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HomeMy WebLinkAboutFinally Adopt Ordinance No. 1853, amending Chapter 2, Article 6, Division 9, Impact Fees1 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Chris Saunders, Assistant Director of Community Development Steve Worthington, Interim Director of Community Development SUBJECT: Second reading and final adoption of Ordinance 1853 amending Chapter 2, Article 6, Division 9, Impact Fees to establish a definition, address deferral of payments, modify timing of documentation updates, and other revisions for clarity. MEETING DATE: February 25, 2013. AGENDA ITEM TYPE: Consent. RECOMMENDATION: Act to give final adoption to Ordinance 1853 with specific edits as previously selected by the City Commission. SUGGESTED MOTION: Having received and considered the draft ordinance and having heard and considered public comment I give final approval to Ordinance 1853. BACKGROUND: The Bozeman Municipal Code contains Chapter 2, Article 6, Division 9, Impact Fees which is the local enabling legislation for the City’s impact fee program. This division of the Municipal Code sets the general parameters for the impact fee program. From time to time, changes to the code are identified which are expected to make it more functional and effective. Ordinance 1853 is an outgrowth of the discussions occurring with the update to the impact fee studies. First reading and preliminary approval of Ordinance 1853 occurred on January 28, 2013. Ordinance 1853 includes the following policy issues: A) A specific definition of “maintenance.” B) Deferral of payments. C) Cap on Fee Due with Changes in Use. D) Timing of Facility Plan and Impact Fee Study Updates. E) Non-material changes to remove duplicative language, remove unnecessary wording, or clarify wording. Timing of Adoption and Effective Date: First reading occurred on January 28th. Second reading will occur on February 25th. The effective date of the ordinance may not be sooner than 30 calendar days after the second reading. This places the soonest possible effective date on March 27th. Since the applicable impact fees are set by the day the building permit is submitted the 97 2 effective date of the ordinance may make a difference in when someone wishes to submit the building permit. Having such an effective date in the middle of the week seems to invite confusion. Staff therefore suggests that the effective date of Ordinance 1853 be set for Saturday, March 30th. This provides a clear transition period over the weekend and lessens the chance of confusion at the small cost of a two day delay in implementation. UNRESOLVED ISSUES: None, separate action will occur in the future to address the details of deferred payments and targeted incentives. ALTERNATIVES: 1) Adopt Ordinance 1853 as presented; 2) Others as identified by the City Commission. FISCAL EFFECTS: The fiscal effects of this Ordinance are difficult to quantify with certainty. Attachments: Ordinance 1853 Report compiled on: 2/13/2013 98 1 of 19 ORDINANCE NO. 1853 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING SECTION 2.06.1630.A TO CREATE A DEFINITION OF MAINTENANCE, AMENDING 2.06.1640 TO REMOVE A PERCENTAGE OF COLLECTION, TO ESTABLISH A CAP ON FEES COLLECTED WITH THE CHANGE IN NON-RESIDENTIAL USES ON A PROPERTY, TO AUTHORIZE A DEFERRAL OF FEE PAYMENT, AND TO REMOVE DUPLICATIVE TEXT, AMENDING SECTION 2.06.1650 TO AUTHORIZE A DEFERRAL OF FEE PAYMENT, AND TO REMOVE DUPLICATIVE TEXT, AMENDING SECTION 2.06.1660 TO AUTHORIZE A DEFERRAL OF FEE PAYMENT, AND TO REMOVE DUPLICATIVE TEXT, AMENDING SECTION 2.06.1670 TO AUTHORIZE A DEFERRAL OF FEE PAYMENT, AND TO REMOVE DUPLICATIVE TEXT, AND AMENDING SECTION 2.06.1700 TO INCLUDE PARAMETERS FOR A FEE PAYMENT DEFERRAL PROGRAM, TO CHANGE THE REQUIRED TIME FOR AN UPDATE TO THE FEE STUDIES, AND REMOVE UNNEEDED COST ADJUSTMENT LANGUAGE. WHEREAS, the City of Bozeman is committed to addressing the community’s expressed needs and desires for services; and WHEREAS, the City of Bozeman is committed to meeting those desires and demands for services in a fiscally responsible manner; and WHEREAS, the City of Bozeman is committed to meeting those desires and demands for services in a manner which recognizes the fiscal and legal interest of all of the system users now and in the future; and WHEREAS, Sections 7-6-1601 through 7-6-1604, MCA provide specific authority and guidance about the necessary documentation to establish an impact fee and procedures to adopt and administer an impact fee; and WHEREAS, the City of Bozeman adopted an impact fee program in 1996 through ordinance 1414 which has been amended from time to time; and, WHEREAS, based on public testimony received during public hearings on October 8, 2012, December 10, 2012, and January 28, 2013 considering updates to the various impact fee studies the City Commission identified possible changes to the municipal code which they wanted to consider; and 99 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 2 of 19 WHEREAS, the City Commission directed staff to prepare a draft ordinance for their consideration of possible deferral of the time of payment and other issues; and WHEREAS, other minor changes were identified as improving the clarity and function of the impact fee program; NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 Section 2.06.1630.A of the Bozeman Municipal Code be amended to include a new paragraph which shall read as follows: All other subsections of 2.06.1630 shall be renumbered accordingly. 13. “Maintenance” means replacement, repair, or caring for a constructed water, sewer, fire/EMS, or transportation facility to preserve them in a functional state equal to their initial installed design; and which does not change the basic design or structure or change them from their original purpose. Activities that change the scope of a project beyond the original design are not included in this definition. Section 2 Section 2.06.1640 of the Bozeman Municipal Code be amended so that such section shall read as follows: Sec. 2.06.1640. - Street impact fees. A. Imposition of transportation impact fees. 1. Any person who seeks to obtain any of the following forms of development approval is required to pay a transportation impact fee in the amount specified in the commission resolution adopting the most recent transportation impact fee study and establishing the transportation impact fee and as updated as required in this division. a. A building permit; b. Any other permit that will result in the construction of improvements that will generate additional traffic; or c. Any extension of any such permit that was issued before the effective date of the ordinance from which this division is derived; or d. Any delayed payment of impact fees as specified and approved by the city commission in accordance with chapter 10, article 8. 100 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 3 of 19 2. Notwithstanding subsection A.1 of this section, no impact fee shall may 3. No permits of the types described in subsection A.1 of this section be imposed earlier than the issuance of a building permit for developments requiring a building permit. shall may be issued until the transportation impact fee described in this division has been paid, unless the development for which the permit is sought is exempted by subsection F of this section B. Computation of amount of transportation impact fee. ; or unless deferral of payment of the transportation impact fee has been approved by the impact fee coordinator pursuant to a deferral program approved by resolution of the Commission in compliance with 2.06.1700.I.. 1. An applicant required by this division to pay a transportation impact fee may choose to have the amount of such fee determined pursuant to either subsection B.2 or B.3 of this section. The amount of the fee calculated pursuant to either subsection B.2 or B.3 of this section shall be subject to the following adjustment: a. For the first expansion of an existing nonresidential building, the amount calculated shall not include the amount calculated for the expansion of up to 30 percent as compared with its size on February 22, 1996, or 2,000 square feet, whichever is less. b. When a property changes from one non-residential use to another within an existing nonresidential building, the area included in the calculation of change in demand shall exclude the first 2,000 square feet of gross floor area. c. The transportation impact fees are those adopted by resolution of the commission and as updated as provided for in this division. 2. Unless an applicant requests that the city determine the amount of such fee pursuant to subsection B.3 of this section, the city shall determine the amount of the required transportation impact fee by reference to the most recently adopted transportation impact fee study. The fee amounts set forth in such study include credits for expected future receipts of state and federal highway funds and expected future receipts of gas tax revenues, and all other non-impact fee sources of funding anticipated to be made by or as a result of new development to be applied to the transportation improvements required to serve new development. Beginning on February 16, 2008, the amount of the fee collected shall be 60 percent of the amount calculated. a. If the applicant's development is of a type not listed in the most recently adopted transportation impact fee study, then the city shall use the fee applicable to the most nearly comparable type or land use in the study. In making a decision about which use is most nearly comparable, the city shall be guided by the most recent edition of "Trip Generation: An Information Report" prepared by the Institute of Transportation Engineers; or if such publication is no longer available, then by a similar publication. If the city determines that there is no comparable type of land use listed in the study, then a new fee shall be determined by: (1) Finding the most nearly comparable trip generation rate from the publication noted in subsection B.2.a. of this section; and 101 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 4 of 19 (2) Applying the formula set forth in subsection B.3.d of this section. b. If the applicant's development includes a mix of those uses listed in the most recently adopted transportation impact fee study, then the fee shall be determined by adding up the fees that would be payable for each use if it were a freestanding use pursuant to the most recently adopted transportation impact fee study. c. If the applicant is applying for an extension of a permit issued previously, then the fee shall be the net increase between the fee applicable at the time of the current permit application and any transportation impact fee previously paid pursuant to this division for the same structure. In the event that the fee applicable at the time of the current permit application is lower than the transportation impact fee previously paid pursuant to this division for the same structure, there shall be no refund of transportation impact fees previously paid. d. If the applicant is applying for a permit to allow a change of use or the expansion, redevelopment, or modification of an existing development, the fee shall be based on the net positive increase in the fee for the new use as compared to the previous use. However, no new fee shall be imposed unless an additional unit of service demand is created, in accordance with the most recently adopted transportation impact fee study. If necessary to determine such net increase, the city shall be guided by the most recent edition of "Trip Generation: An Information Report" prepared by the Institute of Transportation Engineers; or if such publication is no longer available, then by a similar publication. In the event that the proposed change of use, expansion, redevelopment, or modification results in a net decrease in the fee for the new use or development as compared to the previous use or development, there shall be no refund of transportation impact fees previously paid. 3. An applicant may request that the city determine the amount of the required transportation impact fee by reference to an independent fee calculation study for the applicant's development prepared by qualified professional traffic engineers and/or economists at the applicant's cost and submitted to the city engineer. Any such study must show the traffic engineering and economic methodologies and assumptions used, including, but not limited to, those forms of documentation listed in subsections B.3.a and B.3.b of this section and must be acceptable to the city pursuant to subsection B.3.c of this section. a. Traffic engineering studies must include documentation of trip generation rates, trip lengths, any percentage of trips from the site that represent net additions to current trips from the site, the percentage of trips that are new trips as opposed to pass-by or divert-link trips, and any other trip data for the proposed land use. b. Economic studies must include documentation of any special factors that the applicant believes will reduce the traffic volumes otherwise attributable to the proposed land use. c. The city shall consider all such documentation and any independent fee calculation study submitted by the applicant, but shall not be required to accept any such study or documentation that the city deems to be inaccurate or unreliable and may request that the applicant submit additional or different documentation for consideration. 102 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 5 of 19 Any independent fee calculation study submitted by an applicant may be accepted, rejected, or accepted with modifications by the city as the basis for calculating transportation impact fees. d. Upon acceptance, or acceptance with modifications, of an independent fee calculation study and documentation, the city shall use the formulas and methodology contained within the most recently adopted transportation impact fee study to determine the transportation impact fee. C. Payment of transportation impact fee. 1. An applicant for any of the permits or extensions listed in subsection A.1 of this section shall pay the transportation impact fee required by this division to the city prior to the issuance of any such permit. 2. D. Transportation impact fee funds. All funds paid by an applicant pursuant to this division shall be identified as transportation impact fees and shall be promptly deposited in the transportation impact fee fund described in subsection D of this section. 1. A single transportation impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those transportation impact fees collected pursuant to this division and any interest which may accrue from time to time on such amounts. E. Use of transportation impact fee funds. The moneys in the transportation impact fee fund shall be used only as follows: 1. To acquire land for and/or acquire or construct capacity-adding capital improvements to the transportation system reasonably related to the benefits accruing to new development subject to the terms of this division, in accordance with the requirements of state law; or 2. To pay debt service on such capital improvements to the transportation system; or 3. For purposes of refunds or credits, as described in section 2.06.1680 or 2.06.1690.G; and 4. May not be used for: a. Operations or maintenance purposes; b. To correct existing deficiencies; or c. For bicycle or pedestrian facilities not unless F. Exemptions from transportation impact fee. built in conjunction with and included in a capacity-adding transportation system facility, otherwise eligible for impact fee funding. 1. The following types of development shall be exempted from payment of the transportation impact fee: 103 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 6 of 19 a. Alterations, remodeling, rehabilitations, expansions of existing buildings, or other improvements to an existing structure where no additional vehicle trips will be produced over and above those produced by the existing use; b. Construction of accessory buildings or structures that will not produce additional vehicle trips over and above those produced by the primary building or land use; c. The replacement of a destroyed or partially destroyed building or structure with a new building or structure of the same size and use where no additional vehicle trips will be produced over and above those produced by the original building or structure; d. The installation or replacement of a mobile home on a lot or a mobile home site when a transportation impact fee for such lot or site has previously been paid pursuant to this division or where a mobile home legally existed on such site on or prior to the effective date of the ordinance from which this division is derived; e. Any other type of development for which the applicant can demonstrate that the proposed land use and development will produce no more vehicle trips from such site over and above the trips from such site prior to the proposed development, or for which the applicant can show that a transportation impact fee for such site has previously been paid in an amount that equals or exceeds the transportation impact fee that would be required by this division for such development. 2. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit or a type listed in subsection A.1 of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 3. The city shall determine the validity of any claim for exemption pursuant to the criteria set forth in subsection F.1 of this section. Section 3 Section 2.06.1650 of the Bozeman Municipal Code be amended so that such section shall read as follows: Sec. 2.06.1650. - Fire protection and emergency medical service impact fees. A. Imposition of fire protection and emergency medical service impact fees. 1. Any person who seeks to obtain any of the following forms of development approval is required to pay a fire/EMS impact fee in the amount specified in the Commission resolution adopting the most recent fire/EMS impact fee study and establishing the fire/EMS impact fee and as updated as required in this division: a. A building permit; or b. Any other permit that will result in construction that will generate demand for fire protection services; or 104 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 7 of 19 c. Any extension of any such permit that was issued before the effective date of the ordinance from which this division is derived, is required to pay a fire protection impact fee in the amount specified in this division; or d. Any delayed payment of impact fees as specified and approved by the city commission in accordance with chapter 10, article 8. 2. No permits of the types described in subsection A.1 of this section shall may be issued until the fire protection/EMS impact fee described in this division has been paid, unless the development for which the permit is sought is exempted by subsection F of this section; or unless deferral of payment of the fire protection/EMS impact fee has been approved by the city pursuant to a deferral program approved by resolution of the Commission in compliance with 2.06.1700.I B. Computation of amount of fire protection/EMS impact fee. . 1. An applicant required by this division to pay a fire protection/EMS impact fee may choose to have the amount of such fee determined pursuant to either subsection B.2 or B.3 of this section. The amount of the fee calculated pursuant to either subsection B.2 or B.3 of this section shall be subject to the following adjustment: a. For the first expansion of an existing nonresidential building, the amount calculated shall not include the amount calculated for the expansion of up to 30 percent as compared with its size on February 22, 1996, or 2,000 square feet, whichever is less. 2. Unless an applicant requests that the city determine the amount of such fee pursuant to subsection B.3 of this section, the city shall determine the amount of the required fire protection impact fee by reference to the most recently adopted fire impact fee study. a. If the type of development that a permit is applied for is not listed in the most recently adopted fire impact/EMS fee study, then the city shall use the fee applicable to the most nearly comparable type or land use in the study. b. If the type of development that a permit is applied for includes a mix of those uses listed in the most recently adopted fire impact fee study, then the fee shall be determined by adding up the fees that would be payable for each use if it were a freestanding use pursuant to the most recently adopted fire impact fee study. c. If the applicant is applying for an extension of a permit issued previously, then the fee shall be the net increase between the fee applicable at the time of the current permit application and any fire protection impact fee previously paid pursuant to this division for the same structure. In the event that the fee applicable at the time of the current permit application is lower than the fire protection impact fee previously paid pursuant to this division for the same structure, there shall be no refund of fire protection impact fees previously paid. d. If the applicant is applying for a permit to allow a change of use or for the expansion, redevelopment, or modification of an existing development, the fee shall be based on the net increase in the fee for the new use as compared to the previous use. In the event that the proposed change of use, expansion, redevelopment, or modification results in a net decrease in the fee for the new use 105 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 8 of 19 or development as compared to the previous use or development, there shall be no refund of fire protection impact fees previously paid. 3. An applicant may request that the city determine the amount of the required fire/EMS protection impact fee by reference to an independent fee calculation study for the applicant's development prepared at the applicant's cost by qualified professional fire protection experts and/or economists and submitted to the city fire chief. Any such study shall be based on the same service standards and unit costs for fire protection/EMS used in the most recently adopted fire/EMS impact fee study, and must document the economic methodologies and assumptions used. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or accepted with modifications by the city as the basis for calculating fire protection impact fees. If such study is accepted or accepted with modifications as a more accurate measure of the demand for new fire protection/EMS facilities and equipment created by the applicant's proposed development than the applicable fee shown in the most recently adopted fire impact fee study, then the fire protection/EMS impact fee due under this division may be calculated according to such study. C. Payment of fire protection/EMS impact fees. 1. An applicant required by this division to pay a fire protection/EMS impact fee shall pay such fee to the city prior to the issuance of any of the permits listed in subsection A.1 of this section. 2. D. Fire protection/EMS impact fee funds. All funds paid by an applicant pursuant to this division shall be identified as fire protection/EMS impact fees and shall be promptly deposited in the fire protection/EMS impact fee fund described in subsection D of this section. 1. A single fire protection/EMS impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those fire protection/EMS impact fees collected pursuant to this division and any interest which may accrue from time to time on such amounts. E. Use of fire protection/EMS impact fee funds. The moneys in the fire protection/EMS impact fee fund shall be used only: 1. To acquire or construct fire protection/EMS improvements within the city; or 2. To pay debt service on any portion of any future general obligation bond issue or revenue bond issue used to finance the acquisition or construction of fire protection/EMS improvements within the city; or 3. As described in section 2.06.1680 or 2.06.1690.G. F. Exemptions from fire protection/EMS impact fee. 1. The following types of development shall be exempted from payment of the fire protection/EMS impact fee: a. Reconstruction or replacement of a previously existing residential unit that does not create any additional or larger residential units. 106 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 9 of 19 b. Construction of unoccupied accessory units related to a residential unit. c. Projects that the applicant can demonstrate will produce no greater demand for fire protection/EMS from such land than existed prior to issuance of such permit. d. Projects for which a fire protection/EMS impact fee has previously been paid in an amount that equals or exceeds the fire protection/EMS impact fee that would be required by this division. 2. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit of a type listed in subsection A.1 of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 3. The city shall determine the validity of any claim for exemption pursuant to the criteria set forth in subsection F.1 of this section. Section 4 Section 2.06.1660 of the Bozeman Municipal Code be amended so that such section shall read as follows: Sec. 2.06.1660. - Water impact fees. A. Imposition of water impact fees. 1. Any person who seeks to obtain a permit for connection to the city water system, or who is subject to subsection B.2.b of this section and applies for a city permit to expand or add to the structure served by a previously approved water connection, or any extension of such a permit issued before the effective date of the ordinance from which this division is derived, is required to pay a water impact fee in the amount specified in the commission resolution adopting the water impact fee study and establishing the water impact fee and as updated as required in this division; or 2. Any delayed payment of impact fees as specified and approved by the city commission in accordance with chapter 10, article 8. 3. No permits for connection to the city water system shall may be issued until the water impact fee described in this division has been paid, unless the development for which the permit is sought is exempted by subsection F of this section; or unless deferral of payment of the water impact fee has been approved by the city pursuant to a deferral program approved by resolution of the Commission in compliance with 2.06.1700.I B. Computation of amount of water impact fee. . 1. The city shall determine the amount of the required water impact fee by reference to the most recently adopted water impact fee study unless the applicant chooses to submit an individualized calculation pursuant to subsection B.2.a of this section or the city determines the application to be subject to subsection B.2.b of this section. If the applicant is applying for a replacement for a water connection permit issued previously, then the fee shall be the net positive difference between the fee applicable at the time of the current permit application and any water impact fee previously paid pursuant to this 107 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 10 of 19 division for the same structure. In the event that the fee applicable at the time of the replacement permit application is lower than the water impact fee previously paid pursuant to this division for the same structure, there shall be no refund of water impact fees previously paid. 2. Individualized calculations. a. An applicant may request that the city determine the amount of the required water impact fee by reference to an independent fee calculation study for the applicant's development prepared at the applicant's cost by a professional engineer and/or economist and submitted to the city public service director. Any such study shall be based on the same service standards and unit costs used in the most recently adopted water impact fee study and must document the economic methodologies and assumptions used. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or accepted with modifications by the city as the basis for calculating water impact fees. If such study is accepted, or accepted with modifications, as a more accurate measure of the demand for new water facilities created by the applicant's proposed development than the applicable fee shown in the most recently adopted water impact fee study, then the water impact fee due under this division may be calculated according to such study. b. The city may identify a user as having extraordinary demands for water service which are not accurately represented by the average usage which was relied upon by the methodology which generated the calculated charges in the most recently adopted water impact fee study. In this circumstance the city shall prepare a customized calculation based upon the most recently adopted water impact fee study. The impact fee paid for water meters larger than three inches as of the effective date of the ordinance from which this division is derived may be adjusted based on actual usage. If usage is greater than 110 percent of anticipated volume during the 12-month period of time beginning six months after building occupancy is granted by the city, an additional impact fee may be charged, using the same techniques for calculating peak day and storage EDUs and multiplying by the peak day impact fee cost per EDU and the storage impact fee cost per EDU then in effect. The additional impact fee is the positive net between a previously calculated impact fee and the impact fee based upon the metered demand. C. Payment of water impact fee. 1. An applicant required by this division to pay a water impact fee shall pay such fee to the city prior to the issuance of a water connection permit. 2. D. Water impact fee funds. All funds paid by an applicant pursuant to this division shall be identified as water impact fees and shall be promptly deposited in the water impact fee fund described in subsection D of this section. 1. A single water impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those water impact fees collected pursuant to this division and any interest which may accrue from time to time on such amounts. 108 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 11 of 19 E. Use of water impact fee funds. The moneys in the water impact fee fund shall be used only: 1. To acquire or construct improvements to the city water system; or 2. To pay debt service on any portion of any future general obligation bond issue or revenue bond issue used to finance improvements to the city water system; or 3. As described in section 2.06.1680 or 2.06.1690.G. F. Exemptions from water impact fees. 1. The following types of development shall be exempted from payment of the water impact fee: a. Alteration or expansion of an existing nonresidential building that does not require an additional or larger water meter; b. Replacement of a nonresidential building or structure of the same size that does not require an additional or larger water meter; c. The reconstruction or replacement of a previously existing residential unit that does not create any additional or larger residential units. 2. The installation of fire lines for fire protection shall be exempted from payment of the water impact fee. 3. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit of a type listed in subsection A.1 of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 4. The city shall determine the validity of any claims for exemption pursuant to the criteria set forth in subsections F.1 and F.2 of this section. Section 5 Section 2.06.1670 of the Bozeman Municipal Code be amended so that such division shall read as follows: Sec. 2.06.1670. - Wastewater impact fees. A. Imposition of wastewater impact fees. 1. Any person who seeks to obtain a permit for connection to the city wastewater system, or who is subject to subsection B.2.b of this section and applies for a city permit to expand or add to the structure served by a previously approved water connection, or any extension of such a permit issued before the effective date of the ordinance from which this division is derived is required to pay a wastewater impact fee in the amount specified in the commission resolution adopting the wastewater impact fee study and establishing the wastewater impact fee and as updated as required in this division; or 2. Any delayed payment of impact fees as specified and approved by the city commission in accordance with chapter 10, article 8. 109 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 12 of 19 3. No permits for connection to the city water system shall may be issued until the water impact fee described in this division has been paid, unless the development for which the permit is sought is exempted by subsection F of this section; or unless deferral of payment of the wastewater impact fee has been approved by the city pursuant to a deferral program approved by resolution of the Commission in compliance with 2.06.1700.I B. Computation of amount of wastewater impact fee. . 1. The city shall determine the amount of the required wastewater impact fee by reference to the most recently adopted wastewater impact fee study unless the applicant chooses to submit an individualized calculation pursuant to subsection B.2.a of this section or the city determines the application to be subject to subsection B.2.b of this section. If the applicant is applying for a replacement for a wastewater connection permit issued previously, then the fee shall be the net positive difference between the fee applicable at the time of the current permit application and any wastewater impact fee previously paid pursuant to this division for the same structure. In the event that the fee applicable at the time of the replacement permit application is lower than the wastewater impact fee previously paid pursuant to this division for the same structure, there shall be no refund of wastewater impact fees previously paid. 2. Individualized calculations. a. An applicant may request that the city determine the amount of the required wastewater impact fee by reference to an independent fee calculation study for the applicant's development prepared at the applicant's cost by a professional engineer and/or economist and submitted to the city public service director. Any such study shall be based on the same service standards and unit costs used in the most recently adopted wastewater impact fee study and must document the economic methodologies and assumptions used. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or modified by the city as the basis for calculating wastewater impact fees. If such study is accepted or accepted with modifications as a more accurate measure of the demand for new wastewater facilities created by the applicant's proposed development than the applicable fee shown in the most recently adopted wastewater impact fee study, then the wastewater impact fees due under this division shall be calculated according to such study. b. The city may identify a user as having extraordinary demands for wastewater service which are not accurately represented by the average usage which was relied upon by the methodology in the most recently adopted wastewater impact fee study. In this circumstance the city shall prepare a customized calculation based upon the methodology in the water impact fee study. When applicable an adjustment for high strength discharge will be applied. The impact fee paid for water meters later than three inches as of the effective date of the ordinance from which this division is derived may be adjusted based on actual usage. If usage is greater than 110 percent of anticipated volume or other measure of demand during the 12-month period of time beginning six months after building occupancy is granted by the city, an additional impact fee may be charged, using the same 110 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 13 of 19 techniques for calculating treatment and collection in EDUs and multiplying by the impact fee cost per EDU. The additional impact fee is the positive net between a previously calculated impact fee and the impact fee based upon the metered demand. C. Payment of wastewater impact fee. 1. An applicant required by this division to pay a wastewater impact fee shall pay such fee to the city prior to the issuance of a wastewater connection permit. 2. D. Wastewater impact fee funds. All funds paid by an applicant paid pursuant to this division shall be identified as wastewater impact fees and shall be promptly deposited in the wastewater impact fee fund described in subsection D of this section. 1. A single wastewater impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those wastewater impact fees collected pursuant to this division and any interest which may accrue from time to time on such amounts. E. Use of wastewater impact fee funds. The moneys in the wastewater impact fee fund shall be used only: 1. To acquire or construct improvements to the city wastewater system; or 2. To pay debt service on any portion of any future general obligation bond issue or revenue bond issue used to finance improvements to the city wastewater system; or 3. As described in section 2.06.1680 or section 2.06.1690.G. F. Exemptions from wastewater impact fees. 1. The following types of development shall be exempted from payment of the wastewater impact fee: a. Alteration or expansion of an existing nonresidential building that does not require an additional or larger water meter; b. Replacement of a nonresidential building or structure of the same size that does not require an additional or larger water meter; c. The replacement of a previously existing residential unit that does not create any additional or larger residential units. 2. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit of a type listed in subsection A.1 of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 3. The city shall determine the validity of any claim for exemption pursuant to the criteria set forth in subsection F.1 of this section. Section 6 111 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 14 of 19 Section 2.06.1700 of the Bozeman Municipal Code be amended so that such section shall read as follows: Sec. 2.06.1700. - Miscellaneous provisions. A. Interest earned on moneys in any impact fee fund shall be considered part of such fund and shall be subject to the same restrictions on use applicable to the impact fees deposited in such fund. B. No moneys from any impact fee fund shall be spent for periodic or routine maintenance of any facility of any type or to cure deficiencies in public facilities existing on the effective date of the ordinance from which this division is derived. C. Nothing in this division shall restrict the city from requiring an applicant to construct reasonable project improvements required to serve the applicant's project, whether or not such improvements are of a type for which credit is available under section 2.06.1690 D. The city shall maintain accurate records of the development impact fees paid, including the name of the person paying such fees, the project for which the fees were paid, the date of payment of each fee, the amounts received in payment for each fee, and any other matters that the city deems appropriate or necessary to the accurate accounting of such fees, and such records shall be available for review by the public during city business hours. E. At least once during each fiscal year of the city, the city manager shall present to the city commission a proposed impact fee capital improvements program for the transportation system, fire protection system, water system, and wastewater system, which identifies the capacity-adding capital improvements that will benefit new development subject to the terms of this division, exclusive of any improvements needed to correct existing deficiencies or for operation or maintenance purposes. Such capital improvements program shall assign moneys from each impact fee fund to specific projects and related expenses for improvements to the type of facilities or services for which the fees in that fund were paid. Any moneys, including any accrued interest, not assigned to specific projects within such capital improvements program and not expended pursuant to section 2.06.1680 or 2.06.1690.G shall be retained in the same impact fee fund until the next fiscal year. The impact fee capital improvements program shall be adopted by the city commission as a supplemental document to the city budget. The impact fee capital improvements program shall schedule the construction of capital improvements to serve projected growth and project capital improvement costs, expenditures and impact fee fund revenues for a five-year period. The individual fee funds shall maintain a positive fiscal balance. The program may be amended by a majority vote of the city commission. The city manager shall adopt and revise, as needed, an administrative impact fee manual to carry out the purposes of this division. F. The city shall be entitled to retain not more than five percent of the development impact fees collected as payment for the expenses of collecting the fee and administering this division. G. If a development impact fee has been calculated and paid based on a mistake or misrepresentation, it shall be recalculated. Any amounts overpaid by an applicant shall be refunded by the city to the applicant within 30 days after the city's acceptance of the recalculated amount, with interest at the rate of five percent per annum since the date of such 112 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 15 of 19 overpayment. Any amounts underpaid by the applicant shall be paid to the city within 30 days after the city's acceptance of the recalculated amount, with interest at the rate of five percent per annum since the date of such underpayment. In the event the underpayment is caused by an error attributed solely to the city, the applicant shall pay the recalculated amount without interest. In the case of an underpayment to the city, the city shall not issue any additional permits or approvals for the project for which the development impact fee was previously paid until such underpayment is corrected; and if amounts owed to the city are not paid within such 30-day period, the city may also repeal any permits issued in reliance on the previous payment of such development impact fee and refund such fee to the then current owner of the land. H. In order to promote affordable workforce housing of the city, the city commission may waive impact fees for workforce housing lots approved by the city commission pursuant to chapter 10, article 8, by paying some or all of the impact fee from other funds of the city that are not restricted to other uses. In order to promote the economic development of the city and the provision of affordable housing in the city, the city commission may agree to pay some or all of the development impact fees imposed on a proposed development by this division from other funds of the city that are not restricted to other uses. Any such decision to pay development impact fees on behalf of an applicant shall be at the discretion of the city commission and shall be made pursuant to goals and objectives previously adopted by the city commission to promote economic development and/or affordable housing. I. The City Commission may, by resolution, create a program to enable deferral of payment of impact fees to a time after issuance of a building permit or a connection permit to the water and sewer systems. Any such resolution shall: 1. Specify the circumstances and conditions under which a deferral may be allowed or disallowed. 2. Specify the points in time when the deferral may be requested, granted, and when payment of fees is required. 3. Specify costs to be incurred with deferral and fee payment and who is responsible for paying those costs. 4. Specify the process to receive and process a request for a deferral, including any administrative fees or required security for payment. 5. Specify the process for recognizing the payment of deferred fees and the release of any limitations on the property. 6. Require an impact fee deferral agreement and related documents as approved by the City Attorney to be recorded at the Gallatin County Clerk and Recorder’s office securing the amount due, including a covenant running with the land agreeing that a certificate of occupancy or other permit required by this division when a certificate of occupancy is not required will not be provided until payment of the deferred fees is verified. I a. A written notice of appeal on a form provided by the city; J. 1. Any determination made by any official of the city charged with the administration of any part of this division may be appealed to the development impact fees review committee by filing: 113 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 16 of 19 b. A written explanation of why the appellant feels that a determination was in error; and c. An appeal fee of $500.00 with the impact fee coordinator within ten working days after the determination for which the appeal is being filed. 2. The development impact fees review committee shall meet to review the appeal within 30 working days of the date the written appeal was presented to the impact fee coordinator. If the appellant is dissatisfied with the decision of the development impact fees review committee, the appellant may appeal the decision to the city commission by filing a written request with the city clerk within ten working days of the committee's decision. At the regular meeting following the filing of the appeal, the city commission shall fix a time and place for hearing the appeal; and the city clerk shall mail notice of the hearing to the appellant at the address given in the notice of appeal. The hearing shall be conducted at the time and place stated in such notice given by the city commission. The determination of the city commission shall be final. If the city commission concludes that all or part of a determination made by an official of the city charged with the administration of any part of this division was in error, then the appeal fee described in this subsection shall be returned to the appellant. J 1. The facility plans described in this division shall be reviewed by the city at least once every five years and if a revision of a facility plan to address changed conditions is deemed necessary by the city, the plan shall be updated. K. Updating of impact fee information. 2. The development impact fees described in this division, fee studies, data and analysis relied upon and required by MCA 7-6-1602, and the administrative procedures and manual of this division shall be updated at least once every three four 3. The impact fee capital improvement program shall be reviewed and updated as provided in section 2.06.1700.E. fiscal years. 4. The purpose of the review and updating of impact fee related documentation is to ensure that: a. The demand and cost assumptions underlying such fees are still valid; b. The resulting fees do not exceed the actual cost of constructing improvements that are of the type for which the fee was paid and that are required to serve new development; c. The moneys collected or to be collected in each impact fee fund have been, and are expected to be, spent for improvements of the type for which such fees were paid; and d. That such improvements will benefit those developments for which the fees were paid. KL. The development impact fees shown in the most recently adopted impact fee studies shall be adjusted annually to reflect the effects of inflation on those costs for improvements set forth in the impact fee studies. On January 1 of each year unless and until the impact fee studies are revised or replaced, and then beginning in the subsequent calendar year, each fee amount 114 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 17 of 19 set forth in each such study shall be adjusted by multiplying such amount by one plus the value of the Construction Cost Index published in the first December edition of the current year. (Source: Engineering News Record.) The right-of-way component of the transportation impact fee shall be adjusted by multiplying the value of the right-of-way component of the fee by one plus the percentage value of the increase in taxable value from the preceding year. (Source: Montana Department of Revenue.) Such adjustments in such fees shall become effective immediately upon calculation by the city and shall not require additional action by the city commission to be effective. LM. Violation of this division shall be a misdemeanor and shall be subject to those remedies provided in section 1.01.210. Knowingly furnishing false information to any official of the city charged with the administration of this division on any matter relating to the administration of this division, including without limitation the furnishing of false information regarding the expected size, use, or traffic impacts from a proposed development, shall be a violation of this division. In addition to, or in lieu of, any criminal prosecution, the city or any applicant for a permit of the types described in section 2.06.1640.A.1, 2.06.1650.A.1, 2.06.1660.A.1, or 2.06.1670.A.1 shall have the right to sue in civil court to enforce the provisions of this division. MN. The section titles used in this division are for convenience only and shall not affect the interpretation of any portion of the text of this division. N O. Any judicial action or proceeding to attack, review, set aside, or annul the reasonableness, legality, or validity of any development impact fee must be filed and service of process effected within 90 days following the date of imposition of the fee or the final determination of the city commission, whichever is the later. Section 7 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 8 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 9 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 115 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 18 of 19 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 10 Codification. This Ordinance shall be codified as indicated in Section 1 – 6. Section 11 Effective Date. This ordinance shall be in full force and effect on March 30, 2013. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 28th day of January, 2013. ____________________________________ SEAN A. BECKER Mayor ATTEST: ____________________________________ STACY ULMEN, CMC 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 25th day of February, 2013. The effective date of this ordinance is March 30, 2013. _________________________________ SEAN A. BECKER Mayor ATTEST: _______________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: 116 Ordinance 1853, Amending Chapter 2, Article 6, Division 9, Impact Fees 19 of 19 _________________________________ GREG SULLIVAN City Attorney 117