PERRY IMPACT FEE ORDINANCE 5292008

CHAPTER 26

DEVELOPMENT IMPACT FEES

Sec. 26-01. Short title, authority and applicability.

(a) This article shall be known and may be cited as the "City of Perry Development Impact Fee Ordinance".

(b) The City has the authority to adopt this article pursuant to the "Home Rule" provisions of the Constitution of the State of Georgia, delineated in the Official Code of Georgia, Annotated (O.C.G.A.) title 36, chapter 71.

(c) This article shall apply to all land and property developed within the incorporated areas of the City of Perry effective with the dates specified at the ratification of this Ordinance by the Mayor and City Council.

Sec. 26-02. Intents and purposes.

(a) This article is intended to implement and be consistent with the City's Comprehensive Land Use plan adopted in accordance with O.C.G.A. title 36, chapter 70, and pursuant to the standards and procedures established by State agencies where applicable.

(b) The purpose of this article is to regulate the use and development of land so as to assure that new development bears a proportionate share of the cost of system improvements necessary to provide facilities and infrastructure needed to serve an increased population from new developments within the City and the surrounding areas.

It is specifically acknowledged that this Article has approached the problem of determining such proportionate share in a conservative and reasonable manner, in accordance with O.C.G.A. title 36, chapter 71.

Sec. 26-03. Rules of construction.

(a) The provisions of this article shall be liberally construed so as to effectively carry out its purpose in the interest of providing necessary facilities and infrastructure to insure the public's health, safety and welfare.

(b) For the purposes of administration and enforcement of this article, unless otherwise stated in this article, the following rules of construction shall apply to the text of this article:

(1) In case of any difference of meaning or implication between the text of this article and any caption, illustration, summary table, or illustrative table, the text shall control.

(2) The word "shall" is mandatory and not discretionary; the word "may" is permissive.

(3) Words used in the present tense shall include the future; and words used in the singular shall include the plural, and the plural shall include the singular, unless the context clearly indicates the contrary.

(4) The phrase "used for" includes "arranged for," "designed for," "maintained for," or

"occupied for".

(5) The word "person" includes an individual, a corporation, a partnership, an incorporated association, or any other similar entity.

(6) Unless the context clearly indicates the contrary, where a regulation involves two (2) or more items, conditions, provisions or events connected by the conjunction "and", "or", or "either . . . or", the conjunction shall interpreted as follows:

a. "And" indicates that all connected terms, conditions, provisions or events shall apply.

b. "Or" indicates that the connected items, conditions, provisions or events may apply singly but not in combination.

c. "Either . . . or" indicates that the connected items, conditions, provisions or events shall apply singly but not in combination.

(7) The word "includes" shall not limit a term to the specific example but is intended to extend its meaning to all other instances or circumstances of like kind or character.

(8) Any road, street, water or wastewater facility, easement or right-of-way used to define Development Impact Fee district boundaries may be considered to be within any district it bounds for the purposes of the assessment and utilization of these fees.

Sec. 26-04. Definitions.

Building permit means the document issued by the City authorizing the construction, repair, alteration or addition to a structure, or authorizing the installation of a mobile home or recreational vehicle. For the purposes of this article, a building permit also means a change of use permit.

Capital improvement means any property, facility, or structure constructed, installed or purchased or any improvement, expansion or enhancement made to an existing property, facility or structure with a useful life of ten (10) years or more.

Capital improvement element means that portion of the City's Comprehensive Land Use Plan which sets out projected needs for system improvements during a planning horizon established that will meet the anticipated need for system improvements, and a description of anticipated funding sources for each required improvement.

City means Perry, Georgia, but may also be interchangeable with the City Council as the context requires.

Comprehensive plan means the Comprehensive Land Use Plan for the City of Perry, Georgia.

Developer means any individual, corporation, partnership, association or any other similar entity who engages in development activity.

Development activity means any construction or expansion of a building, structure, any change in the use of a building or structure, or any change in the use of land requiring the issuance of a building permit.

Development Impact Fee District means a geographic area identified by the City in which a defined City-provided service is provided.

Director means the City Director of Community Development and/or the official(s) designated to administer the various provisions of this Article.

Economic Development means any development activity determined by the City of Perry as extraordinary economic development which is hereby construed as revitalization effort or as a positive catalyst in shaping Perry’s economic stability.

Encumber means to legally obligate by contract, resolution or otherwise commit to use by appropriation by an official act of the City.

Facilities and / or infrastructure means any land, buildings, fixtures, furnishings and any other related items used in providing services by the City of Perry to the general citizenry.

Feepayor means that person who pays a Development Impact Fee or his/her successor in interest with the right of entitlement to any refund of a previously paid Development Impact Fee which is required by this article and which has been expressly transferred or assigned to the successor in interest. In the absence of an expressed transfer or assignment of the right of entitlement to any refund of previously paid Development Impact Fee right of entitlement shall be not be deemed to "run with the land."

Individual fee calculation study means an engineering and/or economic documentation prepared by a feepayor to allow determination of the Development Impact Fee other than by use of the fee schedule established by the City.

Individual fee determination means the Development Impact Fee determined by the Director on the basis of an individual fee calculation study.

Level of service means a measure or estimate of facilities and / or infrastructure provided to the general citizenry based on customary business practices by the City, consistent with the demands related to all land uses and consistent with state and federal regulations and prudent engineering and operating practices.

Methodology report means a report prepared which provides an analysis and methodology for the determination of the Development Impact Fee and the impact of development activity on the needs and cost of additional facilities and / or infrastructure.

Present value means the discounted cash flow of past, present or future payments, contributions, or dedications of goods, services, materials, construction, or money; also may be stated as "current value."

Project or development project means a particular development on an identified parcel of land.

Project improvement means site improvements and facilities that are planned and designed to provide service for a particular development project and that are necessary for the use and convenience of the occupants or users of the project and are not system improvements. The character of the improvement shall control the determination of whether an improvement is a project improvement or a system improvement and the physical location of the improvement onsite or offsite shall not be considered determinative of whether an improvement is a project improvement or a system improvement. If an improvement or facility provides or will provide more than incidental service or facility capacity to persons other than users or occupants of a particular project, the improvement or facility is a system improvement and shall not be considered a project improvement.

Proportionate share means that portion of the cost of system improvements which is reasonably related to the demands and needs of a project.

Replacement value means the cost of replacing facilities and / or infrastructure at current market prices.

System improvement means facilities and / or infrastructure, provided by the City that are designed to provide service to the community at large, in contrast to a project improvement.

System improvement cost means cost incurred to provide additional facilities and / or infrastructure needed to serve developments or new construction within the service area of the City, including, but not limited to, the construction contract price, surveying and engineering fees, related land acquisition cost, court cost, attorney and expert witness fees, and expenses incurred for qualified staff, engineer planner, architect or financial consultant for preparing or updating the capital improvement element, and administrative cost equal to three (3) percent of the total amount of such costs.

System improvement cost shall also include interest charges and other finance costs related to the issuance of bonds, notes or other financial obligations incurred by the City to finance capital improvements.

Sec. 26-05. Imposition of Development Impact Fee.

(a) Any person who after Month, Day, Year engages in development activity shall pay a Development Impact Fee in the manner set forth in this Article.

(b) No building permit for any development activity thereby required to pay a Development Impact Fee pursuant to this Article shall be issued by the City unless and until the required Development Impact Fee has been paid.

Sec. 26-06. Computation of Development Impact Fee.

(a)(1) At the option of the developer, the amount of the Development Impact Fee may be as per the provisions of subsection (2) below or may be determined from the fee schedule established by the City as follows:

Land Use	Fire Impact Fee	Park Impact Fee	Total
Residential	$570.10 per dwelling	$393.84 per dwelling	$963.94 per dwelling
Commercial/ Institutional	$0.24 per square foot	$0.17 per square foot	$0.41 per square foot
Manufacturing/ Industrial	$0.006 per square foot	$0.004 per square foot	$0.01 per square foot

(2) If a building permit is requested for a building with mixed uses, the fee shall be determined according to the fee schedule established by the City by apportioning the space committed to uses specified on the fee schedule. If the type of development activity for which a building permit is applied for is not specified on the fee schedule, the Director shall use the fee applicable to the most nearly comparable type of land use on the fee schedule. The Director shall be guided in the selection of a comparable type by the reports and studies done by the United States Environmental Protection Agency and/or the state, and/or the City Department of Public Works, and/or professional organizations such as the American Society of Civil Engineers.

In the case of change of use, redevelopment or modification of an existing use which requires the issuance of a building permit, the Development Impact Fee shall be based upon the net increase in the fee for the new use as compared to the previous use. The Director shall be guided in this determination by the above-named sources.

(b) If a developer elects not to have the Development Impact Fee determined according to subsection (a), above, then the developer may apply for an individual fee determination. A developer applying for an individual fee determination shall prepare and submit to the Director an individual fee calculation study for the development activity for which a building permit is sought. The individual fee calculation study shall follow the prescribed methodologies and formats for the study established by the director, or, subject to the prior approval of the Director, such other professionally accepted methodology that identifies a project's proportionate share. The developer shall attend a pre-application meeting with the Director and no agreement or understanding in regard to data, assumptions or methodology shall be binding upon the city unless provided to the developer in writing. The service demand documentation submitted shall show the basis upon which the individual fee calculation was made, including but not limited to the following:

(1) Documentation demonstrating the impact of the proposed development activity on the following City-provided services:

a. Public Safety

i. Fire

b. Parks

(2) Engineering or any other suitable report(s), study or documentation depicting service demands or City-provided services appropriate for the proposed development activity;

(3) Cost documentation studies including documentation of the cost per unit of impact for construction and documentation credits attributable to the development activity which can be expected to be available to replace the portion of the service volume / demand generated by the development activity.

This documentation shall be prepared and presented by qualified professionals in their respective fields and shall follow best professional practices and methodologies. The following formula, as explained in the methodology report, shall be used by the Director to determine the Development Impact Fee per unit of development based on the type of land use:

[Unit Cost × Demand] – Credit = Proportionate Share

Whereby:

Unit Cost = The average cost per unit of capacity to provide infrastructure or facilities within the service district.

Demand = The average volume/capacity or demand expected to be utilized by a given land use on an annual basis.

Credit = The average present value of future payments by a land use towards the retirement of debt incurred to construct facilities and infrastructure.

The Director shall provide the developer with a written individual fee determination within thirty (30) days after presentation of the individual fee calculation study.

(c)(1) Upon application to the Director, any person engaging in development activity requiring payment of a Development Impact Fee may apply for and shall receive from the Director a certification of the application of the Development Impact Fee schedule to a particular development activity proposal or a certification of an individual fee determination for a particular development proposal.

(2) Applications for certification shall include the following information items:

a. A full and complete description of the project;

b. A full and complete description of the proposed land use and the particular proposed development activity;

c. A statement as to whether the applicant seeks a certification of the Development Impact Fee schedule as applied to that particular development proposal or a certification of an individual fee determination; and

d. If the applicant seeks a certification of an individual fee determination, an individual fee calculation study complying with the requirements of subsection (b) above.

(3) The Director shall provide an applicant with a written certification of the application of the Development Impact Fee schedule to a particular proposed development activity within five (5) days after the director's receipt of a completed application. The written certification of the Director shall establish the Development Impact Fee for a particular proposed development activity for a period of one hundred eighty (180) days from the date of certification. The Director shall provide the applicant with a written certification of an individual fee determination within thirty (30) days after receipt of a completed application. The individual fee determination certified by the Director shall establish the Development Impact Fee for the one-hundred-eighty-day-period immediately following the date of such certification. Notwithstanding the issuance of any such certification, any changes in or additions to the proposed development activity different from the particular proposed development activity identified in the original application shall be subject to increased or additional Development Impact Fees to the extent that such changes or additions require capital improvements or facilities expansions. The additional Development Impact Fees shall be based upon the most current Development Impact Fee schedule in effect on the date of the issuance of a building permit.

(d) Notwithstanding any other provision of this section, prior to engaging in development activity generating demand and impacting City-provided services, and in addition to any other applicable requirements, the developer shall certify in writing to the Director:

(1) A full and complete description of the project;

(2) A full and complete description of the proposed land use or uses; and

(3) A statement of the gross square footage applicable to each category of land use.

Prior to the completion of the project, and as a condition of final inspection, the developer shall recertify in writing to the Director the actual land use or uses of the project, and shall present an architect's certificate of the actual gross square footage attributable to each use. In the event that the actual use or uses and/or the actual gross square footage applicable to the actual use or uses differs from that originally certified, and in the event that the Development Impact Fee was previously paid, the developer shall be required to pay the amount of the excess as a condition of final inspection. The amount of the excess shall be based upon the most current Development Impact Fee schedule in effect on the date of final inspection.

Sec. 26-07. Payment of Development Impact Fees.

(a) Any person required to pay a Development Impact Fee pursuant to this Article shall pay such fees to the Director prior to the issuance of a building permit.

(b) All funds collected pursuant to this Article shall be identified by the Development Impact Fee district from which it was collected and promptly transferred for deposit into the appropriate Development Impact Fee trust fund to be held in separate accounts as provided in section 26-13. Funds shall be used solely for the purposes specified in this Article.

(c) In lieu of all or part of the Development Impact Fee, the City may accept an offer to provide the items and/or services specified in subsection 26-09(2) below. Any such offer must comply with the requirements of subsection 26-09. The portion of the fee represented by the facility and / or infrastructure improvements shall be deemed paid when the construction is completed and accepted by the City for maintenance or when the person claiming such credit posts security for the cost of construction as provided in subsection 26-09(2)e. below. That portion of the fee represented by land dedication shall be deemed paid when the title to such land has been accepted by the City.

Notwithstanding subsection (a) above, the City may issue a building permit prior to accepting title to land if the refusal to issue the permit will result in an exceptional hardship to the developer and the City is otherwise reasonably assured that title will be conveyed and accepted within a reasonable time thereafter. For the purposes of this subsection, an exceptional hardship shall not include a hardship solely created by the developer.

Sec. 26-08. Use of funds.

(a) Funds collected as Development Impact Fees shall be used for system improvements. No funds shall be used for periodic or routine maintenance or for any purpose not in accordance with the requirements of this Article.

(b) Development Impact Fees shall be used exclusively for system improvements in the Development Impact Fee district in which the project for which the fees were paid is located.

(d) At the end of each fiscal period the Director will submit to the Mayor and City Council an annual report describing the amount of Development Impact Fees collected, encumbered, and expended during the preceding year by category of Development Impact Fee districts. Monies, including any accrued interest, not encumbered in any fiscal period shall be retained in the same Development Impact Fee trust fund(s) until the next fiscal period except as provided in section 26-11.

(e) The City shall be entitled to retain up to three (3) percent of all Development Impact Fees collected as an administrative fee to offset the cost of administering this Article.

(f) Development Impact Fees may be used for the payment of principal and interest on bonds, notes or other financial obligations issued by or on behalf of the City to finance the construction or expansion facilities and / or infrastructure.

Sec. 26-09. Credits.

Credits against Development Impact Fees shall be given as follows:

(1) No credit shall be given for project improvements.

(2) Credit shall be given for the present value of the construction of improvements or contribution or dedication of land or money by a developer subsequent to Month, Day, Year, required or accepted by the City from the developer or his predecessor in title for system improvements.

a. A person claiming credits shall submit to the Director a project description in sufficient detail to allow the Mayor and Council to prepare an engineering and construction cost estimate. A person proposing credit for improvements shall present cost estimates and property appraisals prepared by qualified professionals to be used by the Mayor and Council in determining the amount of the credit. All construction must be carried out in accordance with applicable City or State development and design standards. A person proposing credits for land dedication shall present the Mayor and Council with property appraisals prepared by qualified professionals and a certified copy of the most recent assessment of the property for tax purposes to be used by the Mayor and Council in determining the amount of credit. However, the Mayor and Council retain the right to determine the amount to be credited by preparing engineering and construction cost estimates and/or property appraisals for those improvements and/or property dedications.

b. Credits must be claimed at the time of the application for a building permit. Any credit not so claimed shall be deemed invalid.

c. In the event a developer contracts with the City to construct, fund, or contribute system improvements so that the amount of the credit created by such construction, funding, or contribution is in excess of the Development Impact Fee which would have been otherwise due and owing, the developer shall be reimbursed for such excess construction, funding, or contribution from Development Impact Fees paid by the development projects located in the Development Impact Fee district which has benefited by such improvements.

d. In the event a building permit is abandoned, credit shall be given for the present value of any Development Impact Fees for the same parcel of land paid upon issuance of such building permit. A building permit shall be deemed abandoned if no construction has commenced prior to the expiration of the building permit.

e. Security in the form of a performance bond, irrevocable letter of credit, or escrow agreement shall be posted with the City, made payable to the City in the amount approved by the Mayor and Council equal to one hundred ten (110) percent of the full cost of the construction of such facility and / or infrastructure improvements. If facility and / or infrastructure improvements or construction project will not be constructed within one (1) year of the acceptance of the offer by the City, the amount of the security shall be increased by ten (10) percent compounded, for each year of the life of the security. The security shall be reviewed and approved by the City Attorney's office prior to the acceptance of the security by the City.

(3) Credits are transferable from one developer to another and from one project to another provided that such credits may not be transferred to a project in a different Development Impact Fee district.

Sec. 26-10. Exemptions.

(a) The following shall be exempted from payment of Development Impact Fees:

(1) Alteration or expansion of an existing building or use of land where no additional living units are created, where the use is not changed, and whereby no additional demands for services will be created over and above those demands produced by the existing use.

(2) The construction of accessory and/or temporary buildings or structures which will not produce additional service demands over and above those produced by the principal building or the current use of the land.

(3) The replacement of a building, mobile home or structure that was in place on Month, Day, Year, or the replacement of a building, mobile home or structure that was constructed subsequent thereto and for which appropriate Development Impact Fees had been paid or otherwise provided for, with a new building, mobile home or structure of the same use, provided that no additional service demands will be produced over and above those produced by the original use of the land.

(b) A person claiming exemption(s) pursuant to subsections (a)(1), (2), or (3) above shall submit to the Director information and documentation sufficient to permit the director to determine whether such exemption claimed is proper, and, if so, the extent of such exemption.

(c) All or part of a particular project determined by the Mayor and Council as constituting economic development, as defined herein.

(d) Exemptions must be applied for at the time of the application for a building permit. Any exemptions not so applied for shall be deemed waived.

Sec. 26-11. Refunds.

(a) Upon application to the Director by the feepayor, the City shall refund ninety-seven (97) percent of the Development Impact Fee paid if service capacity is available and the building permit is rescinded or in the event development construction is otherwise denied. The City shall retain three (3) percent of the fee paid as an administrative fee.

(b)(1) Upon application to the Director by the feepayor, the City shall refund ninety-seven (97) percent of the Development Impact Fee paid and not expended or encumbered if the City, if after collecting the fee when service is not available, has failed to encumber the fee or commence construction within six (6) years from the date the Development Impact Fee was paid. The City shall retain three (3) percent of the fee paid as an administrative fee. In determining whether Development Impact Fees have been expended or encumbered, all fees shall be considered encumbered on a first-in, first-out (FIFO) basis.

(b)(2) When the right to a refund exists due to the City's failure to encumber Development Impact Fees, the City shall provide written notice of entitlement of a refund to the feepayor who paid the Development Impact Fee at the address shown on the application for development approval, or to a feepayor's successor in interest who has given the City notice of the transfer or assignment of the right or entitlement to a refund and who has provided the city with a mailing address. The City shall publish notice within thirty (30) days after the expiration of the six-year period from the Development Impact Fee payment date. Such published notice shall contain the heading "Notice of Entitlement to Development Impact Fee Refund."

(c) A refund application shall be made to the Director within one (1) year from the date such refund becomes payable under subsections (a) and (b) above, or within one (1) year from the date of the publication of the notice of entitlement a refund under subsection (b) above, whichever is later. Any refund not applied for within such time period shall be deemed waived.

(d) A refund application shall include information and documentation sufficient to permit the director to determine whether the refund claimed is proper and, if so, the amount of such refund. A refund shall include a pro rata share of interest actually earned on the unused or excess Development Impact Fee paid.

(e) All refunds shall be paid within sixty (60) days after the director determines that such refund is due.

Sec. 26-12. Development Impact Fee district established.

As of Month, Day, Year, there is hereby established an initial Development Impact Fee district which shall be contemporaneous with the present and future incorporated limits or service area of the City of Perry and is specifically delineated on the “City of Perry Development Impact Fee Map” maintained in the office of the Department of Community Development.

Sec. 26-13. Development Impact Fee account established.

(a) As of Month, Day, Year, there is hereby established a Development Impact Fee account for the initial Development Impact Fee district established in section 26-12. Such account shall be interest-bearing. All Development Impact Fees collected shall be deposited into this account.

(b) Interest earned on funds shall be funds of the account on which it is earned and is subject to all restrictions imposed or placed on the use of development impact fees under this ordinance.

Sec. 26-14. Review of fee schedule.

The Development Impact Fee schedule shall be reviewed by the Mayor and City Council at least annually; provided, however, the failure to review such fee structure shall not invalidate this article. Following such review, if changes in the fee schedule are deemed necessary, such changes may be implemented administratively, without formal amendment to this Article.

Sec. 26-15. Administrative appeals.

(a) Any person directly aggrieved by a decision of the Director with respect to any of the following determinations shall have the right to appeal to the Mayor and City Council:

(1) The imposition of a Development Impact Fee;

(2) The amount of a Development Impact Fee;

(3) The entitlement to and/or the amount of credits to a Development Impact Fee;

(4) The entitlement to an exemption from a Development Impact Fee; and

(5) The entitlement to and/or the amount of a refund of a Development Impact Fee.

(b) Prior to any appeal to the Mayor and City Council, the aggrieved party shall file a written request for reconsideration with the Director, who shall act upon the request within fifteen (15) days following the receipt of such request.

(c) All appeals shall be taken within fifteen (15) days of the Director's decision on the request for reconsideration by filing with the director a notice of appeal specifying the grounds thereof. The Director shall forthwith transmit to the Mayor and City Council all papers constituting the record upon which the action appealed is taken. The Mayor and City Council shall thereafter establish a reasonable date and time for a hearing on the appeal, give due notice thereof to the parties in interest, and decide the same within a reasonable period of time following the hearing. Any party taking an appeal shall have the right to appear at the hearing to present testimony and evidence and may be represented by legal counsel. Any person aggrieved by a decision of the Mayor and City Council may pursue the appeal to the Superior Court of Houston County within thirty (30) days after the decision of the Mayor and City Council is rendered.

(d) A developer may pay a Development Impact Fee under protest in order to obtain a building permit, and by making such payment shall not be prohibited from:

(1) Exercising the right of appeal provided in this Section; or

(2) Receiving a refund of any amount deemed to have been illegally collected.

Sec. 26-16. Penalty and enforcement provisions.

A violation of this Article shall be a misdemeanor punishable according to the laws of the state; however, in addition to or in lieu of any criminal prosecution, the City shall have the power to sue for relief in civil court to enforce the provisions of this article. Knowingly furnishing false information to the director on any matter relating to the administration of this article shall constitute a violation thereof.