Chapter 5.35
ROAD MITIGATION FEE PROGRAM
Sections:
5.35.020 Enumerated benefit zones and fees.
5.35.010 Purpose.
The purpose of the road mitigation fee program (the “program”) is to establish a mechanism for assessing new development their pro rata fair share of the cost of improving the city’s highway and arterial network in order to mitigate the traffic impacts caused by such new development within the enumerated benefit zone. The city council has determined that the road mitigation fee program is needed in order to finance improvements to the city’s highway and arterial network to the city boundary. In establishing the program, the city council has found that the fee is consistent with the general plan of the city of South Gate.
(Ord. 2243 § 1 (part), 11-27-07)
5.35.020 Enumerated benefit zones and fees.
A. Establishment of Fee—Benefit Zone. Enumerated benefit zones and fees shall be established by the city council by separate resolution and public hearing. Fees shall be imposed upon the issuance of all building permits for new development within the benefit zone established by resolution of the city council. The city council shall set forth the specific amount of the fee and describe the areas of benefit in which the fee shall be imposed by separate resolution. The fee shall be paid by each applicant for a building permit for new development within the established benefit zone, in the amounts required by the resolution of the city council prior to the issuance of building permits. For the purpose of this section, “new development” shall mean:
1. Mixed use developments (a combination of commercial, retail, and multifamily residential dwelling with five or more units).
2. Nonresidential Development. As to nonresidential development, the net additional square footage of gross building area (consistent with the Institute of Transportation Engineers’ definition of gross floor area) constructed or created on the applicant’s property above the gross building area existing on the property as of the date the ordinance codified in this chapter is adopted.
3. Residential development of five or more units.
B. Computation of the Amount of Transportation Impact Fee.
1. If a building permit is requested for mixed uses, then the fee shall be determined through using the applicable schedule in the amounts required by the resolution of the city council by apportioning the space committed to uses specified on the applicable schedule.
2. For applications for an extension of a building permit, the amount of the fee is the difference between that fee then applicable and any amount already paid pursuant to this chapter.
3. If the type of development activity that a building permit is applied for is not specified on the applicable fee schedule, the director of community development (the “director”) or his or her designee shall use the fee applicable to the most nearly comparable type of land use on the fee schedule.
4. In the case of change of use, redevelopment or expansion or modification of an existing use which requires the issuance of a building permit, the impact fee shall be based upon the net positive increase in the impact fee for the new use as compared to the previous use. The director shall determine the fee amounts for both the existing and proposed uses and charge the applicant only the incremental increase. Should the proposed project result in a decrease in trip demand, per this approach (i.e., the proposed use would owe lower fees than the use to be replaced), no fee shall be owed or reimbursed.
5. In the case of change of use, redevelopment or expansion or modification of a structure that has been vacant for more than ten years, no adjustment shall be made to limit the fee amount to the incremental increase in trip demand. The applicant shall pay the full fee that would be owed in the event of new construction.
6. Demolition or Destruction Offset. Where a building permit is issued within two years after demolition on the same lot, or where new construction replaces a structure on the same lot which was damaged or destroyed by fire, earthquake or other causes similarly beyond the owner’s control, the amount of new construction taken into account under this chapter shall be reduced by the number of square feet which were demolished or destroyed.
C. Exclusions. Residential development of four or less units shall be excluded from the road mitigation fee program.
The improvement, remodeling, rehabilitation, or replacement of or additions to an existing dwelling unit shall not be deemed to be “new development” for purposes of this chapter so long as these activities do not result in the creation of additional dwelling units. Improvement, remodeling, rehabilitation, or replacement of an existing nonresidential structure shall not be deemed to be “new development” for purposes of this chapter except to the extent of any net increase in gross building area.
D. Limitation. The payment of the fee shall not be required for the construction of any “major thoroughfare” for which the applicant has been or will be required to contribute pursuant to city directive as a condition of development entitlements.
E. Administration of Program. The administration of the program will be made by the director or his/her designee.
F. Creation of Account—Collection of Fees. The city hereby establishes the road mitigation fee program account (“account”). Except as otherwise provided herein, the road mitigation fee program shall be collected prior to the issuance of each building permit for new development in the benefit zone established in the road mitigation fee program. Fees will be collected by the community development department. After collection, the funds shall be deposited into the account.
G. Use of Funds. The funds placed in the account shall solely be used to: (1) pay for the improvements to city streets impacted by new development; (2) reimburse the city for improvements under the road mitigation fee program; or (3) reimburse those who have been required or permitted by subsection H of this section to improve the size, length, or capacity of the city’s highways, primary arterials, secondary arterials, collectors, and local industrial/commercial streets.
H. Construction of Improvements by Building Permit Applicant. Whenever an applicant constructs a portion of a city highway, primary arterial, secondary arterial, collector, and/or local industrial/commercial street, such construction exceeds the applicant’s obligation as defined in the road mitigation fee program, the city shall enter into a reimbursement agreement with the applicant, and provide to the applicant a road mitigation fee program credit in an amount equal to the applicant’s fair share contribution to the construction. The reimbursement amount shall not include the road mitigation fee program that was paid or would have been payable by the applicant if it had not constructed the improvement.
The reimbursement agreement shall contain adequate accounting for costs subject to reimbursement.
For the purpose of this section, the term “construction” includes planning, preliminary studies, design, acquisition of right-of-way, administration of construction contracts, program management, actual construction, and all costs related thereto.
In special circumstances, when a developer constructs off-site improvements such as an interchange, bridge, or railroad grade separation, credits shall be determined by the city.
If a building permit expires, is revoked or is voluntarily surrendered and therefore voided, and no construction or improvement of land has been commenced under that building permit, the fee payer shall be entitled to a refund of the fee with any interest accrued thereon, paid as a condition of issuance of the building permit. Assignment of the right to a refund may be requested in writing and by the fee payer with a notarized signature.
I. Adjustment of Fee. The road mitigation fee program shall be adjusted at the end of each fiscal year based upon the Construction Cost Index (“CCI”), published quarterly by the California Department of Transportation. In addition to this annual adjustment, the city council may also adjust the fee on the basis of new, updated project cost estimates, substantial changes in the city’s general plan, or other pertinent information.
J. Exemptions and Appeals. The following types of development shall be exempt from the payment of the road mitigation fee:
1. Property tax exempt religious facilities;
2. Property tax exempt welfare or public social service facilities;
3. Government owned facilities;
4. Residential development with four or less units;
5. Residential development with affordable housing for low and very low income households as defined in Government Code Sections 65580 through 65589.8, only if all units are occupied by low or very low income households. On multifamily residential developments composed of affordable and market rate housing, only affordable housing units will be exempt from the payment of the road mitigation fee;
6. Other types of development which the city council may determine to be exempt from time to time on a sufficient showing and by resolution.
An applicant shall apply for an exemption under one of the above categories by submitting a written application to the director or his or her designee. The application shall state in detail the factual basis and legal theory for the claim of adjustment. The director or his or her designee shall rule on the exemption within sixty days of receipt of such written application. If dissatisfied with the determination of the director or his or her designee, the applicant may appeal the determination to the city manager under the provisions of Chapter 1.06 of the Municipal Code.
The waiver of this fee shall be based on the absence of any reasonable relationship between the impact of the development on the city’s highway and arterial network and the amount of the fee charged.
The applicant bears the burden of proof in presenting substantial evidence to support the application. The following factors shall be considered in the determination whether or not to approve a fee adjustment:
a. The purpose and proposed uses of the fee;
b. The type of development;
c. The relationship between the fee’s use and type of development;
d. The need for improvements and the type of development;
e. The amount of the fee and the portion of it that is attributable to the development; and
f. The substance and nature of the evidence, including the applicant’s technical data supporting its request. The applicant must present technical information to show that the fee is inappropriate for the particular development.
K. Establishment or Amendment of Benefit Zone.
1. The city council may establish new benefit zones or amend the boundaries of any existing benefit zone after conducting a noticed public hearing. Notice of the time and place of said hearing, including preliminary information related to the boundaries of the proposed benefit zone, and the estimated costs and method of fee apportionment, shall be given at least ten calendar days before the hearing by publishing the notice at least once in a newspaper of general circulation in the benefit zone or proposed benefit zone, by sending notices by first class mail addressed to each property owner within the benefit zone or proposed benefit zone, and by sending first class notices to any persons who have filed a written request for such notice with the community development director.
2. At the public hearing the city council shall consider testimony, written protests, and other evidence. At the conclusion of the public hearing the city council may determine to establish or amend a benefit zone unless a majority written protest is filed and not withdrawn as specified in subsection (K)(3) of this section. If established, the city council shall adopt a resolution describing the boundaries of the benefit zone, setting forth the cost, whether actual or estimated, and the method of fee apportionment. A certified copy of such resolution shall be recorded by the city clerk with the Los Angeles recorder’s office.
3. Written protest shall be received by the city clerk at any time prior to the close of public hearing. If written protests are filed by the owners of more than one-half of the area of the property within the proposed benefit zone, and sufficient protests are not withdrawn so as to reduce the area represented by the protests to less than one-half of the area of the benefit zone, then the proposed proceedings shall be abandoned, and the city council shall not commence or carry on any proceedings for the same improvement under the provisions of this section for one year from the filing of said written protests. Any protests may be withdrawn by the property owner making the protest by submitting a written protest withdrawal to the city clerk at any time prior to the close of the public hearing.
4. If any majority protest is directed against only a portion of the improvement, then all further proceedings under the provisions of this section to construct that portion of the improvement so protested against shall be barred for a period of one year, but the city council shall not be barred from commencing new proceedings not including any part of the improvement so protested against. Such proceedings shall be commenced by a new notice and public hearing as set forth in subsection (K)(1) of this section.
5. Nothing in this section shall prohibit the city council, within a one-year period, from commencing and carrying on new proceedings for the construction of an improvement or portion of the improvements so protested against if it finds, by the affirmative vote of one-fifth of its members, that the owners of more than one-half of the area of the property to be benefited are in favor of going forward with such improvement or portion thereof.
L. Compliance with South Gate Municipal Code 5.32.070. The program is hereby deemed in compliance with the provisions of South Gate Municipal Code Section 5.32.070 and does not supersede the provisions of Section 5.32.070 or the securities or fees provided for therein.
M. Severability. If any one or more of the terms, provisions or sections of this chapter shall to any extent be judged invalid, unenforceable and/or avoidable for any reason whatsoever by a court of competent jurisdiction, then each and all of the remaining terms, provisions and sections of this chapter shall not be affected thereby and shall be valid and enforceable.
(Ord. 2261 § 1, 7-14-09: Ord. 2254 § 1, 2008; Ord. 2243 § 1 (part), 11-27-07)