Chapter 5.38
TRANSPORTATION IMPACT MITIGATION FEE
Sections:
5.38.040 Establishment of transportation impact mitigation fee.
5.38.060 Determination of required fees.
5.38.080 Transportation fee fund and accounting.
5.38.110 Fees in effect when application complete.
5.38.130 Fee credits for improvements extra to the project or within assessment districts.
5.38.140 Development agreement projects exempt.
5.38.010 Findings and intent.
The city council hereby finds and declares that:
A. New development projects in the city have had and will continue to have significant citywide (other than site-specific) impacts on the availability and adequacy of transportation facilities.
B. It is the city’s intent and desire (General Plan Goals 2.15, 2.17 and 2.20) to provide an efficient, reliable and convenient transit system, improved bicycle routes, and a balanced street system to serve automobiles, pedestrians, bicycles, and transit.
C. The imposition of impact fees is one of the customary methods of ensuring that development bears a proportionate share of the cost of capital facilities necessary to accommodate such development in order to promote and protect the public health, safety, and welfare.
D. The provisions of this chapter are enacted pursuant to the city of Benicia general plan and Section 66000 et seq. of the California Government Code (the “Mitigation Fee Act”). (Ord. 21-01 § 2 (Att. 2)).
5.38.020 Purpose.
The purpose of the transportation fee is to fund the planning, design, development, and construction of transportation facilities reasonably necessary to serve new development and ensure that new development pays for its fair share of transportation facilities. (Ord. 21-01 § 2 (Att. 2)).
5.38.030 Definitions.
For the purposes of this chapter, the following terms shall be defined as follows:
A. “Building permit” means a “building permit” as defined in Chapter 15.04 BMC.
B. “Certificate of occupancy,” as used in this chapter, has the same meaning as in California Government Code Section 66007(e).
C. “Dwelling unit” means a “dwelling unit” as defined in Chapter 17.12 BMC.
D. “Governmental or public facilities” shall mean publicly owned buildings and structures used for the purposes of conducting city, county, state or federal government business. Such facilities shall include, but not be limited to, city halls, police and fire stations, offices, equipment yards, sanitation facilities, schools, recreation centers, and similar facilities. Private commercial development projects leasing publicly owned land shall not be considered governmental or public facilities.
E. “Transportation facilities” shall mean transportation system improvement projects that require physical alteration of the transportation system. Examples of transportation facilities include, but are not limited to, roadway improvements, signalization improvements, other public right-of-way improvements, such as bus shelters, and multimodal improvements, such as bikeways and sidewalks.
F. “Transportation fee” shall mean the traffic impact mitigation fee imposed on new development for the purpose of funding transportation facilities reasonably necessary to serve new development.
G. “New development” shall mean all new building construction, conversion to a use that intensifies existing transportation demands, and any other new construction that creates additional transportation impacts. (Ord. 21-01 § 2 (Att. 2)).
5.38.040 Establishment of transportation impact mitigation fee.
Except as otherwise provided in this chapter, developers of new development shall pay a transportation fee in an amount established by resolution of the city council in accordance with a nexus study that demonstrates the reasonable relationship between the fee’s use and the type of development project on which the fee will be imposed and demonstrates the reasonable relationship between the need for transportation facilities and the type of development projects on which the fees will be imposed. (Ord. 21-01 § 2 (Att. 2)).
5.38.050 Exemptions.
A. The following developments shall be exempt from the requirements of this chapter:
1. Governmental or public facilities.
2. Developments on real property owned by a government transportation agency which are used exclusively for public transportation purposes.
3. Public elementary schools and secondary schools.
4. Private schools which meet the requirements contained in California Education Code Section 48222, or its successor, so that attendance at such schools complies with California compulsory education requirements.
5. Alterations, renovations or expansion of an existing residential building or structure where no new dwelling units or new nonresidential space is created.
6. Replacement of existing dwelling units on the same lot resulting in no net increase of residential dwelling units and no new nonresidential space.
7. The replacement of a destroyed or partially destroyed or damaged building or structure where no additional dwelling units or new nonresidential space is created. (Ord. 21-01 § 2 (Att. 2)).
5.38.060 Determination of required fees.
A. The public works director, or the director’s designee, shall be responsible for determining the fees required by this chapter. This determination shall be made at the time of application for the building permit or at the time of approval for a change in use.
B. The transportation fee may be modified automatically on an annual basis in accordance with the change in the Engineering News Record (“ENR”) construction cost index for the San Francisco area. This adjustment shall not require any action of the city council. (Ord. 21-01 § 2 (Att. 2)).
5.38.070 Payment of fees.
A. The fees required by this chapter from a developer shall be paid at the time the city issues a building permit for each development project, unless the developer of a non-subdivision residential development requests to enter into an agreement with the city to pay the fees at the time the certificate of occupancy is issued, pursuant to California Government Code Section 66007(c). An agreement to defer payment until the issuance of a certificate of occupancy must be executed and recorded before the city will issue a building permit for the development project.
B. If new development changes or intensifies the existing use on the project site, thereby requiring the payment of a new or additional transportation fee, the fee amount associated with the existing use on the project site shall be credited against the new total fee due, as determined by the public works director; provided, however, that in no event shall the city refund the fees previously paid.
C. A developer required by this chapter to pay a transportation fee may apply for a fee deferral. The application shall be reviewed and considered by the public works director and shall be granted if the applicant’s project meets the criteria for fee deferrals established by city council resolution. (Ord. 21-01 § 2 (Att. 2)).
5.38.080 Transportation fee fund and accounting.
A. Transportation Fee Fund. Fees collected pursuant to this chapter shall be deposited in the transportation fee fund, and shall be segregated and used and expended primarily to fund planning, design, development, and construction of transportation facilities reasonably necessary to serve new development. Any interest accrued by the account shall be used solely for the purpose of funding transportation facilities.
B. Transportation Fee Accounting. The city shall maintain accounts and prepare reports in accordance with California Government Code Section 66001 et seq. (Ord. 21-01 § 2 (Att. 2)).
5.38.090 Fee adjustments.
Any person subject to a fee required by this chapter may apply to the public works director for a reduction, adjustment or waiver of that fee based upon the absence of a reasonable relationship between the impact of that applicant’s residential development project on transportation facilities in the city and the amount of the fee charged.
A. Application. An applicant shall file a written request to adjust fees with the public works director not later than 10 days after the city notifies the developer of the amount of the fee to be charged. Additional time, as determined by the public works director, will be allowed when significant additional information is required of the developer. The application shall provide evidence illustrating that the payment of the fee authorized by this chapter and imposed by implementing resolution bears no reasonable relationship or nexus with the impact of the development on the need for transportation facilities within the city and shall state in detail the factual basis for the request for reduction, adjustment or waiver. If an applicant desires to receive a building permit prior to the completion of the appeal process, the applicant shall deposit the fee being appealed with the application. Such fee or portion thereof will be refunded if the appeal is successful.
B. Decision of the Public Works Director. The public works director shall issue a decision on the application within 30 days after the application is filed with the public works department. The public works director’s decision shall state his or her determination regarding the amount of the transportation fee that may reasonably be imposed on the new development and include a brief description of the basis for the director’s decision.
C. Appeal of the Decision of the Public Works Director. Decisions of the public works director may be appealed to the city manager. Appeals must be filed within 10 days of the public works director’s decision. The city manager shall review the application and evidence presented to the public works director and issue a decision within 15 days. The decision of the city manager is final and may be appealed or protested pursuant to Government Code Section 66020. (Ord. 21-01 § 2 (Att. 2)).
5.38.100 Fee refunds.
Upon application, fees collected by the city pursuant to this chapter shall be refunded under the following circumstances:
A. Fees collected pursuant to this chapter are erroneously or illegally collected.
B. The building permit expires, and no extension has been granted, for the development project upon which fees were imposed pursuant to this chapter. An application for refund pursuant to this subsection (B) shall be filed with the community development director no later than 90 days after expiration of the building permit. The amount of refund shall be reduced by an amount to cover the cost to the city for processing the refund. (Ord. 21-01 § 2 (Att. 2)).
5.38.110 Fees in effect when application complete.
The amount of the fees to be paid under this chapter shall be in the amount of the fee in effect at the time the development application is deemed complete. (Ord. 21-01 § 2 (Att. 2)).
5.38.120 Fee credits for implementation of transportation mitigation measures and/or construction of transportation facilities.
A developer shall be entitled to a reduction in the amount of the fees required by this chapter, in an amount to be determined by the public works director, if that developer implements transportation mitigation measures or constructs transportation facilities. The public works director’s determination shall be based upon the actual costs reasonably incurred in constructing the transportation facilities. (Ord. 21-01 § 2 (Att. 2)).
5.38.130 Fee credits for improvements extra to the project or within assessment districts.
A developer may be entitled to a reduction in the amount of the transportation fees required by this chapter, in an amount to be determined by the public works director, if that developer’s project was required to construct specific transportation facilities which are extra to the project, or the development project is located within the boundaries of an assessment or other special district in which transportation facilities were constructed (or are intended to be constructed) with the use of funds derived by virtue of said district and that developer’s property for which development is proposed has been financially encumbered or otherwise burdened to pay for all or a portion of the transportation facilities paid for or to be paid for by assessments levied by the district. The public works director’s determination of the amount of reduction required pursuant to this section shall be based upon the developer’s actual costs reasonably incurred for the construction of the transportation facilities. (Ord. 21-01 § 2 (Att. 2)).
5.38.140 Development agreement projects exempt.
Any development project which is approved under a development agreement adopted pursuant to Government Code Section 65864 et seq. or which is undertaken pursuant to a specific plan shall be exempt from the fees established by this chapter; provided, that the development agreement and/or specific plan requires the developer to construct, or pay for the construction of, transportation facilities, the value of which equals or exceeds the fee that otherwise would have been required of the developer pursuant to this chapter. (Ord. 21-01 § 2 (Att. 2)).