Chapter 13.40
TRANSPORTATION UTILITY FEE
Sections:
13.40.040 Street fund and street capital improvement reserve fund.
13.40.060 Prioritization of improvements.
13.40.070 Capital improvement plan.
13.40.080 Fee determination, adjustments, and terminations.
13.40.090 Mixed-use and related properties.
13.40.100 Implementation rules.
13.40.110 Billing and collection.
13.40.120 Commencement of charges and collection.
13.40.150 Inspection of developments.
13.40.010 Purpose.
A transportation utility fee (TUF) is created to operate and administer the pavement system maintenance and capital improvement programs. This program will manage, plan, design, construct, preserve and maintain the street pavement system in the city of Creswell, excepting county roads and state highways within the city limits. This includes but is not limited to patching, crack sealing, fog sealing, slurry sealing, chip sealing, grinding, inlaying, overlaying and reconstructing public streets and ADA improvements within the rights-of-way.
The TUF is a fee based on the direct and indirect use of or benefit derived from the use of public transportation facilities and is reasonably related to the cost of providing these services. For purposes of ORS Volume 8 (Revenue and Taxation), the transportation utility fee is not intended to be a tax on property or a property owner as a direct consequence of ownership, but instead is a fee or charge not subject to the limits of Section 11(b), Article XI, of the Oregon Constitution. [Ord. 555 § 1 (Exh. A), 2023].
13.40.020 Definitions.
For the purposes of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
“City manager” means the city manager or person designated or appointed by the city manager to perform functions or tasks under this chapter.
“City street” or “street” means a public street, alley and/or right-of-way within the city that is subject to the authority or control of the city.
“Class” means the billing group of similar trip generating uses that the individual categories are assigned.
“Developed property” or “developed use” means a parcel or portion of real property on which an improvement exists or has been constructed. Improvement on developed property includes but is not limited to buildings, parking lots, landscaping, commercial agricultural, open space, parks, and outside storage.
“Gross square footage” means the calculation of the area of all structures and stories of structures located on a parcel or lot, measured along the exterior walls of the structures. This includes enclosed courtyards and stairwells but does not include fences and parking areas that are not enclosed within a structure.
“ITE manual” means the Institute of Transportation Engineers Trip Generation Manual, latest edition.
“Mixed-use property” means a developed multi-use and/or multi-tenant property with common or separate utility accounts for the individual uses on the property or where condominium ownership establishes common and separate ownership with the same parcel.
“Multifamily residential property” means residential property with more than three separate living units or spaces such as apartment complexes.
“Nonresidential property” means a business, commercial, industrial, institutional, or nonprofit use of real property that is not used primarily for personal or domestic accommodation.
“Parcel” means a unit of land that is created by a partitioning of land.
“PROWAG” means the Public Right-of-Way Accessibility Guidelines as published by the United States Access Board. These guidelines cover pedestrian access to sidewalks and streets, including crosswalks, curb ramps, street furnishings, pedestrian signals, parking and other components of public rights-of-way.
“Residential property” means a use of real property primarily for personal or domestic accommodation, including single-family and multifamily residential property, but not including hotels, motels and other commercial establishments that provide temporary shelter.
“Responsible party” means the person or persons who by occupancy or by contractual arrangement are responsible to pay for utility and other services provided to a developed property or developed use. The person(s) paying the municipal services statement for the developed property or developed use shall be deemed the responsible party. For any developed property or developed use not otherwise required to pay a municipal services statement, “responsible party” shall mean the property owner.
“Single-family residential” means residential real property including single-family detached homes, duplexes and triplexes.
“Trip generation” means the average number of daily vehicle trips as determined by reference to the most recently published edition of the manual, Trip Generation, published by the Institute of Transportation Engineers (ITE; ITE manual).
“Unit rate” means the dollar amount charged per adjusted average daily trip. There shall be a unit rate applied to residential land uses identified as the residential unit rate, and a unit rate applied to all other land uses, identified as the nonresidential unit rate.
“Use category or category of use” means the code number and resulting trip generation estimate determined with reference to the ITE manual, and applicable to a developed property.
“Vacant” means that the entire developed property building or unit has no occupant for more than 30 continuous days; when the property use is suspended for a seasonal closure lasting more than 30 days; or property remodel, repair, or reconstruction. An unoccupied portion of a developed property having no separate water meter does not qualify under this definition as vacant.
“Waiver” means partial or full waiving of TUF. [Ord. 555 § 1 (Exh. A), 2023].
13.40.030 Administration.
A. Authority and Effective Date. The city manager is the delegated authority to implement the TUF created by this title when administratively feasible, but not sooner than July 1, 2023. The city manager may interpret all terms, provisions and requirements of this chapter and determine the appropriate TUF category. A property owner desiring an interpretation or other examination of the TUF category must submit a written application to the city manager. The application must provide sufficient detail to allow an interpretation. The city manager may require additional information, including an engineering study prepared by a licensed professional engineer using ITE manual methodology.
B. Categories of Use. The city manager will establish the assignment of categories of use subject to appeal to the city council.
C. Decisions. Following implementation of the TUF program, within 30 days of the submission of an application with the required information, the city manager will make a final decision on the application. The decision will be written and include findings of fact and conclusions based upon applicable criteria. A copy of the decision will be mailed to the applicant. The city manager will maintain a file containing all decisions. Except as provided under subsection (C)(2) of this section, decisions of the city manager are final.
1. Categories. If a city manager decision affects the trip generation rate and/or category of the developed property for which an interpretation is requested, the city will assign the proper category to the developed property. An appropriate TUF category will be assigned and applied to the developed property. No back charges or refunds will be made.
2. Appeal. The decision of the city manager under this subsection may be appealed to the city council in accordance with CMC 13.40.140.
D. Programs. The city manager will develop and maintain programs for the maintenance of city transportation facilities and capital improvement programs to upgrade substandard facilities to current engineering standards for the safety and welfare of the community. Said program is subject to the city budget committee review and city council approval for the allocation and expenditure of budget resources for the transportation facility improvement and maintenance.
E. Fees. The city manager is responsible for the collection of fees under this chapter. [Ord. 555 § 1 (Exh. A), 2023].
13.40.040 Street fund and street capital improvement reserve fund.
A. All funds collected under this chapter will be deposited into the street fund and transferred to the street capital improvement reserve fund for current and future street capital projects. If the TUF collected are insufficient for the intended purpose, the city council may allocate other nondedicated city funds to pay such costs. All amounts in the street fund may be invested in accordance with state law. Earnings from such investments will be also credited to the street fund.
B. The administration, maintenance and operations expenditures from the city street fund need not relate to the real property from which the TUF is collected. The TUF may not be used for other city purposes. TUF revenues will be used solely to pay items as noted in CMC 13.40.010. [Ord. 555 § 1 (Exh. A), 2023].
13.40.050 Fee imposed.
A. A transportation utility fee is imposed upon the owners of all developed property within the corporate limits of the city of Creswell.
B. Property owners with specific activities and uses of property that result in extraordinary wear and tear or structural damage to a city transportation facility may be assessed a special damage assessment fee, which is determined by the city manager on a case-by-case basis.
C. The TUF may be paid by the owner, occupant or anyone designated by the owner or occupant provided that person is listed as the responsible party on the city utility accounts system. [Ord. 555 § 1 (Exh. A), 2023].
13.40.060 Prioritization of improvements.
Street projects are prioritized in the city of Creswell transportation system plan (“plan”). Further, priority projects in the plan will be done in order of engineer’s assessment of road deterioration and use by public safety vehicles and mass transit. [Ord. 555 § 1 (Exh. A), 2023].
13.40.070 Capital improvement plan.
Each year the finance department with the assistance of the public works department shall prepare and present to the budget committee and city council the “capital improvement plan” as part of the budget adoption process. This plan shall include a schedule for the proposed budgeted year and the next four years. The report shall include revenues received relative to revenue projections, project cost inflation trends and any other developments that impact the adequacy of the program funds to meet program goals. [Ord. 555 § 1 (Exh. A), 2023].
13.40.080 Fee determination, adjustments, and terminations.
A. The TUF will be calculated as a monthly service charge and collected from owners or occupants of developed property in a manner similar to the collection of city water or sewer fees. Fees need not be invoiced monthly but will not be invoiced for intervals longer than three months.
B. Adjustment or termination of the TUF will be approved by city council resolution. The TUF may be modified based on one or more of the following factors:
1. Cost of Service Adjustment. A rate adjustment reflecting a change in the amount of revenue required to maintain the city transportation pavement facilities defined by this chapter net of other city revenue that may be pledged for that purpose.
2. Inflationary Index Adjustment. A rate adjustment reflecting the changes in the cost of labor, materials and other services linked to changes to broader economic conditions as measured by the Oregon Department of Transportation Four-Quarter Moving Average Construction Cost Index.
3. New Revenue Adjustment. An adjustment based on revenue received from outside sources (not locally generated) to provide street maintenance.
4. Road Condition Assessments. Assessments that forecast reduced costs to maintain the condition of the road system.
5. Fee Termination. The fee can be terminated by the city council if it is determined that the funding is no longer needed to maintain the street system.
C. TUF Program Review. The adjustment to the TUF determined by subsection (B) of this section will not be automatic or predetermined. The city council will review the TUF program and modify the amount of TUF collected at its sole discretion. Annually, the water rate advisory committee will meet to review the amount of the TUF and make a recommendation of that amount to the city council at the February work session.
D. Establishment of Service Fees. Monthly service fees will be established for the following types and classes of developed property or developed use:
1. Residential Properties.
a. Single-Family. Includes developed property with one, two, or three separate dwelling units. Each attached or separate dwelling unit is subject to the TUF for this class.
b. Multifamily. Includes developed property with four or more attached dwellings, condominiums, and town homes including accessory dwelling units. Each dwelling is subject to the TUF for this class.
c. Mobile Homes. Property located in parks as defined in ORS 446.003(23).
2. Nonresidential Properties.
a. Class 1. Those categories generating fewer than 40 average daily trips per 1,000 gross square feet of developed area.
b. Class 2. Those use categories generating more than 40 average daily trips per 1,000 gross square feet of developed area.
c. Class 3. Categories with trip generating characteristics that either are not documented in the ITE manual or have special circumstances that merit separate fee calculation. Examples include gas stations, hospitals, universities, schools, parks, assisted living centers, fairgrounds, golf courses, and aviation facilities.
3. Nonresidential Class Distribution. The trip ranges described for classes 1 through 2 are established equally, as close as possible by the following steps:
a. Sort all non-class 6 categories from lowest to highest daily trip generation.
b. Set the break line between each class as close as possible to equally distribute the total trips generated by classes 1 through 2.
E. Fee Minimum. The minimum monthly fee for nonresidential accounts shall be equal to the fee imposed for a single-family residential home. [Ord. 555 § 1 (Exh. A), 2023].
13.40.090 Mixed-use and related properties.
A. Special standards may apply for determining the appropriate customer category where developed properties share or utilize common transportation facilities such as walkways, driveways, or parking areas. Except as provided in this section, no TUF will be apportioned among mixed-use or related developments or combinations of mixed-use and related developments.
B. Mixed-uses with multiple use categories that share a single water meter will be assessed a total combined TUF based on the sum of each use category fee. Although these standards generally apply to nonresidential uses, they also will be used to determine the appropriate customer category in properties with mixed uses of residential and nonresidential developments.
C. The following procedure may be used to apportion TUF fees within mixed-use properties for the separate uses:
1. Residential Uses. Each equivalent residential unit will be assessed a TUF in accordance with the applicable residential rate for that unit.
2. Nonresidential Uses. For developed properties with at least one common boundary where the uses would be assigned separate categories if the uses did not share common driveways, walkways or parking areas, and where the property design reduces the number of trip destinations that normally would be assigned to that use, a combined TUF may be established. Related properties may have more than a single water meter and sewer utility service established, and the combined TUF will be apportioned by the city manager between uses as follows:
a. Establish a collective trip assignment for the mixed uses based on the lowest applicable trip generation factors that could be applied to the subject properties. The assignment may include individual trip calculations for some uses and combined trip calculations for other uses.
b. Establish the appropriate customer category and related cost-per-trip rate for that category and apply that rate to the collective trip assignment.
c. Establish an allocation of the combined fee amount to the water meter/sewer accounts that serve the collective properties using one or more of the following methods:
i. Building area square footage.
ii. ITE manual daily trip generation factors.
iii. Internal traffic counts.
iv. Other factors deemed suitable for apportioning the fee commensurate with use. [Ord. 555 § 1 (Exh. A), 2023].
13.40.100 Implementation rules.
A. The following rules apply to the application of this chapter and the TUF:
1. No fee parking lots are not subject to the TUF as they do not themselves generate traffic. Parking lots that charge for parking (such as a storage or sales lot that charges a fee) are subject to the TUF.
2. Publicly owned undeveloped park land, open spaces and greenways are not subject to the TUF unless there is off-street parking for users.
3. Areas for commercial farming or forestry operations are subject to the TUF as a class 3 trip generation. Where there is more than one developed property on the site, the category will be determined based on CMC 13.40.090, Mixed-use and related properties.
4. Railroad and public rights-of-way are not subject to the TUF. However, railroad property containing structures, such as maintenance areas, nonrolling storage areas and property used for the transfer of rail transported goods to nonrail transport are subject to the TUF.
5. Categories within the ITE manual will be determined by reference to weekday average trip generation rates.
6. For nonresidential developed properties with an ITE manual analysis by acreage rather than square footage, the city manager will convert the ITE manual trip generation rates to a square footage calculation and assign the appropriate TUF. If conversion to a square footage calculation is not practical, the city manager may assign a special trip generation rate for that developed property.
7. Developed property structure area will be multiplied by the number of stories, designed for development use.
8. The TUF applies to all developed property, including developed property owned by local, state, and federal governments, nonprofit organizations and to all developed properties that are not subject to ad valorem property tax levies.
9. A developed property that undergoes a change in use must continue to pay the existing TUF. After receiving information about the change in use, the city manager may determine that a different category applies to the developed property. Thereafter, the city will charge and collect the TUF that applies to the revised designation. The city will charge and collect the TUF in accordance with correct information concerning developed properties.
B. The city manager will review the operation of this chapter and may make appropriate recommendations for amendments to this chapter or the adoption of administrative rules by city council resolution. Administrative rules may provide guidance to property owners concerning the application and interpretation of the terms of this chapter. Rules adopted by the city council will have full force and effect, unless clearly inconsistent with this chapter. [Ord. 555 § 1 (Exh. A), 2023].
13.40.110 Billing and collection.
A. The TUF will be billed and collected with the monthly municipal service statement for developed properties using city water and sewer, and may be billed and collected separately for developed properties not utilizing city water and sewer as follows:
1. For a developed residential property and subject to water and sewer utility charges, the TUF bill will be sent to the responsible party.
2. For a developed nonresidential property that is subject to water and sewer utility charges, a common TUF bill will be sent to the responsible party. See CMC 13.40.090 for special rate calculation procedures related to mixed-use properties for exceptions to this rule.
3. For a developed residential or nonresidential property that is not subject to water and sewer utility charges, the TUF bill will be sent to the property owner or leaseholder, as in the case of city of Creswell airport tenants.
4. All TUF bills become due and payable per date noted on the bill.
5. If payments received from city utility billings are inadequate to satisfy in full all balances, credit will be applied proportionately between funds, unless directed otherwise by the city manager. [Ord. 555 § 1 (Exh. A), 2023].
13.40.120 Commencement of charges and collection.
A. For new construction, service charges will commence with the issuance of a building permit or installation of a water meter, whichever comes first. Developed real property annexed to the city shall begin paying the fee the first month following annexation, regardless of whether or not the parcel is connected to city water or sewer.
B. For existing structures, service charges will commence upon the effective date noted in CMC 13.40.030(A). [Ord. 555 § 1 (Exh. A), 2023].
13.40.130 Waiver of fees.
A. Applying for a Waiver. Any person desiring a waiver must apply on city forms and be submitted not less than 14 days prior to the billing date of the period for which the waiver will be applied. Persons requesting a waiver must document that they meet the criteria and pay any associated application fee. Only one discount or waiver will be granted at a time for individual properties. Waivers will only be applied prospectively; no retroactive waiver or refund will be issued. Except as set forth below, waivers expire after 12 monthly billing cycles. Those who qualify may reapply within the 60 days prior to the expiration of the waiver.
B. Vacancy Waiver.
1. When any developed property within the city becomes vacant, as defined in CMC 13.40.020, and water service remains in effect, upon written application of the property owner, the TUF will be billed at the lowest available rate upon the approval of the city manager.
2. When any developed property within the city becomes vacant, as defined in CMC 13.40.020, and water service is discontinued, upon written application of the property owner, the TUF will not be billed if all current and outstanding water, sanitary sewer, storm server and transportation utility fee charges have been paid in full.
3. The city manager is authorized to investigate any developed property for which a fee reduction or waiver application is submitted to verify any of the information contained in the application. The city manager is also authorized to develop and use a standard form of application for fee reduction or waiver. The form will provide space for verification of the information and the person signing the form must affirm under penalty of perjury the accuracy of the information provided.
C. Hardship Waiver.
1. The responsible party may qualify for a waiver if the person meets the income criteria, which is defined as a household earning less than 80 percent of the HUD median household income in Creswell.
2. The principal owner of a multifamily residential property may qualify for a waiver if the property is identified as a low-income qualified housing identified by the housing authority of Lane County.
D. Unemployment Waiver. An unemployment waiver provides a six-month waiver to residents who have had the responsible party recently laid off from their job. Evidence of receipt of current unemployment benefits and proof of residency at the service address is required. Residents can reapply for the waiver if still receiving unemployment benefits after six months.
E. Motor Vehicle Discount. A discount can be obtained for residential class households in which no one owns a motor vehicle. The discount is good for one full year after the discount is approved or until a vehicle is acquired by the household. Residents must demonstrate that each member of the household of driving age does not have a vehicle. Qualifying residents must reapply each year to receive a waiver for the next 12 months.
F. The amount of transportation utility hardship waivers will be as follows:
1. Vacancy – 100 percent waiver.
2. Hardship – 50 percent waiver.
3. Unemployment – 50 percent waiver.
4. Motor vehicle discount – 50 percent waiver. [Ord. 555 § 1 (Exh. A), 2023].
13.40.140 Appeals.
A. CMC 13.40.030, Administration, outlines the process to establish and adjust categories. Any responsible party who disputes any interpretation by the city manager regarding the category assigned to the developed property or developed use may appeal that interpretation under this section. The appeal will be denied unless it is made within the time allowed, as stated below, and follows the process provided by this section. Appeals that result in changes in the TUF become effective with the next billing cycle.
B. A responsible party who disputes the assigned category may submit a written appeal to the city manager within 15 business days from the date of the city manager’s decision. The appeal must specify the basis for appeal and include an engineering study prepared by a licensed professional engineer using ITE manual methodology, excepting that the pass-by and diverted trip analyses do not apply to this TUF program. Appeals are limited to the facts relating to the developed property improvements and area, traffic generation rates, category of use, and other factors material to the calculation of the TUF.
C. The city manager will place the appeal on a city council meeting agenda and provide the appellant with at least 10 business days’ written notice of the meeting at which the appeal will be heard. The city council will conduct a hearing and determine whether there is substantial evidence in the record to support the decision of the city manager. The city council may continue the hearing to gather additional information. The city council will make a tentative oral decision and later adopt a final written decision with appropriate findings. The decision of the city council will be limited to the facts cited in subsection (B) of this section. The city council will base their decision on the relevant testimony and facts provided, but there will be no refund of TUFs previously paid. All city council decisions are final. [Ord. 555 § 1 (Exh. A), 2023].
13.40.150 Inspection of developments.
The city manager is authorized to enter upon private property for purposes of conducting any studies or collecting information bearing upon the determination of the assignment of the appropriate TUF under this chapter. [Ord. 555 § 1 (Exh. A), 2023].
13.40.160 Severability.
If any provision of this chapter or its application to any person or circumstances is held to be unconstitutional or invalid for any reason, the remainder of this chapter or the application of the provisions to other persons or circumstances shall not be affected. [Ord. 555 § 1 (Exh. A), 2023].