Chapter 3.40
IMPACT FEES FOR PUBLIC STREETS, ROADS, PARKS, OPEN SPACE AND RECREATION FACILITIES AND FIRE PROTECTION
Sections:
3.40.010 Findings and authority.
3.40.030 Findings of adequacy.
3.40.040 Assessment of impact fees.
3.40.090 Establishment of impact fee accounts.
3.40.130 Impact fees and administrative fees.
3.40.140 Independent fee calculations.
3.40.150 Existing authority unimpaired.
3.40.010 Findings and authority.
The city council of the city of Mount Vernon (the “council”) finds and determines that growth and development activity in the city will create additional demand and need for public streets and roads, publicly owned parks, open space and recreational facilities, and fire protection facilities in the city, and the council finds that growth and development activity should pay a proportionate share of the cost of such planned facilities needed to serve the growth and development activity. Therefore, pursuant to Chapter 82.02 RCW, the council adopts this chapter to assess impact fees for planned facilities. The provisions of this chapter shall be liberally construed in order to carry out the purposes of the council in establishing the impact fee program. (Ord. 2596 § 1, 1994).
3.40.020 Definitions.
The following definitions shall apply for purposes of this chapter unless the context clearly requires otherwise. Terms otherwise not defined herein shall be defined pursuant to RCW 82.02.090, or given their usual and customary meaning.
“Act” means the Growth Management Act, Chapter 17, Laws of 1990, 1st Ex. Sess., Chapter 36.70A RCW et seq., and Chapter 32, Laws of 1991, 1st Sp. Sess., as now in existence or as hereafter amended.
“Affordable housing” means units to be sold or rented to families earning less than 80 percent of the Skagit County median income adjusted for family size, as determined by the U.S. Department of Housing and Urban Development.
“Boundary line adjustment” shall have the same meaning as set forth in Chapter 16.36 MVMC.
“Building permit” means an official document or certification which is issued by the building official and which authorizes the construction, alteration, enlargement, conversion, reconstruction, remodeling, rehabilitation, erection, demolition, moving or repair of a building or structure. For purposes of this chapter, “building permit” also includes a mobile home permit.
“Capital facilities” means the facilities or improvements included in a capital budget.
“Capital facilities plan” or the “plan” means the capital facilities plan adopted by the council as part of the capital facilities element of the comprehensive plan for Mount Vernon.
“City” means the city of Mount Vernon.
“City engineer” means the officially appointed and acting city engineer for the city, also referred to herein as a “department head.”
“Community and economic development director” or “director” means the director of the community and economic development department.
“Council” means the city council of the city.
“County” means Skagit County.
“Department” means the city planning department.
“Developer” means an individual, group of individuals, partnership, corporation, association, municipal corporation, state agency, or other person undertaking development activity, and their successors and assigns.
“Development activity” means any construction or expansion of a building or structure; or the siting of a mobile home; or any change in use of a building or structure or mobile home; or the subdivision of land; or the seeking of plat approval, PUD approval, binding site plan approval, mobile home park district approval, boundary line adjustment, or conditional use permit approval; or any change in use of land that creates additional demand and need for public streets and roads, publicly owned parks, open space and recreational facilities, and fire protection facilities.
“Development approval” means any written authorization from the city, other than a building permit, which authorizes the commencement of a development activity, including, but not limited to, plat approval, PUD approval, binding site plan approval, mobile home park district approval, boundary line adjustment, and a conditional use permit.
“Encumbered” means to reserve, set aside, or otherwise earmark the impact fees in order to pay for commitments, contractual obligations, or other liabilities incurred for planned facilities.
“Fee payer” is a person, corporation, partnership, an incorporated association, or any other similar entity, or department or bureau of any governmental entity or municipal corporation commencing a development activity which creates the demand for planned facilities, and which requires development approval and/or the issuance of a building permit. “Fee payer” includes an applicant for an impact fee credit.
“Fire chief” means the officially appointed and acting chief of the fire department of the city, also referred to herein as a “department head.”
“Fire impact fee” means the impact fee designated to pay for fire protection facilities.
“Impact fee” means a payment of money imposed by the city on development activity pursuant to this chapter as a condition of granting development approval and/or a building permit in order to pay for the planned facilities needed to serve new growth and development activity. “Impact fee” does not include a reasonable permit fee, an application fee, the administrative fee for collecting and handling impact fees, the cost of reviewing independent fee calculations, or the administrative fee required for an appeal pursuant to MVMC 3.40.080.
“Impact fee account” or “account” means the account or accounts established for the planned facilities for which impact fees are collected. The accounts shall be established pursuant to MVMC 3.40.090, and comply with the requirements of RCW 82.02.070.
“Independent fee calculation” means the impact calculation, and/or economic documentation prepared by a fee payer, to support the assessment of an impact fee other than by the use of the schedules attached as Appendix A to the ordinance codified in this chapter, or the calculations prepared by the community and economic development director or city engineer where none of the impact fee categories or impact fee amounts in Appendix A accurately describe or capture the impacts of the development activity on public streets and roads, publicly owned parks, open space and recreational facilities, and fire protection facilities.
“Mobile home park district” shall have the same meaning as set forth in Chapter 17.39 MVMC.
“Owner” means the owner of record of real property, or a person with an unrestricted written option to purchase property; provided, that if the real property is being purchased under a recorded real estate contract, the purchaser shall be considered the owner of the real property.
“Park impact fee” means the impact fee designated to pay for publicly owned parks, open space and recreational facilities.
“Parks director” means the director of the city parks and recreation department, also referred to herein as a “department head.”
“Planned facilities” shall mean public streets and roads, publicly owned parks, open space and recreational facilities, and fire protection facilities included in the capital facilities element of the comprehensive plan for Mount Vernon.
“Planned unit development” or “PUD” shall have the same meaning as set forth in Chapter 17.69 MVMC.
“Standard of service” means the quantity and quality of service which the city council has determined to be appropriate and desirable for the city. A measure of the standard of service may include, but is in no way limited to, maximum levels of congestion on city streets and roads, maximum commute times, maximum wait at stops, maximum fire department response times, minimum fire suppression capabilities, minimum park space of per capita for a variety of types of parks, minimum distance from residences to parks, and any other factors the city council may deem appropriate.
“State” means the state of Washington.
“Transportation impact fee” means the impact fee designated to pay for public streets and roads.
“Unit” means any building or portion thereof which contains living facilities including provisions for sleeping, cooking, eating, and sanitation, as required by city, for not more than one family and including site-built buildings, mobile/manufactured homes and modular homes.
“Voluntary agreement” means an agreement between a developer and the city as authorized by RCW 82.02.020. (Ord. 3388 § 4, 2008)
3.40.030 Findings of adequacy.
A. Prior to approving proposed plats, planned unit developments or binding site plans, or granting other development approvals, the council or administrative personnel, as appropriate, shall make written findings that appropriate provisions are made for planned facilities. Findings of adequacy shall be based on the city’s standard of service.
B. Compliance with this requirement shall be sufficient to satisfy the requirements of RCW 58.17.110, 58.17.060, and the Act. The findings shall be made at the time of preliminary plat, PUD, binding site plan or other development approval.
C. The city shall not approve applications for preliminary plats, PUDs or binding site plans, or grant other development approvals, unless the city is able to make the findings of adequacy; provided, that if the fee payer opts to dedicate land, to provide improvements, and/or construction consistent with the requirements of MVMC 3.40.060 governing credits, where appropriate, the city may make such findings.
D. If any party for any reason is able to exempt itself from the operation of this chapter, the city reserves the right to review its land use plan in conjunction with its capital facilities plan in order to ensure adequacy. In the event that the impact fees that might have been paid would have been an integral part of the financing to ensure adequacy, the city reserves the right to deny approval for the development on these grounds. (Ord. 2596 § 3, 1994).
3.40.040 Assessment of impact fees.
A. The city shall collect impact fees, based on the schedules in Appendix A, from any applicant seeking a building permit from the city.
B. Except as may be due to exemptions or credits provided pursuant to MVMC 3.40.050 or 3.40.060, or pursuant to an independent fee calculation accepted by the community and economic development director pursuant to MVMC 3.40.140, or impact fees imposed by the community and economic development director pursuant to MVMC 3.40.140, the city shall not issue or finalize (as applicable) a building permit(s) unless and until the impact fees set forth in the schedules in Appendix A to this chapter have been paid.
C. An applicant can either pay the required impact fees when their building permit is issued or they can request to defer this payment to the final inspection for residential building permit(s) they have received. The following shall apply to any request to defer payment of an impact fee:
1. The applicant shall submit to the city a written request to defer the payment of an impact fee for a specifically identified residential building permit. The applicant’s request shall be on forms provided by the city and shall include all of the following. To be accepted by the city these materials must be accompanied by an administrative fee as provided within this chapter.
a. The applicant’s corporate identity and contractor registration number;
b. The full names of all legal owners of the property upon which the development activity allowed by the building permit is to occur;
c. The legal description of the property upon which the development activity allowed by the building permit is to occur;
d. The tax parcel identification number of the property upon which the development activity allowed by the building permit is to occur;
e. The address of the property upon which the development activity allowed by the building permit is to occur; and
f. Completed deferred payment of impact fee lien.
2. The impact fee amount due under any request to defer payment of impact fees shall be based on the schedule in effect at the time the applicant provides the city with the information required in subsection (C)(1) of this section.
3. Prior to the issuance of a building permit that is the subject of a request for a deferred payment of impact fee, all applicants and/or legal owners of the property upon which the development activity allowed by the building permit is to occur must sign a deferred impact fee payment lien in a form acceptable to the city attorney. The deferred impact fee payment lien shall be recorded by the applicants and/or legal owners against the property subject to the building permit and be granted in favor of the city in the amount of the deferred impact fee. Any such lien shall be junior and subordinate only to one mortgage for the purpose of construction upon the same real property subject to the building permit. In addition to the administrative fee required in this chapter, the applicant shall be responsible for all fees associated with recording this document with the Skagit County auditor.
4. The city shall not approve a final inspection until the traffic, parks, and fire impact fees identified in the deferred impact fee payment lien are paid in full.
5. In no case shall payment of the impact fee be deferred for a period of more than 18 months from the date of building permit issuance.
6. Upon receipt of final payment of the deferred impact fee as identified in the deferred impact fee payment lien, the city shall execute a release of lien for the property. The applicant and/or owner, at their own expense, shall record the lien release.
7. In the event that the deferred impact fee is not paid within the time provided in this section, the city shall institute foreclosure proceedings under the process set forth in Chapter 61.12 RCW.
8. An applicant is entitled to defer impact fees pursuant to this section for no more than 20 single-family dwelling unit building permits per year in the city. For purposes of this section, an “applicant” includes an entity that controls the applicant, is controlled by the applicant, or is under common control with the applicant.
9. The director may adopt rules and procedures they determine are reasonably necessary to implement the requirements of the impact fee deferral process. (Ord. 3687 § 16, 2016).
3.40.050 Exemptions.
A. The following shall be exempted from the payment of all impact fees:
1. Replacement of a residential structure or mobile home with a new structure or mobile home of the same size and use at the same site or lot.
2. Alterations or expansion or enlargement or remodeling or rehabilitation or conversion of an existing dwelling unit where no additional units are created and the use is not changed.
3. The construction of accessory structures that will not create significant impacts on planned facilities.
4. Miscellaneous improvements, including but not limited to fences, walls, swimming pools, and signs.
5. Demolition or moving of a structure.
6. Construction of affordable housing where the affordable housing unit is a one-to-one replacement for a demolished dwelling unit previously sited at another location within the city and where no new housing can be built on the same lot as the demolished dwelling unit, so long as these uses are maintained and the necessary covenants or declarations of restrictions, approved by the city, are recorded on the property. The request for the exemption shall be filed with the city within 24 months of the demolition or destruction of the prior structure or removal of the mobile home. The director shall place a notation on the property of the demolished dwelling unit or mobile home lot to indicate that a new dwelling unit or mobile home cannot be built or sited on the same lot unless an impact fee is paid at the time of building permit issuance.
B. The following shall be exempted from the payment of the park impact fees:
1. The construction of public school facilities.
2. The construction of private school facilities; provided, that open space or recreational facilities are made available to the public at such facility.
3. Nonresidential construction.
C. The following shall be exempted from the payment of the transportation impact fee:
1. The construction of private or public schools; provided, that public streets and roads required by the city to address the impacts of the construction are completed or will be completed as a part of the development. This exemption does not include facilities constructed on a public or private school campus for primarily nonschool related functions, such as recreation centers, playfields, and/or entertainment/conference auditoriums. It is recognized in this code that school facilities are often used by the public for nonschool related activities (e.g., renting playfields and school auditoriums). This section does not refer to those types of facilities that are primarily constructed for school activities.
2. Converting a commercial or industrial use to a similar use which has the same traffic generation that the original use did. If the new commercial or industrial use has a greater traffic generation than the original use did, the applicant for the new use shall pay for the net new trips generated. If the city does not have the original traffic studies for the use that has ceased, the applicant will be responsible for paying the city’s traffic consultant to estimate these trips.
D. Except as otherwise provided pursuant to the terms of a voluntary agreement entered into between the city and a developer, the payment of fees, the dedication of land, or the construction of planned facilities by the developer pursuant to the terms of a voluntary agreement negotiated with the city with specific reference to the improvements identified in the capital facilities plan and in anticipation of the imposition of impact fees, and entered into between the city and a developer prior to the effective date of the ordinance codified in this chapter shall be deemed to be complete mitigation for the impacts of the specific development on the planned facilities. The units in such development may be charged a reduced fee pursuant to an independent fee calculation under MVMC 3.40.140. The developer shall provide to the community and economic development director documentation demonstrating compliance with the terms of the voluntary agreement.
E. Except as otherwise provided pursuant to the terms of a plat condition or a SEPA mitigation condition, the payment of fees, the dedication of land, or the construction of planned facilities by the developer pursuant to the terms of a plat condition or a SEPA mitigation condition negotiated with the city with specific reference to the improvements identified in the capital facilities plan and in anticipation of the imposition of impact fees, and imposed prior to the effective date of the ordinance codified in this chapter, shall be deemed to be complete mitigation for the impacts of the specific development on the planned facilities. The units in such development may be charged a reduced fee pursuant to an independent fee calculation under MVMC 3.40.140. The developer shall provide to the community and economic development director documentation demonstrating compliance with the terms of the plat condition or SEPA mitigation condition.
F. The community and economic development director shall be authorized to determine whether a particular development activity falls within an exemption identified in this section, in any other section, or under other applicable law. Determinations of the community and economic development director shall be in writing and shall be subject to the appeals procedures set forth in MVMC 3.40.080. (Ord. 3411 § 2, 2008).
3.40.060 Credits.
A. Credit Available. After the effective date of the ordinance codified in this chapter, credit against the amount of the impact fees for developer dedications of land for planned facilities, or construction of planned facilities, or improvements to planned facilities shall be governed by this section. This section allows for the provision of reasonable credit to a fee payer for the value of any dedication of land for, improvements to or new construction of planned facilities by a fee payer, pursuant to RCW 82.02.060(3), as further provided herein. The amount of the credit for a particular improvement or facility shall be limited to the cost of that improvement or facility as set forth within Chapter 14.10 MVMC and the transportation element of the comprehensive plan. Credits shall be specific to the type of improvements or dedication made, such that dedications of land for, construction of or improvements to publicly owned parks, open space or recreational facilities shall be applicable only to the park impact fee; dedications of land for, construction of, or improvements to public streets and roads shall be applicable only to the transportation impact fee; and dedications of land for, construction of or improvements to fire protection facilities shall be applicable only to the fire impact fee.
B. Application for Credit/Determination of Suitability of Land, Improvements, Construction. The fee payer applying for credit (hereinafter, “the applicant”) shall direct the request for a credit or credits to the development services director, who shall refer the request to the city engineer, the fire chief and/or the parks director as appropriate. The appropriate department head shall first determine the general suitability of the land, improvements, and/or construction for city purposes. The development services director shall then determine whether the land, improvements, and/or the facilities constructed are included within the city’s adopted capital facilities plan or the development services director may make the finding that such land, improvements, and/or facilities would serve the goals and objectives of the city’s capital facilities plan. The development services director shall adopt the determination of the appropriate department head as to the general suitability of the land improvements and/or construction for city purposes. In all cases the development services director shall inform the applicant, in writing, of the adoption of the determination.
1. Applications for traffic impact fee credits are required to be submitted to the development services director within 180 days after the structure, facility, or other improvements have been approved/accepted by the city. Approval/acceptance of structures, facilities, or other improvements is defined as being: (a) when a certificate of occupancy is granted for structures, (b) when a public road or trail is dedicated to the city, (c) when an easement is granted to the city for trail or other similar uses, and (d) when the city allows an intersection or other public facility/improvement to be opened to or used by the public.
C. Determination of Credit Amount.
1. The value of a credit for structures, facilities or other improvements shall be established by original receipts provided by the applicant for one or more of the same system improvements for which the impact fee is being charged.
a. The value of traffic impact fees shall be limited to the following costs:
i. Predevelopment land cost, i.e., the value of the property to be dedicated to the city prior to any improvements being constructed/installed.
ii. Surveying cost.
iii. Civil engineering.
iv. Geotechnical reports.
v. Critical area reports.
vi. Material and construction cost for roads, roundabouts, bike lanes, or intersection construction.
vii. Traffic signal(s) and equipment required to operate such signal(s).
viii. Road signs, striping, and roadway lighting.
ix. Stormwater piping and structures collecting and conveying roadway stormwater.
x. Critical area mitigation associated only with the construction of the transportation facility.
b. The value of traffic impact fees shall not include, but are not limited to, the following: cost of landscaping, cost of irrigation, cost of sanitary sewers, cost of water lines, cost of dry utilities such as natural gas, electric lines, or fiber optics, and detention, retention and treatment facilities.
2. The value of a credit for land, including right-of-way and easements, shall be established on a case-by-case basis by an appraiser selected by or acceptable to the director. The appraiser must be licensed in good standing by the state of Washington for the category of the property appraised. The appraiser must possess an MAI or other equivalent certification and shall not have a fiduciary or personal interest in the property being appraised. A description of the appraiser’s certification shall be included with the appraisal, and the appraiser shall certify that he/she does not have a fiduciary or personal interest in the property being appraised. The appraisal shall be in accord with the most recent version of the Uniform Standards of Professional Appraisal Practice and shall be subject to review and acceptance by the director.
3. The fee payer shall pay for the cost of the appraisal or request that the cost of the appraisal be deducted from the credit which the city may be providing to the fee payer, in the event that a credit is awarded.
D. Use of Credits. The applicant, upon receipt of a credit certificate, shall have the right to use the certificate to offset any future impact fee assessed for any development activity that will be required to pay impact fees. The administration and application of the credit certificates will be as described in subsection E of this section. The application of any credit certificate will be specific to either the transportation impact fee, the park impact fee or the fire impact fee.
E. Credit Certificates/Administration. After determining the amount of the credit, the development services director shall issue and provide the applicant with a document hereinafter known as a credit certificate, setting forth the dollar amount of the credit, the date of issuance of the credit certificate, the date of expiration of the credit and the credit certificate, the reason for the credit, the legal description of the property donated, and/or the improvement or construction which was the basis for the credit, and the name of the applicant to which the credit certificate is registered (the “credit holder”). The applicant must sign and date the credit certificate, and return such signed credit certificate to the development services director for filing in the city’s credit certificate registry before the credit will be awarded. The failure of the applicant to sign, date, and return the credit certificate within 60 calendar days shall nullify the credit. The original credit certificate shall be kept and registered in the city’s records, and the credit holder shall be provided a duplicate copy. The development services director shall develop reasonable rules and regulations for the administration of the credit certificate program, including the calculation of credits, and including procedures for use of credits and application of credits to particular parcels of land which may be by recorded document, and including the ability to levy an administrative fee in an amount sufficient to cover actual costs to the city.
F. Transfer of Credit/Partial Use of Credit. Credit certificates may be transferred or sold to third parties by the credit holder; provided, that in order to transfer credits to another party, the current credit holder shall register the transfer with the city in accordance with the procedures for registration of credit transfers developed by the development services director. Only the credit holder who is reflected on the city’s registration system may utilize the credit. Registration with the city of credit certificates shall be conclusive evidence of credit ownership. To the extent that a credit holder wishes to utilize only a portion of the credit reflected on the credit certificate against impact fees due on a particular project, the development services director shall develop procedures for reducing the amount of credit reflected on the credit certificate accordingly or issuing a new credit certificate with the remaining credit amount.
G. Limitations on Utilization of Credits. Utilization of credit against payment of impact fees must in all cases be made prior to payment of the impact fee. No reimbursement of impact fees will be made for credit not utilized at the time the impact fee was due. In no event shall the city be under any obligation to advise any applicant for a building permit or other development approval of the existence or possible existence of the availability of credits. The burden of investigating and determining if credits may be available shall rest solely with such applicant. Credit utilized shall never exceed the amount of the impact fee due.
H. Credit for Significant Past Tax Payments. For each request for a credit for significant past tax payments made for particular improvements or land acquisitions, the fee payer shall submit proof of payments and a calculation of past tax payments earmarked for or pro-ratable to the particular improvements or land acquisitions. The development services director shall establish procedures for determining the amount of credit for significant past tax payment made for particular improvements or land acquisitions.
I. Appeals. Determinations made by the development services director pursuant to this section shall be subject to the appeals procedures set forth in MVMC 3.40.080.
J. Expiration of Credits. Credits shall expire, and credit certificates shall become null and void, on a date 10 years from the date of issuance of the original credit certificate by the development services director. Transfer of credits or partial use of credits which may involve reissuance of credit certificates shall in no event extend the expiration date of those credits. (Ord. 3754 § 3, 2018).
3.40.070 Tax adjustments.
Pursuant to and consistent with the requirements of RCW 82.02.060, the capital facilities plan has provided adjustments for future taxes to be paid by the developer which are earmarked or proratable to the planned facilities which will serve the development activity. The impact fee schedules in Appendix A have been reasonably adjusted for taxes and other revenue sources which are anticipated to be available to fund particular planned facilities. (Ord. 2596 § 7, 1994).
3.40.080 Appeals.
A. Any fee payer may pay the impact fees imposed by this chapter under protest in order to obtain a development approval and/or issuance or finalization of a building permit. Appeals regarding the impact fees imposed on any development activity may only be taken by the fee payer of the property where such development activity will occur. No appeal shall be permitted unless and until the impact fees at issue have been paid.
B. The community and economic development director’s determinations with respect to the applicability of the impact fees to a given development approval and/or building permit, the availability of an exemption, the availability or value of a credit, or the community and economic development director’s decision concerning the independent fee calculation which is authorized in MVMC 3.40.140, or the impact fees imposed by the community and economic development director pursuant to MVMC 3.40.140, or any other determination which the community and economic development director is authorized to make pursuant to this chapter, can be appealed to the hearing examiner.
C. Appeals shall be taken within 10 working days of the community and economic development director’s issuance of a written determination by filing with the community and economic development department a notice of appeal specifying the grounds thereof, the items listed in MVMC 14.05.210(B) under the heading “Appeal,” and depositing an administrative fee in the amount of $300.00. The community and economic development department shall transmit to the hearing examiner all papers constituting the record for the determination including the submitted appeal items including, where appropriate, the independent fee calculation.
D. The community and economic development department, after consultation with the hearing examiner, shall fix a time for the hearing of the appeal, give notice to the parties in interest, and decide the same. At the hearing, any party may appear in person or by agent or attorney. If the matter which is the subject of the appeal requires development approval which also requires a hearing before the hearing examiner, both the appeal and the development approval hearing may be combined in a single hearing.
E. The hearing examiner is authorized to make findings of fact regarding the applicability of the impact fees to a given development activity, the availability or amount of the credit, or the accuracy or applicability of an independent fee calculation. The decision of the hearing examiner shall be final, except as provided in this section.
F. The hearing examiner may, so long as such action is in conformance with the provisions of this chapter, reverse or affirm, in whole or in part, or may modify the determinations of the community and economic development director with respect to the amount of the impact fees imposed or the credit awarded upon a determination that it is proper to do so based on principles of fairness, and may make such order, requirements, decision or determination as ought to be made, and to that end shall have the powers which have been granted to the community and economic development director by this chapter.
G. Any fee payer who believes that the decision of the hearing examiner is based on erroneous procedures, errors of law or fact, error in judgment, or has discovered new evidence which could not be reasonably available at the prior hearing, may make a written request for reconsideration by the hearing examiner within 10 working days of the date the decision is rendered. Such fee payer is the “appellant” for the purposes of this section. This request shall set forth the specific errors or new information relied upon by such appellant, and the hearing examiner may, after review of the record, take further action as it deems proper.
H. The filing of a request for reconsideration shall effectively stay the appeal period until the hearing examiner takes further action.
I. Where the hearing examiner determines that there is a flaw in the impact fee program or that a specific exemption or credit should be awarded on a consistent basis or that the principles of fairness require amendments to this chapter, the hearing examiner may advise the city council as to any question or questions that the hearing examiner believes should be reviewed as part of the council’s annual or other periodic review of the impact fee schedules as mandated by MVMC 3.40.120.
J. Any fee payer aggrieved by any decision of the hearing examiner may submit an appeal of the decision in writing to the city council within 10 working days from the date the final decision of the hearing examiner is rendered, requesting a review of such decision. Such appeal shall be upon the record, established and made at the hearing held by the hearing examiner; provided, that new evidence which was not available at the time of the hearing held by the hearing examiner may be included in such appeal. The term “new evidence” shall mean only evidence discovered after the hearing held by the hearing examiner and shall not include evidence which was available or which could reasonably have been available and was simply not presented at the hearing for whatever reason.
K. Upon such written notice of appeal being filed within the time period allotted, a hearing shall be held by the city council. Such hearing shall be held in accordance with the following appeal procedures:
1. The community and economic development director or other designee (the “respondent(s)”) shall present a summary of the findings, conclusions, and decision, as well as the alleged errors forming the basis of the appeal.
2. The appellant(s) and the respondent(s) to the appeal shall have the opportunity to present oral arguments before the council; provided, that the appellants may reserve a portion of their time for rebuttal. Such oral argument shall be confined to the record and to any alleged errors therein or to any allegation of irregularities in procedure before the hearing examiner. The council may request additional information from any staff member or party, or any factual information from members of the audience at its discretion. Such additional information shall be part of the record.
3. If the council finds that:
a. The hearing examiner’s findings or decision contains substantial error;
b. The hearing examiner’s proceedings were materially affected by irregularities in procedure;
c. The hearing examiner’s decision was unsupported by substantial evidence in view of the entire record as submitted; or
d. The hearing examiner’s decision is in conflict with the city’s adopted plans, policies, and ordinances, it may remand for further hearing before the hearing examiner or may reverse the hearing examiner’s decision. In addition, the council may choose to modify the hearing examiner’s decision based on the above criteria. Furthermore, any matter may be continued to a time certain for additional city staff analysis desired by the council, before a final determination by the council. If the council requests additional staff analysis the appellant shall be provided a copy and afforded reasonable time to review the analysis and respond to the council before final determination by the council.
4. If the council determines that there is no basis for the alleged errors set forth in the appeal, it may adopt the findings of the hearing examiner and accept the decision of the hearing examiner.
L. This procedure is the only method for appealing alleged errors or irregularities in procedure which may have occurred before the hearing examiner. All objections are deemed waived if no appeal is taken from the action by the hearing examiner.
M. Any matter requiring action by the council shall be taken by the adoption of a motion by the council. When taking any such final action, the council shall make and enter findings of fact from the record and conclusions thereof which support its action. The council may adopt all or portions of the hearing examiner’s findings and conclusions.
N. The action of the council approving, modifying, or rejecting a decision of the hearing examiner shall be final and conclusive, unless within 20 calendar days from the date of the council action any fee payer applies for a writ of certiorari or writ of review to the Superior Court of Washington for Skagit County, for the purpose of review of the action taken. (Ord. 3687 § 17, 2016).
3.40.090 Establishment of impact fee accounts.
A. The city shall establish separate impact fee accounts for the following: (1) transportation impact fees; (2) park impact fees; and (3) fire impact fees. The accounts shall be interest bearing accounts.
B. Funds withdrawn from the impact fee accounts must be used in accordance with the provisions of MVMC 3.40.110. The interest earned shall be retained in each account and expended for the purposes for which the impact fees were collected.
C. On an annual basis, the city finance director shall provide a report to the council on the impact fee accounts, showing the source and amount of all moneys collected, earned, or received, and the planned facilities that were financed in whole or in part by impact fees.
D. Impact fees shall be expended or encumbered within 10 years of receipt, unless the city council identifies in written findings extraordinary and compelling reason or reasons to hold the impact fees beyond the 10-year period. Under such circumstances, the council shall establish the period of time within which the impact fees shall be expended or encumbered. (Ord. 3687 § 18, 2016).
3.40.100 Refunds.
A. If the city fails to expend or encumber the impact fees within 10 years of when the impact fees were paid, or where extraordinary or compelling reasons exist, such other time periods as established pursuant to MVMC 3.40.090, the current owner of the property on which impact fees have been paid may receive a refund of such impact fees. In determining whether impact fees have been expended or encumbered, impact fees shall be considered expended or encumbered on a first in, first out basis.
B. The city shall notify potential claimants by first class mail deposited with the United States Postal Service at the last known address of such claimants. A potential claimant or claimant must be the owner of the property.
C. Owners seeking a refund of impact fees must submit a written request for a refund of the impact fees to the community and economic development director within one year of the date the right to claim the refund arises or the date that notice is given, whichever is later.
D. Any impact fees for which no application for a refund has been made within this one-year period shall be retained by the city and expended on the appropriate planned facilities.
E. Refunds of impact fees under this section shall include any interest earned on the impact fees by the city, calculated at the average interest rate earned by the city on the impact fee account over the preceding fiscal year.
F. When the city seeks to terminate any or all components of the impact fee program, all unexpended or unencumbered funds from any terminated component or components, including interest earned, shall be refunded pursuant to this section. Upon the finding that any or all impact fee requirements are to be terminated, the city shall place notice of such termination and the availability of refunds in a newspaper of general circulation at least two times and shall notify all potential claimants by first class mail at the last known address of the claimants. All funds available for refund shall be retained for a period of one year. At the end of one year, any remaining funds shall be retained by the city, but must be expended for the appropriate planned facilities. This notice requirement shall not apply if there are no unexpended or unencumbered balances within the impact fee account(s) being terminated.
G. The city shall also refund to the current owner of property for which impact fees have been paid all impact fees paid, including interest earned on the impact fees, if the development activity for which the impact fees were imposed did not occur; provided, that if the city has expended or encumbered the impact fees in good faith prior to the application for a refund, the city can decline to provide the refund. If within a period of three years, the same or subsequent owner of the property proceeds with the same or substantially similar development activity, the owner can petition the city for an offset. The petitioner must provide proof of payment of impact fees previously paid for a development of the same or substantially similar nature on the same property or some portion thereof. The community and economic development director shall determine whether to grant an offset. Determinations of the community and economic development director shall be in writing and shall be subject to the appeals procedures set forth in MVMC 3.40.080. (Ord. 3612 § 3, 2013).
3.40.110 Use of funds.
A. Pursuant to this chapter:
1. Impact fees collected for public streets and roads, impact fees for publicly owned parks, open space and recreational facilities, and impact fees for fire protection facilities shall be used solely for those respective purposes, and only those that will reasonably benefit the development activity.
2. Impact fees shall not be imposed to make up for deficiencies in existing facilities serving existing developments.
3. Impact fees shall not be used for maintenance or operation.
B. Impact fees may be spent for planned facilities, including but not limited to planning, land acquisition, construction, engineering, architectural, permitting, financing, and administrative expenses, applicable impact fees or mitigation costs, capital equipment pertaining to planned facilities, and any other similar expenses which can be capitalized.
C. Impact fees may also be used to recoup city improvement costs previously incurred by the city to the extent that new growth and development activity will be served by the previously constructed improvements or incurred costs.
D. In the event that bonds or similar debt instruments are or have been issued for the advanced provision of city improvements for which impact fees may be expended, impact fees may be used to pay debt service on such bonds or similar debt instruments to the extent that the facilities or improvements provided are consistent with the requirements of this section and are used to serve the development activity. (Ord. 2596 § 11, 1994).
3.40.120 Review.
The impact fee schedules set forth in Appendix A shall be reviewed by the council as it may deem necessary and appropriate in conjunction with the annual update of the capital facilities plan element of the city’s comprehensive plan. (Ord. 2596 § 12, 1994).
3.40.130 Impact fees and administrative fees.
A. The impact fees set forth in Appendix A, attached to this chapter, are based upon the data and assumptions set forth therein, and the information and public input provided to the city council in considering adoption of this chapter. Except as otherwise provided in MVMC 3.40.050, 3.40.060 or 3.40.140, all development activity in the city will be charged the impact fees set forth in the schedules contained in Appendix A attached to the ordinance codified in this chapter.
B. The city’s cost of administering the impact fee program shall be $35.00 per unit for single-family residential permits, or $70.00 per multifamily residential permit when paid at building permit issuance; and shall be $150.00 for single-family residential permits and shall be $200.00 for multi-family residential permits when an applicant applies to defer impact fees to building permit finalization. Nonresidential permits shall be charged one percent of the impact fees calculated to be due, per impact fee, and shall be paid by the applicant to the city as part of the permit application fee.
C. The city’s cost of administering the impact fee program shall be $35.00 per dwelling unit and shall be paid by the applicant to the city as part of the development application fee. (Ord. 3687 § 19, 2016).
3.40.140 Independent fee calculations.
A. If the community and economic development director believes in good faith that none of the impact fee categories or impact fee amounts set forth in the schedules in Appendix A attached to the ordinance codified in this chapter accurately describe or capture the impacts of a development activity on planned facilities, the community and economic development director may conduct independent fee calculations. The community and economic development director may impose alternative impact fees on a specific development activity based on these calculations. The alternative impact fees and the calculations shall be set forth in writing and shall be mailed to the fee payer.
B. If a fee payer opts not to have the impact fees determined according to the schedules set forth in Appendix A, then the fee payer shall prepare and submit to the community and economic development director an independent fee calculation for the development activity for which final plat, PUD, binding site plan or other development approval, or a building permit is sought. The documentation submitted shall show the basis upon which the independent fee calculation was made. The appropriate department heads and appropriate consultants that the city can hire at the applicant’s expense shall review the independent fee calculation and provide an analysis to the community and economic development director concerning whether the independent fee calculation should be accepted, rejected, or accepted in part. The community and economic development director may adopt, reject, or adopt in part the independent fee calculation based on the analysis prepared by appropriate department heads, and based on the specific characteristics of the development activity, and/or principles of fairness. The impact fees or alternative impact fees and the calculations shall be set forth in writing and shall be mailed to the fee payer.
C. Any fee payer submitting an independent fee calculation will be required to pay the city of Mount Vernon a fee to cover the cost of reviewing the independent fee calculation. The fee shall be $500.00 plus the actual cost of any additional staff time in excess of $500.00 spent in the review, and the cost of consultant services if the city deems these services to be necessary; provided, however, for independent fee calculations for single residential lots where, in the sole discretion of the community and economic development director, the issues involved are easily handled and the fee is clearly excessive, the $500.00 fee may be reduced. The city shall require the fee payer to post a cash deposit of $500.00 prior to initiating the review.
D. While there is a presumption that the calculations set forth in the city’s capital facilities plan are valid, the community and economic development director shall consider the documentation submitted by the fee payer and the analysis prepared by the appropriate department heads, but is not required to accept such documentation or analysis which the community and economic development director reasonably deems to be inaccurate or not reliable, and may, in the alternative, require the fee payer to submit additional or different documentation for consideration. The community and economic development director is authorized to adjust the impact fees on a case-by-case basis based on the independent fee calculation, the specific characteristics of the development activity, and/or principles of fairness. The impact fees or alternative impact fees and the calculations shall be set forth in writing and shall be mailed to the fee payer.
E. Determinations made by the community and economic development director pursuant to this section may be appealed to the hearing examiner subject to the procedures set forth in MVMC 3.40.080. (Ord. 3687 § 20, 2016).
3.40.150 Existing authority unimpaired.
Nothing in this chapter shall preclude the city from requiring the fee payer or the proponent of a development activity to mitigate adverse environmental impacts of a specific development pursuant to the State Environmental Policy Act, Chapter 43.21C RCW, based on the environmental documents accompanying the underlying development approval process, and/or Chapter 58.17 RCW, governing plats and subdivisions; provided, that, the exercise of this authority is consistent with MVMC 3.40.050 and with RCW 43.21C.065 and 82.02.100. (Ord. 2596 § 15, 1994).