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HomeMy WebLinkAbout11-07-16 CC Mtg - C17. Ordinance 1915 Final Adoption, Cash In-Lieu Text Amendment Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Mitch WerBell, Assistant Planner Marty Matsen, Director of Community Development SUBJECT: Final adoption of Ordinance 1915, a text amendment of the Bozeman Municipal Code to establish criteria and procedures for accepting cash in-lieu of capital facilities, Application 16377. MEETING DATE: November 7, 2016 AGENDA ITEM TYPE: Consent RECOMMENDATION: Final adoption of Ordinance 1915, Cash In-Lieu of Capital Facilities. BACKGROUND: The City Commission held a public hearing on October 24, 2016 and provisionally adopted Ordinance 1915. The ordinance amends Section 38.39.070, Unified Development Code, to authorize payment of cash in-lieu of capital facilities to satisfy requirements of the municipal code under defined circumstances. If final adoption occurs, the ordinance will be effective on December 7, 2016. Attached Ordinance 1915 has been updated with the dates of provisional adoption, final adoption and effective date. UNRESOLVED ISSUES: None ALTERNATIVES: As directed by the Commission FISCAL EFFECTS: None identified Attachments: Ordinance 1915 Report compiled on October 25, 2016 172 Page 1 of 7 ORDINANCE NO. 1915 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING SECTION 38.39.070, BOZEMAN MUNICIPAL CODE, TO AUTHORIZE PAYMENT OF CASH IN-LIEU OF CAPITAL FACILITIES TO SATISFY REQUIREMENTS OF THE MUNICIPAL CODE UNDER DEFINED CIRCUMSTANCES. WHEREAS, The City of Bozeman (the “City”) is authorized by the City Charter and Montana law to regulate the subdivision of land to promote public health, safety and welfare and otherwise execute the purposes of Sections 76-3-102 and 76-3-501, MCA; and WHEREAS, The City is authorized by the City Charter and Montana law to adopt zoning regulations and provide for the enforcement and administration of zoning regulations and otherwise reasonably provide for the intentions of Section 76-2-304, MCA; and WHEREAS, The City has had land development regulations since at least 1934 and has amended them from time to time to respond to changes in state law, legal decisions, and changing community needs ; and NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 Legislative Findings: 173 Ordinance No. 1915, Cash In-Lieu of Capital Facilities Page 2 of 7 1. The city relies upon the standards and definitions within chapter 38 to enable the development of the city in a manner which avoids conflicts, enables public notice of and comment on development which may affect residents and land owners, and provide predictability in government actions. 2. Subdivision and site development may generate new demands on the city’s existing capital facilities; and 3. Installation of streets, water and sewer mains, and storm water facilities are an essential element of a functional city and the city’s land development regulations; and 4. The city also maintains streets, water and sewer mains, and storm water facilities; and 5. The city is obligated to be fiscally responsible stewards of the public’s assets and funds; and 6. The installation of facilities by private development may be fiscally inefficient unless coordinated with work by the city; 7. The provision for cash in-lieu of capital facilities enables an option in the evaluation of the developer’s preference in mitigating impacts of development; and 8. It is beneficial to establish a mechanism by which private development can meet its regulatory requirements in coordination with the city’s scheduling of maintenance or expansion of public facilities; and 9. As the steward of the public infrastructure and the public safety it is appropriate that the decision to accept cash in-lieu of capital facilities be at the sole discretion of the city. Section 2 The Bozeman Municipal Code is amended by revising Section 38.39.070 to read as follows: Section 38.39.070. – Payment for extension of capital facilities. A. The city may require a subdivider or other site developer to mitigate the impacts of subdivision or site development by the extension of existing capital facilities or the construction of new capital facilities. The review authority, established in 38.34.010, may determine that the 174 Ordinance No. 1915, Cash In-Lieu of Capital Facilities Page 3 of 7 payment or the guarantee of payment for the construction of capital facilities are appropriate measures to coordinate with the city’s planned capital facility improvements and to ensure public health, safety and welfare. Payment of cash in-lieu of constructing capital facilities by a subdivider or other site developer to the city is a mechanism for meeting regulatory requirements and mitigating subdivision and other site development impacts. The review authority, in its sole discretion, must determine the appropriate mitigation for any subdivision or site development impacts. B. The city may require a subdivider or other site developer to pay or guarantee payment for part or all of the costs of extending capital facilities related to public health and safety, including but not limited to public roads or streets, sewer mains, water supply mains and stormwater facilities for a subdivision or other site development. The costs must reasonably reflect the expected impacts directly attributable to the subdivision or other site development. The city may not require a subdivider or other site developer to pay or guarantee payment for part or all of the costs of constructing or extending capital facilities related to education. C. The review authority may accept direct payment of cash in-lieu of public street, water, sewer, and stormwater capital facilities required by this code. Should the review authority approve a request to pay cash in-lieu, a subdivider or other site developer is not required to obtain a variance from the requirement such facilities be constructed prior to development approval. A request to meet the terms of chapters 38 and 40 by payment of cash in-lieu must be submitted by an applicant prior to a determination of adequacy or any advisory body recommendation during review of a development application. The city may choose to require payment of cash rather than require the construction of capital facilities as determined by the review authority. A request received after determination of adequacy or advisory body recommendation is a material modification to the application. 1. The review authority, established in 38.34.010, must evaluate proposals of cash in-lieu of capital facilities and make a decision to approve, approve with conditions or deny such requests. In evaluating a request to pay cash in-lieu, the review authority must consider the following criteria: a. Whether there is a danger to public health and safety of accepting cash in-lieu rather than constructing the capital facilities; 175 Ordinance No. 1915, Cash In-Lieu of Capital Facilities Page 4 of 7 b. Whether the work described in the proposal is part of a project scheduled for commencement of construction on the most recently adopted capital improvement plan no later than three (3) years from the date of submittal; c. Whether a public work is pending which would substantially damage the work otherwise required to be constructed; d. Whether the installation of the otherwise required capital facilities would be disruptive to planned public improvements; e. Whether the city has made a determination of the reasonableness of the cost estimate of the work; and f. Whether the payment would enable a more efficient installation of required capital facilities. 2. The request to pay cash in-lieu of capital facilities and the findings of the review authority must be considered in any final action to approve, approve with conditions, or deny a development application. 3. All cash paid in-lieu must be held by the city in a fund dedicated to the work for which the monies are paid. 4. As a condition of accepting cash in-lieu, the city may require the property owner to execute a waiver of right to protest creation of a special improvement district, or other legal instrument, assuring participation, on a fair share, proportionate basis, in future capital facility improvements in the vicinity of the development proposal. 5. The city manager may adopt procedures by administrative order to implement this section. 6. The cash paid must include all component costs of the work deferred including but not limited to design, permitting, traffic management, construction, and record drawings. The cash paid must include a contingency amount to offset the uncertainty of cost estimating and potential escalation of costs. 7. Issuance of a refund is a material modification of a development per 38.01.070. Refunds of cash paid in-lieu are not available if: a. A final plat which relied upon cash-in-lieu of facilities has been recorded; b. If building permits for a non-subdivision development have been issued; or c. If the City has published an invitation to bid on work which relies upon the paid cash for project funding. 176 Ordinance No. 1915, Cash In-Lieu of Capital Facilities Page 5 of 7 Section 3 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 4 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this ordinance shall remain in full force and effect. Section 5 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 6 Codification. This ordinance shall be codified as indicated in Section 2. Section 7 177 Ordinance No. 1915, Cash In-Lieu of Capital Facilities Page 6 of 7 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 24th day of October, 2016. ____________________________________ CARSON TAYLOR Mayor ATTEST: ____________________________________ ROBIN CROUGH City Clerk FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the 7th day of November, 2016. The effective date of this ordinance is December 7th, 2016. _________________________________ CARSON TAYLOR Mayor 178 Ordinance No. 1915, Cash In-Lieu of Capital Facilities Page 7 of 7 ATTEST: _______________________________ ROBIN CROUGH City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 179