions of Government Code Section 65400. All fees are calculated and developed under the provisions of Government Code Section 66007 to have a schedule of public improvements and, therefore, building permits shall only be issued upon payment of all their applicable development impact fees unless (1) the payment of the fee is directed to be collected at a different time or (2) the development impact mitigation fees for that property are paid or guaranteed prior to such issuance or security to guarantee the payment is made in accordance with adopted administrative procedures, if any. Fees necessitated due to a change in use not requiring a building permit, shall be paid at the time of approval of an entitlement for such change in land use.
C. Regardless of any fee increase, other than a cost of living adjustment, an applicant may pay those development impact fees in effect when a building permit application is filed, provided that he/she complies with all of the provisions listed in subsections 1 through 6 below:
1. A complete application for a building permit has been filed at least thirty calendar days but not more than one hundred and eighty calendar days prior to the effective date of a fee increase adopted by city council resolution. The building official will have sole discretion in the determination as to whether an application is complete.
2. In order for a building permit application to be accepted for filing, the project must have previously received design review approval by the city, if such approval is required by the zoning ordinance.
3. If, during the plan check process, the city requires the submittal of revised plans, in order to comply with conditions of approval or applicable code provisions, the applicant must submit such revised plans within fifteen working days of receipt of the comments. The director of community development may grant additional time to submit revised plans due to the complexity of the revisions required by the city.
4. Once the city has completed the plan check process following the effective date of a fee increase, the applicant must pay all applicable development impact fees and plan check fees within five working days of receiving written notification. If a plan check is completed prior to the effective date of a fee increase, an applicant must pay, prior to the effective date of the increase or within five working days of completion of the plan check, whichever is greater, all applicable development impact and plan check fees in effect at the time of building permit issuance, however, no written notification is required.
5. Failure of an applicant to comply with all of the above provisions shall result in the requirement that an applicant pay those fees in effect at the time a building permit is issued.
6. The provisions of this subsection C do not apply to any fee increase which is a cost of living adjustment. (Ord. 1477 §2(part), 1992).
11.01.050 Adoption, by resolution, of fee studies, capital improvement programs and the establishment or adjustment of impact fees.
A. From adoption of the ordinance codified in this chapter, the city council shall initially establish any development impact fee by ordinance. The actual fee itself shall be adopted by resolution, which resolution shall provide for the analysis required by the provision of California Government Code Section 66000 et seq., a study for each fee calculation and a future capital improvement program consisting of projects shown in said study for the public facilities necessitated by new development. The city council shall review each fund annually and shall comprehensively review each study (1) in conjunction with or following a comprehensive general plan update; or (2) when the city council determines that growth has occurred at rates significantly above the estimates set forth in the general plan such that additional or different facilities are needed; or (3) when the city council deems it is otherwise necessary or appropriate. The city council may amend any study by resolution, as necessary, at its discretion. Further, the capital improvement program of any fee study will be annually implemented in accordance with the budget approval process of the city and the annual approval of specific capital improvement projects.
B. The city council shall include in the city’s annual capital improvement program appropriations from the development act fee funds for appropriate projects, which are approved as part of the annual budget, fee review and capital improvement program.
C. Except for facilities approved by the public works director for construction by a property owner or as shown in the annual capital improvement program, all facilities shall be constructed in accordance with the schedule established in exhibits to each study as amended from time to time in accordance with the annual review of the various fee programs and, further, as specifically approved annually by the city council as part of its budget, fee review or capital improvement program. Each study will enumerate the circumstances, if any, for deviating from he improvement schedule.
D. The fee per equivalent dwelling unit (EDU) or persons served shall be adopted by resolution and shall be comprehensively updated (1) in conjunction with or following a comprehensive general plan update; or (2) when the city council determines that growth has occurred at rates significantly above the estimates set forth in the general plan such that additional or different fees and facilities are needed; or (3) more frequently if directed by the city council, by resolution after a noticed public hearing. Comprehensive updates shall be based on a report by the public works director including the estimated cost of the public improvements, the continued demand for those improvements, the revenue generated and the reasonable relationship between such demand and the impacts of the various types of development pending or anticipated and for which this fee is charged. In the absence of a comprehensive periodic update, the fee and the project costs shall automatically be annually adjusted by the change, if any, in the Engineering News Record San Francisco Bay Area Construction Cost Index.
E. It is the intent of the city to update the schedule and priority of the traffic impact fee program (1) in conjunction with or following a comprehensive general plan update; or (2) when the city council determines that growth has occurred at rates significantly above the estimates set forth in the general plan such that additional or different traffic provisions are needed or (3) when the city council deems it is otherwise appropriate. At such time, the projected cost of any project or portion thereof that has been installed by the developer as a special mitigation improvement as provided in Division XIII, Chapter 14.180 of the land use and development code, shall be adjusted to reflect the construction cost of the improvements as approved by the director of public works. Changes to the schedule and priority of the traffic impact fee program shall only be made as part of such update process to provide reasonable certainty and consistency as part of the traffic impact fee program.
As part of an update to the traffic impact fee program, the city shall not advance projects ahead of any reimbursement agreement if that reprioritization would have the effect of delaying the reimbursement for that developer. (Ord. 1589 §1, 1998: Ord. 1555 §6, 1996; Ord. 1477 §2(part), 1992).
11.01.060 Calculation of fees.
A. The development impact initiation fees required hereunder, are initially set and calculated in accordance with the provisions of a study and exhibits thereto, adopted by resolution of the city council. Each fee shall be periodically adjusted by the resolutions, the study thereto, the public improvement evaluations and fee calculations appended as exhibits to the study, and the fee summary to such resolution and study.
B. The development impact fees presently in effect or hereafter established by resolution shall automatically adjust beginning January 1, 1993, and each January 1st thereafter, by application to such fee or fees any change in the Engineering News Record Index San Francisco Bay Area Construction Cost Index during the prior twelve-month period, as calculated for the twelve-month period from on or about the preceding November 1st. (Ord. 1477 §2(part), 1992).
11.01.070 Credit and reimbursement for contingent reimbursement or for construction of facilities.
A. Contingent Reimbursement.
1. Some development impact fees may have two components: a portion not subject to contingent reimbursement and collected as per EDU or persons served throughout the entire planning period of said fee and a portion subject to contingent reimbursement.
2. Contingent reimbursement is necessary due to a significantly higher proportion of project “block” costs for new development as determined necessary for earlier years of the fee program in accordance with the fee studies and exhibits thereto. Assuming that development occurs in general accordance with development forecasts, with actual project costs in accordance with the projected costs in such studies and exhibits, and with project costs unaffected by changes in design or operational standards applicable to infrastructure and facilities projects, then additional costs may not be required to be paid during the entire period and those who develop in early years would be reimbursed, with interest, from future development if, and when, it occurs. Reimbursement is contingent on: future development consistent with the development forecasts within each fee study and exhibits thereto; project costs consistent with estimates contained in these documents; and assuming projects can be constructed in accordance with design and operational standards applicable when fee studies and exhibits were developed. Changes in forecasts and project planning from development, in estimated project costs, or in project design standards may result in the reduction or elimination of the contingent reimbursement for any fee. The comprehensive, five-year review of each fee program as required by this chapter should aid in making adjustments in the infrastructure and facilities construction programs to meet changing development forecasts and project design requirements which will more likely ensure the ability to reimburse earlier development than if periodic reviews were not undertaken.
3. The Finance Director of the City will make annual financial reports relative to the various development impact fee accounts established by this chapter or in accordance with the other provisions of the Vacaville Municipal Code. The amount of both components of said fees (i.e., the base fee and the contingent reimbursement portion) shall be evaluated and adjusted annually by the Finance Director until: (a) all projects set forth in the study and exhibits for each fee have been constructed at their then actual costs, (b) all deficits in development fee accounts have been eliminated, (c) the portion subject to contingent reimbursement balance, along with accumulated interest, has been repaid, and (d) no surplus, or only a nominal surplus, remains in each development fee account. Any contingent reimbursement shall be paid to the person or entity initially paying the development fee or, if transferred, then paid to their specifically designated successor in interest. It shall be the responsibility of said person, entity or successor in interest to keep City informed of their then current address. Should said person, entity or successor in interest not be able to be located at the time of payment, then, following one year of reasonable effort by City to locate such person, entity or designated successor in interest, said payment obligation of City to repay said amount will terminate and said amount shall be utilized for payments of remaining contingent reimbursement to others then remaining unreimbursed or, if the contingent reimbursement repayment program is completed, then any remaining, unpaid amounts shall be paid into other development impact fee funds, in such proportions among said funds as determined appropriate by the City Council. The contingent reimbursement shall be paid, as well as can reasonably be accommodated from an administrative standpoint, on a first-paid first-reimbursed basis to those who have paid such contingent reimbursement, but in no event shall contingent reimbursement be due and payable if more than 20 years has passed from the time of payment of such fee containing such contingent reimbursement payment and when insufficient future development has occurred, in accordance with actual project costs and project design standards, to fund the contingent reimbursement payments.
B. Construction of Facilities in Program Year.
1. The Public Works Director may authorize, or conditions to the approval for a land use entitlement may require, an owner of property to construct certain facilities or portions thereof specified in the development impact fee study, other than local impact expansion projects. Such direction or authorization shall result in a credit in lieu of all, or a portion of, the particular fee required by this chapter to be paid by such owner which relates to the improvement constructed. The owner is entitled to a credit if the owner: (a) constructs the improvements, (b) finances an improvement by cash or other means approved by the council, (c) makes dedications of land in support of the facility, or (d) a combination of the above. The credit to be provided to the property owner shall be determined by the Public Works Director based on the actual costs of improvements plus actual costs for engineering and City administration and shall be approved by the Council. The construction of a facility authorized by this section must consist of a usable facility or segment and be approved by the City and constructed in accordance with the City’s public improvement design standards. The property owner must post a bond or other security in a form acceptable to the Director for the complete performance of the construction before credit is given.
2. If the amount of fee credit is less than the amount of the otherwise applicable fee, the property owner shall thereafter pay an amount which, when added to the credit received for the construction of facilities, equals the fee obligation.
3. If the amount of fee credit is greater than the amount of the otherwise applicable fee, the property owner shall be paid the difference from the appropriate development impact fee fund, after the project is accepted by the City, and at the end of the fiscal year in which the project is planned to be completed under the appropriate fee study, providing funds are available. With specific approval of the council, reimbursement may occur after the year in which the project is planned if, in the opinion of the Public Works Director, the delay is necessary to assure the orderly implementation of the City capital improvement program. Interest equivalent to that earned by an impact fee fund shall be applied to a credit following acceptance of the improvements or as otherwise agreed between the City and an owner of property.
C. Construction of Facilities Prior to Program Year.
1. If the construction described in Section 11.01.070.B occurs before the fiscal year for which construction is scheduled under a fee program, other than local impact expansion projects, the property owner may receive credit against the applicable fee, if approved by the City Manager or his/her designee as part of a master financing program for the property in question. The property owner shall be reimbursed from the appropriate development impact fee fund at the end of the year in which the project is planned under the program year. Reimbursement is available only to the degree funds are available in any given year. If reimbursement cannot be made during one year, the unreimbursed portion will continue in following years until repaid. The reimbursable amount shall be the estimated cost of the facility as determined in Section 11.01.070.B or as otherwise agreed between the City and the owner.
2. To implement Section 11.01.070.C.1, the property owner or developer and the City shall first enter into a reimbursement agreement. In addition to its other terms, the agreement shall provide that:
a. The general fund of the City is not liable for payment of any obligations arising from the agreement;
b. The credit or taxing power of the City is not pledged for the payment of any obligations arising from the agreement;
c. The land owner shall not compel the exercise of the City taxing power or the forfeiture of any of its property to satisfy any obligations arising from the agreement;
d. The obligation arising from the agreement is not a debt of the City, nor a legal or equitable pledge, charge, lien, or encumbrance, upon any of its property, or upon any of its income, receipts or revenues, and is payable only from the fees deposited in the appropriate City development impact fee fund;
e. The reimbursable amount shall be adjusted annually in accordance with the engineering news record index applicable to the fees themselves, or otherwise adjusted by agreement between the parties.
D. Fee Credits Based on Replacement of Existing Structures or Change in Use.
1. General Provisions. The amount of a development impact fee which would otherwise be due and payable in accordance with the provisions of this title, may be reduced by fee credits established by prior, legally established use. The term, transfer and amount of fee credits shall be in accordance with the provisions of this section.
2. Fee Credits for Demolitions. The City shall provide development impact fee credits for new development on the same site as prior demolished structures in accordance with the following provisions:
a. Fee credits will be given for structures demolished on or after January 1, 2009.
b. For structures demolished on or before December 31, 2008, the City will give fee credits if the property owner entered into a fee credit agreement under prior ordinances and those fee credits were available as of December 31, 2018. The intent of this provision is to extend those prior fee credit agreements indefinitely with no further action, but not to revive fee credits that already have expired.
c. The fee credit shall be based on the last legally established use of the structure or the use as established in a fee credit agreement under prior ordinances.
d. The property owner shall obtain a demolition permit for the structure. The demolition permit application shall include the date of demolition, the prior use, the floor area, and other information necessary to determine the amount of fee credits available. If this information is lacking on previously issued demolition permits, the Building Official is authorized to issue a corrected demolition permit based on the property owner supplied correct information. The Building Official also is authorized to issue a demolition permit for a structure destroyed by casualty such as fire, in which case the date of demolition shall be considered the date of the casualty.
e. When only part of available fee credits is used, the remaining credits will remain available for future use on the site.
3. Fee Credits for Change of Use. The City shall provide development impact fee credits where the use of a structure or site is changed in accordance with the following provisions:
a. Fee credits will be given based on legally established uses that were active and terminated on or after January 1, 2004.
b. For uses terminated on or before December 31, 2003, the City will give fee credits if the property owner entered into a fee credit agreement under prior ordinances and those fee credits were available as of December 31, 2018. The intent of this provision is to extend those prior fee credit agreements indefinitely with no further action, but not to revive fee credits that already have expired.
c. For a multi-tenant building, the determination of prior, legally established uses and eligibility of fee credits shall be made separately for each tenant space.
d. For a site containing one or more buildings, the determination of prior, legally established uses and eligibility of fee credits shall be made separately for each building.
e. Fee credits established by a change in use within an existing structure may not be transferred between tenant spaces in the same building or between buildings.
f. For a structure, site, or tenant space that had multiple prior legally established uses that could be the basis for fee credits, the fee credit shall be based on the prior eligible use with the greatest “equivalent dwelling unit” (EDU) count.
4. Revival of Expired Fee Credits. Notwithstanding the above, a property owner may make a written request to the Community Development Director to revive expired fee credits based on demolished structures or a change of use prior to the dates established in subsection D.(2) or (3) of this section. Approval of revival of such fee credits is at the sole discretion of the Community Development Director following consultation with the department head most directly responsible for use of the impact fee credits to be revived. The Director’s decision shall be based on the following criteria:
a. The prior use in fact was connected to and used the existing facilities.
b. The circumstances in relation to the public facilities, public facility plans, and surrounding uses are substantially the same as when the prior use was discontinued.
c. There is adequate system capacity to serve the project, and revival of the fee credits would not affect the ability to provide the impact fee funded improvements.
d. Revival of the fee credits would facilitate an economic development project consistent with the City’s economic development strategy, provision of affordable housing, removal of blight, or other General Plan goals.
5. Transfer of Fee Credits. Notwithstanding the above, a property owner may make a written request to the Community Development Director to transfer fee credits otherwise available to another site, building, or tenant space. The property owners of the original and destination sites shall enter into a written agreement detailing the location, type and amount of fee credits to be transferred. Approval of such a transfer agreement is at the sole discretion of the Community Development Director following consultation with the department head most directly responsible for use of the impact fee credits to be transferred. The decision shall be based on the following criteria:
a. The fee transfer would not affect the ability to provide the impact fee funded improvements.
b. The original site is unlikely to be reused or redeveloped at the same level as the prior use in the future.
c. The transfer would facilitate economic development, housing, or other General Plan goals.
6. Credit shall be given on an EDU basis, not dollar amount of fees previously paid. The amount of the additional fee would be the difference between the current fee for the use in the highest fee category and the current fee for the new use.
7. It shall be the presumption of the City that no fee credits are available until and unless the applicant, at his/her sole responsibility, supplies sufficient, credible evidence regarding prior legal uses of a property, date of demolition, or other pertinent information. In order to use a fee credit in lieu of payment for all or a portion of the development impact fees which would otherwise be due and payable, a property owner must submit, in advance of obtaining the permit, a written request for fee credit and any evidence demonstrating a property is eligible for fee credit in accordance with the provisions of this section. Once development impact fees are paid in conjunction with the issuance of a building permit for a replacement structure or change in use of a structure or property, the City shall not consider a subsequent request for fee credits or refund those development impact fees paid.
8. No fee credit shall be given for a structure or a use established prior to annexation of the property to the City, unless such structures or uses are also in existence or operation subsequent to annexation.
9. Prior to recordation of a parcel map or final map for a parcel which has fee credits, the property owner shall provide a written declaration to the City regarding the manner of allocation of the fee credits among the newly created parcels.
10. When two or more contiguous parcels are subject to a lot line adjustment, parcel map or final map, and one or more of these parcels have fee credits, the property owner has the right to transfer fee credits to the newly created or adjusted parcels. Prior to map recordation, the property owner shall provide a written declaration to the City regarding the manner of allocation of the fee credits among the newly created parcels.
11. The amount of the fee credit shall not exceed the amount of the new fee; each development impact fee and fee credit shall be calculated separately; total fee credits shall not be subtracted from the total sum of development impact fees.
12. A modification to a residential structure which remains in residential use or a replacement of a residential structure with a new residential structure are both exempt from new impact fees unless additional dwelling units are added; there shall be a per dwelling unit charge for each additional dwelling unit.
13. Any fee credit must be approved by the Director of Community Development or designee, following consultation with the department head most directly responsible for use of that impact fee.
14. Notwithstanding the other provisions of this section, no fee credit shall be given for sewer, water or drainage development impact fees unless a property was served by that respective municipal system.
15. The City Council may, by resolution, adopt a fee for administering the transfer of fee credits and the research of City records to determine the amount of fee credits.
16. The calculation of fee credits for specific development impact fees shall be in accordance with the general procedures listed in subsections D.(1) through (15) of this section except as may be modified by the following provisions:
a. A property having an existing municipal water service shall be exempt from payment of additional impact fees for a change in use or replacement of structures if the new use can be adequately served by a water meter whose size is the same or less than the size of the existing meter. If the new use or new structure requires a larger meter than the existing meter, the property owner shall only pay the difference between the current connection fee for the smaller meter and the current connection fee for the larger meter.
b. For a property served by an existing water meter larger than four inches in diameter, the Director of Public Works shall determine the amount of fee credit on a case-by-case basis, for a change in use or replacement of structures. Upon a request by the property owner, this determination shall be made concurrently with consideration of an application for a planning approval, such as design review, conditional use permit or variance.
c. A change in use of a nonresidential building shall be subject to additional traffic impact, general facilities and police impact fees only if:
i. The new use is in a higher fee category than the prior use; and
ii. The change in use involves more than 10,000 square feet of floor area.
d. A change in use or replacement of a structure shall not be subject to additional fire impact fees unless it is in conjunction with an increase in the developed portion of the site; any additional developed site area shall be subject to a per acre charge.
e. A change in use or replacement of a structure shall not be subject to an additional drainage fee unless it is in conjunction with an increase in the developed portion of the site; any additional developed site area shall be subject to a per acre charge.
f. A change in nonresidential use of a building or property which is served by municipal sewer service shall be subject to additional impact fees only if:
i. The new use is in a higher fee category than the prior use; and
ii. A building permit for construction of the structure was issued after June 20, 1960. No new sewer connection fees shall be charged for a change in use of a structure which was constructed pursuant to a building permit issued on or before June 20, 1960.
g. If a property is served by an existing sewer lateral which is larger than eight inches in diameter, the Director of Public Works shall determine the amount of fee credit on a case-by-case basis, for a change in use or replacement of structures. Upon a request by the property owner, this determination shall be made concurrently with consideration of an application for a planning approval, such as design review, conditional use permit or variance.
E. Other Credits. Except as provided herein or as agreed between the City and property owner, credits toward fees from construction or dedications shall not exceed the fees payable by the property owner.
(Ord. 1943, Amended, 04/09/2019; Ord. 1937, Amended, 02/12/2019; Ord. 1785, Amended, 8/14/2007; Ord. 1536 §2, 1995; Ord. 1495 §2, 1993; Ord 1477 §2(part), 1992).
11.01.080 Other authority.
A. This chapter is intended to establish a supplemental method for funding the cost of certain public facilities, services and infrastructure, the demand for which is reasonably related to and thereby reasonably resulting from, the level and type of new development proposed in the city general plan.
B. The provisions of this chapter shall not be construed to limit the power of the city council to impose any other fees or exactions or to continue to impose existing obligations on the right to develop within the city, but shall be in addition to any other requirements which the city council is authorized to impose, or has previously imposed, as a condition of approving a plan, rezoning or other entitlement. In particular, individual property owners shall remain obligated to fund, construct, and/or dedicate the improvements, public facilities and other exactions required by, but not limited to, the city codes, public improvement design standards and other applicable documents, and to mitigate individual impacts from development.
C. Any credits or reimbursements under Section 11.01.070 relate only to development impact fees established in accordance with the resolution, study and exhibits for each fee, and shall not include the funding, constructions, dedications, or other costs described in this section. (Ord. 1477 §2(part), 1992).
11.01.090 Findings regarding use of fees.
A. As required under Government Code Section 66001(d), the city shall make findings once each fiscal year with respect to any portion of the fee remaining unexpended or uncommitted in its account five or more years after deposit of the fee, to identify the purpose to which the fee is to be put and demonstrate a reasonable relationship between the fee and the purpose for which it was charged.
B. As required under Government Code Section 66001(e), and except for contingent reimbursement amounts established hereunder which shall be paid to the original payor, the city shall refund to the current record owner on a prorated basis the unexpended or uncommitted portion of the fee, and any interest accrued thereon, for which need cannot be established. (Ord. 1477 §2(part), 1992).
11.01.100 Fee exemptions.
The following developments are exempt from payment of fees described in this chapter:
A. City facilities, and buildings used for governmental purposes or lands for public uses such as parks and public facilities of other governmental agencies, but only to the degree to which such other governmental agencies are exempt from payment of such fees as a matter of law;
B. Public projects constructed or financed under this chapter;
C. Reconstruction of, or residential additions to, single-family dwellings, but not including additional dwelling units, unless such activity requires additional sewer or water connections in which case all development impact fees shall be charged.
D. Projects on property within the Downtown Commercial (“CD”) Zone District shall be exempt from sewer impact fees only. The provisions of this subsection shall be applicable to any project for which a building permit was issued on or after January 1, 2002, and shall remain in effect until the existing sewer capacity has been utilized. The existing available capacity shall be considered utilized when 54 EDUs of sewer capacity have been utilized pursuant to this subsection D, as determined by the Public Works Director.
E. In the case of former grocery stores that are being reestablished and meet the criteria set forth immediately below, the City Manager shall have the authority at his/her discretion to approve the transfer of sewer development impact fee credits only from the existing available sewer capacity allocated for use in the Downtown Commercial (“CD”) Zone District by subsection D of this section to former grocery stores that are being reestablished. When the existing available sewer capacity described in subsection D of this section has been fully utilized as determined by the Director of Public Works, the authorization to transfer credits created by this subsection shall terminate. The amount of sewer development impact fee credits transferred shall be at the sole discretion of the City Manager.
In order to grant a transfer of sewer development impact fee credits as provided for in this subsection, the City Manager must find that all of the following conditions apply:
1. The building was originally built as and operated as a grocery store; and
2. The building lost its grocery store level of sewer development impact fee credits due to a change of use that occurred prior to July 1, 1992; and
3. The building is being reestablished as a grocery store; and
4. The reestablished grocery store is located in an underutilized, existing neighborhood shopping center that would benefit economically and whose revitalization would be aided by gaining a trip generating use such as a grocery store.
(Ord. 1937, Amended, 02/12/2019; Ord. 1679, 2002).
11.01.110 Fee adjustment or waiver.
A. The owner of a project subject to a fee under this chapter may apply to the public works director for an adjustment to or waiver of that fee. The waiver of a fee or portion thereof shall be based on the absence of a reasonable relationship between the impact on public facilities of that development and either the amount of fee charged or the type of facilities to be financed.
B. The application for adjustment or waiver shall be made in writing and filed with the city clerk no later than ten days after formal notification of the fee to be charged. The application shall state in detail the factual basis and legal theory for the claim of adjustment or waiver.
C. It is the intent of this section that:
1. The land use categories are based on general plan designations which are in average of a wide range of specific land uses; thus substantial variation must be shown in order to justify a fee adjustment;
2. The public works director may calculate a fee and/or require additional improvements where the service demand of a particular land use exceeds the standards shown in the definitions or used in determining the improvements needed under the fee program; and
3. The fee categories shall be considered individually; thus it may occur that a fee adjustment or waiver is made in one category and not another.
D. The public works director shall consider the application at an informal hearing held within sixty days after the filing of the fee adjustment or waiver application. The decision of the public works director is not appealable except in accordance with the provisions of Section 11.01.110(F). The public works director shall make his/her determination of the fee calculation within fifteen days from the informal hearing or the receipt of any engineering studies or other calculation determinations found necessary as a result of the informal hearing. The applicant will be notified, in writing, of the public works director’s decision, which decision shall be mailed to the applicant, first-class mail, postage prepaid.
E. The applicant bears the burden of proof in presenting substantial evidence to support the application. The public works director shall consider the following factors in its determination whether or not to approve a fee adjustment or waiver:
1. The factors identified in Government Code Section 66001:
a. The purpose and proposed uses of the fee,
b. The type of development, including factors such as differences in floor area ratio, for example,
c. The relationship between the fee’s use and type of development,
d. The demand for improvements and the type of development, and
e. The amount of the fee and the portion of it attributable to the development; and
2. The substance and nature of the evidence including the development impact fee study and the applicant’s technical data supporting its request. The applicant must present comparable technical information to show that the fee is inappropriate for the particular development.
F. Within ten days of the mailing of the decision of the public works director, an appeal, in writing, may be filed with the city clerk. Thereafter, a hearing on the appeal of the fee calculation will be scheduled and held by the city council. The city council and the appellant will follow the evaluative and procedural processes as set forth in subsections 11.01.110(A) – (E).
G. The city hereby adopts the Code of Civil Procedure, Section 1094.5, for the purposes of judicial review under this section. A petition seeking review of a decision under this chapter shall be filed not later than the ninetieth day following the date on which the decision of the city council becomes final.
H. The traffic impact fee shall be reduced by 25 percent based on the adopted TIF rate in place at the time the fee is paid by the developer for any multifamily housing development, whether market rate, affordable, or senior restricted, that meets all of the following criteria:
1. Development is located within the Allison-Ulatis Priority Development Area (Allison PDA), as adopted by the Association of Bay Area Governments in November 2008;
2. Development is located within one-half mile walking distance of any property boundary attached to the Vacaville Transportation Center (VTC);
3. Development has a minimum net density of 20.1 dwelling units per acre.
(Ord. 1959, Amended, 05/12/2020; Ord. 1477, Added, 1992).