Chapter 12.60
PARKS FACILITIES FEE
Sections:
12.60.010 Intent and purpose.
12.60.020 Findings.
12.60.030 Definitions.
12.60.040 Applicability – Exemptions.
12.60.050 Amount of fee.
12.60.060 Time of payment.
12.60.070 Credit.
12.60.080 Use of funds.
12.60.090 Accounting – Refunds.
12.60.100 Appeal – Protest.
12.60.010 Intent and purpose.
The purpose of this chapter is to implement policies adopted in the 2003-2025 General Plan, the Downtown Specific Plan (2004), the South Livermore Valley Specific Plan (1997), the Livermore Bicycle, Pedestrian, and Trails Active Transportation Plan and Livermore Bicycle, Pedestrian, and Trails Active Transportation Plan Design Guidelines, and LARPD Master Plan (1995) and LARPD Trails Master Plan (1991), as any of them may be amended from time to time, regarding parks facilities (including trails) in the City. It is the City’s policy, expressed in these documents, that new development pay its fair share of improvements needed to accommodate that development, including parks and trails.
In adopting this chapter, the City Council has considered the impacts on park facilities (including trails) from new residential and nonresidential development in the City. The City retained MuniFinancial to prepare a Park Facilities Fee Study, Amended Final Report. This study, dated December, 2004, provides the analysis of and basis for the proposed park facilities fee. (Ord. 2071 § 1, 2018; Ord. 2065 § 1(A), 2018; Ord. 1765 § 7, 2005; Ord. 1743 § 1, 2004)
12.60.020 Findings.
This chapter is adopted under the authority of the Mitigation Fee Act (Government Code Section 66000 and following). Based on the Act, the City Council makes the following findings:
A. Purpose of Fee. The City’s policy is that new development will not burden existing residents and employees with the cost of park facilities required to accommodate growth, and therefore, that new development will pay its fair share of public services, equipment and facilities necessary to serve that development. (2003-2025 General Plan, Objective ED-3.2.) The purpose of this chapter and the park facilities fee is to implement this policy by providing a funding source from new development for park improvements to serve that development. The fee advances a legitimate interest of the City by enabling the City to provide municipal services and facilities to new development.
B. Use of Fee Revenue. The park facilities fee will fund expanded park facilities in the City to serve new development. These facilities include land for public parks plus all associated capital improvements necessary to provide park and recreation services including:
1. Adjacent street improvements, including utility connections, curbs, gutters, street paving, traffic control devices, street trees, sidewalks and fencing adjacent to the property line;
2. Typical park improvements including but not limited to landscaping, irrigation, sports fields, courts, swimming pools, play structures, benches, pathways, fences, lighting and parking;
3. Special use facilities and structures such as restrooms, sports complexes, and buildings;
4. Land for public multi-use trails plus all associated capital improvements per the Livermore Bicycle, Pedestrian and Trails Active Transportation Plan and Livermore Bicycle, Pedestrian, and Trails Active Transportation Plan Design Guidelines and the LARPD Trails Master Plan;
5. Private open space accessible to the public as defined in the Downtown Specific Plan; and
6. Financing and administrative costs associated with any of the above.
Planned parks facilities are identified in the following documents, or the amended versions of any of them:
• 2003-2025 General Plan;
• Downtown Specific Plan (2004);
• South Livermore Valley Specific Plan (1997);
• City’s two-year capital improvement budget;
• Livermore Bicycle, Pedestrian, and Trails Active Transportation Plan;
• LARPD Master Plan (1995);
• LARPD Trails Master Plan (1991); and
• LARPD Annual Budget for Capital Development.
C. Relationship Between Use of Fee and Type of Development. There is a reasonable relationship between the fee’s use and the type of development project on which the fee is imposed. The City will restrict the use of the fee revenues to those uses specified in subsection B of this section.
Park facilities funded by the fee will provide a citywide network of services accessible to the additional residents and employees associated with new development. Thus, there is a reasonable relationship between the use of fee revenues and the residential and nonresidential types of new development that would pay the fee.
D. Relationship Between the Need for the Parks Facilities and the Type of Development Projects on Which the Fee Is Imposed. Residents and employees provide an indicator of the demand for the park facilities and trails needed to accommodate growth. The total demand for park facilities is calculated based on residents (for residential development) and employees (for private, nonresidential development). To calculate a single demand measure, and based on the fact that employees on average use parks facilities less than residents, one employee is weighted as 0.19 resident.
The need for the fee is based on a facility standard of five and one-half acres of improved parks facilities per 1,000 service population. The facility standard represents the level of service that the City plans to provide its residents and businesses, based on the City’s general plan policy of five acres per 1,000 service population, and an additional one-half acre per 1,000 service population for trails.
E. Relationship Between the Amount of the Fee and the Cost of the Parks Facility Attributable to the Development. The relationship between the fee for a specific development project and the cost of the parks facilities attributable to that project is based on the estimated number of residents and employees that the project would serve. The total fee for a specific project is based on its size, as measured by number of bedrooms (residential) or building square feet. The fee schedule converts the estimated residents or employees that a development project would accommodate into a fee based on the size of the project. Larger projects of a certain land use type would have a higher service population and pay a higher fee than smaller projects of the same land use type. Thus, the fee schedule ensures a reasonable relationship between the public facility fee for a specific development project and the cost of the facilities attributable to that project. (Ord. 2071 § 1, 2018; Ord. 2065 § 1(A), 2018; Ord. 1743 § 1, 2004)
12.60.030 Definitions.
In this chapter:
“Bedroom” means a room in a residential dwelling unit that has the potential to function as a bedroom in that there is a door or doorway which separates the room from communal areas (hallway, living room, kitchen), and it has a minimum floor area of 70 square feet and a minimum dimension of seven feet in any one direction.
“Development” means:
A. Any new construction, or any addition, extension, or enlargement of an existing structure or unit, which includes any residential dwelling unit or any gross floor area for commercial or industrial use; and
B. Any conversion or change in use of an existing structure requiring City approval, including a building permit, which would result in an increase or change in the service population applicable to the existing structure.
“Gross floor area” means the sum of the square footage of the floor area at each floor level included with the surrounding principal outside faces of exterior walls of a building or portions thereof, including mezzanines and lobbies. It does not include floor area devoted to vehicle parking, necessary interior driveways and ramps. The gross floor area of a building or portions thereof that does not have surrounding exterior walls shall include the usable area under the horizontal projection of the roof or floor above.
“Land use category” means residential, commercial (retail), office or industrial as those terms are used in the Livermore Development Code.
“LARPD” means the Livermore Area Recreation and Park District, a special district created under state law, whose jurisdiction includes the City.
“Multiple-family residence” means a dwelling unit where more than one unit exists on a parcel, whether attached or detached. This includes duplexes through four-plexes, condominiums, mobile homes and apartments with five or more units. An attached dwelling unit where more than one vertical wall is shared with another dwelling unit (i.e., townhouse) is considered a multiple-family residence, even if each unit is located on an individual parcel.
“Park facilities” means land for public parks plus all associated capital improvements necessary to provide park and recreation services including:
A. Adjacent street improvements, including utility connections, curbs, gutters, street paving, traffic control devices, street trees, sidewalks and fencing adjacent to the property line;
B. Typical park improvements including but not limited to landscaping, irrigation, sports fields, courts, swimming pools, play structures, benches, pathways, fences, and parking;
C. Special use facilities and structures such as restrooms, sports complexes, and buildings;
D. Land for public multi-use trails plus all associated capital improvements per the Livermore Bicycle, Pedestrian and Trails Active Transportation Plan and Livermore Bicycle, Pedestrian, and Trails Active Transportation Plan Design Guidelines, except for the portion of the Iron Horse Trail in the downtown area;
E. Private open space accessible to the public consistent with the requirements as defined in the Downtown Specific Plan; and
F. Financing costs associated with any of the above.
“Park facilities fee” means the fee established by this chapter to fund park facilities.
“Park facilities standard” means park facilities acres per 1,000 service population (residents and employees).
“Quimby Act” means the parkland dedication requirements in the State Subdivision Map Act, at Government Code Section 66477. See also LMC 18.32.020.
“Service population” means the total population served by park facilities. It includes residents and employees. Employees are weighted at 0.19 to account for their lesser demand on park facilities compared to residents.
“Single-family residence” means a detached unit where no more than one unit exists on a parcel. A couplets and zero lot line dwelling unit where no more than one vertical wall is shared and each couplet/zero lot line dwelling is located on its own parcel is considered a single-family residence.
“Study” means the Park Facilities Fee Study, Amended Final Report, prepared by MuniFinancial and dated December, 2004.
“Warehouse” means an indoor storage and distribution facility: (A) with a maximum of 15 percent office/business use; and (B) having parking at a maximum of one space per 250 square feet of office/business use and one space per 1,000 square feet of warehouse use. (Ord. 2071 § 1, 2018; Ord. 2065 § 1(A), 2018; Ord. 1901 § 3 (Exh. A § 25), 2010; Ord. 1765 § 8, 2005; Ord. 1743 § 1, 2004)
12.60.040 Applicability – Exemptions.
A. Applicability. This chapter applies to each development in the City for which a building permit, certificate of occupancy or other entitlement for development is issued.
B. Exemptions. This chapter does not apply to:
1. Vesting Tentative Map. Development for which an application for a vesting tentative map authorized by Government Code Section 66498.1 was deemed complete before the effective date of this chapter;
2. Public Improvements. Capital improvements and/or buildings or structures related to the operation of City, Alameda County, state or federal governments including, but not limited to, police and fire stations, Livermore Area Recreation and Park District facilities, parking lots, offices, equipment yards, sanitation facilities, parks and similar facilities in or through which general government operations are conducted. This subsection does not create an exemption for private commercial or industrial activities conducted on public lands;
3. Temporary Uses. Temporary uses less than 12 months in duration. No extension of time is permitted;
4. Religious Uses. Churches, temples, and other properties used primarily for religious worship;
5. Schools. Private and public preschools, elementary and secondary schools, and colleges;
6. Repair or Replacement. Commercial, industrial or residential development consisting of the repair or replacement of structures on the same site, as long as the repair or replacement does not result in any conversion or change in use which increases the number of residents or employees compared to the previous structure;
7. Minor Additions. Additions, extensions or enlargements of an existing commercial or industrial structure which, in any one calendar year, increase the gross floor area of such structure by 200 square feet or less;
8. Parking. Parking structures;
9. Secondary Unit. Secondary dwelling unit approved under LDC 6.03.120;
10. Certain Care Facilities. Assisted living, convalescent care, skilled nursing, and dementia care facilities. (Ord. 2065 § 1(A), 2018; Ord. 1901 § 3 (Exh. A § 26), 2010; Ord. 1743 § 1, 2004)
12.60.050 Amount of fee.
A. Amount Set by Resolution. The amount of the park facilities fee shall be established by resolution of the City Council. Once the fee is established, it shall automatically be increased annually based upon: (1) the Engineering News Record (ENR) 20-City Construction Cost Index, for the cost of construction of facilities; and (2) the median home price as reflected in the Bay East Association of Realtors report, for the value of land. Periodically, the Council may restudy and recalculate the fee.
B. Methodology. The City Council shall establish the amount of the park facilities fee based on the following methodology.
The fee shall be based on the following calculation:
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Cost to provide 5.5 acres of improved parks and trails per 1,000 service population (Includes cost per resident and cost per employee.) |
x |
Occupancy factor |
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3% Administrative Costs |
= |
Park Facilities Fee |
The City shall calculate the fee for the following categories:
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Park improvements |
for |
Residential |
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Parkland acquisition |
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Single-family (and multifamily, four bedroom or more unit) |
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Trail improvements |
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Multifamily – Three bedroom |
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Trail acquisition |
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Multifamily – Two bedroom |
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Multifamily – One bedroom |
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Multifamily – Studio |
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Nonresidential |
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Commercial |
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Office |
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Industrial |
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Warehouse |
C. Additions – Conversions. For development consisting of an addition, extension or enlargement of an existing structure or unit, the park facilities fee is paid only on an additional dwelling unit or the additional gross floor area. For development consisting of a conversion, or change in use of an existing, repaired or rebuilt structure or unit which increases the service population, the park facilities fee is the difference between the fee applicable to the entire structure or unit for the prior use and that applicable to the new use.
D. Industrial Uses. Structures or units that contain mixed office and industrial uses shall be charged at a blended rate that is based upon the percentage of the uses, under one of the following six tiers:
1. Tier 1 – 30 percent or less office: the industrial rate is charged.
2. Tier 2 – 30.01 to 40 percent office rate equals (office rate – industrial rate)(.125) + industrial rate.
3. Tier 3 – 40.01 to 50 percent office rate equals (office rate – industrial rate)(.375) + industrial rate.
4. Tier 4 – 50.01 to 60 percent office rate equals (office rate – industrial rate)(.625) + industrial rate.
5. Tier 5 – 60.01 to 70 percent office rate equals (office rate – industrial rate)(.875) + industrial rate.
6. Tier 6 – 70.01 percent or more office: the office rate is charged. (Ord. 2065 § 1(A), 2018; Ord. 1765 § 9, 2005; Ord. 1743 § 1, 2004)
12.60.060 Time of payment.
The park facilities fee is due:
A. For residential uses, at the time of final inspection, or the date the certificate of occupancy is issued, whichever is first.
The city engineer may require the payment of the fee imposed under this chapter at the time of building permit where the city engineer determines that the fee will be collected for the purpose of defraying the actual or estimated cost of constructing parks facilities improvements for which an account has been established and funds appropriated and for which the City has adopted a proposed construction schedule or plan before any final inspection or issuance of a certificate of occupancy for a dwelling unit. (Government Code Section 66007(b).)
B. For nonresidential uses, at the time the building permit is issued.
C. Alternative Method or Time of Payment. Instead of payment at the time of building permit, a developer of industrial property paying 100 percent of the fee may elect to pay the required fee in either of the two methods provided below:
1. Letter of Credit. The developer of an industrial property may pay the fee, at 20 percent each year, over five years. Under this alternative, the developer shall post a letter of credit, in a form approved by the City Attorney, for: (a) the full amount of the fee; plus (b) a two percent administrative charge; plus (c) interest for the projected unpaid balance over the five years. The interest rate shall not exceed the interest rate established in the California Government Code. The developer shall replace the letter of credit each year to add the annual fee increase represented by the Engineering News Record (ENR) 20-City Construction Cost Index, for the cost of construction of facilities; and the median home price as reflected in the Bay East Association of Realtors report, for the value of land.
2. By Agreement. A developer may elect to pay the required fee before the first certificate of occupancy is issued or within two years, whichever is sooner, subject to all of the requirements of this subsection.
a. General Requirement. If a developer chooses this option, before a building permit is issued, he or she shall: (i) enter into a written agreement with the City; and (ii) record the agreement with the Alameda County recorder.
b. Contents of Agreement. The agreement shall be signed by the property owner and shall include the following provisions, in a form prepared by the City Attorney:
i. A legal description of the property;
ii. A provision that the agreement runs with the land and is enforceable against successors in interest;
iii. That the agreement shall be recorded in the grantor-grantee index in the name of the City as grantee and in the name of the property owner as grantor;
iv. A provision that the owner shall pay the fee before a certificate of occupancy is issued, or within two years, whichever is sooner;
v. The amount of the fee due at the time of the agreement;
vi. A provision that the amount of the fee due will be the amount of the fee due on the date of the agreement plus a periodic increase based on the Engineering News Record (ENR) 20-City Construction Cost Index. The amount of any fee paid more than two years after the date of the building permit is the amount of the fee in effect when the fee is paid; and
vii. A requirement that, with the opening of any escrow for the sale of the property, the property owner provide appropriate notification and escrow instructions that the fee be paid to the City from the sale proceeds in escrow before disbursing proceeds to the seller.
c. Release of Obligation. When the obligation is paid in full, the City shall record a release of obligation.
d. Authorization. The Community Development Department Director is authorized to sign the agreement and the release of obligation under this subsection (C)(2). (Ord. 2065 § 1(A), 2018; Ord. 2045 § 1(A), 2016; Ord. 2016 § 1(B), 2015; Ord. 1765 § 10, 2005; Ord. 1743 § 1, 2004)
12.60.070 Credit.
A. When Credits May Be Given. The City may approve a credit against the park facilities fee after consultation with LARPD for any of the following, or a combination of them:
1. Parkland dedication made under LMC 18.32.020, although the credit may not exceed the value of the dedication requirement.
2. Trail dedication and improvements made under Chapter 12.55 LMC, although the credit may not exceed the value of the requirement, up to a maximum of 0.5 acres of improved trails per 1,000 service population.
3. Private open space in the downtown area which is in excess of the minimum required by the Downtown Specific Plan, if it is accessible to the public, consistent with the Downtown Specific Plan, and includes an access easement. This private open space must be consistent with downtown open space policies to be developed by the City, in consultation with LARPD.
4. Construction of improvements under subsections B through E of this section.
B. Eligibility for Construction Credit.
1. General. This section applies to a developer who constructs a public improvement which would otherwise be constructed using park facilities fee funds.
2. Requirements. To be eligible for credit, each of the following must be satisfied:
a. The proposed construction work must be a public improvement which would otherwise be constructed using park facilities fee funds. The improvement must be on the list of proposed capital improvement projects approved by the City Council or by LARPD.
b. The land on which the work is done must be either owned, or be the subject of a recorded offer of dedication, to the City or to LARPD. A site shown in the LARPD Master Plan, and meeting current standards and policies adopted by the LARPD board, shall be dedicated to LARPD, unless LARPD is unwilling to accept the dedication, in which case the dedication may be made to the City.
c. The developer must enter into a subdivision agreement or other written agreement with the City or LARPD before beginning construction of the improvement. The agreement shall comply with subsection C of this section. Within the limits of this section, the developer may determine the allocation of credits.
C. Calculation of Fee Estimate for Credit.
1. General. The fee estimate is the value of park or trail-related dedications or improvements, or both, required for a particular development project. The estimate is an amount established by the City, based on estimates from the developer’s engineer (and approved by the city engineer) as to the portion of the land and improvements attributable to the park facilities fee. It is made at the time credits are established and are incorporated into the agreement. It is not the actual construction cost of the improvements.
2. Calculation. The city engineer shall calculate the fee estimate based upon the approved improvement plans and using the city engineer’s parks facilities unit prices. The estimate includes construction costs and the cost of engineering and inspections. For nonstandard improvements, the credit is calculated based on information provided by the developer (such as bids or other documents verifying costs) for the city engineer’s review and approval.
3. Excluded Costs. The calculation of costs is based only on work which is eligible for credit under subsection A of this section. No credit is given for the cost of constructing improvements otherwise required without credit. No credit is given for amenities offered by the developer: (a) under the City’s housing implementation program which may exceed the basic requirement under the municipal code; and/or (b) under a development agreement, unless credit is authorized in the agreement.
D. Written Agreement.
1. General. Before the beginning of construction of a park or trail improvement, the developer and the City must have entered into a subdivision improvement agreement or other written agreement regarding credit. If the developer is not the property owner, the property owner must also sign the agreement. The agreement shall be recorded before any lot in the subdivision is sold. When the property is owned by LARPD or had been dedicated to LARPD, the agreement and the terms may be changed to reflect the obligation to LARPD instead of to the City.
2. Contents of Agreement. The agreement shall include:
a. The developer’s obligation to have improvement plans reviewed and approved by the City or LARPD;
b. The fee estimate (the total amount of credit which will be given), stated in current dollars;
c. When credits will apply;
d. To which lots the credits will apply, at the developer’s option. The portion attributed to each lot cannot be greater than the approximate amount of the parks facilities fee which would apply to that lot; and
e. The amount of security required to be provided to the City concurrently with the signing of the agreement.
E. Credit. Credit is granted at the time the parks facilities fee is due for a particular lot, under LMC 12.60.060, and in the amount specified in the agreement. The credit runs with the land. (Ord. 2065 § 1(A), 2018; Ord. 1743 § 1, 2004)
12.60.080 Use of funds.
The funds, and any interest earned on the account, shall be used only for the acquisition and improvement of parks facilities in the City or in LARPD’s jurisdiction to benefit Livermore residents or employees. The City shall convey the funds to LARPD for these purposes on a quarterly basis, unless mutually agreed otherwise. The conveyance of funds shall be made only after LARPD has provided written documentation to the City as required by the Mitigation Fee Act, including (1) statements regarding the use of the funds and (2) the accounting information required by LMC 12.60.090 and Government Code Section 66006. (Ord. 2065 § 1(A), 2018; Ord. 1743 § 1, 2004)
12.60.090 Accounting – Refunds.
The City shall deposit park facilities fees in a separate fund, and avoid commingling with other funds except for temporary investments. The funds shall be expended only for the purposes set forth in LMC 12.60.080. Any interest earned by moneys in the fund shall also be deposited in the fund and used only for the intended purposes.
Each year, the City shall account for the moneys in the fund in accordance with Government Code Section 66006. Unexpended revenues shall be refunded in accordance with Government Code Section 66001(e) and (f).
Money conveyed to LARPD under LMC 12.60.080 is subject to the requirements of this section. (Ord. 2065 § 1(A), 2018; Ord. 1743 § 1, 2004)
12.60.100 Appeal – Protest.
A person who wishes to appeal the park facilities fee may do so by filing a timely appeal of the condition of approval when it is first imposed by the City, or under the protest procedures provided in Government Code Section 66020.
A developer may appeal to the City Council any determination made by city staff under this chapter. Any appeal shall be on a form prescribed by the community development department and must be filed within 15 days of the date of mailing or delivery to the developer of written notice of the applicable determination. An appeal not filed within the prescribed period is deemed waived. The City Council shall set the matter for hearing within 50 days of the date the city clerk receives the notice of the appeal. In making its determination on the appeal, the City Council shall follow the standards set forth in this chapter.
The time limits to protest fee increases set forth in Government Code Section 66002 apply to this chapter.
The procedure for protesting fees or dedications made under this chapter are those set forth in Government Code Section 66020.
A developer who offers park dedication or improvements, or both, as part of an application under the City’s housing implementation program may not challenge or withdraw that offer, without first amending any approval received under that program. (Ord. 2065 § 1(A), 2018; Ord. 2045 § 1(A), 2016; Ord. 2016 § 1(A), 2015; Ord. 1743 § 1, 2004)