Chapter 12.44
PROCEDURE FOR REIMBURSEMENT OF ROADWAY CONSTRUCTION COSTS THAT BENEFIT OTHERS
Sections:
12.44.040 Application for developer reimbursement agreement.
12.44.050 Preliminary determinations.
12.44.060 Preliminary determination notice.
12.44.070 Developer reimbursement agreement.
12.44.080 Recording – Effective date – Payment of assessment – Lien for nonpayment.
12.44.100 Term of developer reimbursement agreements.
12.44.110 Interest on assessment.
12.44.120 County latecomer administrative fees.
12.44.130 Payment of developer reimbursement charge.
12.44.150 Enforcement of latecomer obligations.
12.44.160 County participation in assessment reimbursement.
12.44.170 Effect of annexation.
12.44.010 Purpose.
The purpose of this chapter is to establish a uniform methodology and process for the administration of reimbursement contracts applied for after January 1, 1998, for developers in circumstances where a developer constructs a road improvement within county right-of-way and desires to be compensated by benefited property owners who, at the time of subsequent development of their respective properties, will add to the use and burdening of the subject road improvements.
It is also the intent of this procedure to avoid assessment of property owners whose use of the constructed road improvement approximates their usual and accustomed use prior to the construction of the improvement.
The provisions of this chapter are in addition to and are intended to supplement any other requirements contained elsewhere in the Whatcom County Code. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.020 Definitions.
A. “Adjacent” means abutting on public roads, streets, rights-of-way or easements in which road improvement(s) is installed or directly connecting to road improvements through an interest in real property such as an easement or license.
B. “Assessment” means an equitable pro rata charge to be paid by an owner of property within the assessment reimbursement area for the cost of private construction of road improvements.
C. “Assessment reimbursement area” means that area which includes all parcels of real property adjacent to road improvements or are likely to require connection to or service by road improvements constructed by a developer.
D. “Construction interest” means the sum of money to be added to the direct construction cost and reimbursed to the developer for the use of the developer’s moneys during the construction term. The interest rate shall be one percent above the Federal Reserve bank prime loan rate published most recently before the date of the preconstruction meeting. Interest accrual begins on the date of the preconstruction meeting and will continue throughout the construction term.
Construction interest shall be computed utilizing the two-thirds rule (i.e., (direct cost of construction x construction interest rate/365) x (the construction term expressed in days x 0.67) = construction interest).
E. “Construction term” means that period of time between the date of the preconstruction meeting and the date of acceptance of the project by the county.
F. “Cost of construction” is the sum of the direct construction costs incurred to construct the road improvements plus indirect costs which are limited to the county latecomer administrative fee (WCC 12.44.120), construction interest (subsection (D) of this section), and developer administrative costs (subsection (H) of this section).
G. “Developer” means the individual or entity that contracts with the county for the construction of road improvements, where such improvements are a requirement for development of real property owned by such entity or individual.
H. “Developer administrative costs” means all indirect costs incurred by the developer in managing the project, such as office supplies, mailings, clerical services, telephone expenses, accounting expenses, project oversight, and the like. Administrative costs shall not exceed three percent of all direct construction costs.
I. “Development permit” means any short plat, long plat, binding site plan, any building permit that increases traffic, or other permit that increases traffic.
J. “Developer reimbursement agreement” means a written contract between the county and one or more developers providing partial reimbursement for cost of construction to the developer by owners of property who are likely to utilize the improvements and who did not contribute a proportionate share to the original cost of construction.
K. “Direct construction costs” include but are not limited to such things as acquisition of right-of-way and/or easements, design, engineering, surveying, inspection, grading, paving, installation of curbs, gutters, pedestrian facilities, street lighting, bike lanes, and traffic control devices, relocation of private utilities as required by the county (i.e., power, telephone, cable and gas), relocation and/or construction of street lights, traffic control devices, signage, and other similar improvements.
L. “Road improvements” means roadway improvements made in existing or subsequently dedicated or granted rights-of-way or easements and any improvements associated therewith including but not limited to such things as acquisition of right-of-way and/or easements, design, engineering, surveying, inspection, grading, paving, installation of curbs, gutters, pedestrian facilities, street lighting, bike lanes, and traffic control devices, relocation of private utilities as required by the county (i.e., power, telephone, cable and gas), relocation of street lights, traffic control devices, signage, and other similar improvements. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.030 Applicability.
This chapter is intended to apply to all road improvements (subject to the limitation that as to road improvements this chapter’s applicability is limited to those improvements defined in Chapter 35.72 RCW) where the construction of such improvements are the result of a Whatcom County ordinance or ordinances that require such improvements as a prerequisite to property development. Road improvements constructed in order to comply with the Whatcom County development standards, subdivision code, zoning code, comprehensive plan and Chapter 12.08 or 12.14 WCC as applicable, are hereby declared to be prerequisites to further property development for the purpose of RCW 35.72.010. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.040 Application for developer reimbursement agreement.
Any developer using private funds to construct road improvements in the county right-of-way may apply to the county for a developer reimbursement agreement in order to recover a pro rata share of the costs of construction from subsequent users of the road improvements made by developer.
The application for a developer reimbursement agreement shall be submitted by the developer after the date the road improvements plans have been approved and prior to the date the road improvements are accepted by the county. Application shall be made on forms provided by the public works department and shall be accompanied by the county administrative base fee set forth in WCC 12.44.120. The application shall contain the following information which shall be signed and stamped by a state of Washington licensed engineer:
A. A detailed description of the road improvements to be installed and location of the road construction.
B. A legal description of the developer’s property.
C. An assessment area map, legal description of assessment area, and assessor’s parcel numbers of the properties within the developer’s proposed assessment reimbursement area together with the name and address of the owners of each property as shown in the records of the assessor’s office of Whatcom County.
D. Itemized cost data prepared by a state of Washington licensed engineer for the cost of construction.
E. The developer’s proposed allocation of the cost of construction to the individual properties within the proposed assessment reimbursement area and the method used for such allocation and segregations.
1. The proposed allocation shall be an equitable “pro rata” charge shared by property owners throughout the assessment area, and solely based on the “full buildout” potential of currently zoned densities of residential zoned properties in the assessment area.
2. Other acceptable engineering methods of assessment may be used for commercial and industrial zoned properties in an assessment area.
3. The developer shall provide a brief evaluation of any adjustments to the development potential of assessment area properties such as easement, covenants, restrictions, critical areas, overlays, water availability, etc.
4. The consideration of “potential buildout” shall be based on WCC 12.44.080(D).
5. Subsection (E)(3) of this section is not intended to require a costly, lengthy, or deliberative land use study of the assessment area. A brief written review of assessment area zoning, development restrictions, and potential traffic impacts of new development to the proposed road construction will suffice, in support of the assessment calculations submitted.
F. An application summary with project description, and name of developer together with a statement of intent to collect the proposed allocation of cost of construction to each property. The application summary shall include the following language:
This Application Summary shall have no further force or effect nor shall it constitute an enforceable obligation against any of the properties described herein upon the recording of a Developer Reimbursement Agreement made as to the property herein described. The terms of the latecomers’ agreement shall govern thereafter.
Also, if no latecomers’ agreement is recorded, the Application Summary shall have no further force or effect nor shall it constitute an enforceable obligation against any of the properties described herein after one year from the date of recording; provided, the effective term of the Application Summary may be extended by filing an extension executed by the Developer and approved in writing by the Public Works Department.
The application summary shall be in recordable form. The application summary together with all items in subsection (C) of this section shall be recorded within 30 days of the application submittal.
The public works director shall establish policies and procedures for processing applications and complying with the requirements of this chapter. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.050 Preliminary determinations.
The public works department shall review and approve the preliminary assessment reimbursement area and preliminary assessment for real property benefited by the road improvements based on the following:
A. The likelihood that benefited property will be developed within 15 years from the date of recording of the developer reimbursement agreement.
B. The likelihood that at the time of development of the benefited property such property will not be required to install similar road improvements because they were already installed by the developer.
C. For road improvements, that benefited parcels are adjacent to such road improvements or likely to require connection to or service by road improvements.
D. An equitable allocation of the cost of construction among the properties within the assessment reimbursement area, so that each pays for benefits attributable to those improvements. The method or methods used to calculate the allocation of the assessment as outlined in WCC 12.44.040(E)(1) and (2). Commercial and industrial zoned properties assessment methods may be either front footage, number of units, square footage, or may be the zone and termini method or other recognized methods reasonably calculated to equitably allocate the assessment. Credit may be given to property owners who have already paid a higher share by monetary or in-kind value for the already developed portion of the road. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.060 Preliminary determination notice.
A. The preliminary assessment reimbursement area and the preliminary assessment as approved by the public works department shall be sent by certified mail to the property owners of record within the preliminary assessment reimbursement area in accordance with Chapter 35.72 RCW, as from time to time amended.
B. The applicant or any property owner within the preliminary assessment reimbursement area may, in writing within 20 days of mailing of the notice, request a hearing to be held before the county council to contest the preliminary assessment reimbursement area and preliminary assessment. Notice of such hearing shall be mailed not less than 20 days before the date of the hearing to all property owners of record within the assessment reimbursement area. Public hearing before the county council shall be conducted as soon as is reasonably practical. After public hearing the county council may approve, modify, or reject the assessment reimbursement area and the assessment for each property within the assessment reimbursement area applying the standards set forth in this chapter. The county council’s determination with regard to the assessment reimbursement area and the assessment shall be determinative and final.
C. In the event no written request is received as required, the determination of the public works department shall be final. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.070 Developer reimbursement agreement.
Based upon the preliminary assessment reimbursement area and preliminary assessment if no hearing is requested, or based upon the county council’s determination of the assessment reimbursement area and assessment if a hearing is requested, the public works department shall prepare and give to the applicant a developer reimbursement agreement providing the county has accepted the road improvements. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.080 Recording – Effective date –Payment of assessment – Lien for nonpayment.
A. The developer’s right to assessments shall relate back to the date the developer records an application summary pursuant to WCC 12.44.040(F).
B. Any property described in the recorded application summary shall be subject to the assessment after it has been approved by the county pursuant to this chapter.
C. The developer reimbursement agreement shall be promptly recorded by the county with the Whatcom County auditor.
D. The county shall not approve the subdivision of land, nor issue a building permit for new residential dwellings, industrial or commercial building permits, attached or detached accessory dwelling units, or similar development permit or approval unless the county has received full payment of the assessment, including interest, applicable to the property connecting to or using the road improvements constructed by the developer. The assessment shall be collected in accordance with the developer reimbursement agreement, and only for those substantial projects which increase the use and burdening of the subject road construction improvement in excess of prior existing uses.
1. Accordingly, a new single-family residence that is being constructed as a replacement for an occupied single-family residence which accessed onto the roadway prior to the road construction improvement and is being removed as part of the new construction project, will not be required to pay the assessment, as it represents the same amount of use and burdening upon the road improvement.
E. If property is developed within the reimbursement area, the amount of such assessment shall be a binding obligation upon the owner of record (and successors) of the affected property. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.090 Segregation.
The public works department shall, upon the request of any property owner within the assessment reimbursement area, segregate the assessment. The segregation shall be based upon the same factors applied when the assessments were originally established. The property owner seeking segregation of the assessment shall pay an administrative fee to the county based upon a segregation fee schedule to be established by the public works department. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.100 Term of developer reimbursement agreements.
Each developer reimbursement agreement shall be valid for a period not to exceed 15 years from the date of its recording. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.110 Interest on assessment.
Each assessment established in the developer reimbursement agreement shall bear interest from the date of recording of the developer reimbursement agreement at an interest rate fixed at the Federal Reserve rate for one-year treasury bills on the secondary market. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.120 County latecomer administrative fees.
A. The county shall charge the developer for processing developer assessment agreements a base fee of $450.00 for road improvements. To the base fee shall be added one and one-half percent of the cost of construction.
B. Further, for every separate parcel of property within the applicant’s proposed assessment reimbursement area $150.00 shall be added to the base fee established pursuant to the above schedule.
C. The base fee, the percentage adjustment, and the parcel fee may be adjusted annually to reflect inflationary costs, increase or decrease, through the Whatcom County unified fee schedule.
D. The county latecomer administrative fee shall be paid upon application for a developer reimbursement agreement. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.130 Payment of developer reimbursement charge.
Each assessment shall be due in its entirety pursuant to WCC 12.44.080(D) and shall be paid to the county in one lump sum including interest until date of payment. The county will pay over, to developer, the amounts due within 45 days of receipt.
When the assessment for any property has been paid in full, the public works director shall record a certification of payment that will release such property from the developer reimbursement agreement. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.140 Appeal.
A developer may appeal the interpretation and/or decisions of the public works department concerning any aspect of this chapter to the county council. The burden of proof shall be upon the appellant to demonstrate that the decision(s) of the public works department was based on an error of law or was clearly erroneous, based upon the information at the disposal of the department. Such interpretation and/or decisions shall be considered final at the time of the mailing of the notice described in WCC 12.44.060. Appeals, if any, must be filed within 30 days from mailing date of that notice. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.150 Enforcement of latecomer obligations.
In processing and imposing obligations in this chapter for reimbursement of developers, the county in no way guarantees payment of assessments by latecomers or enforceability of assessments or the amount(s) thereof against such persons or property. Nor will the offices or finances of the county be used for enforcement or collection of latecomer obligations beyond those duties specifically undertaken by the county herein. It shall be the obligation of a developer to take whatever authorized means are available to enforce payment of latecomer assessments, and developers are hereby authorized to take such actions. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.160 County participation in assessment reimbursement.
As an alternative to financing projects under this chapter solely by owners of real estate, the county may join in the financing of improvement projects and may be reimbursed in the same manner as the owners of real estate who participate in the projects; provided, that as to road improvements, the conditions of the county’s participation shall be specified by ordinance. The county may be reimbursed only for the costs of improvements that benefit that portion of the public who will use the developments within a given assessment reimbursement area. No costs of improvement that benefit the general public may be reimbursed. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.170 Effect of annexation.
Annexation to a city or town of all or a portion of an assessment reimbursement area shall not affect liability for assessment charge of properties so annexed nor responsibilities of an owner under the contract. (Ord. 2004-024; Ord. 98-033 Exh. A).
12.44.180 Date for review.
The terms set forth herein shall be reviewed four years from date of adoption. (Ord. 2004-024; Ord. 98-033 Exh. A).