Chapter 18.30
IMPACT FEES

Sections:

18.30.010    Authority and purpose.

18.30.020    Applicability and director’s authority.

18.30.030    Geographic scope.

18.30.040    Definitions.

18.30.050    Imposition of impact fees.

18.30.060    Approval of development.

18.30.070    Fee schedules and establishment of service area.

18.30.080    Application for impact fee calculation.

18.30.090    Credits.

18.30.100    Variation from impact fee schedule.

18.30.110    Calculation of impact fees.

18.30.120    Payment of impact fees.

18.30.130    Deferral of payment of impact fees.

18.30.140    Amending project lists and fee schedules.

18.30.150    Funding of projects.

18.30.160    Use and disposition of dedicated land.

18.30.170    Refunds.

18.30.180    Appeals.

18.30.190    Relationship to SEPA.

18.30.200    Park and transportation facility requirements in adjoining municipalities/districts.

18.30.210    Necessity of compliance.

18.30.010 Authority and purpose.

A. This chapter is enacted pursuant to the City’s police powers, the Growth Management Act (Chapter 36.70A RCW), the impact fee statutes (RCW 82.02.050 through 82.02.100), the State Subdivision Act (Chapter 58.17 RCW) and the State Environmental Policy Act (SEPA, Chapter 43.21C RCW).

B. The purpose of this chapter is to:

1. Develop a program consistent with the City’s Recreation, Parks, and Open Space Master Plan, six-year transportation plan, and the City’s Comprehensive Plan (Recreation, Parks and Open Space and Transportation Elements) and capital improvement plan for joint public and private financing of park and transportation facility improvements necessitated in whole or in part by development in the City;

2. Ensure adequate levels of service in public facilities within the City;

3. Create a mechanism to charge and collect fees to ensure that all new development bears its proportionate share of the capital costs of off-site park and transportation facilities reasonably related to new development, in order to maintain adopted levels of park service, and to maintain adopted levels of service in the City’s transportation facilities at the time of new development;

4. Ensure that the City pays its fair share of the capital costs of parks and transportation facilities necessitated by public use of the parks and roadway system; and

5. Ensure fair collection and administration of such impact fees. (Ord. 2694 § 2, 2016).

18.30.020 Applicability and director’s authority.

A. The requirements of this chapter apply to all development in the City as defined in MTMC 18.30.040.

B. Mitigation of impacts on parks and transportation facilities located in jurisdictions outside the City will be required when:

1. The other affected jurisdiction has reviewed the development’s impact under its adopted impact fee/mitigation regulations and has recommended to the City that there be a requirement to mitigate that impact; and

2. There is an interlocal agreement between the City and the affected jurisdiction specifically addressing impact identification and mitigation.

C. Director’s Authority.

1. The Director shall have the authority to administer, interpret, and apply the provisions of this chapter, and responsibility to enforce this chapter.

2. The Director’s authority includes, but is not limited to, the following responsibilities.

a. Make decisions on payment of impact fees pursuant to this chapter;

b. Shall calculate the impact fees applicable to a proposed development pursuant to MTMC 18.30.110;

c. Shall issue a written determination of required impact fees pursuant to MTMC 18.30.110(D);

d. May give credit for land or system improvements reasonably related to the development pursuant to MTMC 18.30.090;

e. Shall issue written decisions on a developer’s request for a credit of the impact fee calculation pursuant to MTMC 18.30.090(K);

f. May approve variations from the impact fee schedule pursuant to MTMC 18.30.100;

g. Make determinations on the feasibility or infeasible of any land dedicated for development of park or transportation facilities and the retention or disposal thereof pursuant to MTMC 18.30.160;

h. Shall periodically review and propose updates to the parks and transportation project lists pursuant to MTMC 18.30.140;

i. Make adjustments to impact fees schedules annually pursuant to MTMC 18.30.140(B) and (E);

j. Shall be the manager of the City’s impact fee funds pursuant to MTMC 18.30.150; and

k. Shall prepare an annual report on impact fee accounts pursuant to MTMC 18.30.150.

3. Decisions by the Director are final, unless a timely request for reconsideration of decision is made or appealed to the Hearing Examiner pursuant to MTMC 18.30.180. (Ord. 2694 § 2, 2016).

18.30.030 Geographic scope.

The boundaries within which impact fees shall be charged and collected are the same as the corporate City limits. All unincorporated areas annexed to the City on and after the effective date of the ordinance codified in this chapter shall be subject to the provisions of this chapter. After the adoption of interlocal agreements with other local and regional governments, the geographic boundaries may be expanded consistent therewith. (Ord. 2694 § 2, 2016).

18.30.040 Definitions.

The following words and terms shall have the following meanings for the purpose of this chapter, unless the context clearly appears otherwise. Terms not defined herein shall be given the meaning set forth in RCW 82.02.090, or given their usual and customary meaning.

A. “Act” means the Growth Management Act, Chapter 36.70A RCW, or as hereafter amended.

B. “Adequate public facilities” means facilities which have the capacity to serve development without decreasing levels of service below locally established minimums. (WAC 365-196-210(3).)

C. “Affordable housing” means residential housing that is rented or owned by a person or household whose monthly housing costs, including utilities other than telephone, do not exceed 30 percent of the household’s monthly income. (WAC 365-196-210(4)).

D. “Applicant” means the individual listed on an application for a building permit as the one seeking development approval from the City, and also includes an entity that controls the applicant, is controlled by the applicant, or is under common control with the applicant.

E. “Approving authority” means the City employee, agency or official having the authority to issue the approval or permit for the development activity involved.

F. “Capital facilities” means the facilities or improvements included in a capital facilities plan.

G. “Capital facilities plan” means the Capital Facilities Plan Element of the City’s Comprehensive Plan adopted pursuant to Chapter 36.70A RCW and RCW 36.70A.070, and any amendments to the plan.

H. “Change of use” means, for the purposes of this chapter, any change, redevelopment or modification of use of an existing building or site which meets the definition of “development activity” herein.

I. “City” means the City of Mountlake Terrace, Washington.

J. “Comprehensive land use plan” or “Comprehensive Plan” means a generalized coordinated land use policy statement of the City Council, adopted pursuant to Chapter 36.70A RCW.

K. “Concurrency” or “concurrent with development” means that adequate public facilities are available when the impacts of development occur, or within a specified time thereafter. This definition includes the concept of “adequate public facilities” as defined above. For the purposes of transportation facilities, “concurrent with development” means that strategies or improvements are in place at the time of development or that a financial commitment is in place to complete the improvements or strategies within six years. (RCW 36.70A.070(6)(b)).

L. “Council” means the City Council of the City of Mountlake Terrace, Washington.

M. “Dedication” means the conveyance of land or facilities to the City for public facility purposes, by deed, other instrument of conveyance or by dedication, on a duly filed and recorded plat (or short plat).

N. “Demand management strategies” means strategies designed to change travel behavior to make more efficient use of existing facilities to meet travel demand. Examples of demand management strategies can include strategies that: (1) shift demand outside of the peak travel time; (2) shift demand to other modes of transportation; (3) increase the number of occupants per vehicle; (4) decrease the length of trips; (5) avoid the need for vehicle trips. (WAC 365-196-210(12)).

O. “Department” means the Community and Economic Development Department of the City of Mountlake Terrace or designee.

P. “Developer” means any person or entity who makes application or receives a development permit or approval for any development activity as defined herein.

Q. “Development activity” or “development” means any construction or expansion of a building, structure, or use, and change in the use of a building or structure, or any changes in the use of the land that creates additional demand for public facilities (such as a change which results in an increase in the number of vehicle trips to and from the property, building or structure) and requires a development permit from the City. (RCW 82.02.090(1)).

R. “Development agreement” means the agreements authorized in RCW 36.70B.170.

S. “Development permit” or “project permit” means any land use permit required by the City for a project action, including but not limited to building permits, subdivisions, short plats, binding site plans, planned unit developments, conditional uses, shoreline substantial developments, site plan reviews, or site-specific rezones, and for purposes of the City’s concurrency ordinance, shall include applications for amendments to the City’s Comprehensive Plan which request an increase in the extent or density of development on the subject property.

T. “Director” means the Director of the Community and Economic Development Department or designee.

U. “Existing use” means development which physically exists or for which the owner holds a valid building permit as of the effective date of the ordinance codified in this chapter.

V. “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 public facilities.

W. “Fair market value” means the price in terms of money that a property will bring in a competitive and open market under all conditions of a fair sale, the buyer and seller each being prudently knowledgeable, and assuming the price is not affected by undue stimulus.

X. “Feepayer” means a person, corporation, partnership, an incorporated association, or a department or bureau of any government entity, or any other similar entity, commencing a land development activity. “Feepayer” includes applicants for an impact fee credit.

Y. “Financial commitment” means those sources of public or private funds or combinations thereof that have been identified as sufficient to finance public facilities necessary to support development and that there is reasonable assurance that such funds will be timely put to that end.

Z. “Growth-related” means a facility improvement that provides additional transportation capacity to accommodate new development activity.

AA. “Impact fee” means the amount of money determined necessary by the City and imposed upon new development activity as a condition of development approval or permitting to pay for public facilities needed to serve new growth and development, and that is reasonably related to the new development that creates the additional demand and need for public facilities, that is a proportionate share of the cost of the public facilities and that is used for facilities that reasonably benefit the new development. “Impact fee” does not include a reasonable permit or application fee. (RCW 82.02.090(3)).

BB. “Impact fee accounts” means the account(s) established for each type of public facilities for which impact fees are collected. The accounts shall be established pursuant to this chapter, and comply with the requirements of RCW 82.02.070.

CC. “Impact fee schedule” means the table of impact fees per unit of development, which is to be used by the Director in computing impact fees.

DD. “Interest” means the interest rate earned by the City for the impact fee account, if not otherwise defined.

EE. “Interlocal agreement” means the transportation impact fee interlocal agreement by and between the City and County or the City and a neighboring city, or the City and the state of Washington, concerning the collection and allocation of transportation impact fees, or any other interlocal agreement entered by and between the City and another municipality, public agency or governmental body in order to implement an impact fee program.

FF. “Level of service” or “LOS” means an established minimum capacity of public facilities or services that must be provided per unit of demand or other appropriate measure of need. Level of service standards are synonymous with locally established minimum standards. (WAC 365-196-210(19)).

GG. “Owner” means the owner of record of real property, although when real property is being purchased under a real estate contract, the purchaser shall be considered the owner of the real property, if the contract is recorded. In addition, the lessee of the real property shall be considered the owner, if the lease of the real property exceeds 25 years, and the lessee is the developer of the real property. (RCW 82.02.090(4)).

HH. “Previous use” means (1) the use existing on the site when a capacity evaluation is sought; or (2) the most recent use on the site, within the five-year period prior to the date of application for the development.

II. “Project” means a system improvement, selected by the City Council for joint private and public funding and which appears on the project list.

JJ. “Project improvements” means site improvements and facilities that are planned and designed to provide service for a particular development and that are necessary for the use and convenience of the occupants or users of the project, and are not system improvements. No improvement or facility included in a capital facilities plan approved by the City Council shall be considered a project improvement. (RCW 82.02.090(5)).

KK. “Project list” means the list of projects described in the City’s annual and six-year capital improvement program and as developed pursuant to this chapter.

LL. “Proportionate share” means that portion of the cost of public facility improvements that is reasonably related to demands and needs of new development. (RCW 82.02.090(6)).

MM. “Road” means a “street” or “private street” as defined in MTMC 17.01.020.

NN. “Road facilities” includes public facilities related to land transportation.

OO. “Service area” means the geographic area defined by the City or interlocal agreement, in which a defined set of public facilities provides service to development in the area. Service areas shall be designated on the basis of sound engineering or planning principles. (RCW 82.02.090(8)).

PP. “State” means the state of Washington.

QQ. “Subdivision” means all subdivisions, short subdivisions, binding site plans, and fee simple unit lot subdivisions as defined in Chapter 17.01 MTMC.

RR. “System improvements” means public facilities that are included in the City’s capital facilities plan and are designed to provide service to areas within the City and community at large, in contrast to project or on-site improvements. (RCW 82.02.090(9)).

SS. “Traffic analysis zone” means the minimum geographic unit used for traffic analysis.

TT. “Transportation primary impact area” means a geographically determined area that delineates the impacted area of a deficient roadway link.

UU. “Transportation level of service standards” means a measure which describes the operational condition of the travel stream and acceptable adequacy requirement.

VV. “Transportation management area” means a geographically determined area that contains compact urban development patterns where a dense roadway network and extensive mass transit services are in place. The performance of these areas shall be based on the percentage of lane miles meeting the LOS standards as described in this chapter.

WW. “Traffic demand model” means the simulation through computer modeling of vehicle trip ends assigned on the roadway network.

XX. “Trip end” means a single or one-directional vehicle movement.

YY. “Unit” or “dwelling unit” means a dwelling unit as defined in MTMC 19.15.050. (Ord. 2694 § 2, 2016).

18.30.050 Imposition of impact fees.

A. The City is hereby authorized to impose impact fees on new development.

B. Impact fees may be required pursuant to the impact fee schedule adopted through the process described herein, or mitigation may be provided through:

1. The purchase, installation and/or improvement of park and transportation facilities pursuant to MTMC 18.30.090; or

2. The dedication of land pursuant to MTMC 18.30.090.

C. Impact fees:

1. Shall only be imposed for park and transportation facilities that are reasonably related to new development;

2. Shall not exceed a proportionate share of the costs of park and transportation facilities that are reasonably related to new development;

3. Shall be used for park and transportation facilities that will reasonably benefit the new development;

4. Shall not be used to correct existing deficiencies;

5. Shall not be imposed to mitigate the same off-site park and transportation facility impacts that are being mitigated pursuant to any other law;

6. Shall not be collected for improvements to state/County park and transportation facilities unless the state/County requests such improvements and an interlocal agreement to collect such fees has been executed between the state/County and the City;

7. Shall not be collected for improvements to park and transportation facilities in other municipalities unless the affected municipality requests that such impact fees be collected on behalf of the affected municipality, and an interlocal agreement has been executed between the City and the affected municipality for the collection of such fees;

8. Shall be collected only once for each development, unless changes or modifications to the development are proposed which result in greater direct impacts on park and/or transportation facilities than were considered when the development was first permitted;

9. May be imposed for system improvement costs previously incurred by the City, to the extent that new growth and development will be served by previously constructed improvements; and provided, that such fee shall not be imposed to make up for any system improvement deficiencies; and

10. Shall be imposed for park facilities serving new development consistent with the rate study cited in MTMC 18.30.070. (Ord. 2694 § 2, 2016).

18.30.060 Approval of development.

Prior to approving or permitting a development or development permit, the approving authority shall consult with the Director concerning mitigation of a development’s impacts and impact fees. (Ord. 2694 § 2, 2016).

18.30.070 Fee schedules and establishment of service area.

A. Impact Fee Schedules. Impact fee schedules setting forth the amount of the impact fees to be paid by developers are listed in the appendices attached to the ordinance adopting this chapter, and incorporated herein by this reference. The transportation impact fee schedule is in Appendix A,* and park impact fees are in Appendix B.* The City Council shall have the final decision on the calculation of the impact fees to be imposed under this chapter as set forth in Appendices A and B.*

B. Service Area Defined. For the purpose of this chapter, service area boundaries are co-extensive with the City of Mountlake Terrace City boundaries and shall include all unincorporated areas annexed to the City on and after the effective date of the ordinance codified in this chapter.

C. Service Area Definition Prior to 2016. Secondary impact fees collected as authorized by Ordinance No. 2671 between 2007-2016 within the boundaries of the BC/D (commercial business downtown) district, otherwise known as the town center, subsection of Service Area 1, shall be used exclusively for capital improvements as applicable to Ordinance No. 2671, as amended by Ordinance No. 2678. (Ord. 2694 § 2, 2016).

*Code reviser’s note: Appendices A and B are attached to Ordinance No. 2694 and may be found on file in the City Clerk’s office.

18.30.080 Application for impact fee calculation.

Prior to issuance of building permits for any development or development activity as defined in this chapter, application shall be made for a calculation of impact fees associated with the development or development activity.

A. Application. Application for impact fee calculation 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 e-mail address of the applicant.

2. The specific address, legal description and tax identification number of the proposed development site.

3. The building permit application number associated with the requested impact fee calculation.

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

5. A description of the proposed development including:

a. A description of proposed uses;

b. A description of potential uses of non-residential space;

c. Number of residential dwelling units;

d. Square footage of nonresidential floor area and of nonresidential outdoor areas associated with a business (e.g., outdoor dining, entertainment, display and/or storage areas); and

e. An estimate of peak hour traffic counts associated with the proposed development.

B. Applicable Fees. Application shall include a four-hour base administration fee, at the hourly staff rate prescribed under the development fee schedule authorized by MTMC 3.150.090, payable at the time of application submittal. (Ord. 2694 § 2, 2016).

18.30.090 Credits.

A. Credit Allowed. The Director shall reduce the calculated proportionate share for a particular development by giving credit for the benefit factors described in this section.

B. Procedure for Obtaining Credit, Time to Request Credit. Requests for credits against impact fees will not be considered unless the developer makes the request in writing, concurrent with the submission of the application for the underlying development permit triggering the impact fee.

C. Benefit Factors. The Director will consider the following benefit factors when determining whether an impact fee credit is appropriate:

1. The value of any dedication of land for, improvement to, or new construction of system improvements provided by the developer, to facilities required by the City that are identified in the capital facilities plan and that are required by the City as a condition of approving the development activity, as long as the following conditions are satisfied:

a. The system improvements are located on land owned by the City, County, the school district or a special purpose district;

b. The system improvements are included on the adopted impact fee list of projects;

c. A designated public owner is responsible for permanent, continuing maintenance and operation of the system improvements; and

d. The Director determines that the system improvements correspond to the type(s) of park and transportation system improvements that are reasonably related to the development as determined pursuant to this chapter.

2. The Director determines, after consultation with the County, school district or special purpose district, as applicable, and an analysis of supply and demand data, the parks, open space and recreation plan, the six-year transportation plan and the City’s adopted park and transportation plans, that the proposed park and transportation system improvements better meet the City’s need for park and transportation system improvements than would payment of funds to mitigate the park and transportation impacts of the development.

3. In the determination of credit toward the impact fee, the Director shall also consider the extent to which the proposed dedication or conveyance meets the following criteria:

a. The land should result in an integral element of the City park/transportation system;

b. The land is suitable for future park and/or transportation facilities;

c. The land is of appropriate size and of an acceptable configuration;

d. The land has public access via a public street or an easement of an equivalent width and accessibility;

e. The land is located in or near areas designated by the City or County on land use plans for park, trail or recreational purposes;

f. The land provides linkage between City and/or other publicly owned recreation and transportation properties;

g. The land has been surveyed or adequately marked with survey monuments, or is otherwise readily distinguishable from adjacent privately owned property;

h. The land has no known physical problems associated with it, such as the presence of hazardous waste, drainage erosion or flooding problems which the Director determines would cause inordinate demands on public resources for maintenance and operation;

i. The land has no known safety hazards;

j. The developer is able to provide documentation, as nearly as practicable, of the land’s compliance with the criteria of this subsection, and of clear title; and

k. The developer is able to provide and fund a long-term method, acceptable to the Director, for the management and maintenance of the land, if applicable.

D. Requirement for System Improvement Plan. When the Director has agreed to a developer’s proposal to satisfy some or all of the impact fee through the purchase, installation and/or improvement of park and/or transportation facilities, the developer shall prepare and submit a system improvement plan to the Director for approval prior to recordation of a subdivision plat, short plat, or binding site plan, and prior to issuance of a building permit for all other developments.

E. Statutory Benefit Factors. The Director may consider any applicable benefit factors, as described in RCW 82.02.060 (as it now exists or may hereafter be amended), that are demonstrated by the applicant not to be included in the calculation of the impact fee.

F. Amount of Credit. The credit against the impact fee shall be equal to the fair market value of the purchased/dedicated property or equal to the cost of the completed system improvements. In those situations in which a developer has not yet installed or constructed system improvements and requests a credit for the system improvement(s), the City Engineer shall estimate the cost of the system improvements, which shall be the credit allowed to the developer in the decision on the amount of the impact fee. If a credit is granted for a system improvement that has not been constructed, the developer shall pay the full impact fee without the credit, at the time established in MTMC 18.30.120. After construction and/or installation of the system improvement, the developer may request the credit granted by the engineer under this subsection, and the City shall refund the difference of the impact fee to reflect the credit, not to exceed the amount of the impact fee; provided, that if the City and the property owner have entered into a development agreement on or before the effective date of the ordinance codified in this section, and the agreement requires the construction of such improvements, the City may allow a credit to be subtracted from the impact fee paid at the time established in MTMC 18.30.120.

G. PRDs, PUDs and Mobile Home Parks. A developer of a planned residential development, a planned unit development, or a mobile home park may receive credit only for park and transportation facilities provided in addition to those normally required under SEPA for such developments, pursuant to the City’s SEPA ordinance (Chapter 16.05 MTMC).

H. Credit to Apply Proportionately to Units. The amount of credit determined pursuant to this section shall be credited proportionately among all the units in the development, and the impact fee for each unit for which a permit or approval is applied shall be reduced accordingly.

I. Limits on Credit Requests. Applicants may not request that an impact fee credit be provided for a proposed development based on taxes, user fees, assessments, improvements, payments or other benefit factors applicable to property that is not included within the proposed development.

J. Local Improvement Districts. Applicants shall receive credit against the impact fee equal to the amount of a Local Improvement District assessment paid for transportation-related system improvements on the impact fee project list as identified by the Director.

K. Appeals of Credits. The Director shall issue a written decision on the developer’s request for a credit of the impact fee calculation, which shall explain why the credit was granted or denied. The developer may request reconsideration and appeal the impact fee amount and credit pursuant to MTMC 18.30.180. If the procedures in MTMC 18.30.180 are not timely followed to request an appeal of the credit, the Director’s decision on the impact fee credit shall be final. (Ord. 2694 § 2, 2016).

18.30.100 Variation from impact fee schedule.

If a developer submits information demonstrating that none of the fee categories or fee amounts set forth in the impact fee schedule accurately describe or capture the impacts of a new development on transportation or parks, the Director may allow a special calculation of the impact fee requirements for the subdivision or development to be prepared by the developer’s consultant, at the developer’s cost; provided, that the Director shall have prior approval of the qualifications and methodology of the developer’s consultant in making such calculation, and any time period mandated by statute or ordinance for the approving authority’s final decision on the development shall not include the time spent in preparing the special calculation. Whether the Director accepts the data provided by the special calculation shall be at the discretion of the Director. (Ord. 2694 § 2, 2016).

18.30.110 Calculation of impact fees.

A. Director Calculates the Fees. The Director shall calculate the impact fees applicable to a proposed development based upon the fees and methodology set forth in Appendices A and B.*

B. Factors Used in Impact Fee Calculations. The calculation of impact fees shall include the factors identified in RCW 82.02.050 through 82.02.090 and shall:

1. Determine the standard fee for similar types of development, which shall be reasonably related to each development’s proportionate share of the cost of projects described in the project list for each type of impact fee.

2. Reduce the proportionate share by applying the benefit factors described in MTMC 18.30.090.

C. Proportionate Share. In calculating proportionate share, the following factors shall be considered:

1. Identification of all park and transportation facilities that will be impacted by users from new development;

2. Updating of the data as often as practicable; and

3. Estimation of the cost of construction of the projects in the project lists (see MTMC 18.30.140) for transportation projects at the time they are placed on the list; and the cost of maintaining the City’s level of park service as shown on in Appendix A and Appendix B;* and to then update the cost estimates periodically, considering the:

a. Availability of other means of funding park and transportation facilities;

b. Cost of existing park and transportation facility improvements; and

c. Methods by which park and transportation facility improvements were financed.

D. Director’s Determination. The Director shall issue a written determination of required impact fees based upon:

1. The fee schedule and methodology defined in Appendices A and B;*

2. Applicable credits in MTMC 18.30.090; and

3. Provisions for variation from fee schedule in MTMC 18.30.100. (Ord. 2694 § 2, 2016).

*Code reviser’s note: Appendices A and B are attached to Ordinance No. 2694 and may be found on file in the City Clerk’s office.

18.30.120 Payment of impact fees.

A. Early Calculation and Payment of Impact Fees. All applicants for development shall pay an impact fee in accordance with the provisions of this chapter which shall be calculated by the City at the time that the building permit is ready for issuance. Applicants/developers may choose to pay impact fees or a portion thereof prior to the City’s issuance of a building permit, but if the early payment is less than the fee calculated at the time the building permit is ready for issuance, the applicant/developer shall pay the difference. If the early payment is more than the fee calculated at the time the building permit is ready for issuance, the City shall refund the difference.

B. Impact Fee Recalculation. The impact fee shall be recalculated if the development is modified or conditioned in such a way as to alter park or transportation impacts for the development.

C. Preliminary Impact Fee Estimate. A developer may obtain a preliminary determination of the impact fee before submitting an application for the development permit by providing the Director with the information needed for processing the calculation request together with the applicable fee. Such determinations are provided to the developer as estimates only, and they are not binding on the City, given the limited information needed to calculate the preliminary impact fee amount and the fact that the City regularly updates the project list and impact fee schedule. In addition, impact fees are not subject to the vested rights doctrine, and the fee actually paid by the developer will be the impact fee in effect at the time of building permit issuance or, if deferred under the provisions of MTMC 18.30.130, at the time of deferred payment, regardless of any preliminary determinations.

D. Payment with Issuance of Building Permit. Payment of any required impact fees shall be made as a condition of the issuance of a building permit unless the applicant requests deferral of payment under the provisions of MTMC 18.30.130.

E. Payment Under Protest. Impact fees may be paid under protest in order to obtain the necessary permits/approvals until an appeal of the fee amount is finally resolved.

F. Dedications and Improvements. When a subdivision or development is conditioned upon the dedication of land, or the purchase, installation or improvement of park and/or transportation facilities, a final plat or short plat shall not be recorded, and a building permit within such plat or development shall not be issued, until:

1. The Director has determined in writing that the land to be dedicated is shown on the face of the final plat or short plat, or a deed conveying the land to the City, the County, school district or special purpose district, as appropriate, has been recorded with the County Auditor; and

2. The Director has determined in writing, after consultation with the designated public owner responsible for permanent, continuing maintenance and operation of the facilities, that the developer has satisfactorily undertaken or guaranteed to undertake in a manner acceptable to the developer any required purchase, installation or improvement of park or transportation facilities.

G. Administrative Fees. The City’s cost of administering the impact fee program is deemed to be generally equivalent to four hours of staff time for each project. An administrative fee that is equivalent to four hours of staff time at the rate prescribed under the development fee schedule authorized by MTMC 3.150.090 shall be imposed for each development project for which impact fees are required. The administrative fee, which is nonrefundable, shall be paid by the applicant to the City at the time the impact fees are paid. (Ord. 2694 § 2, 2016).

18.30.130 Deferral of payment of impact fees.

A. Deferral Provisions. Payment of impact fees for single-family residential development may be deferred pursuant to RCW 82.02.050(3), subject to the following provisions:

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

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

a. Name, address, telephone number and e-mail address of the applicant.

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

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

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

e. Applicable fees for processing the application and for future monitoring of the deferred payment of impact fees are required in addition to fees prescribed in MTMC 18.30.120. Deferral application fees shall include:

i. Minimum of four hours’ base administration fee, at the hourly staff rate prescribed under the development fee schedule authorized by MTMC 3.150.090, payable at the time of application submittal.

ii. 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.

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

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

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

a. Request for final inspection of the structure or development.

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

6. 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 Mountlake Terrace. The deferred impact fee lien must include the legal description, tax account number, and address of the property, and must also be:

a. In a form approved by the City of Mountlake Terrace;

b. 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;

c. Binding on all successors in title after the recordation; and

d. 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.

7. Upon receipt of final payment of all deferred impact fees for a property, and upon payment of final administration fees in subsection (A)(2)(e)(ii) of this section, 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.

B. Payment Made by Seller. Unless an agreement to the contrary is reached between the buyer and seller, the payment of impact fees due at closing of a sale must be made from the seller’s proceeds. In the absence of an agreement to the contrary, the seller bears strict liability for the payment of the impact fees.

C. Foreclosure Proceedings. If impact fees are not paid in accordance with a deferral authorized by this section and in accordance with the term provisions established in this section, the City may institute foreclosure proceedings in accordance with Chapter 61.12 RCW.

D. 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 final inspection, certificate of occupancy, or equivalent certification, or at the time of closing of the first sale.

E. 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 review requirement of RCW 36.70B.060 and 36.70B.110 through 36.70B.130. (Ord. 2694 § 2, 2016).

18.30.140 Amending project lists and fee schedules.

A. Review of Project List. The Director shall periodically review the projects listed in the City’s recreation, parks, and open space master plan, and the six-year transportation improvement plan and the projects listed in Appendices A and B*, and shall:

1. Identify each project in the Comprehensive Plan that is growth-related and the proportion of each such project that is growth-related;

2. Forecast the total money available from taxes and other public sources for park and transportation improvements for the next six years;

3. Update the population, building activity and demand and supply data for park and transportation facilities and the impact fee schedule for the next six-year period;

4. Calculate the amount of impact fees already paid; and

5. Identify those Comprehensive Plan projects that have been or are being built but whose performance capacity has not been fully utilized.

B. Amendment to Fee Schedule. The Director shall use this information to prepare biannual periodic amendments to the fee schedules in Appendices A and B*, which shall comprise:

1. The projects in the Comprehensive Plan that are growth-related and that should be funded with forecast public monies and the impact fees already paid; and

2. The projects already built or funded pursuant to this chapter whose performance capacity has not been fully utilized.

C. Council Adoption of Project List. The City Council, at the same time that it adopts the annual budget and appropriates funds for capital improvement projects, may, by separate ordinance, adopt the Director’s proposed project lists and fee amendments, with or without modification.

D. Removal of Project from Project List. Once a project is integrated into the fee schedules in Appendices A and B*, a fee shall be imposed on every development until the project is removed from the project list by one of the following means:

1. The City Council removes, by ordinance, the project from the project list and Appendix A and/or B*, in which case the fees already collected will be refunded, if necessary, to ensure that impact fees remain reasonably related to the park and transportation impacts of development that have paid an impact fee; provided, that a refund shall not be necessary if the Council transfers the fees to the budget of another project that the Council determines will mitigate essentially the same park and transportation impacts; or

2. The capacity created by the project has been fully utilized, in which case the Director shall remove the project from the project list.

E. Update to Impact Fee Rates. The Director may adjust transportation impact fees annually based on available Seattle-area construction cost indexes during the past 12-month period ending in June as determined by the City Engineer. The City Clerk shall maintain a copy of the applicable annual construction cost index for the transportation impact fee update to be made available for public inspection at all reasonable office hours at the City Clerk’s office. Park impact fees may be adjusted annually based on the Seattle Area Consumer Price Index during the past 12-month period ending October, or another schedule, as determined by the Director, that reflects cost increases applicable to park improvement projects. The City Clerk shall maintain a copy of the applicable Seattle Area Consumer Price Index or other schedule as determined by the Director to be made available for public inspection at all reasonable office hours at the City Clerk’s office. (Ord. 2739 § 2, 2018; Ord. 2694 § 2, 2016).

*Code reviser’s note: Appendices A and B are attached to Ordinance No. 2694 and may be found on file in the City Clerk’s office.

18.30.150 Funding of projects.

A. Trust and Agency Fund Created. The parks and transportation impact fee trust previously established prior to the date of the ordinance codified in this chapter shall continue in full force and effect. Separate accounts shall be established for parks and transportation impact fees. The Director shall be the manager of the City’s fund. The City shall place park and transportation impact fees in appropriate deposit accounts within the impact fee fund.

B. Disbursement of Fees. The parks and transportation impact fees paid to the City shall be held and disbursed as follows:

1. The fees collected for each project shall be placed in a deposit account within the impact fee fund;

2. When the Council appropriates capital improvement project (CIP) funds for a park or transportation project on the project list, the park or transportation fees held in the impact fee fund shall be transferred to the CIP fund. The non-impact-fee monies appropriated for the project shall comprise both the public share of the project cost and an advancement of that portion of the private share that has not yet been collected in park or transportation impact fees;

3. The first money spent by the Director on a project after a Council appropriation shall be deemed to be the fees from the impact fee fund;

4. Fees collected after a project has been fully funded by means of one or more Council appropriations shall constitute reimbursement to the City of the funds advanced for the private share of the project. The public monies made available by such reimbursement shall be used to pay the public share of other projects;

5. All interest earned on impact fees paid shall be retained in the account and expended for the purpose or purposes for which the impact fees were imposed.

C. Project Funding Sources. Projects shall be funded by a balance between impact fees and public funds, and shall not be funded solely by impact fees.

D. Deadline for Expending Fees. Impact fees shall be expended or encumbered for a permissible use for 10 years after receipt, unless there exists an extraordinary or compelling reason for fees to be held longer than 10 years. The Director may recommend to the Council that the City hold park or transportation fees beyond 10 years in cases where extraordinary or compelling reasons exist. Such reasons shall be identified in written findings by the Council.

E. Annual Report. The Director shall prepare an annual report on the impact fee accounts showing the source and amount of all monies collected, earned or received and system improvements that were financed in whole or in part by impact fees. (Ord. 2694 § 2, 2016).

18.30.160 Use and disposition of dedicated land.

All land dedicated or conveyed pursuant to this chapter shall be set aside for development of park and transportation facilities. The City and County, and any special purpose district to which land is dedicated or conveyed pursuant to this chapter, shall make every effort to use, develop and maintain land dedicated or conveyed for park and transportation facilities. In the event that any such dedicated land is determined by the Director to be infeasible for development of park or transportation facilities, the dedicated land may be sold or traded for another parcel of land. The proceeds from such a sale shall be used to acquire land or develop park or transportation facilities. (Ord. 2694 § 2, 2016).

18.30.170 Refunds.

A. Allowed for Withdrawn Projects. A developer may request and shall receive a refund from the City for parks and transportation impact fees when the developer does not proceed with the development activity for which impact fees were paid, and the developer shows that no impact has resulted and has requested that his/her application has been withdrawn.

B. Notice of Refund Proceedings. The City shall provide notice to all potential claimants that impact fees may be refunded if the City fails to expend or encumber the impact fees within 10 years of the date the fees were paid or the date established by the findings adopted under MTMC 18.30.140(D) on public facilities intended to benefit the development activity for which the impact fees were paid. In determining whether impact fees have been encumbered, impact fees shall be considered encumbered on a first in, first out basis. The City shall notify potential claimants by first class mail, deposited with the U.S. Postal Service at the last known address of claimants. The request for a refund must be submitted to the City in writing within one year of the date the right to claim the refund arises or the date notice is given, whichever is later. Any impact fees that are not expended within these time limitations and for which no application for refund has been made within the one-year period shall be retained and expended on the indicated capital facilities. Refunds of impact fees under this section shall include interest earned on the impact fees.

C. Refund with Interest. In the event that impact fees are refunded for any reason, they shall be refunded by the City with respect to park and transportation fees and such fees shall be returned with interest on the refunded portion earned to the owners as they appear of record with the County Assessor at the time of the refund.

D. Notice of Termination Proceedings. When the City seeks to terminate any or all impact fee requirements, all unexpended or unencumbered funds 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 to 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 on a project on the adopted plans of the City. This notice requirement shall not apply if there are no unexpended or unencumbered balances within an account or accounts being terminated. (Ord. 2694 § 2, 2016).

18.30.180 Appeals.

A. Decision on Impact Fee. The Director shall issue a written decision on the parks and/or transportation impact fee amount as described in this chapter.

B. Reconsideration by Director.

1. In order to request reconsideration of the Director’s decision, the developer shall make a written request to the Director for a meeting to review the fee amount, together with a written request for reconsideration. The request for reconsideration shall state in detail the grounds for the request, and shall be filed with the Director within 15 days after issuance of the Director’s decision on the impact fees.

2. The Director shall consider any studies and data submitted by the developer seeking to adjust the amount of the fee. The Director shall issue a written decision on reconsideration within 10 working days of the Director’s receipt of the request for reconsideration or the meeting with the developer, whichever is later.

C. Appeal of Decision on Reconsideration to Hearing Examiner. A developer may appeal the amount of the impact fee established in the decision on reconsideration of the Director to the Hearing Examiner. An appeal of the decision of the Director on reconsideration must be filed with the City Planning Department within 14 days of issuance of that decision. The Hearing Examiner shall conduct a public hearing on the appeal.

1. An appeal of the impact fee after reconsideration may be filed without appealing the underlying permit. This procedure is exempt from the permit processing requirements in MTMC 18.05.350 through 18.05.440 (pursuant to RCW 36.70B.140). If the developer files an appeal of the underlying permit and the impact fee, the City may consolidate the appeals.

2. The developer shall bear the burden of proving:

a. That the Director committed error in calculating the developer’s proportionate share, as determined by an individual fee calculation, or if relevant, as set forth in the impact fee schedule, or in granting credit for the benefit factors; or

b. That the Director based his determination upon incorrect data.

D. Appeals of Hearing Examiner’s Decision. Appeals from the decision of the City’s Hearing Examiner shall be to superior court as provided in Chapter 36.70C RCW. (Ord. 2694 § 2, 2016).

18.30.190 Relationship to SEPA.

A. As provided in RCW 82.02.100, a person required to pay a fee pursuant to RCW 43.21C.060 for system improvements shall not be required to pay an impact fee under this chapter for the same system improvements.

B. Nothing in this chapter shall be construed to limit the City’s authority to deny development permits when a proposal would result in probable significant adverse impacts identified in an environmental impact statement and reasonable mitigation measures are insufficient to mitigate the identified impact. (Ord. 2694 § 2, 2016).

18.30.200 Park and transportation facility requirements in adjoining municipalities/districts.

Level of service requirements and demand standards different than those provided in the City’s comprehensive park plan shall be applied to park and recreation facility impacts in adjoining municipalities/districts if such different standards are provided in an interlocal agreement between the City and the affected municipality. Otherwise, the standards contained in the City’s Comprehensive Plan shall apply to park and transportation impacts in adjoining jurisdictions. (Ord. 2694 § 2, 2016).

18.30.210 Necessity of compliance.

A development permit issued after the effective date of the ordinance codified in this chapter shall be null and void if issued without substantial compliance with this chapter by the Director, the Department and the approving authority. (Ord. 2694 § 2, 2016).