Go to: OVERVIEW (SaveOurCounty) DETAILS (listener) PLANNING SCHOOLS ENVIRONMENT EROSION     Report corrections+broken links to Webmaster Get updates on local issues

Development Impact Fee

Procedures Ordinance PRELIMINARY DRAFT January 23, 2003, Jefferson County, WV

[Other ordinances will list fees for particular topics.]

TABLE OF CONTENTS

SECTION 1. IN GENERAL 5
(A) Purpose and Intent 5
(B) Rules of Construction 5
(C) Definitions 6
(D) General Provisions, Applicability 8
SECTION 2. PROCEDURES FOR IMPOSITION, CALCULATION AND
COLLECTION OF IMPACT FEES 10
(A) In General 10
(B) Calculation 11
(C) Offsets 12
(D) Collection 13
(E) Impact Fee Agreements 14
SECTION 3. ESTABLISHMENT OF DEVELOPMENT FEE ACCOUNTS;
APPROPRIATION OF DEVELOPMENT FEE FUNDS; AND REFUNDS 14
(A) Development Fee Accounts 14
(B) Appropriation of Development Fee Funds 14
(C) Procedure for Appropriation of Development Fee Funds 15
(D) Refunds 16
SECTION 4. APPEALS 17
(A) Initiation 17
~“B) Burden of Proof 18

KG,) Contents 18
(D,) Decision 18
SECTION 5. EXEMPTIONS/WAIVERS 19
(A) Filing oJApplication 19
(B) Effect of Grant of Exemption/Waiver 19
(C) Development Agreements 19
SECTION 6. ANNUAL REVIEW AND ADJUSTMENTS 19
(A) Annual Review 19
(B) Annual Adjustments 20
SECTION 7. ENFORCEMENT 21

WHEREAS, pursuant to the Local Powers Act, § 7-20-1 et seq., West Virginia Code, Jefferson County is authorized to establish and impose impact fees on new development to offset costs to the municipality associated with providing necessary public facilities and services, the demand for which is created by new development; and

WHEREAS the County Commission has studied the necessity for and implications of the adoption of development impact fees for various public facilities and has retained Tischler & Associates, Inc. to prepare a development impact fees report to consider development impact fees, and Tischler & Associates, Inc. has prepared a Development Fee Calculation Methodology Report, dated ____________ and

WHEREAS the County Commission has adopted a comprehensive plan which was updated in ____________; and

WHEREAS the County Commission has developed a Capital Improvements Program in order to more definitively project the specific public service demands that will be imposed upon the County by this projected growth rate; and

WHEREAS, based on the population, housing units, commercial square footage, and land use projections as well as the public service needs associated with the projected level of growth, the County Commission has determined that impact fees are an appropriate and necessary technique, to be used in conjunction with other available public service financing techniques, to ensure that adequate public facilities are provided to new growth while the County maintains the level of service (LOS) standards for existing County residents; and

WHEREAS the County Commission has determined that impact fees will be necessary for multiple public facilities, including __________ and

WHEREAS the County Commission has found and determined that impact fees for different public facilities, all enacted pursuant to the authority granted by the Local Powers Act, will have certain common characteristics and that the County will, therefore, benefit from the adoption and use of a uniform procedure for the imposition, calculation, collection, expenditure and administration of all of the adopted impact fees; and

WHEREAS the use of uniform procedures, to the extent possible, will be more efficient and expedient for both the County and applicants for development permits than separate procedures for each development fee; and

WHEREAS the use of uniform procedures will simplify the implementation and administration of impact fees; and

WHEREAS the use of uniform procedures will best ensure that impact fees are earmarked and expended for the public facilities for which they were imposed and collected; and

WHEREAS all monies collected from impact fees shall be deposited in interest-bearing accounts which clearly identify the category, account, fund and public service for which such fee was imposed; and

WHEREAS each such category, fund or account shall be accounted for separately; provided, however, that the determination as to whether the accounting requirement shall be by category, account or fund and whether by aggregate or individual development shall be within the discretion of the County; and

WHEREAS any interest or other income earned on monies deposited in said interest-bearing accounts shall be credited to the applicable account; and

WHEREAS the County Commission has found and determined that impact fees are an appropriate technique for funding public facilities; and

WHEREAS the County Commission has found, pursuant to the conclusions reached in the ___________, that the fee amounts imposed are “roughly proportional” to the impact on public services created by new development; and

WHEREAS the County Commission has found that the public services for which impact fees are collected are necessary to protect the health, safety, and general welfare of the citizens of Jefferson County; and

WHEREAS the County Commission recognizes its obligation and authority to provide the public services for which impact fees are collected;

WHEREAS the County has or will, for each public service development fee, determine that the payment of the development fee and its expenditure for needed public facilities will result in a direct beneficial use to the development on which it is imposed; and

WHEREAS the County has developed and adopted a schedule of impact fees for each public service; and

WHEREAS the County has provided a credit (offset) mechanism in cases where the proposed development has been subject to the required dedication of public sites and/or public improvements, or payment in lieu thereof, for which impact fees are also being imposed; and

WHEREAS the County has determined that the development fee amounts bear a reasonable relationship to the burden imposed upon the municipality to provide the additional public facilities to serve the new development at the appropriate LOS standard; and

WHEREAS the County has developed fee calculation methodologies which will be imposed in an equitable and non-discriminatory manner; and

NOW, THEREFORE, BE IT ORDAINED by the County Commission of Jefferson County, West Virginia as follows:

Section 1. IN GENERAL

(A) Purpose and Intent

The purposes and intent of these Impact Fee procedures are:

1) To establish uniform procedures for the imposition, calculation, collection, expenditure and administration of impact fees imposed on new development;

2) To ensure that new development contributes its fair share towards the costs of public facilities reasonably necessitated by such new development;

3) To ensure that new development reasonably benefits from the provision of the public facilities provided with the proceeds of impact fees;

4) To ensure that all applicable legal standards and criteria are properly incorporated in these procedures.

(B) Rules of Construction

1) The word “shall” is always mandatory and not discretionary and the word “may” is permissive.

2) Words used in the present tense shall include the future; and words used in the singular shall include the plural and the plural the singular, unless the context clearly indicates the contrary; use of the masculine gender shall include the feminine gender.

3) The phrase “used for” includes “arranged for,” “designed for,” “maintained for,” or “occupied for.”

4) Unless the context clearly indicates the contrary, where a regulation involves two or more items, conditions, provisions, or events connected by the conjunction “and” “or” or “either... or,” the conjunction shall be interpreted as follows:

a. “And” indicates that all the connected terms, conditions, provisions or events shall apply.

b. “Or” indicates that the connected items, conditions, provisions or events may apply singly or in any combination.

c. “Either...or” indicates that the connected items, conditions, provisions or events shall apply singly but not in combination.

5) The words “includes” and “including” shall not limit a term to the specific example but are intended to extend its meaning to all other instances or circumstances of like kind or character.

(C) Definitions

1) Applicant: any person who files an application with the County for a building permit.

2) Appropriation or to appropriate: an action by the County to identify specific public facilities for which development fee funds may be utilized. Appropriation shall include, but shall not necessarily be limited to: inclusion of a public service in the adopted County budget or Capital Improvements Program; execution of a contract or other legal encumbrance for construction of a public service using development fee funds in whole or in part; and/or actual expenditure of development fee funds through payments made from a development fee account.

3) Budget Officer: the director of ____________

4) Building Permit: the official document or certificate issued by the County under the authority of ordinance or law authorizing the commencement of construction of any building or other structure or part thereof, or authorizing a change in use.

5) Business Park: a group of flex-type buildings served by a common roadway system. The tenant space includes a variety of uses with an average mix of 20-30% office/commercial and 70-80% industrial/warehousing.

6) Capital Improvement: As defined in West Virginia Code §7-20-1(a).

7) Commercial (use): an establishment that engages in the buying and/or selling of commodities and/or services.

8) County: Jefferson County, West Virginia.

9) County Commission: the Board of County Commission of Jefferson County, West Virginia.

10) Development: [to be added]

11) Development Fee: a fee adopted by the County Commission which is imposed on new development on a pro rata basis in connection with and as a condition of the issuance of a building permit and which is calculated to defray all or a portion of the costs of thepublic facilities required to accommodate new development at County-designated level of service (LOS) standards and which reasonably benefits the new development.

12) Development Fee Calculation Methodology Report: a report titled ____________________ prepared by Tischler & Associates, Inc., dated _______________ which sets forth the methodology and basis for the calculation of the impact of new development and the proper and proportional amount of the development fee to be assessed against new development.

13) District or Development Fee District: a defined geographic area or subarea of the County within which particular public facilities are provided and in which impact fees will be collected, appropriated, and expended for public facilities serving, new development within such area or subarea.

14) Dwelling Unit:

15) Effective Date: The date on which impact fees shall first be commenced, which shall be the first day of the first month which is at least sixty (60) days after adoption of this Ordinance.

16) Finance Director:

17) Impact Fee: The charge or fee levied on new development to fund a portion of the costs of capital improvements for any public facility in accordance with the provisions of this Ordinance and the applicable specific Impact Fee Ordinance.

18) Impact Fcc Agreement: An agreement entered into by and between all applicants and the County Commission at the time the impact fee is paid.

19) Manufacturing: any use involving the use of mechanical power and machinery to produce products from raw materials, to prepare or alter materials for use in a finished product, or to assemble parts into products.

20) Municipality: any and all of the following:

21) New Development: any new construction, reconstruction, redevelopment, rehabilitation, structural alteration, structural enlargement, structural extension, or new use which requires a building permit; any change in use of an existing non-residential building, structure or lot requiring any form of County approval, and which increases the demand for one (1) or more public facilities or services as herein defined.

22) Non-Residential: any use or development that is not a residential use, and includes commercial, industrial and institutional uses.

23) Office (use): A building used primarily for offices that may include ancillary services for office workers, such as a restaurant, coffee shop, newspaper, or candy stand.

24) Offset: a waiver of certain required impact fees in exchange for the provision by the applicant of, among other things, monetary contributions, dedication of land, or actual construction of all or part of a public service consistent with the County’s Capital Improvement Program.

25) Planning Director: the Executive Director of Planning, Zoning and Engineering, or his designee.

26) Public Facility or Service: public improvements, facilities or services necessary to accommodate new development and necessary to protect the health, safety and general welfare of the citizens of the County; which public services include, but are not limited

to, ___________________

27) Public Service Expenditures: amounts appropriated in connection with the planning, design, engineering and construction of public facilities; including planning, legal, appraisal and other costs related to the acquisition of land, financing and development costs; the costs of compliance with purchasing procedures and applicable administrative and legal requirements; and all other costs necessarily incident to provision of public facilities.

28) Residential: any use or development that includes or results in the creation of a Dwelling.

29) Single-Family Detached Dwelling: means a detached building designed for or used exclusively by one family.

Warehousing: a use engaged in bulk storage of wholesale or distribution materials, inventory, equipment, supplies, or other materials not stored for immediate, on-site retail sale.

(D) General Provisions; Applicability

1) Term. This Ordinance and the procedures established herein shall remain in effect unless and until repealed, amended or modified by the County Commission in accordance with applicable state law and the County’s Code, ordinances and resolutions.

2) Affected Area.

a) County Wide Application: This Ordinance shall apply to all new development within the County, including new development which takes place within the boundaries of any Municipality. Impact fees for particular public facilities may apply to less than the entire County, as set forth in the ordinance adopting each specific Impact Fee.

b) Development Fee District. Impact fees for certain public facilities shall be collected and spent within a defined geographical area which may be all or less than all of the County.

c) Identification. The affected area, including Development Fee Districts, if applicable, shall be described and/or mapped in the particular public service development fee ordinance.

d) Change in Boundaries of Development Fee Districts. The County may amend the boundaries of the Development Fee Districts at such times as may be deemed necessary to carry out the purposes and intent of this Ordinance and applicable legal requirements for use of impact fees.

3) Type of Development Affected. This Ordinance shall apply to all new development.

4) Type of Development Not Affected. This Ordinance shall not apply to:

a) Previously-Issued Building Permits. No development fee shall be imposed on

new development for which a building permit has been issued prior to the effective date of this Ordinance.

b) No Net Increase in Dwellings. No development fee shall be imposed on any new residential development that does not result in the creation of one or more new dwelling units.

c) No Net Increase in Non-Residential Square Footage. No development fee shall be imposed on any new non-residential development that does not result in the creation of new square footage, unless the new non-residential development is to a different category of development, as defined herein, which results in an increase in the demand for public facilities for which impact fees are being imposed.

d) Other Uses. No development fee shall be imposed on a use, development, project, structure, building, fence, sign or other activity, whether or not a building permit is required, which does not result in an increase in the demand for public facilities.

e) Public Facilities Provided By Government: No impact fees shall be imposed

on building permits issued for the construction of a public facilities by the State of West Virginia, the County or any municipality.

f) Development Agreements. Development projects that are the subject of a Development Agreement containing provisions in conflict with this Ordinance, but only to the extent of the conflict or inconsistency.

6) Effect of Payment of Impact fees on Other Applicable County Land Use, Zoning, Platting, Subdivision or Development Regulations.

a) The payment of impact fees shall not entitle the applicant to a building permit unless all of the applicable land use, zoning, planning, plafting, subdivision or other related requirements, standards and conditions of the County have been met. Such other requirements, standards and conditions are independent of the requirement for payment of a development fee.

b) Neither this Ordinance nor the specific development fee ordinances for particular public facilities shall affect, in any manner, the permissible use of property, density/intensity of development, design and improvement standards or other applicable standards or requirements of the County zoning, subdivision or building ordinances or other development regulations, which shall be operative and remain in full force and effect without limitation.

7) Amendments. This Ordinance, and any ordinance adopting impact fees for any particular public facility pursuant to this Ordinance, may be amended from time to time by the County Commission; provided, however, that no such amendment shall be adopted without a written report detailing the reasons and need for the development fee revision nor without proper notice and public hearing as required by law.

(A) In General.

An applicant shall be notified by the County of the applicable development fee requirements at the time of application for a building permit via the issuance of a Development Fee Calculation Form to the applicant. Impact fees shall be calculated by the County at the time of application for a building permit and shall be paid by the applicant prior to the issuance of a building permit.

(B) Calculation.

1) Upon receipt of an application for a building permit, the ____________ shall determine (a) whether it is a residential or non-residential use, (b) the specific category of residential or non-residential development, if applicable, (c) if residential, the number of new dwelling units, (d) if non-residential, the number of new or additional square feet of gross floor area of the proposed use, and, (e) the Development Fee District in which the new development is located, if applicable.

2) Upon receipt of an application for a building permit, the _____________ shall determine whether the development involves a change in use. In such cases, the development fee due shall be based only on the incremental increase in the fee for the additional public facilities needed for the change in use. An applicant shall not be entitled to a refund where the change of use is to a category of development which imposes a lower demand on public facilities.

3) After making these determinations, the _____________ shall calculate the applicable development fee by multiplying the demand added by the new development by the amount of the applicable development fee per unit of development, incorporating any applicable offset if set forth in the particular impact fee ordinance.

4) If the type of land use proposed for new development is not expressly listed in the particular development fee ordinance and schedule, the County shall:

a) identify the most similar land use type listed and calculate the development fee based on the development fee for the land use identified;

b) identify the broader land use category within which the specified land use would apply and calculate the development fee based on the development fee for that land use category; or

c) at the option of the applicant or Planning Director, determine the basis used to calculate the fee pursuant to an independent impact analysis for development fee calculation. When initiated by the applicant, this option shall be requested on a form provided by the _________________ for such purpose. Whether initiated by the applicant or the Planning Director, the following shall apply:

I. The applicant shall be responsible, at its sole expense, for preparing the independent impact analysis, which shall be reviewed for approval by the Planning Director, and, if appropriate, other County staff or officials, prior to payment of the fee.

2. The independent impact analysis shall measure the impact that the proposed development will have on the particular public service at issue, and shall be based on the same methodologies used in the Development Fee Calculation Methodology Report, and shall be supported by professionally acceptable data and assumptions.

3. After review of the independent impact analysis submifted by the applicant, the Planning Director shall accept or reject the analysis and provide written notice to the applicant of its decision on a form provided for such purpose within forty-five (45) days. If the independent impact analysis is rejected, the written notice shall provide an explanation of the insufficiencies of the analysis.

4. The final decision of the Planning Director may be appealed pursuant to

section ________________________

5) An applicant may request a non-binding estimate of impact fees due for a particular new development at any time by filing a request on a form provided for such purpose by _______________ provided, however, that such estimate may be subject to change when a formal application for a building permit for new development is made. Such nonbinding estimate is solely for the benefit of the prospective applicant and shall in no way bind the County nor preclude it from making amendments or revisions to any provisions of this Ordinance, the specific development fee implementing ordinances, or the development fee schedules.

6) The calculation of impact fees due from a multiple-use new development shall be based upon the aggregated demand for each public service generated by each land use type in the new development.

7) The calculation of impact fees due from a phased new development shall be based upon the demand generated by each specific land use within the phase of development for which a separate building permit is requested.

8) Impact fees shall be calculated based on the development fee amount in effect at the time of application for a building permit.

(C) Offsets.

1) Offsets against the amount of a development fee due from a new development shall be provided for, among other things, contributions made concurrently or to be made in the future in cash, or by dedication of land, or by actual construction of all or part of a public service by the affected property owner for public services meeting or exceeding the demand generated by the new development, and the contribution is determined by the Planning Director to be a reasonable substitute for the cost of public facilities which are included in the methodology set forth in the Development Fee Calculation Methodology Report.

2) The amount of the excess contribution shall be determined by the Planning Director upon receipt of an application form requesting an offset; provided, however, that (a) the Planning Director will make no reimbursement for excess contributions unless and until the particular public service fund has sufficient revenue to make the reimbursement without jeopardizing the continuity of the County’s Capital Improvements Program and (b) the excess contribution may not be transferred or credited to any other types of impact fees calculated to be due from that development for other type of public facilities. The determination of the eligibility for and the amount of the credit shall be made by the County on a form provided for such purposes by the __________________. If the applicant contends that any aspect of the Planning Director’s decision constitutes an abuse of discretion, the applicant shall be entitled to appeal pursuant to Section

3) No offset shall be allowed unless the County Commission has approved the contribution or expenditure before it is made.

4) Offsets for dedication of land or provision of public facilities shall be applicable only as to impact fees imposed for the same types of public facilities that are proposed to be dedicated or provided. Even if the value of the dedication of land or provision of a public service exceeds the development fee due for the type of public service, the excess value may not be transferred to impact fees calculated to be due from the applicant for other types of public facilities for which impact fees may be imposed. Offsets may, however, be transferred to the same applicant or to other applicants for new development that are proposed within the final approved platted area of the same development and for the same type of public service.

(D) Collection

1) The County shall collect all applicable impact fees at the time of issuance of a building permit and shall issue a receipt to the applicant for such payment unless:

a) the applicant is entitled to a full offset;

b) the applicant is not otherwise subject to the payment of a development fee; or

c) the applicant has filed an appeal, and a bond or other surety in the amount of the impact fee, as calculated by the ____________ and approved by the County Attorney, has been posted with the County.

2) The County shall collect an impact fee at the time of issuance of a building permit even if the applicant has paid impact fees at an earlier time in the development approval process, if the amount of the impact fees has increased since such prior payment. The applicant shall only be liable for the difference between the impact fees paid earlier and those in effect at the time of issuance of the subsequent building permit.

(E) Impact Fee Agreements

1) The County Attorney shall prepare a form of Impact Fee Agreement which shall contain such provisions of this Ordinance related to the collection and use of impact fees as the County Attorney determines is necessary to comply with the provisions of sS7~2O-8(c), West Virginia Code.

2) At the time of payment of Impact Fees, the _______________ shall prepare an Impact Fee Agreement for the specific development for which Impact Fees are being paid, and the applicant shall execute such Agreement.

3) Within ______ days after an Impact Fee Agreement is executed by an applicant, it shall be executed by the County Commission. Thereafter, the _____________ shall send a copy of the fully executed Impact Fee Agreement to the applicant. The __________ shall retain the original executed Impact Fee Agreement.

Section 3. ESTABLISHMENT OF DEVELOPMENT FEE ACCOUNTS; APPROPRIATION OF DEVELOPMENT FEE FUNDS; AND REFUNDS

(A) Development Fee Accounts.

The County shall establish a development fee account for each category of public facility for which impact fees are imposed. Such account shall clearly identify the category, account, or fund for which the development fee has been imposed. Subaccounts may be established for individual development fee districts. All impact fees collected by the County shall be deposited into the appropriate development fee account or subaccount, which shall be interest bearing. All interest earned on monies deposited to such account shall be credited to and shall be considered funds of the account. The funds of each such account shall be capable of being accounted for separately from all other County funds. The County shall establish and implement necessary accounting controls to ensure that the development fee funds are properly deposited, accounted for and appropriated in accordance with this Chapter and any other applicable legal requirements.

(B) Appropriation of Development Fee Funds.

1) In General. Development fee funds may be appropriated for public facilities for ________ [as defined in the Local Powers Act] and for the payment of principal, interest and other financing costs on contracts, bonds, notes or other obligations issued by or on behalf of the County or other applicable local governmental entity to finance such public facilities and public service expenditures. All appropriations from development fee accounts shall be detailed on a form provided for such purposes and filed in the

2) Restrictions on Appropriations. Impact fees shall not be appropriated for maintenance or repair of public facilities or for operational or personnel expenses associated with the provision of public facilities or for funding any expenditure that would be classified in accounting as a maintenance or repair expense. Impact fees shall be appropriated only:

a) for the particular public service for which they were imposed, calculated and collected;

b) within the development fee district where collected; and

c) within six (6) years of the beginning of the County’s Fiscal Year immediately succeeding the date of collection, unless such time period is extended as provided herein.

3) Appropriation of Development Fee Funds Outside of District Where Collected.

Where the County is divided into development fee districts for a particular category of Impact fees, development fee funds may be appropriated for a public service located outside of the District where collected only if the demand for the public service is generated in whole or in part by the new development or if the public service will actually serve the new development.

4) Appropriation of Development Fee Funds Beyond Six (6) Years of Collection.

Notwithstanding paragraph 2 of this subsection, development fee funds may be appropriated beyond six (6) years from the beginning of the County’s Fiscal Year immediately succeeding the date of collection if the appropriation is for a public facility that requires more than six (6) years to plan, design and construct, and the demand for the public facility is generated in whole or in part by the new development, or if the public facility will actually serve the new development. The County shall document c