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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 compliance with the provisions of this paragraph.

(C) Procedure for Appropriation of Development Fee Funds.

1) Each year the County shall identify public facility projects anticipated to be funded in whole or in part with impact fees. The public facilities shall be so identified based upon the development fee annual review set forth in section __________ of this Chapter, and such other information as may be relevant, and may be part of the County’s annual budget and capital improvements programming process.

2) Such identification of public facilities shall be consistent with the provisions of this Ordinance, the particular public service development fee ordinances, other applicable legal requirements, and any guidelines adopted by the County Commissioners.

3) The County Commissioners may include public facilities funded with impact fees in the County’s annual budget and Capital Improvements Program. If included, the description of the public facility shall specify the nature of the facility, the location of the public facility, the capacity to be added by the public facility, the service area of the public facility, the need/demand for the public facility and the anticipated timing of completion of the public facility.

4) The County Commissioners may authorize public facilities funded by impact fees at such other times as it deems necessary and appropriate by a majority vote of the County Commissioners.

5) The County Commissioners shall verify that adequate development fee funds are or will be available from the appropriate development fee account for the particular public facility.

(D) Refunds.

1) Eligibility for Refund.

a) Expiration or Revocation of Building Permit. An applicant who has paid a development fee for a new development for which the necessary building permit has expired or for which the building permit has been revoked prior to construction shall be eligible to apply for a refund of impact fees paid. The refund application shall be made on a form provided by the County for such

purposes.

b) Failure of County to Appropriate Development Fee Funds Within Time Limit. The current property owner may apply for a refund of impact fees paid by an applicant if the County has failed to appropriate the impact fees collected from the applicant within the time limit established in subsection __________ The refund application shall be made on a form provided by the County for such

purposes.

c) Abandonment of Development After Initiation of Construction. An

applicant who has paid a development fee for a new development for which a building permit has been issued and pursuant to which construction has been initiated, but which construction is abandoned prior to completion and issuance of a certificate of occupancy, shall not be eligible for a refund unless the uncompleted building is completely demolished.

2) Administrative Fee. A _____ percent administrative fee, not to exceed -hundred dollars, shall be deducted from the amount of any refund granted and shall be retained by the County in the appropriate development fee account to defray the administrative expenses associated with the processing of a refund application.

3) To Whom Refunds Paid. Except as provided in paragraph 1(a), 1(c), and 7 of this subsection, refunds shall be made only to the current owner of property on which the new development was proposed or occurred.

4) Processing of Applications for a Refund. Applications for a refund shall be made on a form provided by the ______________ for such purposes and shall include all information required in paragraphs 5 or 6 of this subsection, as appropriate. Upon receipt of a complete application for a refund, the _________ shall review the application and documentary evidence submitted by the applicant as well as such other information and evidence as may be deemed relevant, and make a determination as to whether a refund is due. Refunds by direct payment shall be made following an affirmative determination by

5) Refunds Because of Abandonment. Applications for refunds due to abandonment of a new development prior to completion shall be made on forms provided by the ______________________ and shall be made within sixty (60) days following expiration or revocation of the building permit. The applicant shall submit the following: (a) evidence that the applicant is the property owner or the duly designated agent of the property owner, (b) the amount of the impact fees paid by public facility category and receipts evidencing such payments, and (c) documentation evidencing the expiration or revocation of the building permit or approval of demolition of the structure pursuant to a valid County-issued demolition permit. Failure to apply for a refund within sixty (60) days following expiration or revocation of the building permit or demolition of the structure shall constitute a waiver of entitlement to a refund. No interest shall be paid by the County in calculating the amount of the refunds.

6) Refunds Due to Failure to Appropriate Funds. Applications for refunds due to the failure of the County to appropriate impact fees collected from the applicant within the time limits established in subsection _________ shall be made on forms provided by the ________________ and shall be made within one (1) year following the expiration of such time limit. The applicant shall submit: (a) evidence that the applicant is the property owner or the duly designated agent of the property owner, (b) the amount of the impact fees paid by public service category and receipts evidencing such payments, and (c) description and documentation of the County’s failure to appropriate development fee funds for relevant public facilities.

7) Methods of Refunds. The County may, at its option, make refunds of impact fees by direct payment, by offsetting such refunds against other impact fees due for the same category of public facilities for new development on the same property, or by other means subject to agreement with the property owner.

Section 4. APPEALS.

(A) Initiation

1) An appeal from any decision of a County official pursuant to this Ordinance shall be made to the County Commission by filing a written appeal on the appropriate County form with the County Clerk within thirty (30) days following the decision which is being appealed. The and County Commission may appoint a hearing officer to hear the appeal, in which case the hearing officer shall have the authority to conduct hearings as required by this Ordinance.

2) If the notice of appeal is accompanied by a cash bond, letter of credit or other surety in a form satisfactory to the County Attorney and the ___________________ in an amount equal to the development fee calculated by the _________ to be due, a building permit may be issued to the new development.

3) The filing of an appeal shall not stay the imposition or the collection of the development fee as calculated by the County unless a cash bond or other sufficient surety has been provided.

(B) Burden of Proof

The burden of proof shall be on the appellant to demonstrate that the decision of the County is erroneous.

(C) Contents

All appeals shall detail the specific grounds therefor and all other relevant information and shall be filed on a form provided by the County for such purposes.

(D) Decision.

1) The County Commission shall:

a) determine whether there is an error in an order, requirement or decision

made by a County official in the enforcement of this Ordinance, and/or

b) determine whether the fee would amount to a taking of private property or otherwise violate the State and federal constitutional rights of the applicant.

2) Based on the information provided at the hearing, the County Commission shall reverse or affirm, in whole or in part, or modify, the order, requirement or decision of the County official appealed from, and make such order, requirement, decision or determination as the County Commission consider necessary.

3) The County Commission shall render a decision on the appeal within [ninety (90) days] after the filing of the appeal.

Section 5. EXEMPTIONS/WAIVERS.

(A) Filing of Application.

Petitions for exemptions from the application of the provisions of this Ordinance for waivers from specific impact fees shall be filed with the ______________ on forms provided by the ____________________

(B) Effect of Grant of Exemption/Waiver.

1) Grant of Waiver. If the County Commission grants a waiver in whole or in part of impact fees otherwise due, the amount of the impact fees exempted or waived shall be provided by the County from non-development fee funds, and such funds shall be deposited in the appropriate development fee account within a reasonable period of time consistent with the applicable County Capital Improvements Program.

2) Effect of Exemption. If an exemption from the application of the provisions of this Ordinance is authorized by the terms of a specific impact fee ordinance, the County shall not be required to provide any funds to cover the cost of the impact fee which would have been due without such exemption.

(C) Development Agreements.

Nothing herein shall be deemed to limit the County’s authority or ability to enter into Development Agreements with applicants for new development who may provide for dedication of land, payments in lieu of impact fees, or actual infrastructure improvements. Such development agreements may allow offsets against impact fees for contributions made concurrently or to be made in the future in cash, or by assessments or dedication of land or by actual construction of all or part of a public facility by the affected property owner.

Section 6. ANNUAL REVIEW AND ADJUSTMENTS

(A) Annual Review.

1) At least once every year not later than ________ of each year, beginning __________ and prior to County Commission’s adoption of the Annual Budget and Capital Improvements Program, the Planning Director or a designee chosen by the Planning Director shall coordinate the preparation and submission of an Annual Report to the County Executive and County Commission on the subject of impact fees.

2) The Annual Report may include any or all of the following:

a) recommendations for amendments, if appropriate, to these procedures or
to specific ordinances adopting impact fees for particular public facilities;

b) proposed changes to the County Capital Improvements Program, including the identification of additional public facilities anticipated to be funded wholly or partially with impact fees;

c) proposed changes to the boundaries or creation of Development Fee Districts, if applicable;

d) proposed changes to development fee schedules as set forth in the ordinances imposing and setting impact fees for particular public facilities;

e) proposed changes to level of service standards for particular public facilities;

f) proposed changes to any development fee calculation methodology;

g) proposed changes to the population, housing, land use, persons per household or non-residential development projections included in the Development Fee Calculation Methodology Report and upon which the development fee amounts have been determined; or

h) other data, analysis or recommendations as the Planning Director or appropriate designee may deem appropriate, or as may be requested by the County Commission.

3) Submission of Development Fee Annual Report and County Commission Action. The Planning Director or the Planning Director’s designee shall submit the Annual Report to the County Commission, who shall receive the Annual Report and which may take such actions as they deem appropriate, including, but not limited to, requesting additional data or analyses and holding public workshops and/or public hearings.

(B) Annual Adjustments.

1) On _______, and on July 1st of each year thereafter in which this Ordinance is in effect, the amount of any impact fee may be automatically adjusted to account for inflationary increases in the cost of providing public facilities utilizing the most recent 20-city annual national average data from the Engineering News Record Construction Cost Index.

2) The __________________ shall make the automatic annual adjustment unless the County Commission, in its Annual Review, determines an alternate adjustment is appropriate.

3) Nothing herein shall prevent the County Commission from electing to retain existing impact fees or from electing to waive the inflation adjustment for any given fiscal year.

Section 7. ENFORCEMENT

(A) It is unlawful for any person or entity to enlarge, alter or change any use of property or to erect, construct, enlarge, alter, repair, move, improve, make, put together or convert any building in the County, or attempt to do so, or cause the same to be done, without first paying all development impact fees imposed by this Ordinance. Any person or entity who shall so violate this Ordinance shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined up to Five Hundred Dollars ($500.00) or imprisoned for up to thirty (30) days, or be both fined and imprisoned. Each day that the violation continues shall be deemed a separate offense.

(13) In the event a fee is not paid as required hereunder, the County Attorney may institute an action to recover the fee and enjoin the use of the property until the fee is paid. The person who fails so to pay shall be responsible for the costs of such suit, including reasonable attorney’s fees.

(C) If not paid as required by this Ordinance, development impact fees shall constitute a lien against the property being developed and shall be levied, collected, and enforced in the same manner as are County real property taxes, and shall have the same priority and bear the same interest and penalties as County real property taxes for lien purposes.