[HISTORY: Adopted by the Commissioners (now Town Council) of the Town of Denton as indicated in article histories. Amendments noted where applicable.]
[Adopted 3-5-2007 by Ord. No. 533]
Editor's Note: Former Art. I, Zoning Actions, adopted 11-2-1992 by Ord. No. 305, was removed from the Code at the Town's request. Current fees for zoning actions may be obtained in the Town offices.
Editor’s Note: This ordinance also provided that the recitals are incorporated by reference and made a part of the ordinance. Said recitals read as follows:
"WHEREAS, the Denton Town Council finds that the health, safety, and general welfare of the residents of the Town will be furthered and enhanced by the adoption of an impact fee ordinance to:
"A. Establish uniform procedures for the imposition, calculation, collection, expenditure, and administration of development impact fees imposed on new development;
"B. Require all new residential and nonresidential development to contribute its fair and proportionate share towards the costs of capital improvements reasonably necessitated by such new development;
"C. Provide a means of financing public facilities needed to accommodate new development in a safe and timely manner;
"D. Ensure that the new development paying development impact fees reasonably benefits from the appropriation of impact fee funds to public facilities provided to accommodate such new development;
"E. Implement the Town of Denton Comprehensive Plan and capital budget by ensuring that adequate public facilities are available in a timely and well-planned manner; and
"F. Ensuring that all applicable legal standards and criteria are properly incorporated in these procedures;
"WHEREAS, the Town Council has commissioned a study by Urban Analytics, Inc., a consulting firm, of the Town to determine if impact fees are appropriate for the Town and Urban Analytics, Inc. has reported to the Town Council that impact fees are an appropriate means to assist the Town in providing adequate funding for capital improvements necessary to accommodate anticipated growth in Denton;
"WHEREAS, the Town Council has conducted a public hearing on this ordinance on January 8, 2007."
As used in this article, the following terms shall have the meanings indicated:
- An individual, corporation, or other legal entity that applies for a building permit or zoning certificate in the Town.
- APPROPRIATION or TO APPROPRIATE
- An action by the Town Council to identify specific public facilities for which development impact fee funds may be used. Appropriation shall include, but is not limited to:
- (1) Inclusion of a public facility in the adopted capital budget or capital improvement plan;
- (2) Execution of a contract or other legal encumbrance for construction of a public facility using impact fee funds in whole or in part; or
- (3) Actual expenditure of impact fee funds through payments made from an impact fee account or subaccount.
- CAPITAL BUDGET
- The budget adopted by the Town Council from time to time, for the purpose of identifying and financing needed capital improvements.
- CAPITAL IMPROVEMENTS
- Land acquisition, site development, site-related improvements, purchase of equipment, or construction of structures necessary for the expansion or construction of public facilities serving the Town and its residents, including all related costs.
- CAPITAL IMPROVEMENT PLAN
- The schedule of capital improvements to be undertaken by the Town as determined from time to time by the Town Council or as set forth in the capital budget.
- COMMERCIAL USE
- Any development for commercial or recreational/entertainment use of a site as defined or described in Chapter 128 (Zoning).
- CREDIT AGREEMENT
- An agreement made pursuant to this article, which provides for a credit of certain required development impact fees in exchange for the provision of dedicated lands or the construction of facilities that are consistent with, add to, or complement the Town's Capital Improvement Plan, or a monetary prepayment for a capital improvement or public facility(s) that is funded by development impact fee revenue. Such credit agreement may be incorporated into a development rights and responsibilities agreement.
- DEVELOPMENT IMPACT FEE or IMPACT FEE
- A fee levied pursuant to this article as a condition of issuance of a building permit or zoning certificate, and which is intended to fund capital improvements and public facilities in the Town needed to serve new growth and development activity in the Town.
- FLOOR AREA
- The total horizontal area in square feet of all floors within the exterior walls of a building, including habitable or usable garage, basement, attic, or similar spaces, but not including vent shafts, unroofed inner courts, or usuable areas below ground or in attics.
- INDUSTRIAL USE
- Any development for industrial use of a site as defined or described in Chapter 128 (Zoning).
- INSTITUTIONAL USE
- Any development for institutional use of a site defined or described in Chapter 128 (Zoning).
- MIXED-USE DEVELOPMENT
- A new development consisting of both residential and nonresidential uses and structures, or one or more different types of nonresidential uses or structures, either on the same site or part of the same new development.
- NEW DEVELOPMENT
- Any development or development activity for which a building permit or zoning certificate is issued after the effective date of this article, and which either increases the number of residential dwelling units or which increases total nonresidential floor area. Accessory and replacement residential structures are excluded.
- NONRESIDENTIAL DEVELOPMENT
- Any development for commercial, industrial, or institutional use as those uses are defined or described in Chapter 128 (Zoning).
- PUBLIC FACILITIES
- Public works, improvements, and facilities, including government facilities, bridges, streets and roads, parks and recreational facilities, police and fire stations or substations and storm drainage facilities required in whole or in part to accommodate new construction or development.
- PUBLIC FACILITIES EXPENDITURES
- Funds or resources appropriated or dedicated in connection with the planning, design, engineering, and construction of public facilities; planning, legal, appraisal, and other costs related to the acquisition of land, financing, and development costs, the costs of compliance with purchasing procedures and applicable administrative and legal requirements, and all other necessary or incidental costs to provide the public facility.
- The rate or rates used to calculate development impact fees for nonresidential new development set forth in this article.
- RESIDENTIAL DEVELOPMENT
- Any new development for residential use.
- RESIDENTIAL USE
- Existing or proposed dwelling units, including, but not limited to, single-family, multifamily, duplex, manufactured, or modular homes, and apartments, including second-floor apartments.
- SITE RELATED IMPROVEMENT
- Off-site capital improvements or facilities made necessary by new development, including, but not limited to, hiking/biking paths, sidewalks, roadway construction, upgrades or improvements, and traffic control devices or measures.
The purpose of this article is to promote the health, safety, and general welfare of the residents of the Town by:
Establishing uniform procedures for the imposition, calculation, collection, expenditure, and administration of development impact fees imposed on new development;
Requiring all new residential and nonresidential development to contribute its fair and proportionate share towards the costs of capital improvements reasonably necessitated by such new development;
Providing a means of financing public facilities needed to accommodate new residential development in a safe and timely manner;
Ensuring that the new development paying development impact fees reasonably benefits from the appropriation of impact fees to fund public facilities provided to accommodate such new development;
Implementing the Town's Comprehensive Plan and capital budget by seeking to ensure that adequate public facilities are available in a timely and well-planned manner; and
Ensuring that all applicable legal standards and criteria are properly incorporated in these procedures.
Effect on provisions of the Town Code. This article may not be construed to alter, amend, or modify any provision of Chapter 38 (Building Construction), Chapter 73 (Land Subdivision), or Chapter 128 (Zoning) of this Code. The provisions of those chapters shall be operative and remain in full force and effect notwithstanding any contrary provisions, definitions, or intentions that are or may be expressed or implied in this article. The parts and subparts of this article are intended to be severable. If a court should determine by a valid and final judgment that any part of this article, or the application thereof to any person or circumstance, is unconstitutional, illegal, or void for any reason, then, notwithstanding that determination, the remaining provisions hereof and the application thereof to all other persons and circumstances shall remain in full force and effect.
Effect on land use and development regulations. This article, including the specific development impact fee ordinances for particular public facilities, shall not affect, in any manner, the permissible use of property, density or intensity of development, design and improvement standards, or other applicable standards or requirements of land development regulations of the Town.
Compliance with other laws. Payment of development impact fees shall not entitle the applicant to a building permit or zoning certificate unless all other applicable federal, state, and Town statutes, ordinances, and regulations concerning land use, zoning, planning, adequate public facilities, forest conservation, critical area, sewage disposal, platting, subdivision, and other laws, requirements, standards, and conditions have been met, and all applicable permit requirements have been fulfilled. All of the foregoing prerequisites are independent of and in addition to the requirement for payment of a development impact fee.
Applicability to new development. Except as specifically exempted by the provisions of this article, this article shall apply to all new development within the Town.
Types of development not affected. No development impact fee shall be imposed upon:
Development for which a building permit or zoning certificate has been issued prior to the effective date of this article;
Any new residential development that does not add a new dwelling unit; nor shall a development impact fee be imposed for alteration, expansion, or replacement of an existing dwelling unit where no additional dwelling unit is created;
The alteration or change of use of existing nonresidential structures where there is no increase in the nonresidential floor area;
Any building or structure used exclusively for farming or agricultural purposes, as defined in Chapter 128 (Zoning);
Developments that are the subject of a valid development rights and responsibilities agreement or other agreement executed prior to the effective date of this article, to which the Town is a party that contains provisions in conflict with this article, but only to the extent of the conflict or inconsistency; and
The development of public facilities by the State of Maryland, Caroline County, the Town, or the federal government.
Annual review. On or before May 31 of each year after adoption of this article, and prior to Town Council adoption of the Annual Budget and Capital Improvement Plan, the Town Administrator shall coordinate the preparation and submission of an annual report to the Town Council on the subject of development impact fees.
Contents of the annual report. The annual report may include any or all of the following:
Recommendations for amendments, if appropriate, to these procedures or to specific ordinances adopting development impact fees for particular public facilities;
Proposed changes to the Town's Capital Improvement Plan, including the identification of additional public facility projects anticipated to be funded wholly or partially with development impact fees;
Proposed changes to development impact fee schedules as set forth in the ordinances imposing and setting development impact fees for particular public facilities;
Proposed changes to any development impact fee calculation methodology; and
Any other data, analysis, or recommendations as the Town Administrator may deem appropriate, or as the Town Council may request.
Inflation adjustment. On July 1 of each year after adoption of this article, the amount of any development impact fee shall be automatically adjusted to account for inflationary increases in the cost of providing public facilities utilizing the most recent twenty-city annual national average data from the Engineering News Record Construction Cost Index. If this index is unavailable, the Town Administrator may designate a substitute index. The adjustments shall apply to all permits issued on or after July 1 of each year. The Town Administrator shall make the automatic annual adjustment unless the Town Council has determined an alternate adjustment in its annual review. Nothing herein shall prevent the Town Council from electing to retain existing development impact fees or from electing to waive the inflation adjustment for any given fiscal year.
In general. The Town shall not issue a building permit or zoning certificate for new development until the development impact fees required under this article have been calculated and paid. The amount of the development impact fee is the amount of the fee in effect on the date of issuance of the building permit or zoning certificate.
Lien. If new development is undertaken without payment of all applicable development impact fees, the development impact fees shall:
Payment upon sale of property. If real property on which a development impact fee is due and unpaid is sold, in the absence of an agreement to the contrary between the contract seller and the contract purchaser, the seller shall pay the development impact fee prior to or at settlement.
Actions to recover. If a development impact fee is not paid as required by this article, the Town Attorney may institute an action to recover the fee and enjoin any further construction and all use of the property until the fee is paid. Any persons who fail to pay a development impact fee as required by this article shall be responsible for payment of enforcement costs, including court costs, litigation expenses, and reasonable attorney's fees.
In general. At the time of application for a building permit or zoning certificate, the Zoning Administrator shall calculate development impact fees and the applicant shall pay the same to the Town prior to the issuance of a building permit or zoning certificate.
Rate for mixed use developments. The Zoning Administrator shall determine the area, number of units, type of use, and other criteria necessary to calculate the development impact fee based upon uses, sizes and configuration shown on the building plans.
Rates for other uses. For proposed new development for which no specific land use type is listed in this article, the Zoning Administrator shall apply the land use type as defined in the Institute of Traffic Engineers Trip Generation Manual (1997 ed.) that is most similar to the proposed new development in terms of impact on public facilities, based upon the predominant characteristics of the proposed new development.
Calculation of fee.
Upon receipt of an application for a building permit or zoning certificate, the Zoning Administrator shall determine the development impact fee based on the following standards:
Whether the proposed new development constitutes a residential or nonresidential use.
The specific type of residential or nonresidential development, if applicable;
If residential, the number of new dwelling units;
If nonresidential, the number of additional square feet of floor area (rounded up to the nearest square foot) and the proposed use; and
The calculation of development impact fees due from a phased new development shall be based upon the development impact fees due for each specific land use within the phase of development for which building permits or zoning certificates are requested.
The calculation of development impact fees for non-residential development shall utilize graduated rates for square feet of total floor area within each separate size classification shown on Appendix "A". For mixed-use developments, total non-residential floor area within each size and use category shall be aggregated for each phase of development. The total amount of non-residential floor area from each phase of development shall be added, cumulatively, to determine the graduated rate(s) for successive phases.
After making these determinations, the Zoning Administrator shall calculate the applicable development impact fee by multiplying the number of new dwelling units or new floor area, by the amount of the applicable development impact fee per unit of development, and incorporating any applicable credit made pursuant to § 52-8.
Credits for dedication of land or the construction of capital improvements. The Town Council may grant a credit against any development impact fee imposed by this article upon any new development where the applicant has negotiated and entered into a credit agreement with the Town to dedicate land or construct capital improvements that:
Are consistent with, add to, or complement the Town's Capital Improvement Plan;
Are funded by development impact fee revenue;
Are of the same category of public facility impacted by the proposed new development; and
Will be constructed or dedicated in accordance with a schedule set forth in the Capital Improvement Plan or credit agreement.
Monetary advances or prepayment. The Town Council may grant a credit against any development impact fee imposed by this article upon any new development where the applicant has pre-paid or advanced to the Town, with the Town Council's consent and approval, a monetary payment for a capital improvement or public facility which is funded by development impact fee revenue.
Credit not to exceed impact fee. No credit shall exceed development impact fees imposed by this article for the proposed new development.
The determination of the credit shall be undertaken through the submission of a proposed credit agreement to the Zoning Administrator, which shall include the following:
A proposal to dedicate specific capital assets or to construct specific capital improvements that will be dedicated or constructed in lieu of the required development impact fee, and the time by which the capital assets will be dedicated or the capital improvements will be constructed; and
The fair market value of the assets to be dedicated, supported by independent appraisal(s), and the projected costs for the suggested capital improvements, which shall be based on local information for similar capital improvements, along with a construction timetable for the completion thereof. Such estimated costs shall include the cost of construction, labor and materials, lands, easements and rights, surveys, plans and specifications, engineering and legal services, and all other expenses necessary or incident to such construction.
If a monetary fee, the purpose of the payment, and the date that such payment was made.
The proposed plan and cost estimates shall be prepared by a person or persons qualified in the provision of the particular capital improvement, impact analysis, and economics.
Initial determination. Within 60 working days of the submission of the proposed credit agreement, the Zoning Administrator shall determine if the proposed agreement is complete. If it is determined that the proposed credit agreement is not complete, the Zoning Administrator shall send a written statement to the applicant outlining the deficiencies, and no further action shall be taken until all deficiencies have been corrected.
Review by Town staff. Once the Zoning Administrator determines the proposed credit agreement is complete, within 60 working days, the Zoning Administrator shall recommend approval of the agreement if the Zoning Administrator, with concurrence of the Director of Public Works, and/or the Town's consulting engineers, determine that the proposed capital improvements are consistent with, add to, or complement the Town 's Capital Improvement Plan as it applies to the specific category of capital improvement, and the value of the assets to be dedicated or the construction costs of the suggested capital improvements equals or exceeds the amount of development impact fees otherwise payable. If, within this time period, the Zoning Administrator, staff and consultants determine that either the suggested capital improvements are not consistent with, do not add to, or do not complement the Town's Capital Improvement Plan, or that the proposed dedication, appraisal(s), construction costs, or schedule are not consistent with the requirements of this article or are otherwise unacceptable, the Zoning Administrator, with the concurrence of the Director of Public Works, shall propose changes to the agreement, construction, costs or schedule that are consistent with this article and the Town's Capital Improvement Plan. If the proposed credit agreement is based upon a monetary prepayment, the Zoning Administrator and Town staff and consultants shall confirm that such payment has been or will be used to fund capital improvements or public facilities that are funded by development impact fee revenue.
Approval by Town Council. If the Zoning Administrator, with the concurrence of the Director of Public Works, recommends approval of the proposed credit agreement, or if the changes proposed by the Zoning Administrator with the concurrence of the Director of Public Works are acceptable to the applicant, the credit agreement shall be prepared and forwarded to the Town Council for final review and consideration. The Town Council may approve, by resolution, disapprove, or modify the proposed credit agreement, in whole or in part, and may make any decision or determination that, in its judgment, may be necessary or prudent to protect the public interest or promote the purposes of this article.
Payment of fees after execution of credit agreement. Upon execution of the credit agreement, the balance of development impact fees due, if any, shall be paid in accordance with this article, and title to any land dedicated shall be conveyed to the Town pursuant to the credit agreement, or development rights and responsibilities agreement.
Conveyance of property or assets. If the credit agreement requires dedication of assets or real property, the applicant shall execute such deeds, leases, easements, and other instruments in a form satisfactory to the Town Attorney as may be necessary to convey the same to the Town for public purposes no later than the time the development impact fees would otherwise be due, or at such time as determined by the Town Council.
Bond and surety. The credit agreement shall include a payment and performance bond, surety, or other acceptable assurance that the project will be completed as proposed and that all payments required to be made by the applicant will be paid in full and on time in accordance with the credit agreement and construction contract documents. The bond, surety, or other assurance shall be in a form and amount acceptable to the Town's consulting engineer and Town Attorney.
Collection. The Zoning Administrator shall collect all applicable development impact fees at or before the time of issuance of a Town or municipal building permit or zoning certificate unless:
The applicant is determined to be entitled to a full or partial credit, pursuant to § 52-8 of this article; or
The applicant has filed an appeal of the decision of the Zoning Administrator to the Board of Appeals in accordance with § 128-163 of the Town Code, and has posted with the Town a letter of credit or other surety acceptable to the permit official in the amount of the development impact fee, as calculated by the permit official, in a form approved by the Town Attorney.
Development impact fee accounts. The Town Clerk-Treasurer shall establish a development impact fee account for each category of public facilities for which development impact fees are imposed. Such account shall clearly identify the category, account, or fund for which the development impact fee has been imposed. All development impact fees collected by the Town shall be deposited in the appropriate development impact fee account, which shall be interest bearing. All interest earned on funds deposited to such account shall be credited to and considered funds of the account. The funds of each such account shall be capable of being accounted for separately from all other Town funds, over time. The Clerk-Treasurer shall establish and implement necessary accounting controls to ensure that the development impact fee funds are properly deposited, accounted for, and appropriated in accordance with this article, and any other applicable legal requirements.
In general. Development impact fee funds may be appropriated for public facilities, for public facilities expenditures, and for the payment of principal, interest, and other financing costs on contracts, bonds, notes, or other obligations issued by or on behalf of the Town or other applicable governmental entities to finance such public facilities and public facility expenditures. All appropriations from development impact fee accounts shall be detailed in a budget adopted by the Town Council.
Restrictions on appropriations. Development impact fees shall be appropriated only:
For the particular category of public facilities for which they were imposed, calculated, and collected. Development impact fees shall not be appropriated for funding any expenditure that would be classified in an accounting as a maintenance or repair expense or for operational or personnel expenses associated with the provision of a public facility; and
Appropriation of development impact fee funds beyond six years of collection. Notwithstanding § 52-10B, development impact fee funds may be appropriated beyond six years from the beginning of the fiscal year immediately succeeding the date of collection if, prior to the expiration of that time period, the Council finds:
The demand for the public facility is generated in whole or in part by the new development;
The public facility will actually serve the new development; and
The Capital Improvement Plan prepared by the Town for the particular category of public facility has used a longer time frame, or the public facility or capital improvement requires more than six years to plan, design, fund and construct.
Expiration or revocation of building permit or zoning certificate. An applicant who has paid a development impact fee for a new development for which the necessary building permit or zoning certificate has expired or for which the building permit or zoning certificate has been revoked prior to construction shall be eligible to apply for a refund of development impact fees.
Failure of Town to use or appropriate development impact fee funds within time limit. The current property owner may apply for a refund of development impact fees paid by an applicant if the Town has failed to use or appropriate the development impact fees collected from the applicant within the time limits established in § 52-10B unless such funds are used or appropriated in accordance with § 52-10C of this article.
Abandonment of development after initiation of construction. An applicant who has paid a development impact fee for a new development for which a building permit or zoning certificate has been issued and pursuant to which construction has been initiated, but which construction is abandoned prior to completion and issuance of a certificate of occupancy, shall not be eligible for a refund unless the uncompleted building is completely demolished.
Administrative fee. An administrative fee of 2%, not to exceed $500, shall be deducted from the amount of any refund granted and shall be retained by the Town to defray the administrative expenses associated with the processing of a refund application.
Refund application procedures.
Applications for a refund shall be made in writing and shall include specific amounts claimed from particular development impact fee categories and all other information required below.
Upon receipt of a complete application for a refund, the Zoning Administrator shall review the application and documentary evidence submitted by the Applicant as well as such other information as the Zoning Administrator may request, and shall make a written determination whether a refund is due.
Following an affirmative determination, the Zoning Administrator shall notify the Clerk-Treasurer, who shall issue a refund from the appropriate development impact fee account. In calculating the amount of a refund, the Zoning Administrator and Clerk-Treasurer shall not include any interest.
Applications for refunds due to abandonment of a new development prior to completion or due to expiration or revocation of a building permit or zoning certificate shall be made within 60 days following expiration or revocation of the building permit or zoning certificate. The applicant shall submit:
Applications for refunds due to the failure of the Town to appropriate, expend, or encumber development impact fees within the time limits established in § 59-10 of this article shall be made by the current property owner(s) in writing and shall be made within 180 days of the expiration of such time limit. If a portion of the impact fees collected have been appropriated, expended, or encumbered before the date of application, any refund to eligible property owners shall be distributed on a pro rata basis. The refund applicant shall submit:
Evidence that the refund applicant is the property owner or the authorized agent of the property owner;
The amount of the development impact fees paid by public facility category and receipts evidencing such payments; and
Forfeiture of refund. Failure to apply for a refund within the deadlines set forth in this section shall constitute a forfeiture of any fees available for refund to the property owner or applicant.
Method of refund payment. The Town may, at its option, make refunds of development impact fees by direct payment, by offsetting such refunds against other development impact fees due from the applicant or property owner for the same category of public facilities for new development on the same property, or by other means subject to agreement with the applicant or property owner.
Residential and nonresidential development impact fees shall be paid as required by this article in the amounts set forth in the schedule attached as Exhibit A, which shall be available at the Town Office. The Council may amend the schedule of fees from time to time by ordinance.
[Adopted 11-1-1993 by Ord. No. 320]
The Town will follow the FCC Rate Regulations in its regulation of the basic service rates and charges of the company and any other cable television system operating in the Town, as prescribed in the Report and Order in the Matter of Implementation of Sections of Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, MM Docket 92-266, FCC 93-177 (released May 3, 1993) [hereinafter the "FCC Rate Regulations"]; notwithstanding any different or inconsistent provisions in the franchise. In connection with such regulation, the Town will ensure a reasonable opportunity for consideration of the views of interested parties.
The Mayor, or his or her designee, is authorized to execute on behalf of the Town and file with the FCC such certification forms or other instruments as are now or may hereafter be required by the FCC Rate Regulations in order to enable the Town to regulate basic service rates and charges.