Chapter 3.68


3.68.010    Findings and authority.

3.68.020    Definitions.

3.68.030    Assessment of impact fees.

3.68.040    Deferral of payment of impact fees.

3.68.050    Exemptions.

3.68.060    Credits.

3.68.070    Adjustment for taxes.

3.68.080    Appeals – Payment under protest.

3.68.090    Establishment of impact fee accounts.

3.68.100    Refunds.

3.68.110    Use of funds.

3.68.120    Impact fee rate.

3.68.130    Review.

3.68.140    Independent fee calculations.

3.68.150    Existing authority unimpaired.

3.68.160    Park space in lieu of impact fee.

3.68.010 Findings and authority.

The city council hereby finds and determines that new residential growth and development in the city will create additional demand and need for parks facilities in the city, and further finds that new residential growth and development should pay a proportionate share of the cost of new parks facilities needed to serve the new residential growth and development. The city has conducted studies documenting the procedures for measuring the impact of new residential developments on park facilities, has prepared the parks study, and hereby incorporates this study into this chapter by reference. Therefore, pursuant to Chapter 82.02 RCW, the city council adopts this chapter to assess impact fees for parks. The provisions of this chapter shall be liberally construed in order to carry out the purposes of the city council in establishing the park impact fee program. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.020 Definitions.

The following words and terms shall have the following meanings for the purposes of this chapter, unless the context clearly requires otherwise. Terms otherwise not defined herein shall be defined pursuant to RCW 82.02.090, or given their usual and customary meaning.

A. “Building” means any structure having a roof.

B. “Building permit” means an official document or certification which is issued by the building official and which authorizes the construction, alteration, enlargement, conversion, reconstruction, remodeling, rehabilitation, erection, demolition, moving or repair of a building or structure.

C. “Capital facilities plan” means the capital facilities plan element of a comprehensive plan adopted by the city pursuant to Chapter 36.70A RCW, and such plan as amended.

D. “City” means the city of Brier.

E. “Department” means the department of planning and community development.

F. “Development activity” means any construction, expansion, or change in the use of a building or structure that creates additional demand and need for public facilities.

G. “Development approval” means any written authorization from the city which authorizes the commencement of a development activity.

H. “Director” means the city planner or the mayor’s designee.

I. “Dwelling unit” means one or more rooms designed for occupancy by a person or family for living and sleeping purposes, containing kitchen facilities and rooms with internal accessibility, for use solely by the dwelling’s occupants.

J. “Encumbered” means to reserve, set aside, or otherwise earmark the impact fees in order to pay for commitments, contractual obligations, or other liabilities incurred for park facilities.

K. “Feepayer” means a person, corporation, partnership, an incorporated association, or any other similar entity, or department or bureau of any governmental entity or municipal corporation, commencing a land development activity which creates the demand for additional park facilities, and which requires the issuance of a building permit. “Feepayer” includes an applicant for an impact fee credit. “Feepayer” includes the original owner of a lot in a subdivision or short subdivision.

L. “Impact fee” means a payment of money imposed by the city on development activity pursuant to this chapter as a condition of granting development approval in order to pay for the park facilities needed to serve new residential growth and development. “Impact fee” does not include a permit fee, an application fee, or the cost of reviewing independent fee calculations.

M. “Impact fee account” or “account” means the account(s) established for the impact fees that are collected. The account shall be established pursuant to BMC 3.68.090 and comply with the requirements of RCW 82.02.070.

N. “Independent fee calculation” means the park impact calculation, and/or economic documentation prepared by a feepayer, to support the assessment of an impact fee other than by the use of the rates listed in this chapter, or the calculations prepared by the director where none of the fee categories or fee amounts in this chapter accurately describe or capture the impacts of the new development on park facilities.

O. “Interest” means the average interest rate earned in the last fiscal year by the city.

P. “Multifamily dwelling unit” means a one-family dwelling unit attached to one or more one-family dwelling units by common roofs, walls, or floors. This definition does not include secondary dwelling units, single-family detached dwelling units, or single-family attached dwelling units.

Q. “Occupancy permit” means the permit issued by the city where a development activity results in a change in use of the preexisting structure, or the creation of a new use where none previously existed.

R. “Open space” means undeveloped public land that is permanently protected from development (except for the development of trails or other passive public access or use).

S. “Owner” means the owner of record of real property, or a person with an unrestricted written option to purchase property; provided, that if the real property is being purchased under a recorded real estate contract, the purchaser shall be considered the owner of the real property.

T. “Parks” or “parks facilities” means parks, open space, and recreational facilities, including but not limited to ball fields, golf courses, athletic fields, soccer fields, swimming pools, tennis courts, volleyball courts, neighborhood parks, community parks, and open space.

U. “Parks study” means the “Parks Level of Service Analysis and Impact Fee Recommendations,” prepared for the city by BERK Consulting, dated February 23, 2015, and on file with the city clerk/treasurer.

V. “Project improvements” means site improvements and facilities that are planned and designed to provide service for a particular development or users of the project, and are not system improvements. No improvement or facility included in a capital facilities plan adopted by the city council shall be considered a project improvement.

W. “Residential” or “residential development” means all types of construction intended for human habitation. This shall include, but is not limited to, single-family attached dwelling units, single-family detached dwelling units, secondary dwelling units, and multifamily dwelling units.

X. “State” means the state of Washington.

Y. “System improvements” means park facilities that are included in the city’s capital facilities plan and are designed to provide service to the community at large, in contrast to project improvements. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.030 Assessment of impact fees.

A. The city shall collect impact fees, based on the rates in this chapter, from any applicant seeking a building permit from the city for each new dwelling unit within the city.

B. Impact fees shall be calculated and assessed upon submittal of a complete application for a building permit, using the impact fee rates then in effect. Except as provided in BMC 3.68.040, impact fees shall be paid prior to issuance of the building permit by the city. The city shall not accept an application for a building permit unless, prior to submittal or concurrent with submittal, the feepayer submits complete applications for all other discretionary reviews needed, including, but not limited to, design review, the environmental determination, and the accompanying checklist. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.040 Deferral of payment of impact fees.

Payment of impact fees for single-family detached dwelling units, single-family attached dwelling units, and secondary dwelling units may be deferred only until issuance of certificates of occupancy for the units, pursuant to RCW 82.02.050(3), subject to the following provisions:

A. Each applicant, in accordance with his or her contractor registration number or other unique identification number, is entitled to annually receive deferrals under this section for the first twenty single-family residential construction building permits per city. Any single-family residential building construction permits beyond twenty for the same applicant are subject to payment of impact fees at the time of building permit issuance as required by BMC 3.68.030.

B. A request for deferral must be submitted prior to issuance of a building permit.

C. Application for deferral must be made on a form provided by and acceptable to the city and must include the following information and fees:

1. Name, address, telephone number and email address of the applicant.

2. The specific address, legal description and tax identification number of the single-family dwelling for which deferral is being requested.

3. The building permit application number associated with the requested deferral.

4. The registration number or other unique identification number for the contractor that will be building the structure.

5. A statement by the contractor describing how many deferrals have been granted during the current year for said contractor, describing how many have been requested during the current year, and attesting that the number provided and/or requested is less than twenty for the current calendar year.

6. Applicable fees for processing the application and for future monitoring of the deferred payment of impact fees are required in addition to fees required by this chapter. Deferral application fees shall include:

a. Minimum of four hours base administration fee, at the hourly staff rate required by the development fee schedule adopted in the city’s fee resolution, and payable at the time of application submittal.

b. Minimum of four hours administration fee at the current hourly staff rate to cover additional time spent processing of final payment of impact fees, including but not limited to preparation of lien release documents, payable before the lien release document shall be released to the applicant.

D. No more than one single-family dwelling may be included on a single application for impact fee deferral.

E. Impact fees shall be calculated on the fees in place at the time that the applicant applies for a deferral.

F. Impact fees deferred under this section are due no later than the following events, whichever occurs first:

1. Issuance of certificate of occupancy or equivalent certification for the single-family dwelling; or

2. Eighteen months from the date of the building permit issuance.

G. An applicant seeking a deferral under this subsection must grant and record a deferred impact fee lien against the property in favor of the city of Brier. The deferred impact fee lien must include the legal description, tax account number, and address of the property, and must also be:

1. In a form approved by the city attorney which ensures that it is binding on all successors on the title to the property after recordation;

2. Signed by all owners of the property, with all signatures acknowledged as required for a deed, and recorded with the Snohomish County auditor’s office; and

3. Junior and subordinate to one mortgage for the purpose of construction upon the same real property granted by the person who applied for the deferral of impact fees.

H. The city may withhold a certificate of occupancy or equivalent certification until the impact fees are paid in full. Upon receipt of final payment of all deferred impact fees for a property, and upon payment of all applicable administration fees in the city’s fee resolution, the city must execute a release of deferred impact fee lien for the property. The property owner at the time of the release, at his or her expense, is responsible for recording the lien release.

I. Foreclosure Proceedings. If impact fees are not paid in accordance with a deferral authorized by this section, the city may institute proceedings to enforce the lien in accordance with Chapter 61.12 RCW.

J. Obligation to Pay. The extinguishment of a deferred impact fee lien by the foreclosure of a lien having priority does not affect the obligation to pay the impact fees as a condition of issuance of certificate of occupancy or equivalent certification.

K. Deferral Process Not Subject to Review Proceedings. Per RCW 36.70B.140(2), the processing of an impact fee deferral application is not subject to the project permit review requirements of Chapter 36.70B RCW. (Ord. 474 § 1, 2021; Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.050 Exemptions.

A. Except as provided for below, the following shall be exempted from the payment of impact fees:

1. Alteration, expansion or replacement of an existing nonresidential structure that does not add any independent dwelling units;

2. Miscellaneous improvements that do not increase the impacts of the development on the city’s park facilities, including, but not limited to, fences, walls, swimming pools, and signs;

3. Demolition or moving of a structure;

4. Replacement of a dwelling unit with a new dwelling unit when such replacement occurs within twelve months of the demolition or destruction of the prior dwelling unit;

5. Any building permit application that has been submitted to the city before five p.m. the business day before the effective date of this chapter and subsequently determined to be a complete application, based on the information on file as of the effective date of this chapter.

B. The director is authorized to determine whether a particular development activity falls within an exemption identified in this section, in any other section, or under other applicable law. Determinations of the director shall be in writing and shall be subject to the appeals procedures set forth in BMC 3.68.080. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.060 Credits.

A. A feepayer can request that a credit or credits for impact fees be awarded to him/her for the total value of dedicated land for, improvements to, or construction of any system improvements provided by the feepayer or the feepayer’s successor in interest, if the dedication, improvements or construction was a condition of development activity or development approval. Credit will be given for land only if it is suitable for construction of a system improvement, as determined by the city.

B. The director shall determine if requests for credits meet the criteria and conditions of subsection A of this section.

C. For each request for a credit or credits, the director shall select an appraiser or the feepayer may select an independent appraiser acceptable to the director.

D. The appraiser must possess an MAI or other equivalent certification and shall not have a fiduciary or personal interest in the property being appraised. A description of the appraiser’s certification shall be included with the appraisal, and the appraiser shall certify that he or she does not have a fiduciary or personal interest in the property being appraised.

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

F. The feepayer shall pay for the cost of the appraisal or request that the cost of the appraisal be deducted from the credit which the director may be providing to the feepayer, in the event that a credit is awarded.

G. After receiving the appraisal, the director shall provide the applicant with a letter or certificate setting forth the dollar amount of the credit, the reason for the credit, the legal description of the site donated where applicable, and the legal description or other adequate description of the project or development to which the credit may be applied. The applicant must sign and date a duplicate copy of such letter or certificate indicating his or her agreement to the terms of the letter or certificate, and return such signed document to the director before the impact fee credit will be awarded. The failure of the applicant to sign, date, and return such document within sixty calendar days shall nullify the credit.

H. No credit shall be given for project improvements.

I. Any request for credit must be made no later than twenty calendar days after the submission of a building permit application. The failure to timely file such a claim shall constitute a final bar to later request any such credit.

J. Determinations made by the director pursuant to this section shall be subject to the appeals procedures set forth in BMC 3.68.080. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.070 Adjustment for taxes.

Pursuant to and consistent with the requirements of RCW 82.02.060, the parks study has provided adjustments for future taxes to be paid by the new development which are earmarked or proratable to the same new parks facilities which will serve the new residential development. The impact fee rates in this chapter have been reasonably adjusted for taxes and other revenue sources which are anticipated to be available to fund parks facilities. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.080 Appeals – Payment under protest.

A. Any feepayer may pay the impact fees under protest in order to obtain a building permit.

B. Appeals from the calculation and assessment of impact fees shall be made and processed in accordance with Chapter 1.20 BMC. The appeal may only be filed by the feepayer of the property where the development activity will occur. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.090 Establishment of impact fee accounts.

A. Impact fee receipts shall be earmarked specifically and deposited in special interest-bearing accounts.

B. There is hereby established an impact fee account for the park impact fees collected pursuant to this chapter, which shall be called the “parks impact account.” Funds withdrawn from this account must be used in accordance with the provisions of BMC 3.68.110 and applicable state law. Interest earned on the fees shall be retained in the account and expended for the purposes for which the impact fees were collected.

C. On an annual basis, the city clerk/treasurer or director shall provide a report to the council regarding the impact fee account showing the source and amount of all monies collected, earned, or received, and the park improvements that were financed in whole or in part by impact fees.

D. Impact fees shall be expended or encumbered within ten years of receipt, unless the city council identifies in written findings extraordinary and compelling reason or reasons for the city to hold the fees beyond the ten-year period. Under such circumstances, the city council shall establish the period of time within which the impact fees shall be expended or encumbered. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.100 Refunds.

A. If the city fails to expend or encumber the impact fees within ten years of when the fees were paid, or where extraordinary or compelling reasons exist, such other time periods as established pursuant to BMC 3.68.090, the current owner of the property on which impact fees have been paid may receive a refund of such fees. In determining whether impact fees have been expended or encumbered, impact fees shall be considered expended or encumbered on a first-in, first-out basis.

B. The city shall notify potential claimants by first class mail deposited with the United States Postal Service at the last known address of such claimants. A potential claimant or claimant must be the owner of the property.

C. Owners seeking a refund of impact fees must submit a written request for a refund of the fees to the director within one year of the date the right to claim the refund arises or the date that notice is given, whichever is later.

D. Any impact fees for which no application for a refund has been made within this one-year period shall be retained by the city and expended on the appropriate park facilities.

E. Refunds of impact fees under this section shall include any interest earned on the impact fees by the city.

F. When the city seeks to terminate any or all components of the impact fee program, all unexpended or unencumbered funds from any terminated component or components, including interest earned, shall be refunded pursuant to this section. Upon the finding that any or all fee requirements are to be terminated, the city shall place notice of such termination and the availability of refunds in a newspaper of general circulation at least two times and shall notify all potential claimants by first class mail at the last known address of the claimants. All funds available for refund shall be retained for a period of one year. At the end of one year, any remaining funds shall be retained by the city, but must be expended for the appropriate park facilities. This notice requirement shall not apply if there are no unexpended or unencumbered balances within the account or accounts being terminated.

G. The city shall also refund to the current owner of property for which impact fees have been paid all impact fees paid, including interest earned on the impact fees, if the development activity for which the impact fees were imposed did not occur; provided, that if the city has expended or encumbered the impact fees in good faith prior to the application for a refund, the director can decline to provide the refund. If, within a period of three years, the same or subsequent owner of the property proceeds with the same or substantially similar development activity, the owner can petition the director for an offset. The petitioner must provide receipts of impact fees previously paid for a development of the same or substantially similar nature on the same property or some portion thereof. The director shall determine whether to grant an offset, and the determinations of the director may be appealed pursuant to the procedures in BMC 3.68.080. Determinations of the director shall be in writing and shall be subject to the appeals procedures set forth in BMC 3.68.080. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.110 Use of funds.

A. Pursuant to this chapter, impact fees shall:

1. Be used for public improvements that will reasonably benefit the new development; and

2. Not be imposed to make up for deficiencies in park facilities serving existing developments; and

3. Not be used for maintenance or operation.

B. Impact fees may be spent for public improvements, including, but not limited to, planning for parks that will reasonably benefit the new development, land acquisition, site improvements, necessary off-site improvements, construction, engineering, architectural, permitting, financing, and administrative expenses, applicable impact fees or mitigation costs, and capital equipment pertaining to park facilities.

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

D. In the event that bonds or similar debt instruments are or have been issued for the advanced provision of public improvements for which impact fees may be expended, impact fees may be used to pay debt service on such bonds or similar debt instruments to the extent that the facilities or improvements provided are consistent with the requirements of this section and are used to serve the new development. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.120 Impact fee rate.

The impact fee rates shall be determined by the formula for calculating impact fees set forth in the parks study, which is incorporated herein by reference. Except as otherwise provided for independent fee calculations in BMC 3.68.140, exemptions in BMC 3.68.050, and credits in BMC 3.68.060, all new residential developments in the city shall be charged the impact fee applicable to the type of dwelling unit, in an amount imposed by the city council by resolution and included in the city fee schedule. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.130 Review.

The fee rates set forth in this chapter may be reviewed and adjusted by the city council as it deems necessary and appropriate in conjunction with the annual update of the capital facilities plan element of the city’s comprehensive plan. Absent any affirmative city council adjustment in conjunction with the annual update of the capital facilities plan element of the city’s comprehensive plan, the fee rates shall be adjusted annually by one hundred percent of the Consumer Price Index-W for the Seattle area, for the most recent twelve-month period prior to the date of the adjustment. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.140 Independent fee calculations.

A. If, in the judgment of the director, none of the fee categories or fee amounts set forth in BMC 3.68.120 accurately describe or capture the impacts of a new development on parks facilities, the department may conduct independent fee calculations and the director may impose an alternative fee on a specific development based on those calculations. The alternative fee and the calculations shall be set forth in writing and shall be mailed to the feepayer.

B. If a feepayer opts not to have the impact fees determined according to BMC 3.68.120, then the feepayer shall prepare and submit to the director an independent fee calculation for the development activity for which a building permit is sought. The documentation submitted shall show the basis upon which the independent fee calculation was made.

C. Any feepayer submitting an independent fee calculation will be required to pay the city a fee established by the city council and included in the city fee schedule to cover the cost of reviewing the independent fee calculation. The fee shall be paid by the feepayer prior to initiation of review.

D. Although the calculations set forth in the parks study are presumed to be valid, the director shall consider the documentation submitted by the feepayer, but is not required to accept such documentation or analysis which the director reasonably deems to be inaccurate or not reliable, and may, in the alternative, require the feepayer to submit additional or different documentation for consideration. The director is authorized to adjust the impact fees on a case-by-case basis based on the independent fee calculation, the specific characteristics of the development, and/or principles of fairness. The fees or alternative fees and the calculations shall be set forth in writing and shall be mailed to the feepayer.

E. Determinations made by the director pursuant to this section may be appealed as set forth in BMC 3.68.080. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.150 Existing authority unimpaired.

Nothing in this chapter shall preclude the city from requiring the feepayer or the proponent of a development activity to mitigate adverse environmental impacts of a specific development pursuant to the State Environmental Policy Act, Chapter 43.21C RCW, based on the environmental documents accompanying the underlying development approval process, and/or Chapter 58.17 RCW, governing plats and subdivisions; provided, that the exercise of this authority is consistent with the provisions of Chapters 43.21C and 82.02 RCW. (Ord. 439 § 1 (Exh. A)(part), 2016)

3.68.160 Park space in lieu of impact fee.

The payment of an impact fee, consistent with this chapter, shall be the preferred method of meeting park space requirements for all new development. At the discretion of the director, however, the feepayer may receive credit towards his/her impact fee for land dedicated, improvements made or other construction completed for park purposes if such land, improvements or construction:

A. Are adjacent to other publicly owned land; or

B. Are within an area of the city designated within the city comprehensive plan as in need of park space; or

C. Would further the goals and objectives of the capital facilities plan or other city plans.

Any improvements or construction shall be of an acceptable quality as determined by the city. (Ord. 439 § 1 (Exh. A)(part), 2016)